NLRB reverses its approach to abusive conduct by employees

The NLRB has begun under recent Presidential Administrations to swing back and forth on the test applicable to “abusive conduct” by an employee. When the Board has leaned more towards employer rights, it has, in such situations, looked primarily at the employer’s motive for disciplining-discharging an employee who curses, yells, or otherwise engages in “abusive conduct”: Was the employer’s decision to discipline-discharge motivated by the employee’s “abusive conduct” or was it a pretext for firing the employee because she engaged in NLRA protected activity? The employer bears the burden of proving the first part of that test — that its motivating factor was the legitimate business reason — then, if the employer meets that burden, the burden shifts to prove pretext. This is called the Wright Line test.

When the Board leans more towards employee rights, it has instead focused on the employee’s conduct and asked whether it warranted discharge, in doing so the Board considers three factors: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.” This is called the Atlantic Steel test.

In a recent decision titled Lion Elastomers, LLC, the Board announced it will shift back to the Atlantic Steel test.

Readers should note that the Board’s approach to abusive conduct is also dependent on the context of the alleged misconduct. This is its test for cases involving employees engaging in abusive conduct in the workplace towards management. The Board has different tests for other contexts, including specific tests for abusive conduct as part of social media posts and conversations between employees in the workplace as well as for abusive conduct as part of picketing.

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