The Board correspondingly held that employers could respond to such misconduct, assuming there was no evidence of discriminatory motivation or treatment for the Section 7 activity, under the Wright Line analysis, which asks whether the employer had treated similar misconduct the same way. Under the 2020 General Motors decision, the NLRB explained that employees could exercise their full spectrum of NLRA rights without engaging in abusive misconduct, or making profane, discriminatory, or harassing statements. In response to concerns that the Lion Elastomers decision could be an impediment to maintaining workplace civility, as well as a potential source of conflict between the NLRA and federal and state equal employment opportunity laws, the NLRB majority remarked that employers rarely have a legitimate interest to discipline or restrict Section 7 activity to meet those obligations.
between employee misconduct committed during Section 7 activity and misconduct during ordinary work.” Lion Elastomers, the Board said, “ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the act, by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.” The Board majority explained that “there is a fundamental difference. 127 (2020), and reinstated the setting-specific standards for assessing employer responses to “abusive conduct” by employees during their Section 7 activities. The decision overruled General Motors LLC, 369 NLRB No. The National Labor Relations Board (NLRB or the Board) issued its decision in Lion Elastomers, 372 NLRB No. The National Labor Relations Board’s recent decision in Lion Elastomers reinstated setting-specific standards to assess how employers respond to employee misconduct, including potentially profane, discriminatory, and harassing statements, thereby reopening competing statutory demands for employers between the National Labor Relations Act and equal opportunity employment requirements.
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