Racist, Sexist, and Threatening Behavior Is Fine in the Workplace as Long as You Connect It to Union Activity

National Law Review: On Monday, the National Labor Relations Board (the “Board” or “NLRB”), with a majority of appointees by President Biden, i.e., “the Biden-Board,” reversed the short-lived General Motors LLC, 369 NLRB No. 127 (2020) decision and reinstated the Atlantic Steel test for analyzing whether an employee’s grossly unprofessional conduct when engaging in union or other protected concerted activity loses the protection of the National Labor Relations Act (“Act”). The Board issued Lion Elastomers, LLC, 372 NLRB No. 83 (2023) and reinstated Atlantic Steel 245 NLRB 814 (1979) and its progeny, making it more difficult for employers to discipline employees who engage in outrageous, otherwise inappropriate, speech and/or actions in the course of engaging in union or other protected concerted activity.

These Atlantic Steel cases arise in situations in which an employee engages in union activity or other Section 7 concerted protected activity, such as advocating for a change in workplace conditions, but goes about this activity in a manner so outrageous that the employer disciplines or terminates the employee for their inappropriate conduct. Under Atlantic Steel, if the NLRB can establish that an employer disciplined an employee for misconduct that occurred while the employee was engaged in protected union or other concerted activity, the only question is whether the employee’s conduct was so egregious that it loses the protection of the Act—it does not matter that the employer would have taken the same action against other similarly situated employees not engaged in union activity or that the employer’s actions were carried out with good faith. In determining whether an employee’s outburst loses the protection of the Act, the Board considers (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.

For example, in 2015, in Pier Sixty, 362 NLRB 505, 506-508 (2015), an employee posted a public update on his Facebook page saying his manager was, “…such a NASTY MOTHER F[****]ER don’t know how to talk to people!!!!!! F[***] his mother and his entire f[***]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!” [Note from the authors: The employee at issue in Pier Sixty did not self-censor.] Under the Board’s Atlantic Steel test, the Board held that because the employee was advocating for the union (by writing “Vote yes for the Union”) the employer could not terminate the employee for his Facebook post. The Board reasoned that calling the manager a “nasty mother f[***]er” was just part of the employee’s colorful language when advocating for the union and was thus not so egregious as to lose the protection of the Act.

In another infamous example, Longview Furniture Co, 100 NLRB 301 (1952), the Board ordered an Employer to reinstate an employee who stood on the picket line yelling racial epithets at supervisors and other employees who crossed the picket line.  MORE