United States: NLRB Further Constrains Employers' Ability To Terminate Problem Employees

Madison County, Ill. (May 3, 2023) - On Monday, May 1, 2023, the National Labor Relations Board (NLRB) handed down a controversial decision in the collective cases of Lion Elastomers and United Steelworkers, (Case Nos. 16-CA-190681, 16-CA-203509 and 16-CA-225153), effectively hamstringing employers from terminating employees who have outbursts of temper at the workplace. The decision mandates that where the employee's outburst is related to protected activity under Section 7 of the National Labor Relations Act (NLRA), the employer may not be able to move to terminate the employee.

Context is key, the majority held, stating, "Conduct occurring during the course of protected activity must be evaluated as part of that activity — not as if it occurred separately from it and in the ordinary workplace context." The majority went on to assert that employee must be able to "robustly" exercise their Section 7 rights.

In the case, the employer issued the employee a Last Chance Agreement after it found that the employee repeatedly engaged in abusive, disrespectful, and dishonest behavior, including his use of "inflammatory and insulting language." The employee had previously been warned to conduct himself in a "civil and professional manner." The employee refused to sign the Last Chance Agreement, and later had a heated exchange with his supervisor in a safety meeting, for which he was terminated.

Potential Impact of This Decision

While the NLRA has long prohibited employers from retaliating against employees who exercise their Section 7 rights, allowing employees such leniency and requiring employers to second-guess whether the conduct may have been related to protected activity in the heat of the moment may lead to employees abusing their managers and coworkers, under the protective umbrella of Section 7.

It is easy to see how this decision could stifle management's ability to manage the workplace and protect the mental, emotional, and even physical safety of its employees. However, it must be noted that it is ultimately up to the courts – not the NLRB – to determine the limits of Section 7 protections. In fact, the United States Supreme Court will decide this term whether the deference given to agencies such as the NLRB needs to be changed. This is encouraging, given the fact that many federal courts have refused to implement regulations passed by agencies such as the NLRB and the EEOC.

In the meantime, employers should be cautious when disciplining employees for using inflammatory and insulting language, where Section 7 rights are involved.

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