The National Labor Relations Board (“NLRB” or “Board”) this week confirmed that the Wright Line standard remains binding precedent for employers navigating discipline of employees for offensive conduct during otherwise protected Section 7 activity. This case brings to a close—at least for now—a years-long tug-of-war between the Board and the U.S. Court of Appeals for the Fifth Circuit over what legal standard governs.
The Lion Elastomers III decision is welcomed by employers who have struggled to reconcile the Board’s high tolerance for offensive employee outbursts in the workplace with federal anti-discrimination laws.
Procedural History
Lion Elastomers I
The case traces back to Lion Elastomers I, 369 NLRB No. 88 (2020), where the key legal question was whether the employee had lost the Act’s protection through his conduct at a safety meeting. There, the Board applied the longstanding Atlantic Steel framework, which considers four setting-specific factors: (1) the place of the… Read the complete article here...
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