NLRB Restores Employer Leeway to Discipline for Abusive Behavior in Union Activities, Reinstating General Motors Standard
The National Labor Relations Board (NLRB) has reinstated the General Motors decision approach, providing employers with more flexibility to discipline employees for abusive or offensive conduct, even when linked to union or other protected activities. This shift, announced in the Board's latest Lion Elastomers decision, requires the General Counsel to demonstrate discriminatory motivation against protected conduct when an employer disciplines or discharges an employee for abusive behavior. This restored standard replaces a previous patchwork of misconduct standards with a single discrimination framework. Historically, the Board had excused increasingly egregious conduct under Section 7 protections, including verbal abuse and physical altercations, even when such actions violated anti-harassment and anti-discrimination policies. The return to the General Motors standard means that the central question in such cases will be whether the employer acted due to the employee's protected activity or because of the...
