On Monday, the National Labor Relations Board (“Board”) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of protected activity under Section 7 of the National Labor Relations Act (the “Act”).  In Lion Elastomers, 372 NLRB No. 83 (2023), the Board—reasoning that a “fundamental difference” exists between “employee misconduct committed during Section 7 activity and misconduct during ordinary work”—overturned recent Board precedent from the previous administration and reinstated the use of a trio of context-specific standards for determining whether an employer violates the Act by disciplining an employee for abusive conduct occurring in three specific settings: (1) in employee conversations or interactions with management in the workplace; (2) in employee social-media posts (and in most employee workplace discussions among co-workers); and (3) on picket lines.  As will be seen, the first two settings are particularly problematic.


Just a few years ago (as we covered at the time), in General Motors, 369 NLRB No. 127 (2020), the Board rejected the use of these same context-specific standards in the strongest of terms—explaining that “setting-specific standards” not only had “failed to yield predictable, equitable results,” but also, in some cases had “conflicted alarmingly with employers’ obligations under federal, state, and local antidiscrimination laws.”  Accordingly, the Board replaced the use of context-specific standards with a uniform standard traditionally used to assess whether an employer’s conduct is discriminatory under the Act—the burden-shifting Wright Line standard—which is conceptually similar to the standard used to evaluate discrimination claims and generally turns on whether an employer would have taken the same challenged action in the absence of the employee’s protected activity.  The Board explained that the Wright Line standard “promises more reliable, less arbitrary, and more equitable treatment of abusive conduct,” while still “ensur[ing] that employees’ Section 7 rights continue to be protected.”

The Return Of Context-Specific Standards

As noted earlier, prior to its July 2020 General Motors decision, the Board employed context-specific standards for determining whether an employer violated the Act by disciplining an employee for abusive conduct arising in three specific settings.  With its Lion Elastomers decision, the Board has restored the law to its pre-General Motors state, re-adopting the context-specific framework in which it determines whether abusive conduct is severe enough to lose the protection of the Act by applying one of the following tests, depending on the context of the activity at issue:

  1. The Atlantic Steel test—which is used when abusive conduct occurs in the course of otherwise-protected workplace conversations with management—and 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.
  2. The totality of the circumstances test, which is used when abusive conduct takes place on social media or in workplace discussions among coworkers.
  3. The Clear Pine Moldings test, which is used when the abusive conduct takes place on the picket line.  Under this test, an employee loses the Act’s protection where “the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercises of rights protected under the Act.”


Board precedent over the years has found protected a number of outbursts that would not be tolerated in any other setting.  The latest in a string of precedent-reversing decisions, the Board’s decision here in Lion Elastomers—which applies retroactively to all “abusive conduct” cases currently pending—re-establishes an exemption under Atlantic Steel for otherwise-sanctionable employee outbursts when the conduct is bound-up in Section 7 protected activity, making it tougher for employers to predict the consequences of disciplining employees in such situations.  (And, as we have previously noted, the application of the Atlantic Steel test has led to some strange results.)

Said differently, by once again evaluating employee conduct with different standards—based on whether the employee’s outburst is bound up with Section 7 activity—Lion Elastomers makes it harder for employers to evaluate the risk of imposing discipline.  Worse still, however—as Member Kaplan emphasized in his dissent—is that the decision could result in employers being required “to continue to employ individuals who have engaged in such abusive conduct any reasonable employer would have terminated them for that conduct.”

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.