## Facts

- Lion Elastomers LLC operates a synthetic rubber manufacturing facility in Port Neches, Texas, with a bargaining unit represented by United Steelworkers, Local 228.
- Joseph Colone, a bargaining-unit employee and union representative, raised safety and working-condition concerns at a mandatory July 12, 2017 safety meeting.
- During the meeting, Colone’s remarks became heated and were characterized by the employer as an aggressive, insubordinate outburst toward management.
- After the meeting, Lion threatened Colone with discharge, disciplined him on July 20, 2017, and discharged him on June 8, 2018.
- An ALJ and the Board previously found the employer’s actions were motivated by Colone’s protected concerted and union activity and that his conduct at the meeting did not lose statutory protection under the Atlantic Steel framework.
- While judicial review of the 2020 Board order was pending, the Board decided General Motors (2020), replacing prior setting-specific misconduct standards with a Wright Line causation approach for “abusive conduct” during protected activity.
- On remand, the Board reconsidered the applicable legal standard and whether the prior order should stand.

## Issues

1. Whether alleged abusive conduct occurring during otherwise protected Section 7 activity should be evaluated under a uniform Wright Line causation framework or under setting-specific standards such as Atlantic Steel, Clear Pine Mouldings, and a totality-of-the-circumstances approach.
2. Whether, under the proper standard, Lion’s threat, discipline, and discharge of Colone violated NLRA §§ 8(a)(1) and 8(a)(3).

## Decision

- The Board overruled General Motors LLC, 369 NLRB No. 127 (2020).
- The Board reinstated prior setting-specific standards for determining when misconduct during protected activity causes an employee to lose NLRA protection:
  - Atlantic Steel for workplace outbursts toward management,
  - totality of the circumstances for social media and most coworker/workplace conversations, and
  - Clear Pine Mouldings for picket-line conduct.
- Applying the restored approach, the Board reaffirmed its prior order that:
  - Lion violated § 8(a)(1) by threatening Colone with discharge, and
  - Lion violated §§ 8(a)(3) and 8(a)(1) by disciplining and discharging Colone because of his protected union and concerted activity.
- The Board concluded Colone’s meeting conduct, though intemperate, remained protected under § 7 when assessed in context.
- Member Kaplan dissented, favoring General Motors and the Wright Line approach and arguing that the remand posture did not justify overruling General Motors.

## Legal Principles

- Misconduct occurring in the course of otherwise protected Section 7 activity is first evaluated under context-specific protection standards to decide whether the conduct remains protected; this protection inquiry is distinct from employer-motive analysis.
- Atlantic Steel governs whether workplace outbursts toward management during protected activity retain protection, considering the setting and context (including location, subject matter, nature of the outburst, and provocation).
- Clear Pine Mouldings governs whether picket-line misconduct loses protection, focusing on whether conduct reasonably tends to coerce or intimidate.
- A totality-of-the-circumstances approach governs many cases involving social media posts and employee-to-employee conversations tied to protected activity.
- If conduct remains protected under the applicable setting-specific standard, employer threats or discipline imposed because of that protected activity violate NLRA §§ 8(a)(1) and, when discriminatory in connection with union activity, § 8(a)(3).

## Conclusion

The Board rejected a uniform Wright Line framework for abusive conduct during protected activity, restored setting-specific protection tests, and reaffirmed that Lion unlawfully threatened, disciplined, and discharged a union representative for protected safety-related advocacy that remained within Section 7 protection when assessed in context.


Lion Elastomers LLC & United Steelworkers, Loc. 228, 372 N.L.R.B. No. 83 (2023)