In a decision that will impact employers’ ability to enforce civility and professional conduct rules in the workplace, the National Labor Relations Board (“NLRB” or the “Board”) released a decision in Lion Elastomers LLC II, 372 NLRB No. 88 (2023), that has profound implications for both employers and employees. The underlying facts involved an employee who was disciplined and dismissed after a heated exchange with managers allegedly concerning working conditions. In its decision, the NLRB determined that the employee’s conduct was protected conduct and the Company was barred by the National Labor
Relations Act from taking adverse employment action against the employee on that basis. The result of the decision is that employees engaged in workplace activism and union-related activity will have significantly greater legal protection, even when such activism involves profane, harassing, or vulgar conduct. Employers contemplating disciplinary action will need to be mindful of yet another basis of “protected activity” in their analysis.