NLRB Returns to Common Sense: Protected Activity under the NLRA Does NOT Give Employees License to Engage in Abusive Workplace Conduct

September 24, 2026

Labor law On September 23, 2026, the National Labor Relations Board (NLRB or Board), in its decision in Lion Elastomers III, has acknowledged that its prior decision in Lion Elastomers II is no longer (and, really, never was) valid as establishing the standard by which to determine whether an employer may lawfully discipline or discharge an employee for engaging in abusive behavior, if that behavior is also tied to the employee’s protected, concerted activities (such as during a union organizing campaign, picketing, or when advocating for changes to employees’ terms and conditions of employment).

By such acknowledgement, the Board has now returned the standard to one that is more employer-friendly, and allows employers to discipline or discharge employees for their conduct (regardless if undertaken in connection with other protected concerted activity), if it would have taken the same disciplinary action absent the protected activity.

The History of Lion Elastomers and the Board’s Changing Standards

The Board’s first decision in this case (Lion Elastomers I, in 2020), found that under the precedent of its prior Atlantic Steel case, the employer violated the National Labor Relations Act (NLRA or Act), when it terminated an employee for engaging in abusive conduct, when the employee was also engaging in conduct considered “protected, concerted activity” under the Act.

Under the Atlantic Steel standard, the Board looked to a “setting-specific” analysis to determine if the employee’s conduct or outburst lost the protection of the Act, based on the following factors:

Place of the discussion/conduct (the more spontaneous, the more protected);
Subject matter of the discussion (the more it relates to terms and conditions of employment, the more protected);
Nature of the employee’s outburst (loud and boisterous behavior, including cutting off a supervisor and delivering words in an animated and challenging tone, is protected); and
Whether the outburst was, in any way, provoked by an employer’s unfair labor practice (and, even if not, still potentially protected based on the prior factors).

In Elastomers I, considering the above factors, the Board found the employee’s disruptive conduct did not lose its protected status, so the employer’s discharge of the employee violated the Act. The employer appealed the case to the federal 5^th Circuit.

While the case was on appeal at the federal 5^th Circuit, the Board (which then had a Republican-majority) issued a subsequent decision in a different case, General Motors. In General Motors, the Board overruled the Atlantic Steel standard, holding that the proper standard for evaluating whether an employer violates the Act when it disciplines or discharges an employee for engaging in disruptive/abusive conduct, even in the context of also engaging in protected activity, was to utilize the long-standing Wright Line test.

The Wright Line test has typically and historically been used to evaluate whether an employer has discriminated or retaliated against an employee for engaging in protected concerted activity. The Wright Line test involves a burden-shifting analysis, but essentially boils down to this: if an employer would have disciplined an employee over the same conduct had it not occurred within the context of Act-protected behavior, the discipline will not be found in violation of the Act.

In light of the Board’s decision in General Motors, the Board itself petitioned the 5^th Circuit to remand the Lion Elastomers case back to the NLRB “to determine whether General Motors affects the Board’s analysis in this case.”

On remand to the NLRB, however, the Board (now with a Democratic majority) pulled what the 5^th Circuit later called a “bait-and-switch.” Instead of evaluating whether the General Motors standard affected its prior decision, the Board in Lion Elastomers II (2023) instead took it upon itself to overrule General Motors and return to the Atlantic Steel standard. Under that standard, the Board again found the employer had violated the Act by discharging the employee. Not surprisingly, the employer appealed the Board’s Lion Elastomers II decision to the 5^th Circuit.

On appeal again, the 5^th Circuit found that the Board had acted outside of the stated purpose of its remand: which had been limited to the question of whether the General Motors standard affected the Board’s prior decision in Lion Elastomers I. By overruling General Motors on remand, instead of applying it, the Board had acted outside scope of the Court’s remand, and the 5^th Circuit vacated the Board’s Lion Elastomers II decision, again remanding the case back to the Board.

Now, on September 23, 2026, the Board (again with a Republican majority) has issued its decision in Lion Elastomers III. In Lion Elastomers III, the Board acknowledged that the 5^th Circuit’s decision vacated and invalidated the previous Board’s attempt to overturn General Motors. Accordingly, the Board now has found that the General Motors standard (and not the Atlantic Steel standard) is current Board law to be applied, unless and until a new case is brought before the Board where General Motors is properly overturned.

Bottom Line: For now, the return to General Motors means that the Wright Line test is currently the proper method for determining whether the discipline or discharge of an employee for abuse conduct violates the Act. Under this standard, if an employer would have disciplined the employee over the same conduct had it not occurred while the employee was also engaging in other protected concerted activity (such as challenging employer policies or practices related to terms and conditions of employment), the discipline will not be found in violation of the Act.

While this gives employers additional leeway to maintain discipline, it is still often a difficult matter to prove before the Board. Consistent, prior discipline of other employees for engaging in the same conduct outside of any protected activity, is often key evidence. If the employer has not consistently doled out similar discipline for the conduct at issue, it very likely will be found to have violated the Act when it disciplines an employee who engages in such conduct while also engaging in protected activities.