The NLRB Restores Burden Shifting Analysis for Disciplinary Action Aimed at Employee Misconduct, During Protected Activity
John Agbonika, Associate
On September 23, 2026, the National Labor Relations Board (the “NLRB” or the “Board”) issued its decision in Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026),[1] returning to the Wright Line burden-shifting test,[2] which shifts the Board’s consideration from looking at specific situations when an employee engages in abusive conduct while also engaging in protective activity, to a burden shifting analysis where the Board shows the employer’s disciplinary decision was based upon anti-union animus and the burden then shifts to the employer to show it would have taken the same action regardless of whether the employer engage in protected activity.
Background
Section 7 of the National Labor Relations Act (“NLRA” or “Act”) gives employees the right to organize, bargain collectively, and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.[3] Although, employers cannot interfere with those rights or discipline employees for exercising them, employees can lose these legal protections by engaging in abusive conduct, such as using profanity, issuing threats or leveling sexual and racial slurs. [4] The critical question is which test the Board uses to determine when an employee’s abusive conduct strips the employee of the Act’s protections.
For decades, the NLRB applied the “setting-specific” tests to determine whether an employee’s abusive conduct in connection with union or other protected activity, was severe enough to forfeit protection. Under the setting-specific test, the Board considers three tests including (1) outbursts toward management, (2) social media posts and coworker conversations, and (3) picket-line misconduct.[5] Each test gave employees wide latitude, on the premise that labor disputes are often heated[6] and protected such conduct as a pre-election Facebook post calling a manager a “NASTY MOTHER F[…]” and cursing his family;[7] and a picketer’s racist taunts at replacement workers.[8]
In 2020, General Motors replaced the “setting-specific” tests with the Wright Line[9] framework, which requires the NLRB to first show (1) the employee engaged in protected activity under Section 7 of the NLRA, (2) the employer knew about the protected activity, and (3) the employer harbored animus toward the protected activity.[10] The employer then avoids liability by proving it would have taken the same action absent the protected activity.[11] The Board reasoned that the switch to the Wright Line framework was necessary as the previous tests produced unpredictable outcomes and in some cases, conflicted with employers’ obligations under federal, state and local antidiscrimination laws.[12] For example, the employee’s racist taunts against the picketers, as discussed above, may have survived scrutiny under the Act, but likely violated the employer’s anti-discrimination and/or harassment policy.
Lion Elastomers III
The Board returns to the Wright Line Test after a series of Fifth Circuit cases, which ultimately found that Wright Line was the current law to apply to cases involving abusive conduct.[13]
Employer Considerations
The Board’s return to the Wright Line standard favors employers and gives them more leeway to correct and/or discipline employee misconduct occurring while employees engage in protected activity. However, employers should ensure that any disciplinary action in those circumstances tracks the discipline it metes out to employees for comparable misconduct absent protected activity. This is important because the Board prevails under the Wright Line framework where employer animus towards the protected activity drove the disciplinary decision if the employer cannot prove it would have acted the same way regardless of the protected activity.
Campbell Litigation will continue to track any developments in this matter after further proceedings by the administrative law judge on remand.
[1] Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026) (hereinafter, “Lion Elastomers III”)
[2] General Motors LLC, 369 NLRB No. 127, 2020 WL 4193017, at *1 (July 21, 2020) (hereinafter, “General Motors”)
[3] 29 U.S.C. § 157
[4] 29 U.S.C. §§ 158(a)(1), (3)
[5] See General Motors, 2020 WL 4193017, at *1, citing to Atlantic Steel Co., 245 NLRB 814, 816 (1979) (four-factor test considering location, subject of discussion, nature of outburst and whether employer’s unfair practices provoked outburst); Desert Springs Hospital Medical Center, 363 NLRB No. 185, slip op. at 1 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB 505, 506 (2015) (totality of the circumstances for social media and employee conversations); and Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984) (for picket line cases, asking whether nonstrikers reasonably would have been coerced or intimidated by the abusive conduct).
[6] See Lion Elastomers LLC, 372 NLRB No. 83, slip op. at *4, 7 (2023) (“Lion Elastomers II”); Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 58 (1966) (Labor disputes are “ordinarily heated affairs.”); NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965) (Employee’s right to engage in protected activity “may permit some leeway for impulsive behavior.”)
[7] Pier Sixty, LLC, 362 NLRB 505, slip op. at *505, 508 (2015)
[8] Cooper Tire & Rubber Co., 363 NLRB 1952, 1958 (2016) (Profane or threatening conduct on the picket line is protected, so long as “unaccompanied by an overt or indirect threat” of violence.”).
[9] Wright Line, 251 NLRB 1083 (1980), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
[10] General Motors, 2020 WL 4193017, at *2
[11] Id.
[12] Id. at *1; see id. at *11 (The Board’s setting-specific standards are “wholly indifferent to employers’ legal obligations to prevent hostile work environments on the basis of protected traits.”).
[13] Lion Elastomers III, slip op. at *1.