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In late September, the National Labor Relations Board (NLRB) restored an agency standard addressing abusive conduct during protected activities. Specifically, it clarified whether employees lose the National Labor Relations Act’s (NLRA) protection because of abusive conduct while engaging in a protected strike, protected concerted activity on social media, or protected concerted activity during a meeting with management. According to the agency, abusive conduct can include abusive, profane, sexist, or racist outbursts from employees during the course of protected activity. Previously, in May 2026, the NLRB announced the bulk transfer of thousands of labor practice cases to address the agency’s backlog of cases pending in various NLRB Regional Offices since January 7th, 2026.
What Is the National Labor Relations Board (NLRB)?
The NLRB is an independent federal agency created in 1935. Specifically, the agency can safeguard employees’ rights to:
- organize,
- engage with one another to seek better working conditions,
- choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or
- refrain from doing so.
Additionally, the NLRB prevents and remedies unfair labor practices committed by private-sector employers and unions. It also conducts secret-ballot elections regarding union representation. It consists of a five-person Board and the NLRB General Counsel. The President and the United States Senate appoint and confirm the Board Members and the General Counsel. Markedly, the NLRB and the General Counsel operate under the previously mentioned NLRA, specifically Section 7 of that regulation.
Employee Rights Under Section 7 of the NLRA
According to the NLRA, both union and non-union employees have the right to engage in concerted activity in which two or more employees act for their mutual aid regarding the terms and conditions of their employment. Examples of such concerted activity include:
- talking about wages and benefits;
- petitioning for better hours;
- concerted refusal to work amidst unmitigated workplace safety hazards; and
- talking with the employer, government agency, or the media about problems in the workplace.
Under Section 7, employers may not interfere with, restrain, or coerce employees in exercising their rights under the NLRA. For example, the NLRA protects employees from adverse employment action for engaging in protected concerted activity.
What Was Behind This Latest NLRB Decision?
In general, Lion Elastomers III, 375 NLRB No. 41 (2026), was the latest case that the Board decided. In this instance, it needed to address and rule on which legal standard applies when determining whether an employee's abusive conduct during otherwise protected activity costs the employee NLRA protections.
Earlier, in 2020, the NLRB issued General Motors LLC, 369 NLRB No. 127 (2020), which replaced setting-specific standards with what the Board called a “burden-shifting” framework. Instead of evaluating all abusive conduct under Section 7, the burden-shifting analysis allowed evaluation of abusive conduct independently of any Section 7 activity. However, the NLRB General Counsel must prove that:
- employees engaged in union or protected concerted activity,
- the employer knew of that activity, and
- anti-union animus was a motivating factor in the adverse action.
After the General Counsel proves all of the above, the employer must then prove it would have taken the same action if the employee had not participated in protected activity.
Three years later, in 2023, the then-NLRB overruled the General Motors decision and restored previous tests and factors to determine whether abusive conduct fell under Section 7 protections.
Overview of the Board’s Current Decision
Presently, in a 3–1 decision, the current NLRB has declared that General Motors "constitutes extant Board precedent" and that the prior attempt to overrule it "did not survive judicial vacatur." As a result, the General Motors standard has been reissued and can and probably will be used in future decisions. The Lion Elastomers III case has now been assigned to an administrative law judge for further proceedings under the General Motors standard.
Employer Takeaways
In conclusion, this latest version of the NLRB wants employers to remain careful when disciplining employees involved in protected activity; however, employers can correct abusive conduct that would normally not be tolerated in the workplace during everyday functions without fear of violating Section 7 of the NLRB. Employers should review all workplace policies addressing abusive conduct and apply disciplinary action consistently.
WorkWise Compliance now offers monthly and annual compliance plans to help businesses address their legal obligations, including virtual consulting services on important labor law compliance topics. These services can help affected businesses address current and proposed NLRB regulations on proper labor practices.
