When Abusive or Hostile Conduct May Cost Employees NLRA Protection

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The National Labor Relations Board (NLRB), through a recent decision, has clarified the current test for when an employee loses protection under the National Labor Relations Act (NLRA) because he or she engages in abusive or hostile conduct. As a result, General Motors LLC, 369 N.L.R.B. No. 127 (July 21, 2020) is now once again affirmatively the operative Board standard for deciding whether an employee otherwise engaged in Section 7 activity loses NLRA protection because of abusive, profane, discriminatory, threatening, or hostile conduct.

In Lion Elastomers LLC, 375 N.L.R.B. No. 41 (Sept. 23, 2026), the Board remanded a long-running dispute back to an administrative law judge to evaluate the conduct at issue using the test outlined in General Motors. The Board’s order followed Lion Elastomers LLC v. NLRB, 108 F.4th 252 (5th Cir. 2024), where the Fifth Circuit vacated the Board’s prior 2023 ruling in the matter that tried to use Lion Elastomers to overrule General Motors, a Board decision that was issued after the proceedings in Lion Elastomers began. The Fifth Circuit found that the Board exceeded the scope of the court’s remand in attempting to do so.

Section 7 protects employees’ rights to self-organization, union assistance, collective bargaining, and other concerted activities for collective bargaining or mutual aid or protection. However, neither the statute nor Board precedent gives employees a free pass to engage in misconduct merely because it occurs in the same conversation, meeting, picket line, or online exchange as protected activity. The Supreme Court recognized in NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984), that concerted activity can be so abusive that it loses Section 7 protection. That is why the most recent Lion Elastomers decision is best understood as an employer-friendly reset: the Board must analyze discipline for abusive conduct through a motive-based discrimination framework rather than automatically giving special solicitude to the location or labor-relations context of the outburst.

In General Motors, the Board abandoned a patchwork of setting-specific tests and adopted the familiar burden-shifting test from Wright Line, Inc., 251 N.L.R.B. 1083 (1980) to govern abusive and hostile conduct. Before General Motors, workplace outbursts were often evaluated under Atlantic Steel Co., 245 N.L.R.B. 814 (1979), while social media and workplace coworker conversations were evaluated under a “totality-of-the-circumstances” approach. In addition, picket-line conduct was governed under a separate picket-line standard outlined in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984). General Motors replaced those separate frameworks with the burden-shifting framework applied in Wright Line. Under Wright Line, the NLRB General Counsel must show that the employee engaged in Section 7 activity, the employer knew of that activity, and the employer had animus against it, supported by evidence sufficient to establish a causal relationship between the discipline and the protected activity. If the General Counsel satisfies that initial burden, the employer may avoid liability by proving it would have taken the same action even absent the Section 7 activity. This standard still allows the NLRB General Counsel to show that the legitimate justification stated by the employer is pretextual.

The reversion back to General Motors is important because the inquiry is not simply whether the employee’s conduct was egregious under a special labor-law tolerance standard. The Board instead asks whether the employer disciplined the employee because of protected concerted activity or because of unprotected misconduct. This framework provides employers with a better opportunity to provide legitimate justifications for actions taken in the face of workplace or work-related conduct that violates company policies, regardless of any content that may implicate the NLRA. Constellium Rolled Products Ravenswood, LLC v. NLRB, 45 F.4th 234 (D.C. Cir. 2022) provides a word of caution, however. There, the D.C. Circuit found that, even under General Motors, unequal application of facially-neutral workplace policies can give rise to liability for NLRA violations, especially where the employer tolerates the conduct at issue in other contexts. Therefore, Employers still need clear rules, consistent enforcement, careful documentation, and a clear separation between the protected subject matter of the conduct and the independently unacceptable manner in which the employee acted.

The September 2026 Lion Elastomers decision also should not be read as the end of the issue. The Board appeared to apply General Motors because of the Fifth Circuit’s mandate and the law-of-the-case posture, not necessarily because all current Board members agree with General Motors as a matter of policy. That leaves open the possibility that the Board may revisit the standard if the issue is presented in another case.

The practical takeaways for employers are straightforward. Supervisors and Human Resources personnel should not assume that hostile, profane, or offensive conduct automatically loses NLRA protection. The Board will examine whether the stated reason for discipline is genuine, consistently applied, and supported by comparators, policy history, and contemporaneous documentation. Employers should continue enforcing anti-harassment, anti-discrimination, workplace violence, civility, and social media policies, but they should pay close attention to whether similar misconduct has been tolerated when no union activity or other protected concerted activity was involved.

Employers should also pay close attention to social media cases. Under General Motors, online posts will be evaluated under Wright Line, with key evidence including the rule violated, treatment of comparable online misconduct, decisionmaker knowledge of protected activity, and whether the employer can prove it would have imposed the same discipline regardless of protected content. The safest course, in all circumstances, is to document the legitimate business reason for discipline, identify comparable prior enforcement, save or record the offensive post or communication, and train managers not to react to the labor-related message itself, but rather to evaluate whether the employee’s whole manner and content of communication independently violates neutral and consistently enforced workplace rules.