In September, the National Labor Relations Board (NLRB) added another chapter to a long-running tug-of-war: When can an employer discipline a worker who blows up at management (sometimes with profanity) while also engaging in “concerted activity” (e.g., employees banding together to raise concerns about pay, safety, or working conditions)?
NLRB Back-and-Forth
In Lion Elastomers, the employer claimed it didn’t terminate the employee for concerted activity (the employee was a long-term and active union member) but instead because he was hostile and attempting to create an intimidating environment both during and after a safety meeting.
In 2020, the NLRB first sided with the employee, ruling the firing broke the National Labor Relations Act (NLRA). To get there, the NLRB used a “context-specific” test, weighing factors like where the outburst happened, what it was about, how extreme it was, and whether the employer provoked it.
Soon after, in a separate case (General Motors), the NLRB scrapped the context-specific rule for a less employee-friendly one. Under the new burden-shifting test, the agency’s prosecutor, the NLRB’s general counsel (GC), must first show (1) the employee engaged in concerted activity, (2) the employer knew of the activity, and (3) the employer had animus against the concerted activity. If the GC is able to do so, the employer is still relieved of liability if it proves it would have taken the same action if the employee hadn’t also been engaging in concerted activity. The General Motors Board expressed concern that the context-specific standards “penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace”—a concern many employers express when grappling with employee outbursts.
Lion Elastomers was sent back to the NLRB to redecide the case under this new burden-shifting test. Instead, the Board used the do-over to throw out the new test entirely and revert to its old context-specific approach. The U.S. 5th Circuit Court of Appeals rebuked the NLRB for that move and ordered it to apply the General Motors burden-shifting test after all. So, in 2026, the case is back before the NLRB once again.
Takeaways
So where does this new decision leave things? For now, the employee in Lion Elastomers and everyone whose case comes after is subject to the burden-shifting standard. That gives employers more room, though not a blank check, to discipline workers who cross the line into abusive conduct, even when those workers are engaged in protected union or group activity. But the fight isn’t over yet; the NLRB signaled it may revisit the employer-friendly test in a future case, just not this one.
Leah Trahan is an attorney with Parsons Behle & Latimer in Missoula, Montana, and can be reached at ltrahan@parsonsbehle.com.