In a long-running dispute over the termination of an allegedly belligerent union steward, the National Labor Relations Board recently ordered an administrative law judge (ALJ) to apply an employer-friendly legal standard that was in effect the first time the case was appealed to the Fifth Circuit Court of Appeals. Under that standard (which we previously reported, in a case involving General Motors in 2020) the Board analyzes unfair labor practice complaints according to the traditional Wright Line standard: An employer who knowingly takes action against an employee who engaged in protected conduct under the National Labor Relations Act (NLRA) can defend itself by proving it would have taken the same action anyway, even if there was no protected activity (Lion Elastomers LLC III, NLRB, Sept. 2026).
Tips: Technically, the Board didn’t order a return to the Wright Line standard—it was just following the Fifth Circuit’s directions (for the second time!) to assess the union steward’s case in light of the 2020 General Motors decision, which relied on Wright Line. But we expect an announcement returning to Wright Line when an appropriate case comes before the current Board. That will be good news for employers who are enforcing reasonable policies against harassment and bullying, because the standard under the Biden-era Board gave employees wide latitude to use egregiously profane and abusive language as long as they were engaging in protected concerted activity under the NLRA.
Why NLRB Policy Changes Have Been Delayed Until Now
Why is this shift taking so long to happen? Even though the five-member Board regularly transitions back and forth between a majority Democrat and majority Republican composition (on a 3-2 basis) depending on Presidential appointments, it traditionally doesn’t overrule prior decisions until all three members of the majority party are in place. Due to vacancies during the first year and a half of the current Trump administration, the Board didn’t reach that full complement until August 17, 2026, as shown in this historical chart of Board members since 1935. We can now expect to see the current Board take aim at precedent-setting decisions under the Biden administration as it examines complaints through a more employer-friendly lens.
Protection for Concerted Activity Remains in Effect Under NLRA
That’s not to say that the current Board will tolerate unfair labor practices under the NLRA. Far from it. Employers who are considering disciplining employees for “insubordination” should carefully consider whether the employees were actually engaged in protected concerted activity by speaking up to address group issues related to wages, hours, or working conditions. (Caution: Before dismissing a complaint as a purely personal gripe, be aware that individual complaints related to safety are typically treated as if the employee is speaking on behalf of coworkers, because safety issues often have a wider workplace impact than a single employee. Also, depending on the topic, other laws may protect an individual employee’s complaint.)
Members, your Vigilant Law Group employment attorney can help you sort out what conduct is protected, and what warrants discipline.
