If your business has ever considered disciplining an employee whose conduct crossed a line during a union meeting or group complaint, the rules governing that decision have changed again. In a decision issued on September 23, 2026, the National Labor Relations Board (NLRB) announced it is returning to its 2020 General Motors standard for evaluating discipline of employees for misconduct that occurs during activity protected by the National Labor Relations Act (NLRA). Understanding how this standard has evolved helps explain what employers can, and cannot, do today.
The NLRA protects employees’ rights to engage in union-related and other “concerted” activity, including discussing or raising concerns about pay, benefits, safety, or other terms and conditions of employment. For years, if an employee became abusive while engaging in that activity, the NLRB relied on setting-specific tests, most notably the Atlantic Steel test, which weighed four factors: where the discussion occurred, its subject matter, the nature of the employee’s outburst, and whether the employer provoked it with an unfair labor practice.
For employers, this approach created real uncertainty. An employee’s profane or insubordinate conduct could remain protected if it happened in the “right” setting or was sparked by a perceived workplace wrong, and taking adverse action against them could be considered an unfair labor practice. Even well-intentioned discipline for genuinely offensive behavior could be second-guessed, leaving managers unsure where the line was and what misconduct could be disciplined.
In its 2020 General Motors decision, the NLRB discarded those setting-specific tests and applied the Wright Line burden-shifting framework. The question became why the employer acted, not where or how the outburst occurred. The NLRB’s General Counsel first had to prove that the employee engaged in protected activity and that it was a motivating factor in the discipline. If so, the employer could still prevail by showing it would have taken the same action against the employee even absent the protected activity.
This shift gave employers considerably more room to enforce civility and conduct rules. An employer that consistently disciplined abusive behavior, regardless of whether it arose during protected activity, had a clear path to defending its decision.
In May 2023, a Biden-era NLRB overruled General Motors and began re-applying Atlantic Steel. Employers again faced the prospect that offensive conduct occurring during protected activity could be shielded, and that discipline grounded in neutral conduct policies might nonetheless be found unlawful based on context.
Following a 2024 ruling from the U.S. Court of Appeals for the Fifth Circuit that held the Biden-era NLRB exceeded its authority in overturning General Motors, the current NLRB, now with a Republican majority, issued a ruling in late September 2026, declaring General Motors the governing standard for future cases. Once again, the central inquiry is motive. Employers that apply conduct rules evenhandedly are better positioned to defend discipline, even when the employee’s misconduct occurs during protected activity.
But this is not a license to discipline employees for union or concerted activity. Employers still must prove they would have acted the same way regardless, which makes consistent enforcement and clear documentation essential. And the standard may not be settled. Biden appointee dissented in part, calling the majority’s move arbitrary and capricious under the Administrative Procedure Act. His dissent signals that the rule could shift again as the NLRB’s composition changes.
Given how often this standard has changed, now is the time to confirm that your conduct policies, disciplinary procedures, and manager training are consistent and well documented. If you have not recently had your policies and disciplinary processes evaluated, we encourage you to consult with competent labor and employment counsel. If you have questions or want to ensure your workplace rules strike the right balance, please contact one of our labor and employment attorneys to discuss a review and, if needed, an update to your employee handbook and disciplinary practices.
