Takeaways

• The National Labor Relations Board has returned to the burden-shifting standard for determining whether employees lose National Labor Relations Act protection for misconduct during Section 7 protected activity.
• Under the restored test, the Board general counsel must prove, by a preponderance of evidence, that employees engaged in union or protected concerted activity, the employer knew of that activity, and antiunion animus was a motivating factor in the adverse action.
• If the general counsel satisfies the initial burden, the employer must prove that it would have taken the same disciplinary action absent the employee’s protect activity.
• Employers’ consistent policy enforcement and thorough documentation continue to be important in defending employee disciplinary decisions.

Related links

• Lion Elastomers LLC (2026)

Article

The National Labor Relations Board (NLRB) restored the burden-shifting standard in General Motors LLC, 369 NLRB No. 127 (2020), as the test for determining 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, and protected concerted activity during a meeting with management. Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026).

Under the revived 2020 standard, the NLRB general counsel (GC) must prove, by a preponderance of evidence, that:

• Employees engaged in union or protected concerted activity;
• The...

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