ULP Charge – Concerted Action – The Duane Morris Labor Blog

September 24, 2026September 24, 2026 by Elizabeth Mincer

NLRB Affirms in Precedential Decision: Wright Line Test Applies to Discipline for Offensive Conduct

If an employee is disciplined for violating company policy while the employee was engaged in otherwise protected conduct, how should the Board assess whether the discipline was lawful?

On September 23, 2026, the NLRB, in a precedential decision, clarified the test that it will apply in such situations: the traditional Wright Line test. See Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III). After years of back and forth, this decision provides clarity to employers and hopefully marks the end of the shifting standards that made it difficult to address certain misconduct in the workplace.

The Wright Line Test

The Wright Line test, established in Wright Line, Inc., 251 NLRB 1083 (1980), is the NLRB’s burden-shifting framework for determining whether an employer’s adverse action against an employee was unlawfully motivated by the employee’s union or other protected concerted activity under the Act. The General Counsel must first prove by a preponderance of the evidence that the employee engaged in protected activity, the employer knew of it, and it was a motivating factor in the adverse action. If that prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even absent the protected activity. If the employer’s justification is found to be pretextual, the Board need not consider the same-action defense and will find a violation. The Supreme Court approved the Wright Line framework in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

Relevant History

Given that the Wright Line test has been around for 45+ years, it would seem logical to apply it across a wide array of circumstances. But that has not always been so, as the Board has in a number of cases diverged from the Wright Line test and applied separate tests for certain specific types of misconduct, resulting in a hodgepodge of inconsistent standards.

These included:

1. If the employee misconduct occurred during workplace discussions with management, the Board applied the Atlantic Steel four-factor test, considering: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814 (1979).

2. If it was related to social media posts and/or conversations among employees in the workplace, the Board applied a totality-of-the-circumstances test. Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016).

3. If the misconduct was related to picket-line activities, the Board applied the Clear Pine Mouldings standard to analyze whether, under all the circumstances, the nonstrikers would have reasonably felt coerced or intimidated. Clear Pine Mouldings, 268 NLRB 1044 (1984).

These inconsistencies made it even more difficult for employers to navigate tricky disciplinary situations. And, of course, they led to inconsistencies with how the General Counsel prosecuted cases and the Board determined liability.

The Board’s 2020 General Motors Decision

In 2020, the Board decided to eliminate the application of those inconsistent standards, and to apply the traditional Wright Line test more broadly. See General Motors LLC, 369 NLRB No. 127 (2020). This precedential shift was a breath of fresh air, because it provided more predictability for employers, and also gave employers a bit more latitude to enforce civility and EEO policies.

At the time, Chairman Ring commented: “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace. […] For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

For more information on the General Motors decision, see our 2020 Client Alert.

The Lion Elastomers Saga

Of course, as it goes with the Board, this did not seem to last long. In 2023, the then Democrat-majority NLRB attempted to overturn General Motors by issuing a decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023) (Lion Elastomers II). However, that case was appealed to the Fifth Circuit, which, in 2024, vacated the Board’s Lion Elastomers II decision, and remanded the case back to the Board, again, to apply the General Motors standard (aka the Wright Line test). For more information about Lion Elastomers II, see our 2023 Client Alert.

At this point, you are probably wondering about Lion Elastomers I. Indeed a long-winding saga, the original Lion Elastomers case had been decided by the Board in 2020. The Board applied the Atlantic Steel test, and found that the employer violated the Act. The employer then appealed the decision to the Fifth Circuit.

After issuing its decision in General Motors, the Board asked the Fifth Circuit to remand the case back down, so that the Board could assess the case under General Motors/Wright Line. The court agreed. However, by the time the case had been remanded, the Board had begun flipping to Democrat-majority control.

In 2023, in another precedential decision, the Board decided not to apply General Motors, and instead to reinstate the various other inconsistent standards that had historically applied.

Of course, the employer appealed again, and it went back to the Fifth Circuit for another round. In 2024, the Fifth Circuit overturned the Board’s decision in Lion Elastomers II, finding that it both exceeded the scope of the court’s remand order and violated the employer’s Constitutional due process rights by failing to provide it with the opportunity to address whether General Motors should be overruled.

The case sat for another two years with the NLRB on remand. (The Board lacked a quorum for a year, and then lacked a 3-person majority for another year, and thus did not issue any precedential decisions.)

Now, the Board, with a 3-1 Republican majority, is able to decide significant, precedential issues, including when to apply the Wright Line test.

What This Means for Employers

For most employers, the effects will be subtle. Regardless of the legal test, employers still need to carefully assess and address situations that involve both protected activity and employee misconduct.

In general, it is and remains unlawful to discipline an employee for engaging in protected activity. Meanwhile, Section 7 of the Act encompasses a broad range of rights, including rights to engage in certain protected speech. For example, just a week prior, the Board found that a tech company unlawfully fired a software engineer who had openly criticized certain workplace policies. For more information on that case, see our Blog Post.

It can become even more complicated when an employee uses profanity or racial epithets during an aggressive tirade. For example, what if an employee complains about a female supervisor on social media, and calls her the b-word or c-word in the process? On the one hand, the speech may be protected under the Act. On the other hand, this would clearly violate an employer’s EEO policy.

While every situation is unique, the Wright Line test gives employers a bit more cover to take action. If, putting aside the protected aspect of the activity, the employer can prove that it would have taken the disciplinary action anyway, then it has a better chance of combating an unfair labor practice charge.

Given the complicated procedural history here, there could be other legal nuances at play. Stay tuned, as our labor team will do a deeper dive on this latest decision, and will update this blog post to include a link to our Client Alert that will have more analysis and examples of what employers can expect moving forward.

This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship.

September 20, 2026September 21, 2026 by Elizabeth Mincer

NLRB Finds Tech Company Violated NLRA by Firing Employee for Criticizing Workplace Policies

A Bipartisan Board Sends a Clear Message to Tech Employers: Section 7 Protections Apply in Silicon Valley, Too

On September 16, 2026, the NLRB, in a 3-0 published decision, held that Snowflake, a large California tech company, violated the Act when it terminated the employment of one of its software engineers. See Snowflake, Inc., 375 NLRB No. 39 (2026). The Board found that the employee had engaged in protected concerted activity when he complained about a new coding procedure at a group meeting. The NLRB ordered the company to offer the employee full reinstatement and to make him whole for lost earnings, benefits (which may include stock options), and all direct or foreseeable pecuniary harms resulting from his unlawful termination.

Background

The employee originally joined Snowflake in 2019 through an acquisition; he was a co-founder of the target entity and the company hired him as a senior director of engineering when they integrated. There were some issues with his performance in that management role, and he transitioned to a non-supervisory “independent contributor” position on August 3, 2020. Separately, around this time, the company introduced a new “API Change Policy” that established a code-review approval process. A number of the engineers took issue with the new policy.

Four days after the employee transitioned to the “independent contributor” role, at an August 7, 2020 company meeting attended by roughly 25 staff members—including multiple supervisors and managers—the employee raised four concerns that he said his coworkers had discussed with him: (1) the policy’s scope was unclear as to which code changes it covered; (2) having just two individuals serve as approvers could lead to biased reviews; (3) vague standards could result in lowered evaluations and bonuses for engineers who inadvertently failed to comply; and (4) requiring approval from already-overburdened senior personnel could slow the pace of work. The employee used the term “we,” implying that he was speaking on behalf of himself and others. The employee used no threats or profanity. Other engineers echoed similar concerns during the meeting.

After the meeting, there were a couple other instances where the employee pushed back against a company initiative. Ultimately, about two months after the August 7 meeting, management decided to terminate his employment because it determined that he was difficult to work with and disruptive, among other reasons. When the supervisor met with him, the supervisor allegedly said that it was “due to you creating a hostile work environment by soliciting help from your colleagues to retain your job.” The company disputed that this was part of the reason for his termination.

The Board’s Decision

The Board found that the General Counsel established a strong prima facie case under the Wright Line framework, the test that the NLRB applies in cases involving a “mixed-motive” adverse action. The Board concluded that the employee’s comments during the August 7 meeting constituted protected concerted activity under Section 7 of the Act because he complained on behalf of a group of employees and the complaints related to the terms and conditions of their employment. The Board also found that there was evidence that the August 7 comments were a basis for his discharge. This evidence included emails between high-level supervisors and an HR memo citing the employee’s comments as a reason for the separation. The Board reasoned that, even though he had previously received critical feedback about his performance, it was not until he engaged in the protected activity that the company decided to terminate his employment.

Notably, the case was decided unanimously by Chairman Murphy (R) and Members Mayer (R) and Prouty (D). This case shows that while the Board has started to recalibrate certain doctrines adopted during the prior Biden administration, it will still protect what it considers core rights to engage in concerted activity. In other words, this decision reaffirms that the right of employees to band together and bring group complaints to management’s attention is considered a foundational principle of the Act. Employers should not assume that a Board composed of a majority of Republican appointees will rule in favor of the employer in every case.

What This Means for the Tech Industry

Silicon Valley has long prided itself on a culture of open debate, rigorous discussion, and meritocracy. And yet, this decision illustrates how engagement in the kind of vocal pushback that is often encouraged in technical settings can constitute federally protected speech. Managers, particularly those who come from small or rapid-growth start-ups, may not recognize when this speech crosses from mere business disagreement into protected concerted activity.

In this case, for example, the Board rejected the company’s characterization of its API Change Policy as a “purely business/entrepreneurial decision” outside the scope of the Act. The Board found that the policy directly affected working conditions, carried implied penalties for noncompliance, and was therefore a term and condition of employment subject to Section 7 protections. By raising shared concerns about the policy and its potential effects on employees’ terms and conditions of employment, the employee was exercising his rights under the Act.

It is also worth taking note of the pivotal distinction between the employee’s status as an employee when the conduct occurred as opposed to a supervisor/manager. In this case, the employee who filed the charge had originally been a co-founder of the entity that Snowflake acquired; he went from co-founder, to supervisor, to employee, and it was as an employee that his activity was protected. (The Act only protects concerted activity by non-supervisory employees.)

These types of internal hierarchy changes are not uncommon when big companies acquire smaller ones. But, in this case, it led to an interesting dynamic, where there was an individual whom others may have still viewed as an authority figure, but who was no longer a member of management. These types of dynamics are important to keep in mind during post-acquisition integrations.

Final Takeaways

This case serves as a reminder that employers need to tread carefully when employees engage in conduct that could be protected under the NLRA.

Here are some key takeaways:

1. Ensure that your managers and HR team can recognize when an employee’s conduct may constitute protected activity. This right applies regardless of whether a union is involved, and can sometimes be difficult to identify.

2. Be careful if you are focusing on form versus substance. An employee’s right to engage in protected concerted activity typically overrides the form in which the employee communicates their opinion. This means that employees can use an aggressive tone and even profanity to communicate; if it falls under the umbrella of protected conduct, then taking adverse action can violate the Act.

3. When legitimate performance issues arise, document those concerns independently and contemporaneously. Vague references to interpersonal issues and poor teamwork may not be specific enough to defend against an allegation of retaliation (under the Act or other statutes). Employers should ensure that any adverse action is based on legitimate business justifications.

Remember that Section 7 of the Act protects all employees—not just those in traditional blue-collar or unionized settings. As the tech industry grapples with workforce concerns ranging from return-to-office mandates to AI deployment and performance evaluation metrics, employers need to stay apprised of the local, state, and federal laws that apply.

July 31, 2026July 31, 2026 by Elizabeth Mincer

NLRB Declines to Find that Bargaining Proposals Can Constitute Unlawful Threats

By: Elizabeth Mincer

On July 29, 2026, the NLRB issued its decision in Inland Waters Pollution Control, Inc., 375 NLRB No. 15, a case that, while resulting in unfair labor practice findings against the employer, contains an important and favorable clarification for management: the mere act of making a bargaining proposal at the bargaining table does not constitute an unlawful threat under Section 8(a)(1) of the Act. Employers engaged in collective bargaining should take note of this decision, which reinforces the right to propose controversial contract language at the table.

Background

The case arose from a labor dispute at Inland Waters Pollution Control, Inc., a Detroit-area sewer repair company whose hourly employees were represented by Teamsters Local 247. During successor contract negotiations in December 2020, the employer proposed adding language to the grievance and arbitration procedure that would allow it to “issue disciplinary actions against employees levying baseless, malicious or harassing grievances,” including “disciplinary steps of time off or termination for serious offenders.” During the bargaining session, the employer’s fleet manager stated the language was necessary because grievances were “just totally out of hand,” and the employer’s attorney told the union’s chief steward that his “excessive amount of grievances” was “a problem” and that he should cut down on “bulls*** grievances.” The employer later withdrew the proposal.

Separately, in April 2021, unit employees voted to reject the employer’s final contract offer and went on strike. Two employees were discharged, allegedly for engaging in union and other protected concerted activities. The ALJ found violations on all counts: two unlawful discharges under Section 8(a)(3) and an independent 8(a)(1) violation for threatening employees’ grievance-filing rights at the bargaining table.

The Board’s Decision

The Board agreed that the discharges were unlawful, applying the age-old Wright Line framework. However, in a significant win for management, Chairman Murphy and Member Mayer reversed the ALJ’s finding that the employer’s bargaining proposal and accompanying statements independently violated Section 8(a)(1). The majority noted that neither the ALJ nor any party cited a case in which the Board had previously found that merely making a bargaining proposal at the table constitutes an unlawful threat. The Board declined the former General Counsel’s invitation to expand Board law in that direction.

Critically, the Board grounded its reasoning in long-standing labor policy favoring “uninhibited, robust, and wide-open debate in labor disputes,” citing Letter Carriers v. Austin, 418 U.S. 264, 273 (1974), and the Board’s historical tolerance of “intemperate, abusive and inaccurate statements” in the context of labor disputes. The majority concluded that the General Counsel failed to prove that the statements at the bargaining table constituted an unlawful threat to discharge employees for filing grievances. Member Mayer further noted that even if the proposal, if agreed to, would have subjected employees to discipline for protected grievance-filing activities, such waivers are lawful under Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), and therefore proposing such a waiver, standing alone, is lawful.

The Dissent

Member Prouty dissented from the majority on these points. He reasoned that the employer’s statements that grievances were “just totally out of hand” and that the chief steward should cut down on “bulls*** grievances”—made in conjunction with the proposal to discipline employees for filing grievances—conveyed that the steward’s protected activity was unacceptable and could lead to discipline or discharge.

Member Prouty argued that just because it happens in the bargaining context does not immunize otherwise coercive statements, citing ExxonMobil Research & Engineering Co. and PRC Recording Co. for the proposition that the Board has repeatedly found independent 8(a)(1) violations based on statements made at the bargaining table. He characterized the employer’s proposal as “a threat cloaked in the garb of a bargaining proposal.”

Importance for Employers

This decision provides some comfort that proposing contract language at the bargaining table—even language addressing employee conduct like grievance filing—should not, standing alone, constitute an unfair labor practice. It also confirms that the rough-and-tumble of collective bargaining remains protected space for candid, even intemperate, exchanges about bargaining positions.

That said, employers should be mindful that this decision does not provide blanket protection: the majority carefully distinguished cases involving threats of retaliatory bad-faith bargaining and emphasized that an unlawful contract proposal could still be evidence of bad-faith bargaining under Section 8(a)(5), even if no such allegation was at issue here.

June 24, 2026June 24, 2026 by Elizabeth Mincer

The Cemex Rules May Be Coming to an End, as Amazon Openly Challenges Current Election Requirements

By Elizabeth Mincer

In August 2023, the NLRB’s then-Democratic majority issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), fundamentally altering the framework for union recognition and employer obligations when confronted with a union’s demand for bargaining.

Before the decision in Cemex, an employer could generally deny or ignore a request for recognition by a union. The union would then have the option of filing a petition for election. This would kickstart a formal election process, during which the Board would assess the appropriateness of the unit, among other issues, and then decide whether to order an election. The parties also could negotiate an election agreement. If an election occurred, eligible voters could cast their ballot anonymously. Under this historic framework, the onus was on the union to file the petition and to establish at least 30% support from an appropriate bargaining unit.

In Cemex, the Board overruled a 1971 case called Linden Lumber, which had long formed the basis of an employer’s right to decline or ignore demands for recognition without consequence. Under Linden Lumber, the Board’s position was that an employer did not violate the Act solely by refusing to accept evidence of majority status other than the results of a Board election. The Supreme Court upheld Linden Lumber in 1974.

Cemex created a new paradigm, whereby a union that obtains signed authorization cards from a majority of employees in an appropriate bargaining unit can present the employer with a demand for recognition. The employer then has two options: voluntarily recognize the union or promptly file an RM petition within two weeks to test the union’s majority status through a secret-ballot election. If the employer does neither, the Board will find that the employer violated Section 8(a)(5) of the Act and will issue a remedial bargaining order. Additionally, Cemex lowered the threshold for issuing bargaining orders when an employer commits unfair labor practices that frustrate a free, fair, and timely election — making bargaining orders the default remedy in such situations rather than simply directing a rerun election.

Anecdotally, many unions still decided to go the route of filing an RC petition, as the two-week RM petition deadline gave employers some additional time to campaign. However, it did mean that unions held more leverage with respect to implementing their organizing strategies. It also meant that employers who were not up-to-date on the new Cemex rules could fall into a trap of mandatory recognition; lack of knowledge of this monumental shift in the rules was not going to be an excuse.

Is Change On the Horizon?

On June 22, 2026, an ALJ issued the first decision applying the Cemex recognition-demand framework to find an unfair labor practice based solely on an employer’s failure to recognize a union or file an RM petition. The case involved one of Amazon’s facilities in California.

In 2024, the Teamsters union had allegedly collected signed authorization cards from about 66% of a group of sorting associates. The employees demanded recognition in October 2024. Amazon did not respond. The Teamsters sent a follow-up communication expressly mentioning Cemex. Amazon did not respond to that either, and did not file an RM petition.

Based on the holding in Cemex, and effectively stating that his hands were tied, the ALJ found that the employer violated Section 8(a)(5) of the Act because: (1) the Union had majority support in an appropriate unit, (2) it demanded recognition, and (3) Amazon neither recognized the union nor filed a petition.

The ALJ acknowledged that Amazon raised “salient” arguments challenging Cemex — including arguments that the new rules conflicted with Supreme Court precedent, violated the Administrative Procedure Act, and implicated the Major Questions and Non-Delegation Doctrines. However, because he was bound to follow extant Board precedent, the ALJ issued a bargaining order requiring Amazon to recognize and bargain with the Teamsters as of the date of the first request for recognition.

Amazon most certainly will appeal this decision to the Board.

Separately, addressing the other part of Cemex, the Sixth Circuit recently rejected the default bargaining-order standard. In Brown-Forman Corp. v. NLRB (March 6, 2026), the court held that the Board exceeded its adjudicatory authority in promulgating the Cemex remedial bargaining standard because it was “neither derived from the case-specific facts nor in furtherance of fashioning a remedy that resolved the parties’ dispute”. Although that holding is currently binding only in the Sixth Circuit, it signals judicial skepticism that may embolden the Board to act.

Perfect Timing for NLRB Review?

The Board currently has a 2-1 Republican majority. With three members, it has a functioning quorum, though both Republican appointees have indicated that they will not shift major precedent without at least three affirmative votes (as is tradition).

Accordingly, with only a 2-1 majority, the Board has thus far declined to overturn major Biden-era precedents. That said, the path to a full reversal for Cemex now appears close at hand. On April 13, 2026, President Trump nominated James Macy to fill the vacant third Republican seat and paired it with a renomination of Democrat David Prouty. If confirmed, the Board would have a three-member Republican majority with the votes needed to overturn Biden-era precedents. By pairing these two nominees together, confirmation is expected to go smoothly, and is likely to occur within the next several weeks.

It may take some time (perhaps more than a year) for the Board to address this specific Amazon appeal. Until then, Cemex still technically controls.

If the Board overturns Cemex, the most likely outcome is a return to the Linden Lumber standard, under which employers could reject card-based demands for recognition and insist that unions seek a secret-ballot election. Employers would no longer face a two-week deadline to file an RM petition after receiving a recognition demand.

If the Board also chooses to use this case as a vessel to overturn other aspects of Cemex, bargaining orders would likely return to the more limited Gissel standard — available only where employer misconduct is so serious as to undermine the possibility of a fair election.

However, the current uncertainty demands that employers remain cautious. Until Cemex is formally overturned, it remains binding law, and the NLRB continues to apply it. Employers outside the Sixth Circuit remain fully exposed to bargaining orders under the existing standard.

Anticipating a shift in the tides, unions will likely preemptively turn back to filing election petitions as the primary way to seek recognition. However, to the extent a union attempts to further utilize the Cemex recognition standard while it remains precedent, an employer caught in the middle of this will need to make a strategic choice: file an RM petition or wait things out in the hope that Cemex will be overturned.

Regardless, employers need to remain vigilant to underground union organizing campaigns. More and more, unions are organizing digitally and through social media, secretly collecting electronic authorization cards. Many employers are shocked when they receive the demand or petition, as they did not see it coming. An informed management team is the key to combatting these tactics, and there is no time like the present to educate front-line supervisors about the signs and risks of unionization.

We will continue to monitor the status of the Cemex standards and related developments. Follow and subscribe for timely updates as Board precedent evolves.