Wright Line – 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.

March 30, 2026March 31, 2026 by Elizabeth Mincer

NLRB Rules in Favor of Hospital That Discharged Employee for HIPAA Violations During Union Campaign

By Elizabeth Mincer

On March 26, 2026, in a 2-1 decision, the Board held that a hospital lawfully discharged a radiology technician because the employer demonstrated that it would have terminated the employee even absent her protected union activity. See St. Anthony Community Hospital, 374 NLRB No. 77 (2026). The decision offers important guidance for employers navigating workplace investigations that involve employees who engage in union organizing.

The Facts

The employee was a long-tenured radiology technician who was also a lead union organizer. During the union organizing campaign, it was discovered that this employee had accessed a patient’s medical records without authorization and shared that patient’s medical information in violation of HIPAA.

The hospital discovered the breach through the employee’s mother-in-law. The mother-in-law was a receptionist for a chiropractor. A hospital manager, whose husband was in the hospital for medical treatment, happened to visit that chiropractor. While conducting intake for the visit, the mother-in-law mentioned to the manager that she knew the manager’s husband was in the hospital. The receptionist said that her daughter-in-law, who was an x-ray technician, had been updating her about his condition. The manager reported this to the hospital’s compliance department.

The hospital conducted an investigation, which revealed that the employee had accessed the husband’s electronic medical records, even though she had not performed any imaging on him that day. When interviewed, the employee denied disclosing any patient information and stated she could not specifically recall why she accessed the chart, offering only that doctors frequently asked technicians to pull records for patients they had not imaged. Ultimately, the hospital decided to discharge the employee for violating HIPAA policies.

**The Wright Line Standard**

The Board analyzed the discharge under the framework established in Wright Line, 251 NLRB 1083 (1980), which governs cases alleging that an employer took adverse action against an employee because of union or other protected activity.

Under Wright Line, the NLRB’s General Counsel bears the initial burden of showing that the employee engaged in protected activity, the employer knew of that activity, and the employer harbored animus against it. Once the General Counsel meets this initial burden, the framework shifts the burden to the employer to demonstrate that it would have taken the same adverse action even in the absence of the employee’s protected activity.

The employer does not necessarily have to prove the employee actually committed the alleged misconduct; it must show only that it held a reasonable belief the employee committed the offense and acted on that belief. However, the employer does need to establish that its reasons were not pretextual (i.e., false reasons or reasons not actually relied upon).

The Board Majority’s Analysis

In this case, the Board found that the hospital met its burden under Wright Line that, regardless of the employee’s union activity, it would have discharged her.

Importantly, the Board emphasized that the investigation was triggered by a manager who had no knowledge of the employee’s union activity and no apparent motivation to fabricate a complaint. Further, the hospital’s audit corroborated the complaint because it showed that the employee had, in fact, accessed the patient’s electronic file, including ICU records, and that this was outside the scope of a radiology technician’s typical duties.

Also worth noting is that the Board found the employer acted in accordance with its disciplinary practices and procedures. The employer was able to establish that it had terminated other employees for comparable HIPAA violations.

Accordingly, the Board concluded that the hospital had a reasonable belief that the employee had engaged in misconduct and that its decision to discharge her was not pretextual.

(Note: Member Prouty (D) dissented, arguing that the hospital’s investigation was inadequate, that it ignored exculpatory evidence and plausible explanations, and that the record supported a finding of pretext.)

Key Takeaways for Employers

As an initial matter, this case illustrates a turning of the tides at the NLRB. For almost a year, the NLRB did not have a quorum and was unable to issue decisions. Now that the Board has the minimum three-member quorum (the NLRB may have up to five members), we are starting to see a shift in how precedents such as the Wright Line standard will be applied.

Regarding the practical takeaways, this case demonstrates the importance of treating employees consistently and fairly when it comes to investigatory and disciplinary matters.

It can be particularly difficult to address employee misconduct when it occurs during a union organizing campaign, during a pre-election period, or in the course of other protected activity. Consistency and fairness are key when approaching these situations, as these considerations go to the forefront of defending against an unfair labor practice charge.

First, the investigation itself must be consistent and fair. This includes giving the individual an opportunity to tell their side of the story and collecting evidence from multiple sources. Avoid jumping to conclusions; the investigation should be completed step by step.

Second, the decision needs to be consistent and fair. Consistent with respect to the way the employer has treated other employees in similar situations, and fair in terms of its proportionality.

Third, as one of the elements that the Board reviews in an adverse action situation is whether there was union animus, the decisionmaker should be someone who can make an objective, consistent, and fair decision.

While navigating employee misconduct can be difficult, particularly when union activity is ongoing, it is not impossible. And, as seen here, the Board has provided important clarity about how to assess a disciplinary decision under the Wright Line test.