How Far Can a Worker Go Before the Union Cannot Protect Them?
labor · September 25, 2026
Union members hear the word protected a lot.
Union members hear the word protected a lot.
Protected activity.
Protected concerted activity.
Protected union activity.
Protected representation.
Protected speech.
That word can create a dangerous misunderstanding.
Because having a protected right does not necessarily mean every way you choose to exercise that right is protected.
And this week, the National Labor Relations Board gave workers, unions, and employers another reason to understand that distinction.
The NLRB Changed the Standard Again
On September 23, 2026, the NLRB issued a new decision in Lion Elastomers LLC, 375 NLRB No. 41.
The Board concluded that its 2023 decision providing greater leeway for offensive or abusive conduct during protected activity had been invalidated by the U.S. Court of Appeals for the Fifth Circuit.
The practical result is a return to the General Motors/Wright Line framework for these cases.
Under that framework, the central question becomes whether an employer disciplined someone because of their protected activity or because of the misconduct accompanying it.
If protected activity played a motivating role in the discipline, the employer can still defend the action by showing it would have imposed the same discipline even if the protected activity had not occurred.
That is a significant distinction.
You can be engaged in legitimate union activity and still create a separate conduct problem.
Protected Activity Is Not Protected Behavior
Suppose an employee challenges management about staffing.
That may be protected.
A group of employees complains about wages.
Potentially protected.
Workers circulate a petition.
Protected concerted activity may be involved.
An employee speaks on behalf of coworkers about unsafe conditions.
Again, potentially protected.
A union steward aggressively represents a member during a grievance.
Representation itself may be protected.
But now add:
A threat.
A racial slur.
Harassment.
Intimidation.
Violence.
Knowingly false statements.
Serious insubordination unrelated to what is necessary to exercise the protected right.
The analysis changes.
The NLRB itself warns employees that protected concerted activity can lose protection when conduct becomes egregiously offensive, knowingly and maliciously false, or otherwise crosses recognized legal boundaries.
That is why I think unions need to teach this distinction much more clearly.
The right may be protected. The behavior may not be.
Being a Steward Is Not a Force Field
Union representatives need to understand this especially well.
A steward may have to challenge management.
A steward may ask uncomfortable questions.
A steward may disagree strongly.
A steward may argue that a contract has been violated.
A steward may demand representation rights be respected.
That role can require confrontation.
But confrontation and misconduct are not the same thing.
One of the worst things a union can do is allow representatives to believe:
I am doing union business, so they cannot touch me.
That is not how this works.
The union may be able to challenge discipline.
It may argue disparate treatment.
It may point to past practice.
It may argue that management tolerated similar conduct from others.
It may allege anti-union motivation.
It may pursue contractual just cause protections.
But none of that means a union can guarantee that every act committed during union activity will be protected.
Sometimes the best union representation starts long before discipline.
It starts with training.
Management Consistency Will Matter Too
The Wright Line standard does not simply give management a blank check.
If an employer says:
We disciplined the employee for misconduct, not union activity,
then consistency becomes important.
Would another employee have received the same discipline for the same conduct outside union activity?
Has management tolerated similar profanity before?
Were other employees disciplined for comparable behavior?
Did the employer suddenly discover a conduct rule only after someone became active in the union?
Was the penalty consistent with prior cases?
Was the investigation legitimate?
Was the decision already being discussed before the alleged misconduct occurred?
Those questions matter because an employer cannot simply rename retaliation as discipline and make the protected activity disappear.
That is why documentation matters on both sides.
Know the Difference Between Heat and Fire
Labor disputes can get heated.
That is not new.
Grievance meetings get tense.
Negotiations get tense.
Picket lines get tense.
Organizing gets tense.
Workers who believe something is unfair do not always express themselves like attorneys drafting a brief.
For years, labor law has wrestled with how much room employees should receive when emotions rise during protected activity.
The current Board is drawing that line differently than the Board did in 2023.
Workers should understand the consequence.
Do not confuse the right to fight with permission to fight any way you want.
That is a training issue.
This Is Bigger Than Profanity
The headline may become:
Workers can be disciplined for offensive language.
That is too narrow.
The larger issue is understanding boundaries.
When does aggressive advocacy become intimidation?
When does criticism become knowingly false accusation?
When does picket-line confrontation cross a legal line?
When does a social-media post move from collective workplace advocacy into something else?
When does a steward's advocacy stop being representation and become misconduct?
Those are not always easy questions.
That is exactly why members should be trained before the incident.
Public Employees Need an Important Disclaimer
There is another distinction I have to make because of my own background in public-sector labor.
The National Labor Relations Act generally covers private-sector employees.
It does not generally cover employees of federal, state, or local governments.
That means this NLRB decision does not automatically establish the labor-law standard for a Maryland State employee represented by AFSCME.
Public-sector employees may have protections arising from state labor law, collective bargaining agreements, personnel law, grievance procedures, constitutional protections, or other sources.
So Maryland State employees should not read this decision and assume:
That is automatically my legal standard.
It may not be.
But they should absolutely understand the broader lesson.
Rights have boundaries.
Contracts have boundaries.
Representation has boundaries.
And misconduct can create consequences even when a legitimate workplace issue started the conversation.
Unions Should Teach the Boundary, Not Just the Right
We spend a lot of time telling workers:
Know your rights.
Good.
They should.
But I would add something.
Know the limits of your rights too.
A steward should know how far representation can go.
A member should understand what protected concerted activity means.
Workers should understand when social-media activity may be protected.
Members should know the difference between challenging management and threatening management.
They should understand Weingarten rights where applicable.
They should understand their contract.
They should understand the disciplinary process.
And they should understand something unions sometimes do not say loudly enough:
The union's job is to represent you. It is not to make every decision you make disappear.
Those are not the same thing.
A Union Can Protect the Process Without Defending Every Action
This is another distinction worth making.
A union does not have to agree that everything a member did was appropriate in order to insist the employee receive due process.
Was the investigation fair?
Was representation provided?
Was the contract followed?
Was discipline progressive where required?
Was the penalty consistent?
Was just cause required?
Was the employee allowed to respond?
Were comparable employees treated similarly?
Those questions remain important.
The union can protect the integrity of the process while still recognizing that the underlying conduct may have crossed a line.
That is mature representation.
Teach Members Before Management Does
The worst time for someone to learn the limits of protected activity is during a disciplinary meeting.
By then, the lesson may already be expensive.
Union education should include:
What is protected concerted activity?
What is not?
What rights do stewards have?
What conduct can still result in discipline?
What should members do when a meeting becomes heated?
When should the steward slow things down?
When should someone request a caucus?
When should you stop talking?
When should you document?
When should you call the union?
That training protects workers better than simply telling them:
You have rights.
Because rights without understanding can create false confidence.
The Question Every Union Member Should Ask
What good is knowing that you have rights if nobody teaches you where those rights stop?
That is the conversation this NLRB decision should start.
Not:
Workers cannot speak up anymore.
That would overstate the ruling.
Not:
Management can discipline anybody who challenges them.
That would also be wrong.
The lesson is more useful.
Employees still have protected rights.
Employers still cannot lawfully retaliate because workers exercised those rights.
But protected activity does not automatically immunize every act of misconduct that occurs around it.
And that means the smartest worker is not simply the one who knows how to fight.
It is the one who knows the line well enough to fight without unnecessarily crossing it.
Sources
[1] National Labor Relations Board, Lion Elastomers LLC, 375 NLRB No. 41, issued September 23, 2026.
https://www.nlrb.gov/cases-decisions/decisions/board-decisions
[2] National Labor Relations Board, "Concerted Activity."
https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity
[3] National Labor Relations Board, "Are You Covered?"
https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/are-you-covered
[4] U.S. Court of Appeals for the Fifth Circuit, Lion Elastomers LLC v. National Labor Relations Board, decided July 9, 2024.
https://cases.justia.com/federal/appellate-courts/ca5/23-60270/23-60270-2024-07-09.pdf
[5] National Labor Relations Board, "Board Returns to Traditional Standards for Evaluating Employee Misconduct During Protected Concerted Activity," May 1, 2023.
https://www.nlrb.gov/news-outreach/news-story/board-returns-to-traditional-standards-for-evaluating-employee-misconduct
[6] Reed Smith, "What's New at the NLRB — First Precedent Shift as Republican Majority Revives Wright Line Framework for Employee Discipline," September 24, 2026.
https://www.reedsmith.com/our-insights/blogs/employment-law-watch/102o34m/whats-new-at-the-nlrb-first-precedent-shift-as-republican-majority-revives-wri/
Key takeaways
- On September 23, 2026, the NLRB issued a new decision in Lion Elastomers LLC, 375 NLRB No. 41.
- The decision effectively restores the General Motors approach using the Wright Line framework for misconduct occurring during otherwise protected activity.
- Under Wright Line, employers may defend discipline by showing they would have imposed the same action because of the misconduct even without the protected activity.
- Protected concerted activity remains protected under federal labor law for covered employees.
- Protected activity does not automatically protect every form of behavior accompanying that activity.
- Employers still cannot use misconduct as a pretext for retaliation against protected activity.
- Consistency in discipline, comparable cases, employer motive, and documentation remain important.
- Union stewards should receive training on the difference between strong representation and conduct that can create separate disciplinary exposure.
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