On September 23, 2026, the National Labor Relations Board issued a decision that will quietly shape how much protection workers have when they advocate for themselves and their coworkers and the conversation gets heated. The case, Lion Elastomers LLC, 375 NLRB No. 41, has been bouncing between the Board and the federal courts for six years. It ends with the Board declaring that a 2020 employer-friendly standard, known as General Motors, is once again the law.
If you have ever raised your voice in a grievance meeting, posted an angry message about your job on social media, or stood on a picket line, this matters to you.
The Worker at the Center of the Case
Joseph Colone worked at Lion Elastomers, a synthetic rubber plant in Texas, and served as a union representative. The Board found the company violated federal labor law three times in its treatment of him.
First, during a 2016 grievance meeting, the production manager pointed at Colone and told him, "You ain't gonna make it." The Board found that was an unlawful threat of discharge.
Second, at a 2017 safety meeting, Colone raised concerns about employees' working conditions in his role as a union representative. The company disciplined him for how he did it. The Board found that discipline unlawful.
Third, in 2018 the company fired him. The Board found the firing was motivated by his filing and pursuit of grievances.
That should have been the end of it. Instead, the law changed underneath the case, and the case itself became the vehicle for a fight over which rules apply to workers who get emotional while doing protected activity.
Two Competing Approaches
The National Labor Relations Act protects employees, union and non-union alike, who act together to improve their wages, hours, and working conditions. That protection is not unlimited. An employee who crosses a line during protected activity can lose it. The question is where the line is and who gets the benefit of the doubt.
The traditional "setting-specific" standards. For roughly four decades, the Board used tests tailored to where the conduct happened. The best known, from Atlantic Steel (1979), looked at four factors when an employee had an outburst toward management: the place of the discussion, its subject matter, the nature of the outburst, and whether the employer's own unlawful conduct provoked it. Other tests covered social media posts and conversations among coworkers (Pier Sixty) and picket-line conduct (Clear Pine Mouldings). These tests recognized a practical reality: workplace disputes over pay, safety, and discipline are emotional, and some intemperate language comes with the territory. A worker didn't lose protection simply for being rude or profane in the middle of a legitimate complaint.
The General Motors standard. In 2020 the Board threw out those setting-specific tests and replaced them with the Wright Line burden-shifting framework, the same framework used in ordinary retaliation cases. Under that approach, the General Counsel must show that the employee engaged in protected activity, the employer knew about it, and the employer harbored animus against it. Even if that showing is made, the employer wins if it proves it would have taken the same action anyway, for example because it consistently disciplines employees for similar language or behavior regardless of context. The Board justified the change in part by pointing to employers' competing obligations under anti-discrimination law to address abusive or offensive conduct.
For workers, the practical difference is significant. Under Atlantic Steel, the question was whether the outburst was bad enough, in context, to forfeit protection. Under General Motors, the heat of the moment largely drops out of the analysis. The fight moves to motive and to whether the employer treated the worker the same as others who said or did similar things.
How the Law Changed Back, and Then Back Again
When General Motors came down in 2020, the Board asked the Fifth Circuit to send Lion Elastomers back so it could consider whether the new standard affected the outcome. The court agreed.
By the time the Board took the case up again, its membership had changed. In 2023, in Lion Elastomers II, the new majority used the case to overrule General Motors and restore Atlantic Steel and the other setting-specific tests. It then reaffirmed that the company had violated the Act.
The company went back to the Fifth Circuit, and in 2024 the court vacated the Board's decision. The court did not say Atlantic Steel was bad policy or that the Board got the facts wrong. It held something narrower but still decisive: the Board had asked for a remand to apply General Motors, and then overruled it instead, which the court described as a "bait-and-switch." That exceeded the scope of the remand and violated the company's due process rights, because the company was never given a real chance to argue about whether General Motors should be overruled. The court sent the case back with instructions to apply General Motors.
What the Board Decided Now
In the new decision, a three-member majority concluded that because the Fifth Circuit held the Board could not use this case to overrule General Motors, the attempted overruling "did not survive judicial vacatur." The result: General Motors is once again extant Board precedent for deciding whether an employee lost the Act's protection through abusive conduct during protected activity. The Board sent Colone's case back to the administrative law judge to be decided under General Motors, with the record reopened if necessary.
Chairman Murphy wrote separately to stress that the Board was not affirmatively overruling anything and was not deciding whether General Motors is the better rule. He characterized the decision as simply recognizing what the court's ruling already did.
Member Prouty dissented on this point, and his dissent is worth knowing about because it previews the arguments that will be made going forward. He argued that the Board has a long-standing policy of "nonacquiescence," meaning it treats an adverse circuit court decision as binding only in that particular case, and that vacated Board decisions have historically kept their precedential value. He pointed out that the Fifth Circuit expressly declined to rule on whether the setting-specific standards were lawful. He also noted that the Board had applied Lion Elastomers II in a separate 2024 case, Intertape Polymer, which in his view remains binding precedent that the majority set aside without the reasoned explanation the Administrative Procedure Act requires. In short, he believes the majority changed the law through the back door.
What This Means for Employees
Your tone matters more now. Under General Motors, an employer that disciplines or fires a worker for profanity, insults, or aggressive behavior during a protected complaint has a clearer path to defend itself, as long as it can show it would have done the same thing to anyone who behaved that way. The fact that you were upset about a legitimate safety issue or an unfair pay practice carries less weight than it did under Atlantic Steel.
Protected activity is still protected. Nothing in this decision changes the core rule. Filing grievances, raising safety concerns, discussing pay with coworkers, organizing, and complaining as a group about working conditions all remain protected. An employer still cannot punish you for the substance of what you are saying. Much of Colone's case, including the threat and the firing for filing grievances, did not turn on any outburst at all.
Consistency becomes the battleground. Because the employer's defense under General Motors depends on showing it would have acted the same way regardless of protected activity, the key evidence is often how the company treated other employees. Did managers or other employees use the same language without consequence? Is the "civility" rule enforced only against people who complain? Evidence of selective enforcement can defeat the employer's defense, so it is worth noticing and writing down.
Practical steps. If you are raising concerns at work, especially in a group setting or in writing, make your point firmly and specifically, and avoid personal insults, threats, or slurs. Put important complaints in writing where you can. Keep notes of what was said in meetings, by whom, and who was present. Save copies of your own messages and posts. If you are disciplined after speaking up, write down what happened as soon as possible and note any examples of others who did similar things without being disciplined.
Deadlines are short. A charge with the NLRB generally must be filed within six months of the unfair labor practice. Other protections that may overlap, such as retaliation claims for safety complaints, can have even shorter deadlines. If you believe you were disciplined or fired for speaking up, talk to an employment lawyer promptly.
This Is Not the Last Word
The Board's majority was careful to say that if the question of whether to overrule General Motors is properly raised in a future case, nothing in this decision prevents it from being reconsidered. The legal standard for heated protected activity has now flipped three times in six years, and it tracks the Board's composition. Member Prouty's dissent lays out a roadmap for arguing that Lion Elastomers II and Intertape Polymer remain good law, and those arguments may be pressed in pending cases and on review in other circuits.
For now, workers and their advocates should assume the General Motors framework governs, build cases around motive and disparate treatment, and watch closely for the next opportunity to revisit it.
The Bottom Line for Employees
The most important lesson from Lion Elastomers is straightforward:
Federal law protects employees who join together to speak up about workplace problems. But protected activity does not necessarily give an employee immunity from otherwise legitimate workplace rules governing how employees behave.
After this ruling, disputes increasingly may focus on the employer's real reason for taking action:
Was the employee disciplined because they spoke up about workplace conditions—or would the employer genuinely have imposed the same discipline on anyone who engaged in the same conduct?
Documents, witnesses, workplace policies, prior discipline, and evidence of how other employees were treated can make the difference in answering that question.
For employees who are raising serious workplace concerns, the safest approach is often to be specific, factual, documented, and clear about the workplace issue being raised. That not only helps preserve the substance of the complaint—it may also make retaliation much easier to identify if it happens later.
This article provides general information about workplace rights and is not legal advice. Whether particular conduct is protected under the National Labor Relations Act depends on the specific facts and circumstances.