As we have often discussed, there is a fine line between protected and unprotected activity.  Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of an employee engaged in protected activity may not be justified solely by its subjective belief that the employee misbehaved.  Rather, the employer must demonstrate that the purported misconduct actually occurred to implement discipline.  This determination may be quite challenging in light of conflicting…