The National Labor Relations Board (NLRB) has issued its decision in Lion Elastomers LLC (“Lion Elastomers III”), restoring the framework established in General Motors LLC for evaluating employee misconduct that occurs during activity protected by the National Labor Relations Act (NLRA). The decision marks a shift away from the more employee-protective standard adopted by the Biden-era Board in 2023.
Background
The dispute arose from allegations that Lion Elastomers LLC unlawfully threatened, disciplined, and discharged an employee engaged in union-related activity. The case has been before the Board and the U.S. Court of Appeals for the Fifth Circuit multiple times and has become a focal point in the debate over how employers may address misconduct that occurs in connection with protected concerted activity.
In 2020, the Board issued General Motors LLC, replacing several different context-specific standards with the traditional Wright Line burden-shifting framework. In 2023, the Board overruled General Motors in Lion Elastomers II and reinstated earlier “setting-specific” standards. The Fifth Circuit later vacated that decision and directed the Board to apply General Motors.
Board Returns to General Motors
In its September 23, 2026 decision, the Board concluded that General Motors remains controlling precedent and must be applied when determining whether employee misconduct loses protection under the NLRA. The Board remanded the case for further proceedings under that standard.
As a result, the Board effectively abandoned the framework established in Lion Elastomers II and returned to the approach adopted during the first Trump administration.
What Is the General Motors Standard?
Under the General Motors framework, the Board applies the familiar Wright Line analysis when an employer disciplines or discharges an employee who engaged in protected activity but also allegedly engaged in misconduct.
Under that analysis:
- The General Counsel must establish that protected activity was a motivating factor in the employer’s decision.
- If that showing is made, the burden shifts to the employer.
- The employer may avoid liability by demonstrating that it would have imposed the same discipline even absent the protected activity.
The focus is therefore on the employer’s motivation and whether the misconduct independently justified the discipline.
Prior “Setting-Specific” Tests No Longer Control
Before General Motors, the Board used different standards depending on the circumstances surrounding the employee’s conduct. These included tests applicable to:
- Workplace confrontations with management;
- Social media activity;
- Conversations among employees; and
- Picket-line misconduct.
Critics argued that those standards often protected offensive, abusive, or disruptive conduct if it occurred during protected activity. General Motors replaced those varying standards with a single framework.
By restoring General Motors, the Board has again moved toward a uniform approach rather than applying different tests depending on the setting in which the misconduct occurred.
Employer Impact
The decision is generally viewed as more favorable to employers because it provides a clearer path to discipline employees for misconduct that occurs during union activity or other protected concerted activity.
Employers may have a stronger defense where they can demonstrate that:
- The discipline was based on misconduct rather than protected activity; and
- The same disciplinary action would have been imposed regardless of the employee’s protected conduct.
The ruling may be particularly important in cases involving:
- Offensive or abusive workplace conduct;
- Confrontations with supervisors;
- Harassing behavior;
- Workplace rule violations; and
- Conduct occurring during union organizing or other protected activity.
Employer Takeaway
The NLRB’s decision in Lion Elastomers LLC restores the General Motors/Wright Line framework for evaluating employee misconduct that occurs during protected concerted activity. Employers should continue to evaluate disciplinary decisions carefully and document legitimate, nondiscriminatory reasons for discipline. However, the decision provides employers with a stronger basis for defending disciplinary actions where they can demonstrate that the same action would have occurred regardless of the employee’s protected activity.