On September 23, 2026, the National Labor Relations Board (NLRB or Board) delivered welcome news to employers when it clarified the controlling framework for deciding whether an employee’s abusive conduct loses the protection of the National Labor Relations Act (NLRA). Specifically, in Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III), the NLRB, on remand from the United States Court of Appeals for the Fifth Circuit, held that the Wright Line burden-shifting test it applied in its 2020 General Motors decision “constitutes extant Board precedent” for deciding whether an employee’s misconduct arose in the course of otherwise protected activity was so egregious or abusive to lose the protection of the NLRA. In reestablishing this burden-shifting framework, the Board effectively tossed aside the more employee-friendly, setting-specific standard reintroduced by the Board in 2023 in Lion Elastomers II.

As we previously discussed here, Lion Elastomers II was a culmination of several years of flip-flopping by the Board in setting the standard for assessing whether offensive workplace conduct lost protection of the NLRA. In Lion Elastomers I, the NLRB held that the employer violated the NLRA by disciplining and discharging an employee who raised concerns during a safety meeting and engaged in union activity, applying the setting-specific standards that the Board used decades prior. Shortly after Lion Elastomers I, the Board decided General Motors and applied the Wright Line burden-shifting standard for evaluating misconduct occurring during protected activity. On appeal to the Fifth Circuit, the court subsequently remanded Lion Elastomers I to the Board for reconsideration under the new General Motors framework. However, rather than applying General Motors on remand, the NLRB in Lion Elastomers II overruled General Motors altogether and revived the prior setting-specific standards and related doctrines that afforded broader protection to employees who engaged in offensive, profane, or otherwise abusive conduct while exercising Section 7 rights.

As in Lion Elastomers I, the employer petitioned the Fifth Circuit for review of the Board’s order in Lion Elastomers II. In 2024, the Fifth Circuit vacated the decision and concluded that the Board exceeded the scope of the court’s initial remand by failing to apply General Motors to the facts of the case at hand. Further, in overturning General Motors without providing the employer an opportunity to argue on the merits of the issue, the Board violated the employer’s due process rights. In light of its holding, the Fifth Circuit remanded the case once again back to the Board to “apply General Motors.”

The distinction between the two frameworks is significant because the General Motors/Wright Line burden-shifting framework generally is more favorable to employers defending disciplinary decisions involving employee misconduct that occurred during otherwise protected activity. Under Wright Line, the NLRB’s General Counsel must establish that protected activity was a substantial or motivating factor in the employer’s decision, after which the employer may avoid liability by demonstrating it would have taken the same action absent the protected activity. By contrast, the setting-specific standards revived in Lion Elastomers II focused on the nature of the employee’s conduct and the context in which the conduct took place, often affording broader protection to employees who engaged in heated, offensive, or insubordinate conduct while exercising Section 7 rights than would be available under a Wright Line analysis.

In reinstating General Motors as Board precedent, the NLRB in Lion Elastomers III explained that the Fifth Circuit’s decision vacating Lion Elastomers II restored General Motors as controlling precedent, finding it “impossible to reconcile” the court’s conclusion that the Board acted beyond its scope in attempting to overrule General Motors in Lion Elastomers II with “any argument that General Motors remains overruled.” The Board emphasized that the Fifth Circuit’s decision, not the Board’s, invalidated any change in law articulated in Lion Elastomers II. Further, NLRB Chairman Murphy, in his concurrence, noted that the Board did not vote to overrule precedent through this decision.

The NLRB’s decision in Lion Elastomers III is a favorable development for employers faced with disputes involving employee misconduct during protected concerted activity. By restoring the General Motors/Wright Line burden-shifting framework, employers may focus on whether they would have imposed the same discipline regardless of the employee’s protected activity, rather than assessing whether the circumstances under multiple setting-specific standards should excuse the misconduct. However, the Board made clear that it is not overruling any precedent or taking any “action” with respect to establishing a new standard to govern future cases. If and when a future case litigates the issue of whether to overrule General Motors, the Board notes “nothing in this decision or in the court’s remand will preclude consideration of that issue.” Employers should still carefully evaluate appropriate discipline involving employee misconduct arising during protected activity and ensure that any discipline is applied consistently. We will continue to report on any updates and developments.