NLRB Announces its First Precedential Shift Post-Biden Era by Reviving General Motors / Wright Line as the Framework for Analyzing Employee Misconduct Cases
On September 23, 2026, little more than a month after its Republican-majority composition was solidified with the addition of Member James R. Macy, the National Labor Relations Board issued its first precedent-shifting decision since the Biden era in Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026) (Lion Elastomers III). This development is welcome news for employers looking for more consistency when considering whether discipline can be appropriately meted out in the event an employee engages in misconduct, regardless of whether that employee simultaneously engages in protected activity under the National Labor Relations Act (NLRA).
The Prior Standard and Historical Shifts:
Understandably, employers have been frustrated over the years by the shifting standards for evaluating employee misconduct, particularly when such conduct is intertwined with protected activity under the NLRA. Prior to 2020, a patchwork of setting-specific standards was used to determine whether an employer lawfully disciplined or discharged an employee engaged in misconduct while engaging in activity protected by Section 7 of the NLRA. Thus, in Lion Elastomers LLC, 369 NLRB No. 88 (2020) (Lion Elastomers I), the setting-specific standards were utilized in reaching a determination that the employer violated the NLRA with respect to action it took against an employee. The employer filed a petition for review of the Board’s order in that case to the U.S. Court of Appeals for the 5th Circuit (5th Circuit).
While that petition for review was pending, on July 21, 2020, a Republican-majority Board issued its decision in General Motors LLC, 369 NLRB No. 127, which rejected the prior setting-specific standards and adopted the burden-shifting framework announced in Wright Line, 251 NLRB 1083 (1980), in order to consistently evaluate cases in which an employee was disciplined or discharged for engaging in misconduct while also participating in protected activity. The Board filed an unopposed motion with the 5th Circuit asking it to remand Lion Elastomers I to determine whether General Motors affected the Board’s analysis in Lion Elastomers I. On June 15, 2021, the court granted the Board’s motion and remanded Lion Elastomers I to the Board.
The Board accepted position statements from the employer and the General Counsel regarding issues raised by the remand. The General Counsel argued that General Motors should be reversed. The employer argued that the case should be further remanded to the Administrative Law Judge for application of the General Motors standard. On May 1, 2023, a Democratic-majority Board reversed course yet again, reinstating the setting-specific standards in Lion Elastomers LLC, 372 NLRB No. 83 (2023) (Lion Elastomers II), thereby arguably expanding the protections available to employees and making it more challenging for employers to discipline or discharge employees for engaging in misconduct while participating in the otherwise protected activity. At that time, the Board reasoned that workplace disputes in the context of protected activity are often heated affairs that involve impulsive conduct. Hence, the Board provided employees with greater protections and employers with a series of hoops to jump through prior to acting in response to employee misconduct, often at odds with established workplace standards and antidiscrimination laws.
As a result of the Board’s decision in Lion Elastomers II, employers were left to analyze whether employee misconduct lost the protection of the NLRA in these settings:
Atlantic Steel Test: applied to workplace conduct and outbursts directed by employees toward management. Factors considered include:
1. the place of the discussion
2. the subject matter of the discussion
3. the nature of the employee’s conduct or outburst
4. whether the employee’s conduct / outburst was provoked by the employer’s unfair labor practice
Totality-of-the-Circumstances Test: governed social media posts and most cases involving conversations among employees in the workplace.
Clear Pine Mouldings Test: governed picket-line conduct.
One might easily guess what happened next. The employer petitioned for review of the Board’s order in Lion Elastomers II, and the Board cross-applied for enforcement. On July 9, 2024, the 5th Circuit vacated Lion Elastomers II. The court held that the Board had technically exceeded the scope of the court’s initial remand by using Lion Elastomers II to overrule General Motors and denied the employer due process to address whether General Motors should be overruled. The 5th Circuit vacated Lion Elastomers II and remanded the case “for the Board to apply General Motors to this case.” Lion Elastomers LLC v. NLRB, 108 F.4th 252, 262 (5th Cir. 2024).
Where Things Currently Stand:
Admittedly, that is a lot to take in. So, if you’re still with me, here is where things currently stand: In Lion Elastomers III, the Board re-established that “General Motors remains extant precedent.” Thus, the Wright Line burden-shifting framework is currently the proper standard by which to evaluate whether an employer lawfully disciplined or discharged an employee for misconduct occurring during protected activity under the NLRA.
In the event an employer disciplines or discharges an employee for misconduct occurring while the employee was simultaneously engaged in protected activity under the NLRA, and that employee files an unfair labor practice charge in response to the discipline or discharge, the NLRB General Counsel must first establish a prima facie violation of the NLRA. Specifically, that means that the employee must have been engaged in protected activity, such as union organizing, filing a grievance, engaging in collective bargaining, or raising shared workplace concerns (wages, hours, and terms and conditions of employment); the employer had knowledge of such activity and harbored animus toward that employee for engaging in that protected activity.
If the General Counsel makes that initial prima facie showing, the burden then shifts to the employer to demonstrate that it would have taken the same disciplinary action regardless of whether the employee engaged in the protected activity under the NLRA. The employer may prevail if it is able to establish that the misconduct, and not the protected activity, motivated the adverse employment action.
Why This Decision Is Important for Employers and What Employers Can Anticipate Going Forward With Respect to Addressing Employee Misconduct Occurring Within the Context of Protected Activity:
While this decision restores the General Motors / Wright Line framework for analyzing employee misconduct in the context of protected activity, this decision should not be misconstrued as an absolute affirmation of the demise of the setting-specific standards going forward. This most recent reset was largely a procedural issue. It remains to be seen whether the Board will take a more concrete position on the applicable standards in the future. Lion Elastomers III resulted in the case being remanded to the Administrative Law Judge to decide that matter under General Motors. Lion Elastomers III did not result in any new action by the Board with respect to “establishing a new standard to govern future cases.”
Going forward, employers can take the following action to best position themselves for addressing misconduct in the workplace, particularly when such conduct is intertwined with protected activity under the NLRA:
1. Document misconduct. Take great care to note the misconduct at issue, words used, parties involved, and the context of the conduct.
2. Apply workplace rules consistently. Disparate application of established rules and policies can be evidence of pretext.
3. Do not be afraid to issue discipline when circumstances warrant it. Employers have rights, too. Provided that discipline is issued for nondiscriminatory reasons and not in response to protected activity, under extant Board law, employers have the right to maintain reasonable workplace standards for conduct.
4. Anticipate that more changes are on the horizon. The newly formed Republican-majority Board will likely address other workplace standards, including standards for evaluation of work rules.
Should you have questions regarding labor and employment matters, particularly issues arising under the National Labor Relations Act, please contact Gregory Gleine or another member of Frantz Ward’s Labor and Employment Group.
