Key Takeaways:
- Employees engaging in union or other protected concerted activity are not immune from discipline for accompanying misconduct.
- Employers may discipline misconduct if they would have imposed the same discipline outside the protected context.
- Consistent enforcement and contemporaneous documentation will be critical to defending disciplinary decisions.
- The ruling is the current Board majority’s first reversal of prior-administration precedent and may signal additional employer-friendly changes.
On September 23, 2026, the National Labor Relations Board (“Board” or “NLRB”) restored the standard announced in General Motors LLC, 369 NLRB No. 127 (2020), for evaluating employee misconduct occurring during activity otherwise protected by the National Labor Relations Act (“Act”).
The Board repudiated its 2023 decision in Lion Elastomers LLC II, 372 NLRB No. 83 (2023), which gave employees greater latitude to engage in inappropriate conduct during workplace discussions, on social media and on picket lines. The restored standard gives employers more flexibility to enforce neutral workplace-conduct rules, even when the misconduct occurs during protected activity.
Background
Section 7 of the Act protects employees who act together regarding workplace issues, participate in union activities, pursue grievances, or engage in picketing.
Before General Motors, the Board used different standards depending on where the misconduct occurred. Those standards asked whether the employee’s conduct was sufficiently serious to lose the Act’s protection. In practice, employers sometimes had to tolerate conduct during protected activity that would ordinarily warrant discipline.
General Motors replaced those standards with the Wright Line test. Under that test, the NLRB’s General Counsel must establish that protected activity was a motivating factor in the employer’s disciplinary decision. The employer may then avoid liability by proving it would have imposed the same discipline absent the protected activity.
In 2023, Lion Elastomers II overruled General Motors and reinstated the prior standards. The Board reasoned that labor disputes may involve heated or impulsive behavior and that employees should receive some latitude when exercising protected rights.
The Board’s Decision
The Lion Elastomers dispute began after the company disciplined and later discharged a union-represented employee for confrontational conduct during a meeting concerning workplace safety. The Board initially held that the discipline and discharge violated the Act because the employee’s conduct arose in connection with protected union activity. Lion Elastomers appealed that decision to the Fifth Circuit.
While the appeal was pending, the Board decided General Motors and replaced its setting-specific standards with the Wright Line framework. The Board then asked the Fifth Circuit to remand Lion Elastomers so the Board could determine whether General Motors affected its earlier ruling. The court granted the request.
By the time the case returned to the Board, however, the Board’s membership and policy position had changed. On remand, the General Counsel urged the Board to overrule General Motors rather than apply it to Lion Elastomers. The new Board majority agreed and used the remanded case as the vehicle to restore the former setting-specific standards. That produced the Board’s Lion Elastomers II decision in May 2023.
Lion Elastomers again appealed. In 2024, the Fifth Circuit vacated Lion Elastomers II, holding that the Board exceeded the scope of the first remand by using the case to overrule General Motors. The court returned the case to the Board a second time with instructions to apply General Motors. Lion Elastomers, LLC v. NLRB, 108 F.4th 252 (5th Cir. 2024).
In its September 23, 2026 decision on the second remand, the Board considered whether the Fifth Circuit invalidated Lion Elastomers II only in this case or as Board precedent generally. The Board majority adopted the broader view, concluding that the court invalidated Lion Elastomers II’s attempted reversal of General Motors. The Board therefore restored the motive-focused Wright Line test for evaluating discipline arising from misconduct during otherwise protected activity.
Member David Prouty dissented, arguing that the Fifth Circuit’s decision required the Board to apply General Motors only in the Lion Elastomers case and did not eliminate Lion Elastomers II as precedent in other cases.
Takeaways:
The decision draws a clearer line between protected activity and accompanying misconduct. Employees remain protected when raising group workplace concerns, participating in union activity, pursuing grievances, or picketing. But those protections do not give employees a free pass to engage in abusive, threatening, discriminatory, or otherwise inappropriate conduct.
That does not make every disciplinary decision lawful. Employers should identify the precise misconduct, apply the same standards used in comparable situations, and contemporaneously document the objective, nondiscriminatory reason for the discipline. The documentation should make clear that the protected activity itself did not influence the decision. When investigating misconduct or imposing discipline during or shortly after protected activity, employers should also consider having a witness present. Discipline remains particularly risky when the employer has tolerated comparable conduct by other employees or when the stated reason for discipline is closely connected to the employee’s protected activity.
Employers considering discipline connected to protected activity should consult labor counsel before acting.
If you have questions about how this decision affects your organization, please contact your Dinsmore labor and employment attorney.