NLRB Revives Employer-Friendly Standard for Disciplining Employee Conduct

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On September 23, 2026, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in Lion Elastomers LLC, 375 NLRB No. 41, which clarifies its analysis for determining whether employee misconduct that takes place during protected activity loses the protection of the National Labor Relations Act (the "Act"), specifically confirming that such analysis will be performed under the burden-shifting framework established in General Motors, 369 NLRB No. 127 (2020).

 What Was the Law Before This Decision?

For decades, the Board evaluated whether employee misconduct during otherwise protected activity forfeited the Act's protection using setting-specific standards that were established in Atlantic Steel.  The test for workplace confrontations with management established in Atlantic Steel weighed the following four factors: (1) the place of the discussion, (2) the subject matter, (3) the nature of the outburst, and (4) whether the outburst was provoked by an employer unfair labor practice. The Board also applied separate standards based on whether the conduct occurred on the picket-line (Clear Pine Mouldings) or on social media (Pier Sixty).

In 2020, the Board in General Motors overruled those setting-specific standards and replaced them with the Wright Line burden-shifting framework. Under Wright Line, the burden is on the General Counsel to show that the employee engaged in Section 7 activity under the Act, that the employer knew of such activity, and that the employer harbored animus against the employee for that activity. If the General Counsel meets this burden, the employer must demonstrate that it would have taken the same action against the employee absent the protected activity.

In 2023, a differently constituted Board in Lion Elastomers II overruled General Motors and returned to the setting-specific standards from Atlantic Steel. In 2024, the Fifth Circuit Court of Appeals vacated Lion Elastomers II, and remanded to the Board with instructions to apply the standard established in General Motors.

How Did the Board Change The Law With Its Recent Decision?

With its September 23 decision in Lion Elastomers II, the Board concluded that because the Fifth Circuit vacated its prior decision in Lion Elastomers II, the Board's attempt to overrule General Motors "did not survive judicial vacatur." In so holding, the Board declared that General Motors constitutes extant precedent for determining whether an employee loses the Act's protection due to abusive conduct during Section 7 activity.

What Should Employers Expect Going Forward?

Because General Motors again constitutes the law of the land, the Wright Line burden-shifting framework will govern cases involving employee misconduct during protected activity, replacing the more employee-protective setting-specific standards under Lion Elastomers II. The Board will now evaluate such cases under a unified framework, placing the initial burden on the General Counsel to demonstrate anti-union animus before shifting the burden to the employer. Thus, in any case before the Board involving employee misconduct during potential Section 7 activity, it will be important for employers to clearly show that the same employment decision would have been made even absent the protected activity.

For assistance in understanding this decision or evaluating its impact on your workplace policies, please contact your local Quarles & Brady attorney or:

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