In a welcome return to common sense, the National Labor Relations Board (NLRB or Board) has confirmed that its 2023 decision restoring special protections for abusive conduct – including sexist, racist and other offensive employee behavior – during otherwise protected activity did not survive judicial review.
In Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026), the Board concluded in a 3-1 decision that the U.S. Court of Appeals for the Fifth Circuit had invalidated its earlier attempt to overrule General Motors LLC. The Board further confirmed that General Motors, 369 NLRB No. 127 (2020) “remains extant precedent.” For employers, that means the more practical General Motors framework again governs cases involving discipline for abusive conduct arising during activity protected by the National Labor Relations Act (NLRA or Act).
Where We Were
In 2023, in Lion Elastomers II, 372 NLRB No. 83 (2023), the Board expanded employees’ Section 7 protections – the right to organize or discuss shared workplace concerns – and made it more difficult for employers to discipline or discharge employees for engaging in abusive conduct while participating in protected activity. To determine whether misconduct was sufficiently egregious to lose the Act’s protection, the Board restored a series of context- and setting-specific tests premised on the notion that labor disputes are often “heated affairs.” The result was a controversial framework that frequently required the reinstatement of employees discharged for vile conduct and placed employers in direct conflict with accepted workplace standards and nondiscrimination laws. We discussed the Board’s approach here.
In 2024, the Fifth Circuit vacated Lion Elastomers II, concluding that the Board exceeded its authority by using the case to overturn General Motors, failing to apply General Motors as the court had instructed and denying the employer a meaningful opportunity to address the proposed reversal of that precedent. Notably, the court did not decide whether the restored setting-specific standards reflected sound policy or were otherwise lawful. Its message on procedure, however, was unmistakable: The Board could not use the remand as a vehicle to overrule General Motors. Lion Elastomers LLC v. NLRB, 108 F.4th 252 (5th Cir. 2024).
Where We Are
On Sept. 23, the Board majority concluded that in the “unique and particular circumstances” of this case, Lion Elastomers II’s overruling of General Motors, did not survive the Fifth Circuit’s vacatur, thus restoring General Motors. Consequently, the Board now will evaluate employee misconduct under the familiar burden-shifting framework set forth in Wright Line, Inc., 251 NLRB 1083 (1980). Under Wright Line, the General Counsel first must prove by a preponderance of the evidence that the employee engaged in protected activity, the employer knew of that activity and the employer took adverse action because of it. If the General Counsel makes that showing, the burden shifts to the employer to establish that it would have taken the same action absent the protected activity. The central inquiry is the employer’s motive. Accordingly, an employer may lawfully discipline an employee for misconduct if it can demonstrate that it would have imposed the same discipline regardless of the employee’s union or other protected activity.
Bottom Line
By confirming that the General Motors framework applies, the Board has given employers a clearer path to defend discipline for abusive conduct occurring during protected activity. But the decision is not a blank check to discipline employees who raise workplace concerns. Employers should investigate promptly, document the conduct, apply workplace rules consistently and carefully assess whether the same action would have been taken absent the protected activity. When these issues arise, employers should consult experienced labor counsel. The BakerHostetler Labor and Employment Practice Group is available to assist.
