NLRB Reinstates Wright Line Framework for Employee Misconduct During Protected Activity

Background

The National Labor Relations Board (“NLRB” or the “Board”) issued a significant decision on September 23, 2026, that signals yet another shift in the ongoing tug-of-war over how the agency handles employee misconduct that occurs during union or other protected activity. In Lion Elastomers III, 375 NLRB No. 41 (2026), the Board addressed a question that has been the subject of years of litigation: which legal standard applies when determining whether an employee's abusive conduct during otherwise protected activity costs the employee the protections of the National Labor Relations Act (the “Act”).

The case has a long procedural history. The Board originally found that Lion Elastomers LLC violated the Act by threatening, disciplining, and discharging an employee who engaged in union activity. After the Board issued General Motors LLC, 369 NLRB No. 127 (2020)—which replaced setting-specific standards with the Wright Line burden-shifting framework—the case was remanded for the Board to consider how General Motors affected its analysis. Instead of applying General Motors, a newly constituted Board overruled it entirely in Lion Elastomers II 372 NLRB No. 83 (2023), returning to the earlier setting-specific standards. The Fifth Circuit vacated that decision, finding the Board had exceeded the scope of the Court's remand and violated the employer's due process rights.

Now, on second remand, the Board, in a 3–1 decision, has declared that General Motors "constitutes extant Board precedent" and that the Board's prior attempt to overrule it "did not survive judicial vacatur." The case has been remanded to an administrative law judge for further proceedings under the General Motors standard.

What the Board Held

Prior to the Board’s 2020 decision in General Motors, the NLRB had long applied a setting-specific standard to determine whether an employer could lawfully discipline employees for abusive conduct connected to otherwise protected activity. For example, under Clear Pine Mouldings, an employer could not refuse to reinstate a returning striker based on their misconduct on the picket line unless the employer could prove that the picketing employee’s misconduct involved “an overt or implied threat or where there is a reasonable likelihood of an imminent physical confrontation.” That high bar required employers to reinstate employees who had hurled racial epithets and other abusive statements at other employees during a strike. Under Atlantic Steel, the Board allowed employees wide latitude during outbursts engaged in during the course of otherwise protected statements.

In General Motors LLC, 369 NLRB No. 127 (2020), the Board dispensed with these setting-specific standards and replaced them with the NLRB’s traditional Wright Line burden-shifting framework used in discrimination cases. Thus, as long as the employer could show that it would have taken the same action against an employee who engaged in similar misconduct, the mere fact that the employee’s misconduct occurred during union activity entitled them to no special protection.

Now, on second remand, the Board in a 3–1 decision has declared that General Motors "constitutes extant Board precedent" and that the Board's prior attempt to overrule it in Lion Elastomers II "did not survive judicial vacatur."

Business Implications

Employers should continue to carefully consider whether and how to discipline employees for abusive conduct that occurs on the strike line, at the bargaining table, or in the course of workplace discussions about wages, hours, and other terms and conditions of employment. However, gone are the days when an employer must tolerate abusive, profane, sexist, or racist outbursts from employees during the course of protected activity. As long as an employer can show that similar conduct is not tolerated in the workplace, it may preserve its workplace conduct and standards of civility by using corrective action to address such situations.

Employers should review their workplace conduct and discipline policies, particularly those governing harassment, profanity, and other similar employee behavior. Policies should be applied consistently, and disciplinary decisions should be well-documented with contemporaneous records, including witness statements, incident reports, and disciplinary history, so that the employer can demonstrate it would have acted the same way irrespective of protected activity.

The Board’s ruling in Lion Elastomers III is consistent with the broader trend toward a more employer-friendly posture at the NLRB under General Counsel Carey and the Board's current Republican majority. Employers should monitor developments in this area closely and consult with labor counsel before taking any adverse action that could implicate employee rights under the Act.

For more information or assistance, please contact Daniel J. Sobol, Brandon S. Shemtob, David G. Rodriguez, or another member of Blank Rome’s Labor & Employment group.