Quick Hits
- The NLRB restored the General Motors standard for evaluating discipline when employee misconduct occurs during union or other protected concerted activity, returning to the familiar Wright Line framework used in mixed-motive discipline cases and treating the misconduct as analytically distinct from the protected activity.
- The Board treated the Fifth Circuit’s vacatur of Lion Elastomers II as leaving General Motors in place, concluding that the 2023 Board could not use the case to reinstate setting-specific standards for workplace outbursts, social media posts, coworker discussions, and picket-line conduct.
- For employers, the decision restores a more practical framework for defending discipline based on offensive, abusive, or potentially harassing conduct, particularly where the employer can show it would have disciplined the misconduct even absent the protected activity.
Moving away from an approach that gave employees more leeway when misconduct occurred in the course of protected activity, the Board returned to General Motors and the familiar Wright Line mixed-motive framework, which focuses on whether animus toward protected activity motivated the discipline while preserving an employer’s ability to show it would have disciplined the misconduct anyway. The ruling is the first example of the newly constituted NLRB’s three Republican members using their majority to move past a Biden-era precedent.
How Lion Elastomers II Gave Way to General Motors
The Board’s latest decision is the newest chapter in a years-long dispute over how to evaluate employee misconduct that occurs during union or other protected concerted activity. In 2020, the Board decided General Motors and replaced several setting-specific standards with the familiar Wright Line framework to use in cases involving abusive conduct during Section 7 activity.
Under General Motors, the Board treated the misconduct and the protected activity as analytically distinct, rather than assuming that misconduct occurring during protected activity must be evaluated as part of that protected activity.
In 2023, the Board changed course in Lion Elastomers II, overruling General Motors and restoring prior setting-specific standards for determining when misconduct during protected activity loses the Act’s protection. Those standards varied depending on the setting, including workplace discussions with management, postings on social media, coworker discussions, and picket-line conduct. As a practical matter, those standards gave employees more leeway for impulsive, heated, or offensive conduct when that conduct occurred in the course of protected activity.
The Fifth Circuit Court of Appeals later vacated Lion Elastomers II, holding that the Board exceeded the scope of the court’s remand and violated Lion Elastomers’s due process rights when it used the remand proceeding to overrule General Motors. The court emphasized that the Board had sought remand to determine whether General Motors affected the case, but then used the remand to overturn General Motors instead. On remand again in Lion Elastomers III, the Board concluded that the 2023 attempt to overrule General Motors did not survive the Fifth Circuit’s vacatur. Notably, the Board emphasized that it was not affirmatively overruling Lion Elastomers II but rather recognizing the legal effect of the Fifth Circuit’s decision.
The Return of the Wright Line Framework
The Board’s 2026 decision returns employers to the General Motors approach. Under Wright Line, the NLRB general counsel must first show that the employee engaged in Section 7 activity, the employer knew of that activity, and the employer acted with animus toward that activity sufficient to establish a causal relationship between the protected activity and the discipline. If the general counsel makes that showing, the employer may still prevail by proving it would have taken the same action even absent the protected activity.
That framework differs from the setting-specific standards revived in Lion Elastomers II. Rather than asking whether the employee’s misconduct was so egregious that it lost the Act’s protection, General Motors separates the misconduct from the protected activity and asks whether the employer imposed discipline because of the protected activity or because of the misconduct itself.
The Dissent
Member David Prouty concurred in the remand but dissented from the Board’s broader conclusion that General Motors is now extant Board precedent for future cases. In his view, the Fifth Circuit required the Board to apply General Motors in this case, but did not decide whether Lion Elastomers II retained precedential value in other cases. He also argued that the majority’s approach was inconsistent with the Board’s nonacquiescence policy, under which adverse circuit court decisions generally are treated as binding only in the case before the court. Member Prouty also pointed to the Board’s decision in Intertape Polymer Corp., in which the Board used a setting-specific standard and referenced Lion Elastomers II, as evidence that the Board has independently treated those standards as governing law.
The majority rejected that view. In its view, the Fifth Circuit had not rejected the Board’s policy choice on the merits; rather, the court held that the Board lacked authority to use this remanded case to overrule General Motors. As a result, the majority concluded that the attempted overruling of General Motors in Lion Elastomers II did not survive judicial vacatur, leaving General Motors as the operative Board precedent unless and until the Board revisits the issue in a future case.
Chair James Murphy concurred in the remand but wrote separately to emphasize that the decision should not be read as three members affirmatively voting to overrule Lion Elastomers II, and he declined to address whether Intertape Polymer independently preserved the setting-specific standards.
Key Takeaways
For employers, the decision restores a more employer-friendly standard for evaluating discipline when protected activity and misconduct occur in the same incident. The practical value of that standard will depend on the record, including whether the employer can identify the specific misconduct, tie the discipline to a neutral workplace rule, and show consistent treatment of similar misconduct outside the protected-activity context.
Employers may want to avoid disciplinary language suggesting frustration with union activity, grievance activity, group complaints, or other protected concerted activity, and instead identify the specific offensive, abusive, threatening, discriminatory, or potentially harassing misconduct at issue and the neutral workplace rule or expectation violated. Where protected activity occurred close in time to the misconduct, employers may consider documenting, where appropriate, that the protected activity itself did not factor into the decision and that the employer would have disciplined comparable misconduct the same way even absent the protected activity.
Although General Motors appears to be the operative standard going forward, the concurrence and dissent suggest that questions remain about its permanence. The Board expressly left open the possibility that the issue could be revisited in a future case, and the status of the setting-specific standards in cases outside this proceeding is not entirely settled. Employers should not treat this decision as the final word but may want to take advantage of the current framework by building strong records that support their disciplinary decisions on their own terms.
Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog as additional information becomes available.
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