The National Labor Relations Board (“NLRB” or “Board”) this week confirmed that the Wright Line standard remains binding precedent for employers navigating discipline of employees for offensive conduct during otherwise protected Section 7 activity. This case brings to a close—at least for now—a years-long tug-of-war between the Board and the U.S. Court of Appeals for the Fifth Circuit over what legal standard governs.
The Lion Elastomers IIIdecision is welcomed by employers who have struggled to reconcile the Board’s high tolerance for offensive employee outbursts in the workplace with federal anti-discrimination laws.
Procedural History
Lion Elastomers I
The case traces back to Lion Elastomers I, 369 NLRB No. 88 (2020), where the key legal question was whether the employee had lost the Act’s protection through his conduct at a safety meeting. There, the Board applied the longstanding Atlantic Steel framework, which considers four setting-specific factors: (1) the place of the discussion; (2) the subject matter; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by an employer’s unfair labor practice. Atlantic Steel, 245 NLRB 814 (1979). Applying those factors, the Board concluded that the employee did not lose the Act’s protections and that the respondent violated the Act by disciplining him.
The respondent requested review of the Board’s decision to the Court of Appeals for the Fifth Circuit. While the case was pending review, the Board issued its decision in General Motors, which scrapped Atlantic Steel and similar setting-specific standards (e.g., the standards articulated in Pier Sixty, 362 NLRB 505 (2015) and Clear Pine Mouldings, 268 NLRB 1044 (1984)) and replaced them with the unified Wright Line burden-shifting framework. In light of this precedent change, the Board sought and obtained a remand from the Fifth Circuit to consider how General Motors affected the case.
Lion Elastomers II
On remand, in Lion Elastomers II, 372 NLRB No. 83 (2023), rather than apply General Motors, the Board used the case as a vehicle to overrule it entirely, returning to the traditional setting-specific standards.
The respondent again petitioned for review to the Court of Appeals for the Fifth Circuit, and the court vacated Lion Elastomers II, on two independent grounds: (1) the Board exceeded the scope of its remand by overruling General Motors rather than applying it; and (2) the Board violated the respondent’s due process rights by denying the respondent’s earlier motion to file a reply to the General Counsel’s argument that General Motors should be overruled. SeeLion Elastomers, LLC v. NLRB, 108 F.4th 252 (5th Cir. 2024).
Lion Elastomers III
On September 23, 2026, the Board, now with a three-member Republican majority, reiterated that General Motors is the law of the land. The majority was careful to say it was not overruling Lion Elastomers II or reaching the merits of which standard is preferable, but was just giving effect to the Fifth Circuit’s decision that the Board could not overrule General Motors as it did.
The Board remanded the case to the administrative law judge to apply the General Motors/Wright Line framework, under which the General Counsel must show: (1) the employee engaged in protected activity, (2) the employer knew about it, and (3) the employer bore animus against it. The burden then shifts to the employer to prove it would have taken the same action regardless of the employee’s union or protected activity. If the employer meets that threshold, then the burden shifts back to the General Counsel to show that the employer’s justification is pretextual. Employers generally favor the Wright Line approach over application of the setting-specific standards when analyzing employee discipline for disruptive or offensive conduct.
The dissent sharply criticized the majority’s decision, claiming that the holding “swallows whole” the Board’s policy of nonacquiescence – the principle that because the NLRB operates nationwide, it adheres to its own decisions and interpretations of the Act even where a federal court of appeals has rejected that interpretation, unless and until the Supreme Court rules on the issue. The majority disagreed, saying its decision is distinguishable from cases where a court vacates a Board decision based on the court’s interpretation of the Act. Because the Fifth Circuit’s decision was based on the scope of its own remand rather than a disagreement with the Board’s policy choice, the majority argued that no circuit split could arise and nonacquiescence concerns are not implicated.
Employer Takeaways
When evaluating whether to take disciplinary action against an employee for abusive or offensive conduct during the course of otherwise protected activity, employers should apply the Wright Line burden-shifting framework. Employers should continue to carefully document discipline and to apply principles of fairness and consistency in all disciplinary decisions.
Lion Elastomers III arrives amid a broader shift at the Board. With a 3-1 Republican majority, the Board now has the votes to revisit Biden-era precedent across a range of issues. We will continue to monitor these decisions and keep employers apprised of changes to Board precedent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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