In one of its first major decisions under its new Republican majority, the National Labor Relations Board (“NLRB” or “Board”) has again rejected “setting-specific standards” for analyzing when offensive employee conduct loses the protection of the National Labor Relations Act (“NLRA” or “Act”). In Lion Elastomers LLC, 375 NLRB No. 41 (2026) (“Lion Elastomers III”), issued September 23, 2026, the Board restored the familiar Wright Line burden-shifting framework for determining whether protected activity motivated an adverse employment action.
Background
Lion Elastomers III is the third NLRB decision in six years to alter the standard for evaluating offensive workplace conduct. Prior to 2020, the Board applied three context-specific tests: Atlantic Steel for conversations with management; the totality of the circumstances test for social media or coworker conversations; and Clean Pine Moldings for picket-line conduct.
As we reported here, in General Motors LLC, 369 NLRB No. 127 (2020), the first Trump Board abandoned those tests and adopted the traditional Wright Line burden-shifting framework for analyzing whether discipline for inappropriate conduct was motivated by protected activity.
Three years later, the Biden Board reversed course. Shortly before General Motors, in Lion Elastomers LLC, 369 NLRB No. 88 (2020) (“Lion Elastomers I”), the Board found an employee’s outburst during a grievance meeting protected under one of the context-specific standards. After the employer appealed, the Fifth Circuit remanded. In Lion Elastomers LLC, 372 NLRB No. 83 (2023) (“Lion Elastomers II”), the Democrat-majority Board overturned General Motors and reinstated the context-specific standards.
In 2024, the Fifth Circuit vacated Lion Elastomers II, holding the Board exceeded the remand’s scope by overruling rather than applying General Motors.
The Latest Remand
The Board’s Republican majority reasoned that the Fifth Circuit’s vacatur rendered Lion Elastomers II non-precedential, effectively reinstating General Motors as controlling law.
In a concurrence, Chairman James Murphy explained that affirmatively overruling Lion Elastomers II on the merits could also exceed the narrow remand. Lone Democrat Member David Prouty dissented, noting the decision departs from the Board’s longstanding policy of non-acquiescence—under which the Board generally continues applying its own precedent even after a federal appellate court rejects it, unless struck down by the Supreme Court.
Takeaways
The context-specific standards effectively afford employees greater latitude for offensive conduct occurring in connection with Section 7 activity, leading the Board to protect certain profane outbursts—sometimes with unusual results.
Under Wright Line, misconduct that objectively warrants discipline can provide a lawful basis for adverse action—even when intertwined with protected activity—so long as the employer demonstrates it would have imposed the same discipline absent the protected conduct. The return to General Motors should give employers greater comfort when disciplining offensive or profane employee conduct, as it provides an opportunity to rebut the presumption that protected activity motivated the action.
Flip-Flop: NLRB Reverses Course (Again) On Standard For Evaluating Offensive Employee Conduct
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