NLRB Restores General Motors Standard, Giving Employers Greater Flexibility to Address Abusive Workplace Conduct

By Melissa Sobota, R. Jason Patterson, and Reva Ghadge - Franczek P.C.

September 29, 2026

On September 23, 2026, the NLRB issued its decision in Lion Elastomers LLC, 375 NLRB No. 41, restoring the General Motors standard for evaluating abusive or offensive conduct during protected concerted activity and giving employers greater flexibility to discipline workplace misconduct.

The decision restores the familiar Wright Line framework, which permits employers to justify discipline for abusive, offensive, or otherwise inappropriate workplace misconduct by demonstrating that they would have taken the same action absent the employee’s protected activity. It also eases the tension employers have faced between their NLRA obligations and their duty to maintain harassment-free workplaces.

Background: Shifting Standards for Offensive Conduct

For decades, the Board applied special rules when evaluating whether employees who engaged in abusive or offensive conduct during protected activity retained the protection of the NLRA. In workplace interactions with management, those cases were analyzed under the four-factor Atlantic Steel test, which considered the location of the discussion, its subject matter, the nature of the employee’s outburst, and whether the conduct was provoked by an employer unfair labor practice. In practice, this often resulted in findings that employers violated the NLRA when they disciplined employees for offensive language or otherwise inappropriate conduct because the misconduct occurred during protected activity, such as raising concerns at a team meeting or advocating on behalf of a union.

In May 2020, the Board applied Atlantic Steel in Lion Elastomers I, 369 NLRB No. 88. It held that the employer violated the NLRA when it disciplined and later fired a union representative after a contentious safety meeting. The Board concluded that, although the employee’s conduct was confrontational, it did not lose the Act’s protection. The employer petitioned the U.S. Court of Appeals for the Fifth Circuit for review.

Two months later, while that appeal was pending, the Board issued General Motors LLC, 369 NLRB No. 127 (2020). That decision replaced the Atlantic Steel standard with the Wright Line framework used in most cases alleging unlawful discipline or other adverse action. Under Wright Line, the General Counsel must first show that (1) the employee engaged in protected activity, (2) the employer knew of it, and (3) the employer harbored animus against it. The employer then avoids liability by showing that it would have taken the same action even without the protected activity.

The Board asked the Fifth Circuit to remand Lion Elastomers so it could apply the new standard. On remand, a newly constituted Board instead used the case to overrule General Motors in Lion Elastomers II, 372 NLRB No. 83 (2023), and returned to the Atlantic Steel standard.

In July 2024, the Fifth Circuit vacated Lion Elastomers II, calling the Board’s approach “a classic ‘bait-and-switch.'” The court held that the Board exceeded the scope of the remand and violated the employer’s due process rights by overruling General Motors without giving the employer an opportunity to be heard. The court sent the case back with instructions “to apply General Motors to this case.” However, under its longstanding policy of nonacquiescence, the Board continued to apply Lion Elastomers II in other cases, treating the Fifth Circuit’s decision as binding only in the case before it.

The Board Restores General Motors

With the case back before it for a second time, the Republican majority (Chairman James Murphy and Members Scott Mayer and James Macy) held that the change in law announced in Lion Elastomers II, “did not survive judicial vacatur.” As a result, the majority concluded that General Motors “constitutes extant Board precedent for deciding whether an employee has lost the Act’s protection for abusive conduct that arose in the course of Section 7 protected activity.”

The majority took pains to frame its decision narrowly. It stated that it was not overruling any precedent but “merely recognizing the court’s holding now that the case is back before us.” It also found that the decision poses no threat to the Board’s nonacquiescence policy. The Board remanded the case to an administrative law judge to decide whether the employer’s actions were appropriate under the General Motors standard.

Chairman Murphy wrote separately to emphasize that the decision should not be viewed as three members affirmatively voting to overrule Lion Elastomers II. He explained that by doing so would repeat the very error the Fifth Circuit identified by exceeding the scope of the remand. He also noted that he was not reaching the merits of whether General Motors is the better test.

Member David Prouty, the Board’s sole Democrat, dissented. He argued that the law-of-the-case doctrine binds only this case, not future ones, and that the majority’s approach “swallows nonacquiescence whole.” In his view, the majority chose to retreat from Lion Elastomers II “without the work necessary to justify” it, in violation of the reasoned decision-making required by the Administrative Procedure Act.

Employer Takeaways

For now, employers that discipline employees for misconduct occurring in the course of protected activity will be evaluated under the General Motors and Wright Line framework. Employers should keep the following in mind:

> The focus shifts to motive and consistency. Under Wright Line, an employer can defend discipline by showing it would have imposed the same discipline absent the protected activity. The strongest evidence is a consistent track record of disciplining similar misconduct in non-protected settings.
> Document and apply conduct rules evenly. Clear, lawful civility and anti-harassment policies, applied the same way regardless of whether the conduct occurred during union or other concerted activity, will be key to meeting the employer’s burden.
> Protected activity is still protected. General Motors does not permit discipline for the protected activity itself, such as filing grievances or raising safety concerns. Employers should separate the offensive conduct from the underlying protected message before acting. These rules apply in both union and non-union workplaces.
> Expect continued uncertainty. The majority did not independently evaluate whether General Motors is the better standard, and the dissent previews Administrative Procedure Act challenges. The standard may be tested in the courts, and a future Board could revisit it. Employers should consult counsel before taking adverse action in close cases.

Franczek will continue to monitor developments at the NLRB.

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