Shifting Gears: NLRB Reinstates the General Motors Standard for Employee Misconduct during Protected Activity

At a Glance

• Under Wright Line, the strongest defense is evidence that the employer would have imposed the same discipline regardless of the protected union activity.
• If you are defending an unfair labor practice charge involving discipline for conduct during protected activity, ask counsel how the return to General Motors affects your case.

On September 23, 2026, the National Labor Relations Board (NLRB or Board) issued Lion Elastomers LLC, 375 NLRB No. 41 (Lion Elastomers III), holding that its 2023 attempt to overrule General Motors LLC (via Lion Elastomers II) could not stand after the Fifth Circuit vacated that decision in 2024. The Board majority therefore recognizes General Motors as controlling law, changing how the Board evaluates discipline for offensive or abusive conduct occurring during union or other protected activity, including strikes.

Key Points

General Motors again controls.

In 2024, the Fifth Circuit vacated the Board's 2023 decision overruling General Motors on two grounds: the Board had gone beyond the narrow task the court sent back to it, which was simply to apply General Motors to the original case (Lion Elastomers I), in which it had chosen to apply a different standard. As a result, the Board majority concluded that its attempted change in the law never took effect, so General Motors remains the governing standard for deciding whether an employee's abusive conduct during union or other protected activity loses the protection of the National Labor Relations Act.

Setting-specific tests no longer govern.

The standards the Board sought to restore in 2023 via Lion Elastomers II — the Atlantic Steel four-factor test for workplace outbursts toward management, the totality-of-the-circumstances test for social media posts and coworker discussions, and the Clear Pine Mouldings picket-line test — no longer control.

Wright Line test governs causation.

To find that an employer acted improperly in disciplining an employee for misconduct coupled with otherwise protected concerted activity, the NLRB's general counsel must first show that: (1) the employee engaged in protected activity, (2) the employer was aware of that protected activity, and (3) the employer's anti-union animus was a motivating factor in the adverse action. If that showing is made, the burden shifts to the employer to show that it would have taken the same action regardless of the protected activity.

The majority relied on narrow procedural grounds, while also signaling a major policy shift.

The majority characterized its decision as recognition of the court's ruling, not a policy choice, but by doing so has signaled an intent to give some deference to federal court decisions instead of maintaining its longstanding policy of "non-acquiescence," whereby the NLRB continues to apply its own interpretation of federal labor law, even when inconsistent with the ruling of a federal court.

The dissent.

Member Prouty maintained that the 2023 decision and a subsequent decision applying it remain binding precedent, signaling that a future Democratic-majority Board would likely decline to follow General Motors and that this decision could mark the end of the non-acquiescence doctrine as a whole.

Employer Takeaways

1. Maintain consistent performance management: Under Wright Line, the strongest defense is evidence that the employer would have imposed the same discipline regardless of the protected activity. Employers should apply performance and conduct standards consistently and document the legitimate basis for each decision.
2. Train supervisors: Supervisors should avoid comments that could demonstrate hostility toward union or other protected activity and undermine legitimate discipline. Training should stress neutral communication, consistent rule enforcement, thorough documentation, and consultation with human resources or counsel before discipline involving protected activity.
3. Revisit pending matters: If you are defending an unfair labor practice charge involving discipline for conduct during protected activity, ask counsel how the return to General Motors affects your case. As this decision shows, when the governing standard changes mid-case, employers may be entitled to an opportunity to present evidence and arguments under the new standard.
4. Keep your eyes on the Fifth Circuit: The Fifth Circuit is increasingly the go-to court for NLRB appeals. The circuit made news in 2025 when a majority upheld a preliminary injunction barring the NLRB from prosecuting unfair labor practice cases against several employers. Starbucks, who has brought several recent circuit court challenges, has won 80% of their recent challenges to NLRB decisions in the Fifth Circuit compared to 57% in other circuits.