The NLRB Pendulum Swing Begins: Tackling Offensive Employee Conduct

On September 23, 2026, the National Labor Relations Board (“Board”) issued a decision with implications for employers navigating the intersection of employee misconduct and protected activity under the National Labor Relations Act (the “Act”), potentially making it easier for employers to discipline workers for their outbursts while otherwise engaged in protected conduct. Lion Elastomers LLC, now before the Board for the third time, marks one of the first key decisions by the Trump administration’s Republican-majority Board.

To understand the present Board decision, some context is needed. The employee at issue in Lion Elastomers LLC claims that he was threatened, disciplined, and discharged by his employer for engaging in protected activity under the Act. The employer, on the other hand, contends its disciplinary action was a lawful response to the employee’s use, during workplace meetings, of language it characterizes as inflammatory and insulting.

In 2020, the Board, in what we will call Lion Elastomers I, found the employer’s actions violated the Act under the “setting-specific” standards established in Atlantic Steel, which governed abusive conduct cases. Under the setting-specific standards, the inquiry centered on the employee’s conduct—is the employee’s conduct so egregious that it forfeits the Act’s protection considering the particular setting in which it occurred. Later that year, however, the Board issued General Motors, which replaced the setting-specific standards with the employer motive standard set forth in Wright Line. Under that standard, if the employer demonstrates it would have taken the same adverse action regardless of whether the employee was engaged in protected activity, the discipline or discharge is lawful.

The Board then obtained a remand from the Fifth Circuit to apply the new General Motors test to Lion Elastomers I. Instead, in Lion Elastomers II, a newly constituted Board used the remand to overrule General Motors entirely, returning to the traditional Atlantic Steel setting-specific standards. In 2024, the Fifth Circuit vacated Lion Elastomers II, calling the Board’s maneuver a “bait-and-switch” that exceeded the scope of the remand and violated the employer’s due process rights.

In the 2026 decision—Lion Elastomers III, for those keeping score—a three-member majority concluded that the Board’s attempt to overrule General Motors “did not survive judicial vacatur” and that General Motors “constitutes extant Board precedent” for abusive conduct cases.

The majority framed its holding narrowly, emphasizing that it is not affirmatively overruling the setting-specific standards as a policy matter; it is merely recognizing the legal effect of the Fifth Circuit’s decision. The majority also distinguished this situation from the Board’s traditional policy of nonacquiescence, reasoning that the Fifth Circuit did not disagree with the Board’s policy rationale or interpretation of the Act, but rather found the Board lacked authority to use this particular case to overrule General Motors. In a concurring opinion, Chairman Murphy underscored the following point: the decision “should not be considered as three members affirmatively voting to overrule precedent.”

Key Takeaways for Employers

So where does this leave employers? In practical terms, General Motors and the Wright Line framework are back in the driver’s seat, at least for now. This means that in cases where an employee engages in abusive conduct (such as profanity, insults, threats, or other misconduct) during the course of otherwise protected activity, the Board’s analysis will focus on employer motive: can the employer demonstrate it would have taken the same disciplinary action regardless of the employee’s protected activity? The various setting-specific tests—Atlantic Steel for workplace confrontations with management, the totality of the circumstances test for social media, and Clear Pine Mouldings for picket lines—are, at this moment, no longer the governing framework.

That said, the majority left the door open for the issue to be revisited, stating that “nothing in this decision or in the court’s remand will preclude consideration” of whether to overrule General Motors if the issue is “presented and litigated in a future case.” Given the sharp divide on the current Board, employers should expect the debate over the proper standard for abusive conduct cases to continue.

In the meantime, employers would be wise to revisit their policies and procedures for handling employee misconduct that occurs during protected activity. While the Wright Line framework is generally viewed as more employer-friendly, it still requires employers to show that they would have taken the same action absent the protected activity. Employers navigating these issues should consult with an employment lawyer to ensure their disciplinary decisions can withstand Board scrutiny under the current standard.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.