NLRB Returns to Mixed-Motive Standard for Punishment of Employee Misconduct

On September 23, 2026, with a new three-member Republican majority, the National Labor Relations Board (NLRB) issued a significant decision on how it will analyze discipline of employees who commit misconduct while engaged in activity otherwise protected under the National Labor Relations Act (NLRA). The decision in Lion Elastomers III overturns, mostly on procedural grounds, the Biden Board’s 2023 decision Lion Elastomers II, which had supplanted the more employer-friendly framework established by an earlier Trump Board in its 2020 General Motors decision.

This shift is important for employers in two respects. First, it represents an important change in how the Board will evaluate discipline of employees for abusive, offensive, or inappropriate conduct while participating in activity protected under Section 7 of the NLRA. Second, the decision raises questions about how willing Trump Board 2.0 will be to aggressively reverse policies of the Biden Board.

The Evolution from General Motors to Lion Elastomers and Back Again

The NLRB is notorious for doctrinal pendulum swings, and the analysis of when an employee’s union advocacy or other concerted activity loses NLRA protection is a prime example. The Lion Elastomers cases arose from discipline of an employee who complained about working conditions during a safety meeting that turned heated. At that time, the Board’s approach was to weigh setting-specific factors to determine whether employee misconduct was so abusive or offensive to lose the protection of the NLRA. For workplace confrontations, these factors were: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. Atlantic Steel, 245 NLRB 814 (1979). The Board concluded that Lion Elastomers violated the NLRA by threatening, disciplining, and ultimately discharging the employee.  

With the original Lion Elastomers case pending on appeal in the Fifth Circuit, the first Trump Board issued the landmark 2020 decision General Motors, fundamentally changing the way to evaluate employee misconduct during protected activity. Rather than apply setting-specific tests, the Board opted to replace them with the familiar Wright Line framework for analyzing mixed motives. Under that approach, the general counsel must prove that the employee’s protected activity was a motivating factor in the employer's disciplinary decision. Even then the employer could avoid liability, however, by establishing that it would have taken the same action regardless of the protected activity.¹ The Board in General Motors reasoned that Wright Line properly balanced the parties’ rights and aligned with modern antidiscrimination laws. The Fifth Circuit then remanded Lion Elastomers to the Board to determine whether the General Motors decision should affect the Board’s analysis. 

Eventually Lion Elastomers II came before the Biden Board, which in 2023 rejected General Motors and returned to the Board's earlier context-specific tests for evaluating employee misconduct during protected activity. When the case was appealed again the Fifth Circuit vacated the Board decision. The court refused to enforce the Board’s order because it found both that the Board had exceeded the scope of the remand when it overruled General Motors, and that it had violated the employer’s due process rights by failing to provide it with an opportunity to address that issue. The court directed the Board to apply General Motors, and therefore a Wright Line analysis, to the case. Now with a Republican majority, on September 23, 2026, Trump Board 2.0 declared in Lion Elastomers III that, because the Fifth Circuit invalidated the Board's attempt to overrule General Motors, the Wright Line framework remains the operative precedent that that Board will apply to employee misconduct cases.

Considerations and Potential Implications

While commentary on Lion Elastomers has focused on the immediate result of reinstating General Motors, employers should also pay close attention to what the decision does not say. The majority did not embrace General Motors on policy grounds or agree that the Wright Line standard is superior to the setting-specific tests of Lion Elastomers II. The decision rests solely on narrow procedural grounds. In fact, Republican-appointed Chair Murphy emphasized in a separate concurrence that he “is not reaching the merits of whether General Motors is a better test to apply than that set forth in Lion Elastomers II, or whether an entirely different standard would be preferable.” The decision gives no clear direction about what the current Board majority would decide is the proper policy approach when presented with this question in a future case. 

Looking Ahead

An employer deciding whether to discipline an employee for misconduct while engaged in concerted activity generally consults counsel and weighs the severity of the misconduct and the lawful business reasons for imposing discipline against the risks and costs of litigation regardless of what specific legal test the Board says is in place. Right now, the Board seems to have said that the Wright Line mixed-motive analysis will apply.

However, the Board’s refusal to endorse the first Trump Board’s policy decision in General Motors could turn out to be as significant as the outcome itself. Does resolving the case on procedural rather than policy grounds indicate whether this Board is prepared to act aggressively to swing the policy pendulum back in the direction of employers? At this point the answer is unclear. Employers should therefore be cautious not to prematurely anticipate the end of Biden-era precedents concerning employer policies, protected concerted activity, bargaining orders, waivers of bargaining and other important issues. At the same time, the decision is a reminder that employers defending unfair labor practice charges should consider their appellate strategy from the outset, preserve all applicable defenses, and create the thorough evidentiary record that may enable them to make the case for meaningful policy changes in a judicial forum when necessary.