On September 23, 2026, the Board released its decision in Lion Elastomers, LLC (Lion Elastomers III) and returned to the standard it had previously adopted in General Motors regarding how the Board will assess misconduct that occurred while an employee was engaged in activity protected by the National Labor Relations Act. The decision is the third in the Lion Elastomers saga that has ping-ponged between the Board and the Fifth Circuit since 2020.
What Was (and Is) General Motors?
In 2020, the Board decided General Motors LLC, replacing several different tests governing employee misconduct during protected activity with the Board’s traditional Wright Line framework. Before General Motors, the Board applied different standards depending on whether the conduct involved a workplace confrontation with management, social media activity, conversations among employees, or picket-line misconduct.
The General Motors standard focuses on the employer’s reason for imposing discipline, rather than on whether the misconduct occurred during protected activity. If protected activity was a motivating factor in the discipline, the employer may still avoid liability by demonstrating that it would have imposed the same discipline for the misconduct even absent the protected activity. The decision created a more predictable and uniform standard while better accommodating employers’ obligations to maintain respectful workplaces and comply with antidiscrimination laws.
How Did We Get Here? It’s Complicated.
The procedural history of the Lion Elastomers trilogy is unusually complicated, but a brief explanation is necessary to understand Lion Elastomers III.
In 2020, shortly before General Motors was issued, the Board found in Lion Elastomers I that the company violated the Act by threatening and disciplining an employee engaged in union-related activity. Applying the then-existing Atlantic Steel standard, which considered the circumstances surrounding the employee’s protected activity and related misconduct, the Board concluded that the employee’s conduct remained protected. Lion Elastomers sought review of the Board’s decision in the Fifth Circuit.
Two months later, the Board decided General Motors and sought a remand from the Fifth Circuit to determine whether the newly issued standard affected the outcome. By the time the case returned to the Board, however, the Board’s composition had changed. Rather than applying General Motors, the Board used the remand as an opportunity to overrule it. In Lion Elastomers II, the Board returned to the Atlantic Steel standard and reaffirmed its earlier finding that the employer violated the Act.
The Fifth Circuit subsequently vacated Lion Elastomers II, holding that the Board exceeded the scope of the remand and denied the employer due process by overruling General Motors without giving the employer a meaningful opportunity to address the issue. The court remanded the matter with instructions that the Board apply General Motors to the case before it, setting the stage for Lion Elastomers III.
The Third Time Is the Charm
In Lion Elastomers III, the Board concluded that the Fifth Circuit’s 2024 vacatur of Lion Elastomers II effectively restored its decision in General Motors. Accordingly, the General Motors standard has returned and again governs employee misconduct cases.
Employers should therefore evaluate misconduct occurring during protected activity under the Wright Line framework rather than the various setting-specific standards that General Motors replaced. This simplifies discipline decisions and, for NLRA purposes at least, the central question becomes whether the employer imposed discipline because of the misconduct itself and whether the employer would have taken the same action regardless of any protected activity.
This places renewed importance on maintaining and consistently enforcing workplace rules governing conduct, harassment, safety, and professionalism. Employers should be prepared to demonstrate that comparable misconduct receives comparable discipline regardless of whether protected activity is involved. The more consistent the employer’s disciplinary practices, the stronger its position under the General Motors framework.