NLRB Restores Wright Line Test for Disciplining Abusive Protected Conduct
A three-member Board in Lion Elastomers III held that General Motors survives the Fifth Circuit's vacatur, putting the employer-motive standard back in charge of abusive-conduct discipline under the NLRA.
On September 23, 2026, a three-member NLRB majority in Lion Elastomers LLC held that the Board's 2020 General Motors decision — which replaced the Atlantic Steel "setting-specific" approach to abusive conduct with the Wright Line employer-motive test — "constitutes extant Board precedent." The route there matters: the Board had used a Fifth Circuit remand to overrule General Motors outright in Lion Elastomers II, and the Fifth Circuit vacated that maneuver in 2024 as a "bait-and-switch" exceeding the remand's scope and depriving the employer of due process.
For clients, discipline for profanity, threats or similar outbursts during otherwise protected activity will again turn on employer motive: would the employer have taken the same action regardless of the protected activity? The setting-specific frameworks for workplace confrontations, social media posts and Clear Pine Mouldings picket-line conduct are not the governing standard for now.
Two caveats. The majority emphasized it was not policy-based overrulement, and Chairman Murphy concurred the ruling is not three members affirmatively voting to overrule precedent, leaving the door open if the issue is litigated again. The source also describes a sharply divided Board. Next steps: audit discipline issued under the setting-specific standards, preserve evidence of the same action absent protected activity, and watch further Board and Fifth Circuit developments.