NLRB Restores Wright Line Standard for Misconduct During Protected Activity

In a September 2026 labor law roundup, the NLRB's Lion Elastomers III (375 NLRB No. 41, Sept. 23, 2026) restored the Wright Line burden-shifting framework first set out in General Motors LLC to decide when an employee's misconduct during otherwise protected Section 7 activity loses NLRA protection, following the Fifth Circuit's vacatur of Lion Elastomers II — the Board's first significant precedent shift since General Counsel Crystal Carey's GC Memorandum 26-04. In a separate decision, the Board held in Michigan Education Association (375 NLRB No. 42) that employers need not disclose attorney-client privileged material in response to union information requests and that the traditional balancing test does not apply, though employers must still establish privilege. The Seventh Circuit in Hamada v. Laborforce affirmed denial of a Section 10(j) injunction, holding that generalized harm to union support does not establish irreparable harm, a developing circuit split with the Second Circuit. Separately, Delaware and Maryland captive-audience meeting restrictions took effect Sept. 30 and Oct. 1, bringing the total to 15 states, with First Amendment and federal preemption challenges pending. Watch for employer-side Wright Line arguments, privilege assertions in union information demands, and further 10(j) splits.