Those of us who have been following the Lion Elastomers saga know it has been a long road. We previously covered the Board’s 2023 decision in Lion Elastomers II, and when the Fifth Circuit vacated that decision in 2024, we wrote about what it meant for employers.
On September 23, 2026, the Board finally brought the case to a close — at least for now — issuing Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III), a precedential decision confirming that the traditional Wright Line test applies when an employer disciplines an employee for offensive or abusive conduct that occurred during otherwise protected activity.
For employers who have been managing this uncertainty for years, this is a meaningful development, and one worth understanding in some depth.
The Wright Line Framework
Wright Line has been the NLRB’s standard framework for mixed-motive cases since Wright Line, Inc., 251 NLRB 1083 (1980), and was approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under this framework:
- The General Counsel must first prove by a preponderance of the evidence that: (1) the employee engaged in protected activity; (2) the employer knew of it; and (3) it was a motivating factor in the adverse action taken against the employee.
- If that prima facie showing is made, the burden shifts to the employer to demonstrate that it would have taken the same action even absent the protected activity.
- If the employer’s stated justification is found to be pretextual, the Board will find a violation without entertaining the same-action defense.
The framework is designed to address the reality that disciplinary decisions are rarely clean. An employee who is also a union organizer gets fired — was it because of the organizing, or because of a legitimate performance issue? Wright Line gives both sides a structured way to litigate that question. Applying it to situations involving offensive conduct during protected activity is a logical extension of that same principle: was the discipline driven by what the employee said and how they said it, or by the fact that they were engaging in protected activity at all?
What the Decision Actually Does
The core holding of Lion Elastomers III is straightforward: one standard applies, regardless of whether the misconduct occurs in a meeting with management, on social media, or on a picket line. That uniformity matters because the prior framework — separate tests for each context under Atlantic Steel, Desert Springs, and Clear Pine Mouldings — created real compliance problems that we described in detail in our prior alerts.
To briefly recap: before General Motors, an employer facing discipline-related conduct had to first correctly identify the category of misconduct before it could evaluate its legal exposure. A screaming match with a supervisor at a grievance meeting triggered the Atlantic Steel four-factor test. A profanity-laced social media post called for a totality-of-the-circumstances analysis. Threatening behavior on a picket line brought in the Clear Pine Mouldings standard. These categories were not always obvious, the tests produced inconsistent results, and because the context-specific standards afforded employees considerable latitude for offensive conduct tied to protected activity, the Board sometimes ended up protecting profane or abusive outbursts with results that struck many employers as hard to justify. The framework as a whole created an uncomfortable tension with employers’ obligations under anti-harassment and EEO laws, because conduct that would be a terminable offense under Title VII or state discrimination law might still be deemed “protected” under the old NLRA standards.
What is new and significant about Lion Elastomers III is not just the legal standard it reaffirms, but how it gets there. The procedural defect that sank Lion Elastomers II — the Board’s failure to give the employer an opportunity to be heard before overruling General Motors — is not present here. This decision was issued through a proper process, with a functioning three-member majority, and that makes it a more durable foundation than what came before. The Fifth Circuit’s 2024 decision was careful to vacate Lion Elastomers II on procedural rather than merits grounds, which meant the Board theoretically retained the ability to revisit the substantive question with proper notice. Lion Elastomers III closes that loop.
How We Got Here
For those coming to this fresh, a brief account of the procedural history is useful, if only because it explains why a decision applying a 45-year-old legal standard qualifies as significant news. The underlying facts are straightforward: the case arose from an employee’s outburst during a grievance meeting, and the Board’s handling of that single incident has now produced three precedential decisions over six years.
The Board’s 2020 decision in General Motors LLC, 369 NLRB No. 127 (2020), first applied Wright Line uniformly to discipline for offensive conduct during protected activity, replacing the patchwork of context-specific tests that had developed over decades. It was a pragmatic, overdue fix, and it also addressed the tension between the NLRA and workplace anti-harassment laws that the prior framework had left unresolved.
In 2023, a Democrat-majority Board overruled General Motors in Lion Elastomers II, reinstating the old tests on remand from a Fifth Circuit order that had not authorized that outcome. The Fifth Circuit vacated Lion Elastomers II in July 2024, finding that the Board had both exceeded the scope of the remand order and denied the employer due process by overruling General Motors without providing it an opportunity to be heard on that question. The court sent the case back down with explicit instructions to apply the General Motors/Wright Line standard.
The case then sat on remand for nearly two years. The Board lacked a quorum for approximately one year and then lacked the three-member majority required to issue precedential decisions for roughly another. Lion Elastomers III is the product of the Board’s current 3-1 Republican majority finally having the numbers to act.
What This Means in Practice
Restoring Wright Line as the uniform standard is genuinely useful for employers, but it does not make every disciplinary situation straightforward. A few points worth keeping front of mind:
The same-action defense is only as strong as your documentation and track record. Wright Line shifts the burden to the employer once the General Counsel makes its prima facie showing. To prevail, you need to demonstrate that you would have taken the same disciplinary action regardless of the protected activity, and that showing depends heavily on whether you can point to consistent enforcement of your policies over time. If similar conduct has gone unaddressed in the past, or if the timing of the discipline looks like it was triggered by the protected activity rather than the misconduct itself, you are going to have a problem. This is a good moment to look honestly at how your disciplinary policies have actually been applied, not just how they read on paper.
The difficult cases are still difficult. Consider an employee who uses racial slurs or gendered profanity in the course of complaining about working conditions or criticizing a supervisor. Wright Line gives you a path — demonstrate that the language itself, independent of the protected activity, would have resulted in the same discipline — but the analysis is still fact-specific and the stakes of getting it wrong run in multiple directions. Discipline that is insufficiently grounded could result in an unfair labor practice finding; failure to act could expose the company to liability under Title VII or analogous state laws. The alignment between Wright Line and EEO enforcement standards is one of the more practically significant benefits of this decision, and one that does not always get enough attention.
The “same action” analysis requires more than good intentions. Employers sometimes assume that if they genuinely believe the discipline was warranted, the defense is available. That is not quite right. The Board and reviewing courts will look at objective indicators of pretext, including comparative treatment of similarly situated employees, whether the stated policy was consistently enforced, the sequence of events leading to the discipline, and whether the employer’s explanation has shifted over time. The strength of the defense is built long before the unfair labor practice charge is filed.
Section 7 protections have not narrowed. The decision changes how the Board evaluates discipline; it does not change what qualifies as protected concerted activity, and it does not give employers license to be less careful about the underlying reason for discipline. Employees retain broad rights under the Act, and discipline that is genuinely retaliatory, whatever form the protected activity took, remains unlawful under Wright Line just as it did before.
Multi-state employers face additional complexity. It is worth remembering that the Wright Line analysis operates alongside, not instead of, state labor relations laws in jurisdictions that have their own mini-NLRA frameworks. In states like California and New York, the interaction between state-law protections and the federal standard can add another layer of analysis, particularly where the offensive conduct also implicates state anti-harassment obligations.
How you document the discipline matters as much as the decision itself. Disciplinary notices and investigation files should avoid language suggesting frustration with the underlying union activity, grievance activity, group complaints, or other protected conduct, and should instead identify the specific offensive, abusive, threatening, discriminatory, or potentially harassing misconduct at issue and the neutral workplace rule or expectation it violated. Where the protected activity occurred close in time to the misconduct, it is worth documenting contemporaneously that the protected activity itself did not factor into the decision, and that comparable misconduct would have drawn the same discipline even outside that context.
The Broader Picture
Lion Elastomers III brings a degree of coherence to an area that has lacked it for a long time. A single, consistent standard benefits everyone involved — it gives the General Counsel a predictable prosecutorial framework, it gives employers a clearer basis for making disciplinary decisions, and it resolves the long-standing tension between the NLRA and anti-harassment laws that the prior patchwork approach never adequately addressed. Under the old framework, employers could find themselves in the difficult position of being required to tolerate conduct that would simultaneously expose them to liability under Title VII or analogous state laws.
Whether this standard holds is a separate question. The Board expressly left open the possibility that it could revisit the issue in a future case, and the dissent’s reliance on Intertape Polymer Corp. — a separate decision that used a setting-specific standard and cited Lion Elastomers II — signals that the status of the old standards in other pending or decided matters is not entirely settled, even though the majority held that General Motors governs unless and until the Board says otherwise. The Board’s approach to this issue has shifted with changes in political composition before, and employers should plan accordingly. Those who use the current period of clarity to review and strengthen their documentation practices and disciplinary procedures will be better positioned regardless of where the law goes from here.
The practical guidance remains what it has always been: document disciplinary decisions carefully and contemporaneously, apply policies consistently, and involve counsel early when a situation involves both protected activity and serious misconduct. Wright Line provides a more workable framework, but it still rewards preparation.