Background
The National Labor Relations Board (“NLRB” or the “Board”) issued a significant decision on September 23, 2026, that signals yet another shift in the ongoing tug-of-war over how the agency handles employee misconduct that occurs during union or other protected activity. In Lion Elastomers III, 375 NLRB No. 41 (2026), the Board addressed a question that has been the subject of years of litigation: which legal standard applies when determining whether an employee's abusive conduct during otherwise protected activity costs the employee the protections of the National Labor Relations Act (the “Act”).
The case has a long procedural history. The Board originally found that Lion Elastomers LLC violated the Act by threatening, disciplining, and discharging an employee who engaged in union activity. After the Board issued General Motors LLC, 369 NLRB No. 127 (2020)—which replaced setting-specific standards with the Wright Line burden-shifting framework—the case was remanded for the… Read the complete article here...
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