The National Labor Relations Board restored the burden-shifting standard for employee misconduct during otherwise protected Section 7 activity. Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026) (Lion Elastomers III). The Board held that the U.S. Court of Appeals for the Fifth Circuit’s vacatur of Lion Elastomers, 372 NLRB No. 83 (May 1, 2023) (Lion Elastomers II), left General Motors LLC, 369 NLRB No. 127 (2020), as controlling precedent for determining whether an employee’s misconduct while engaging in otherwise protected activity lost the protections of the National Labor Relations Act. Under General Motors, the Board applies the Wright Line burden-shifting framework, allowing employers to impose discipline if they can establish that they would have taken the same action absent the employee’s protected activity. The decision marks the first significant shift in Board precedent since General Counsel (GC) Crystal Carey outlined her priorities for challenging precedent in GC… Read the complete article here...
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