Employee Misconduct: Burden-Shifting Returns with NLRB’s Latest Lion Elastomers

Takeaways

• The National Labor Relations Board has returned to the burden-shifting standard for determining whether employees lose National Labor Relations Act protection for misconduct during Section 7 protected activity.
• Under the restored test, the Board general counsel must prove, by a preponderance of evidence, that employees engaged in union or protected concerted activity, the employer knew of that activity, and antiunion animus was a motivating factor in the adverse action. 
• If the general counsel satisfies the initial burden, the employer must prove that it would have taken the same disciplinary action absent the employee’s protect activity.
• Employers’ consistent policy enforcement and thorough documentation continue to be important in defending employee disciplinary decisions.

Related links

• Lion Elastomers LLC (2026)
• Labor Board Returns to Prior Standard, Limiting Employers’ Response to Abusive Workplace Conduct
• Manufacturers and Labor Board’s Decision Limiting Employers’ Response to Abusive Workplace Conduct

Article

The National Labor Relations Board (NLRB) restored the burden-shifting standard in General Motors LLC, 369 NLRB No. 127 (2020), as the test for determining whether employees lose the National Labor Relations Act’s (NLRA) protection because of abusive conduct while engaging in a protected strike, protected concerted activity on social media, and protected concerted activity during a meeting with management. Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026).

Under the revived 2020 standard, the NLRB general counsel (GC) must prove, by a preponderance of evidence, that:

• Employees engaged in union or protected concerted activity; 
• The employer knew of that activity; and 
• Antiunion animus was a motivating factor in the adverse action.

If the GC satisfies the initial burden, the employer must prove that it would have taken the same disciplinary action absent the employee’s protect activity.

Chairman James Murphy, in a separate concurrence, agreed the earlier decision in this case, 372 NLRB No. 83 (2023) (Lion Elastomers II), could not overturn General Motors, but declined to address whether Intertape Polymer Corp., 373 NLRB No. 68 (2024), independently overruled General Motors, concluding that the issue was not before the Board and fell outside the scope of the court’s remand.

Accordingly, following the latest Board decision, employers can take consistent, non-discriminatory, prompt action against employee misconduct, in line with Equal Employment Opportunity Commission (EEOC) obligations to prevent hostile work environments on the basis of protected traits.

Before General Motors

For decades, the NLRB applied setting-specific standards to determine when abusive employee conduct lost the protection of the NLRA. These standards created tension with anti-discrimination laws, forcing employers to navigate between the NLRA and the laws enforced by the EEOC.

Three setting-specific standards were consistently applied to protect truly egregious behavior: (1) the Atlantic Steel four-factor test; (2) the totality of circumstances test; and (3) the coerce and intimidate standard, commonly referred to as the Clear Pine Moulding standard.

For example, in 2007, the Board applied the Atlantic Steel four-factor test to determine an employee calling an employer’s vice president a “stupid f[…] moron” during discussion with management was protected activity.

In 2015, the Board applied the totality of circumstances test to protect an employee’s social media post attacking a manager and his family: “Bob is such a NASTY MOTHER F[…] don’t know how to talk to people!!!! F[…] his mother and his entire f[…] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Finally, the Clear Pine Moulding standard has been applied by the Board to protect egregious behavior on the picket line. For example, in 2006, the NLRB found a White picketer was protected for saying to Black replacement workers, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.”

The courts regularly questioned the inconsistency of these Board decisions with the laws enforced by the EEOC; but courts generally deferred to the NLRB, leaving employers to make the impossible choice — provide a safe workplace or comply with the existing interpretation of the NLRA.

General Motors and Lion Elastomers

The NLRB adopted the Wright Line analysis in its 2020 General Motors decision to determine whether workers’ abusive conduct in the course of protected concerted activity was protected by the NLRA. This burden-shifting analysis ensured that abusive conduct could be evaluated independent of the Section 7 activity.

The GC must prove, by a preponderance of evidence, that employees engaged in union or protected concerted activity, the employer knew of that activity, and antiunion animus was a motivating factor in the adverse action.

If the GC satisfies the initial burden, the employer must prove that it would have taken the same action absent the employee’s protect activity.

In 2023, however, the Board used Lion Elastomers II to overrule General Motors and restore several setting-specific tests.

The U.S. Court of Appeals for the Fifth Circuit vacated Lion Elastomers II in 2024, concluding the Board exceeded the scope of the court’s earlier directions by using the case to overrule, rather than applying, General Motors. The court also found the Board denied the employer due process by failing to provide an adequate opportunity to address whether General Motors should be overruled. The court directed the Board on remand to apply General Motors.

Board: General Motors Remains Controlling Precedent

The Board has gone further than simply applying General Motors as the law in the latest Lion Elastomers case.

NLRB Members Scott Mayer and James Macy concluded that the Fifth Circuit’s vacatur nullified Lion Elastomers II’s attempted change in law, leaving General Motors as “extant Board precedent” for determining whether abusive employee conduct arising during Section 7 activity loses the NLRA’s protection. Chairman Murphy concurred, emphasizing that the Board was recognizing the legal effect of the Fifth Circuit’s ruling rather than affirmatively overruling precedent.

Member David Prouty agreed that General Motors governed the underlying proceeding, but he disputed the Board majority’s conclusion that the Fifth Circuit’s ruling eliminated Lion Elastomers II as precedent in other cases.

The Board remanded the case to the administrative law judge to apply General Motors, including reopening the record if necessary.

Practical Implications for Employers

To determine whether abusive conduct during Section 7 activity retains the protection of the NLRA, the Board’s analysis focuses on whether protected activity motivated employee discipline and, if so, whether the employer would have taken the same action for the misconduct absent that activity.

Importantly, the Board’s decision does not remove NLRA protections from employees who engage in misconduct while exercising Section 7 rights. Employers should continue to distinguish the employee’s protected activity from the misconduct prompting discipline and consider their treatment of comparable misconduct.

Consistent enforcement of workplace policies and contemporaneous documentation can help show that the employer would have taken the same action regardless of the protected activity.

Employers with pending disciplinary matters or unfair labor practice proceedings involving employee misconduct during protected activity should consider with counsel how the restored General Motors standard affects those matters.

Contact a Jackson Lewis attorney with questions about this decision, its implications, or other Board developments.