In a predictable shift toward employer-friendly standards, the National Labor Relations Board (“Board”) has reinstated a standard that gives employers greater latitude in determining whether an employee’s abusive conduct during union or other protected activity loses legal protection under the National Labor Relations Act (the “Act”).

This is the first of what is expected to be many decisions from the newly constituted Board in President Trump’s current term (“Trump II Board”) that reconsider prior decisions issued by the Biden Board.  For employers, the decision restores a more predictable framework for discipline and discharge decisions involving profanity, insubordination, or other heated conduct arising from protected activity.

A workable framework

The recent decision, Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026), has a convoluted procedural history, briefly summarized below, but ultimately reinstates the Board’s 2020 decision in General Motors LLC. General Motors replaced older, fact-intensive tests for workplace confrontations, social media posts, and picket-line conduct with the Wright Line framework already used in ordinary discrimination cases. Under Wright Line, the General Counsel must first show that the employee’s protected activity was a motivating factor in the discipline. The burden then shifts to the employer to show it would have taken the same action regardless of the protected activity.

This more workable standard focuses on the employer’s motivation rather than the setting in which the misconduct occurred. As a result, consistent, well-documented enforcement of conduct policies is more likely to be upheld, even when misconduct occurs during a union grievance, protest, or other protected activity.

A winding history

In 2020, the Board found that Lion Elastomers LLC violated the Act by threatening, disciplining, and discharging an employee because of union activity. While the decision was on appeal, the Board issued General Motors LLC, adopting the Wright Line framework for misconduct during protected activity, and sought a remand to apply the new standard.

When Lion Elastomers LLC was remanded to the Board in 2023, the Biden Board overruled General Motors and reinstated the older, employee-favorable, setting-specific standards. In 2024, the Fifth Circuit held that the Biden Board exceeded the remand and denied the employer due process by changing the governing standard without an opportunity to be heard. It directed the Board to apply General Motors, which the Trump II Board has now done.

Next steps and takeaways

This decision is part of a broader effort by the Trump II Board and the General Counsel to restore employer-friendly precedent governing severance agreements, handbook policies, captive-audience meetings, and other recurring labor-relations issues. For employers, the return to General Motors provides greater latitude to address abusive or insubordinate conduct that occurs alongside protected activity—but it does not create a free pass to discipline employees for the protected activity itself.

Employers should review conduct and discipline policies, train managers to distinguish protected advocacy from independently sanctionable misconduct, and document comparable enforcement across union and nonunion settings. Before imposing discipline in a close case, employers should identify the specific rule violation, confirm that the same response would follow absent the protected activity, and preserve the evidence supporting that conclusion.