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October 6, 2026 | Legal Advisory

On September 23, 2026, the National Labor Relations Board issued a decision in Lion Elastomers LLC. In its decision, the Board held that General Motors LLC, 369 NLRB No. 127 (2020) is once again controlling Board precedent for determining whether employees lose the protection of the National Labor Relations Act when they engage in abusive conduct in connection with otherwise protected union activity.

Under General Motors, the Board applied the well-established Wright Line framework to determine whether an employer unlawfully disciplined an employee for protected activity or lawfully disciplined the employee for misconduct that occurred in connection with that activity. Under the Wright Line test, a violation of the Act would require a showing that (1) the employee engaged in protected union activity, (2) the employer knew of that activity, and (3) the employer had animus against the activity. If that initial showing is made, the employer may avoid liability by establishing that it would have taken the same action even in the absence of the protected activity.

The Board’s recent decision marks a return from the setting-specific standards reinstated by the Board in its earlier 2023 Lion Elastomers decision. That decision afforded employees greater latitude for misconduct occurring during certain protected activities. The Fifth Circuit had subsequently vacated that 2023 decision, concluding that the Board exceeded the scope of the court’s remand and violated the employer’s due process rights when it used the case to overrule General Motors. The Board has now concluded that the 2023 decision did not survive that vacatur and that General Motors remains controlling precedent.

Employer Takeaway: In the wake of the Board’s recent decision in Lion Elastomers LLC, employers have greater latitude to enforce neutrally applied workplace conduct rules when employees engage in abusive, threatening, harassing, or inappropriate conduct during otherwise protected union or concerted activity. In such cases, employers should carefully document the specific misconduct that gives rise to any discipline and consistently apply workplace rules, regardless of whether the misconduct occurs in connection with protected activity. Thus, for example, if an employee directs threatening or abusive language at a supervisor while raising a workplace grievance, the employer may discipline the employee for that misconduct, provided that it would impose the same discipline on an employee who engaged in similar misconduct outside the context of protected activity. Inconsistent enforcement of work rules, on the other hand, would support a finding that the employer’s stated reason for discipline is pretextual.

For further guidance, or if you have any questions regarding any of the topics discussed in this client alert, please contact Liam O'Connell or Natalie Cappellazzo in Nutter's Labor, Employment and Benefits practice group or your Nutter attorney.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.