Those of us who have been following the Lion Elastomers saga know it has been a long road. We previously covered the Board’s 2023 decision in Lion Elastomers II, and when the Fifth Circuit vacated that decision in 2024, we wrote about what it meant for employers.

On September 23, 2026, the Board finally brought the case to a close — at least for now — issuing Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III), a precedential decision confirming that the traditional Wright Line test applies when an employer disciplines an employee for offensive or abusive conduct that occurred during otherwise protected activity.

For employers who have been managing this uncertainty for years, this is a meaningful development, and one worth understanding in some depth.

The Wright Line Framework

Wright Line has been the NLRB’s standard framework for mixed-motive cases since Wright Line, Inc., 251 NLRB 1083 (1980), and was approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under this framework:

• The General Counsel must first prove by a preponderance of the evidence that: (1) the employee engaged in protected activity; (2) the employer knew of it; and (3) it was a motivating factor in the adverse action taken against the employee.
• If that prima facie showing is made, the burden shifts to the employer to demonstrate that it would have taken the same action even absent the protected activity.
• If the employer’s stated justification is...

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