• The NLRB restored the General Motors standard for evaluating discipline when employee misconduct occurs during union or other protected concerted activity, returning to the familiar Wright Line framework used in mixed-motive discipline cases and treating the misconduct as analytically distinct from the protected activity.
• The Board treated the Fifth Circuit’s vacatur of Lion Elastomers II as leaving General Motors in place, concluding that the 2023 Board could not use the case to reinstate setting-specific standards for workplace outbursts, social media posts, coworker discussions, and picket-line conduct.
• For employers, the decision restores a more practical framework for defending discipline based on offensive, abusive, or potentially harassing conduct, particularly where the employer can show it would have disciplined the misconduct even absent the protected activity.

Moving away from an approach that gave employees more leeway when misconduct occurred in the course of protected activity, the Board returned to General Motors and the familiar Wright Line mixed-motive framework, which focuses on whether animus toward protected activity motivated the discipline while preserving an employer’s ability to show it would have disciplined the misconduct anyway. The ruling is the first example of the newly constituted NLRB’s three Republican members using their majority to move past a Biden-era precedent.

How Lion Elastomers II Gave Way to General Motors

The Board’s latest...

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