The National Labor Relations Board on September 23, 2026 handed employers a familiar tool for defending discipline over employee misconduct: the Wright Line burden-shifting framework. In Lion Elastomers III, 375 NLRB No. 41, the Board, acting on remand from the U.S. Court of Appeals for the Fifth Circuit, reinstated the standard it adopted in General Motors (2020) and declared that decision "extant Board precedent" for assessing whether abusive conduct loses the protection of the National Labor Relations Act (NLRA).

The ruling tosses aside the more employee-friendly, "setting-specific" test that the Board had revived three years earlier in Lion Elastomers II (2023). For HR teams and labor counsel, the practical question is no longer whether the employee's outburst, profanity, or insubordination might be excused under a multi-factor "setting" analysis. Under Wright Line, the employer's defense turns on whether it would have imposed the same discipline absent the protected activity.

How did the Board get here?

The path to Lion Elastomers III runs through three earlier decisions.

In Lion Elastomers I, the Board found that an employer violated the NLRA when it disciplined and discharged an employee who raised concerns during a safety meeting, applying older setting-specific standards.

Weeks later, the Board adopted Wright Line for misconduct-during-protected-activity cases in General Motors.

The Fifth Circuit then remanded Lion Elastomers I for reconsideration under General Motors.

On remand in Lion Elastomers II (2023), the NLRB overruled General Motors outright and restored the older setting-specific framework.

The employer appealed again.

In 2024, the Fifth Circuit vacated Lion Elastomers II, holding the Board had exceeded the scope of the remand and violated the employer's due process by overturning General Motors without giving the employer a chance to argue the merits.

The court's instruction to the agency: "apply General Motors."

What does the Wright Line framework actually require?

Under Wright Line, the NLRB's General Counsel must first show that protected activity was a "substantial or motivating factor" in the adverse action. The burden then shifts to the employer, which can avoid liability by proving it would have taken the same action for the same reasons even without the protected activity.

That allocation differs materially from the setting-specific test.

The setting-specific approach focused on the nature of the conduct and the context in which it occurred, often shielding employees whose Section 7 activity included heated, offensive, or insubordinate language.

Wright Line, by contrast, puts the employer's documentation and consistency under the microscope.

Is this settled, or could the Board reverse course again?

For now, employers win.

The Board in Lion Elastomers III found it "impossible to reconcile" the Fifth Circuit's conclusion with "any argument that General Motors remains overruled."

Chairman Murphy, concurring, added that the Board did not vote through this decision to overrule precedent.

The Board nonetheless left the door open.

"Nothing in this decision or in the court's remand will preclude consideration of that issue" in a future case, the Board wrote, signaling that a properly litigated challenge to General Motors could once again reopen the question.

What should HR teams do now?

• Audit disciplinary policies and investigatory templates so they document the legitimate, non-protected-activity reasons behind any adverse action.
• Train frontline managers to separate protected activity from misconduct before imposing discipline, and apply standards consistently across protected and non-protected employees.
• Reassess pending or threatened unfair-labor-practice charges for exposure under Wright Line rather than the setting-specific framework.
• Track Board composition changes and any rulemaking that signals the agency is preparing to revisit General Motors.

The Board's own caveat about future cases is the one forward signal HR leaders should watch. With the Fifth Circuit now on record that the Board overstepped by unilaterally overruling General Motors, the next General Counsel who wants to restore the setting-specific standard will need to litigate the merits, not rely on a procedural reversal.