In the first major decision under the new Republican majority, the National Labor Relations Board (Board) confirmed that its 2020 General Motors decision governs discipline for abusive conduct that occurs during union or other activity protected by Section 7 of the National Labor Relations Act (Act). This decision makes it easier for employers to address employee misconduct without having to treat contemporaneous protected activity as a substantial barrier to discipline.

How The General Motors Rule Officially Returned

The Biden-era Board tried to overrule General Motors in Lion Elastomers II and bring back separate tests for workplace outbursts, social media posts, and picket line conduct that were very difficult for employers to satisfy no matter how outrageous the employees’ misconduct. The Fifth Circuit vacated that decision.

In Lion Elastomers III, 375 NLRB No. 41 (Sept. 23, 2026), the new Republican majority ruled it did not need to change the law because the Fifth Circuit had already erased the Biden Board’s attempt to overrule General Motors.  As a result, General Motors remains controlling Board precedent.

What The General Motors Test Means

Under General Motors, the Board asks why the employer imposed discipline, not whether an outburst crossed a threshold that changes with its setting. The Board’s General Counsel must now show that the employee engaged in Section 7 activity, the employer knew about it, and the protected activity played a part in the employer’s decision. If the General Counsel makes that showing, the employer can still prevail by proving it would have imposed the same discipline for the misconduct even if the employee had not engaged in protected activity. This “Wright Line test,” which takes its name from the 1980 Board decision that established it, applies whether the conduct occurs at work, online, or on a picket line.

The practical point of General Motors is straightforward. An employee can engage in protected Section 7 activity and still be lawfully disciplined for accompanying abusive conduct as long as the employer applies discipline consistently. In such circumstances, employers should document what happened and apply discipline consistently. Evidence that an employer’s stated reason for discipline was pretextual, or that similar conduct from other employees drew different treatment when no protected activity was involved, can still make discipline unlawful. But General Motors gives employers significantly greater latitude to discipline employees who engage in misconduct during protected activity without violating the Act.

Consult Taft’s Employment and Labor Relations attorneys for up-to-date guidance on this and other NLRB developments.