What's new at the NLRB — First precedent shift as Republican majority revives Wright Line framework for employee discipline

On September 23, 2026, the NLRB's new Republican majority issued its decision in Lion Elastomers III, making its first change to Board precedent and returning to a more uniform framework for evaluating when offensive or abusive employee conduct loses protection under the NLRA. The decision effectively restores the Wright Line framework, which focuses on whether protected activity was a motivating factor in the employer’s decision to discipline an employee and, if so, whether the employer would have taken the same action because of the employee’s misconduct even absent the protected activity. 

In practical terms, an employee does not receive automatic protection from discipline simply because offensive conduct occurs while the employee is engaged in otherwise protected activity. The decision moves away from the three setting-specific tests previously used to evaluate conduct on the picket line, in the workplace, and on social media, and instead applies the Wright Line framework across these contexts. 

Notably, the Republican majority characterized its decision not as an affirmative overruling, but as recognizing the effect of a prior federal appeals court decision holding that the Board had exceeded the scope of its remand when it used that case to change the governing standard. Regardless of that distinction, the practical effect is to restore the Wright Line framework and to mark the first precedent shift by the Board’s expanded Republican majority. The decision also provides an early indication that, with a full three-member Republican majority now in place, further changes to existing Board precedent may be on the horizon.