The First Domino Falls: New NLRB Majority Begins Dismantling Biden-Era Precedents

After the National Labor Relations Board (NLRB or the Board) finally re-established a quorum with the installation of a Trump-appointed majority, many observers have been expecting the current iteration of the NLRB to overturn several precedents from the Biden administration. Last week, the first of what is likely to be several more dominoes fell.

On September 23, 2026, the NLRB issued in Lion Elastomers LLC. In the 2-1 decision, with two Trump appointees forming the majority and the Board’s lone Democrat dissenting, the Board effectively restored employer-friendly standards for evaluating employee misconduct during union activity — standards the Biden-era Board had worked to dismantle. For employers navigating workplace disputes involving union activity, this decision signals a significant shift in the regulatory landscape and likely portends further changes to come.

Background: A Case of Judicial Whiplash

The Lion Elastomers saga spans three administrations and several trips to the Fifth Circuit Court of Appeals. The case originated with allegations that Lion Elastomers LLC violated the National Labor Relations Act (NLRA or the Act) by threatening, disciplining, and ultimately discharging an employee for engaging in union activity. At essential issue was the question of when employees’ conduct during otherwise protected activity crosses the line and loses protection under the NLRA.

During the first Trump administration, the Board issued General Motors LLC, which replaced the NLRB’s history “setting-specific” standards with a more a unified burden-shifting framework. Under this approach, employers seemed to have a clearer path to justify adverse actions against employees who engaged in misconduct during union activity. The Biden-era Board, however, used the Lion Elastomers dispute to overrule General Motors in 2023 and reinstate the more employee-protective “setting-specific” standard.

The Fifth Circuit had other ideas. In 2024, it vacated the Board’s 2023 decision, finding the Board had exceeded the scope of its authority and violated the employer’s due process rights by overturning its own precedents without providing an opportunity to be heard on that issue. The Fifth Circuit characterized the Board’s maneuver as a “bait-and-switch,” noting that the Board had taken up Lion Elastomers to apply the General Motors precedent — not overturn it.

The New Majority Acts

With a new majority at the helm and the case back at the NLRB, the Board has now found that the Fifth Circuit’s decision means that General Motors “constitutes extant Board precedent” for determining whether employees lose the Act’s protection for misconduct during Section 7 activity. But the majority was somewhat circumspect in doing so, carefully framing its decision as simply recognizing the legal effect of the Fifth Circuit’s ruling rather than going so far as to say it was affirmatively overruling precedent.

While this framing may foreshadow how the Board navigates future challenges to Biden-era precedents by attempting to make the outcomes look less political, the practical upshot of Lion Elastomers remains the same: the pendulum swings back to more employer-friendly precedents by deconstructing “unpopular” Biden-era decisions. Perhaps not surprisingly, Board Member David Prouty, nominated by President Biden to the NLRB in 2021, vigorously dissented — arguing that the majority was improperly using the Fifth Circuit’s decision to “overrule substantive precedent and establish a new standard to govern future cases.” He added that the majority’s approach “swallows nonacquiescence whole” and “permits a single court decision to undo years of administrative work.”

Implications and Looking Ahead: More Dominoes to Fall?

The practical impact of Lion Elastomers is substantial. Under the reinstated burden shifting approach, employers defending against unfair labor practice charges based on discipline for employee misconduct during protected activity have a more straightforward argument. Rather than navigating a multi-factor test — which considered the place of discussion, subject matter, nature of the outburst, and whether the employer provoked the conduct — employers can focus on demonstrating that the same action would have been taken regardless of the protected activity.

If Lion Elastomers is in fact the opening salvo in a campaign to dismantle much of the work of the Biden-era Board, agency observers should monitor for and expect more NLRB developments. Other “unpopular” decisions regarding joint-employer standards, election procedures, and remedial authority may soon be on the chopping block. And of course, regardless of your political and personal leanings and opinions, Lion Elastomers certainly proves once more that the NLRB’s adherence to the notion of being an independent agency that follows and applies the law independent of political winds is a historical artifact not likely to return, and the pendulum swinging at the agency will continue ever more aggressively. For now, however, employers facing allegations of unlawful discipline related to employee misconduct during union activity can take comfort that a more employer-friendly is once again the “law” of the land.

For now, anyway.