5th Circuit nixes NLRB’s attempt to change its stance on protected misconduct

The National Labor Relations Board erred when it sought to change its interpretation of whether the National Labor Relations Act protects certain misconduct via a court proceeding on that issue, the 5th U.S. Circuit Court of Appeals held Tuesday.

The case concerns the Board’s 2023 Lion Elastomers decision. In 2020, NLRB found that manufacturer Lion Elastomers unlawfully discharged an employee for engaging in activity protected by the NLRA. Initially, NLRB applied its Atlantic Steel standard to determine whether the employee’s behavior was protected, but the Board later overturned Atlantic Steel in a separate 2020 case, General Motors.

NLRB next moved to apply General Motors to its Lion Elastomers decision on remand, but the Board’s general counsel “made no effort” to apply General Motors to the case and instead argued that that standard should be overturned, the 5th Circuit said. NLRB issued a 2023 decision to overrule General Motors, a move the court held “exceeded the scope of the remand” and violated Lion Elastomers’ due process rights. The court vacated the 2023 order and remanded the case to NLRB to apply General Motors.

A key background element of the proceedings in Lion Elastomers is the change in NLRB’s majority that occurred between 2020 and 2021. The Board had a 3-1 Republican majority at the time it issued General Motors, but its composition shifted following the 2021 inauguration of President Joe Biden to a 3-1 Democratic majority that same year.

Prior to General Motors, NLRB interpreted the NLRA using its 1979 Atlantic Steel framework, which applied a four-factor test that considered the place of the discussion in which the conduct or behavior took place, the subject matter of the discussion, the nature of the employee’s outburst, and whether the outburst was, in any way, provoked by an employer’s unfair labor practice.