The NLRB Has the Votes Required to Overturn Precedent
But the board did not use these votes in a recent decision
Labor relations professionals took notice in April when President Donald Trump nominated James Macy to join Republican members Scott Mayer and Chair James Murphy along with Democrat David Prouty on the National Labor Relations Board (NLRB). Macy was sworn in on Aug. 17, giving Republicans the third vote the board traditionally requires to reverse precedent. Presumably, that opened the door for reshaping labor law and for certain Biden-era decisions to fall in favor of more employer-friendly versions.
No Full Overturning Yet
Has the board voted to overturn anything? Not yet. General Counsel Crystal Carey’s recent guidance memo included a list of standards that she would like to see go. Relevant cases with active disputes need to come in front of the board before any standards would be overturned, but the “new majority” tenor has already been tested with a somewhat surprising result.
Carey teed up her hopes in the board’s 2023 Lion Elastomers II decision. In a recent guidance memo, the general counsel called that decision “problematic” due to “the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the act” and its overturning of the General Motors LLC standard. At the time of the memo, the case was pending before the board on remand, so what happened?
Lion Elastomers II had overturned General Motors and brought back older tests such as Atlantic Steel, under which workers could keep the National Labor Relations Act’s (NLRA’s) protection for certain misconduct, including profanity and threats, if that misconduct happened during protected activity. In 2024, the 5th U.S. Circuit Court of Appeals vacated that decision, and on Sept. 23, the NLRB’s majority decided in Lion Elastomers III that the General Motors standard is restored as board precedent.
However, the board pointedly did not overturn Lion Elastomers II, and the decision from Murphy, Mayer, and Macy declared, “We are merely recognizing the court’s holding now that the case is back before us.”
In a concurrence, Murphy wrote that this decision “should not be considered as three members affirmatively voting to overrule precedent,” and “if the board were to affirmatively overrule Lion Elastomers II in this decision, we would be committing the very same error that the board made in that case by exceeding the scope of the court’s remand.”
What Does This Mean for Employers?
The General Motors standard is back, and with it, the Wright Line burden-shifting test. Going forward, the general counsel must prove that an employer used protected activity as “a motivating factor” for termination and other discipline. Employers can defend themselves by showing that the discipline would have occurred even absent the protected activity.
Prouty, dissenting in part, argued that Lion Elastomers II remains valid precedent and that the majority restored General Motors without providing the reasoned explanation required by the Administrative Procedure Act, so that argument could resurface in future cases.
As for Lion Elastomers itself, the board sent the case back to the administrative law judge to apply the Wright Line test, so stay tuned.
Is There a Real Third Vote on the Board?
The majority’s restraint could simply be a procedural move from the board. Regardless, General Motors is back as board precedent, and all three Republican members signed onto that outcome without overturning any decision.
That leaves the question many were asking when Macy was confirmed: Will the Republican majority use that third vote? Lion Elastomers III did not answer that question. Another test will happen when the Cemex standard comes before the board. (The Cemex case is currently in briefing stages). Until then, the focus will be on how the NLRB acts — or does not act — on future overturning opportunities.
Kimberly Ricci, J.D., is a content development writer with LRI Consulting Services Inc. in Broken Arrow, Okla.
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