What happens when the NLRB asks a federal court to remand a case back to the Board based on a new case holding to interpret the matter before it, the court does so, and then the Board pulls a “bait and switch” to flat out reject the very case authority it based its request on? The Fifth Circuit posed this very question at the start of its recent opinion where it found that the National Labor Relations Board (NLRB) exceeded the scope of the court’s prior remand and violated the employer’s due process rights to vacate the Board’s new determination and send the matter back to the Board to try again.
Background and the First Remand
The National Labor Relations Act (NLRA) provides the right to organize and bars employers from interfering with an employee’s protected activity. It is silent about when an employee’s bad behavior during union activities renders those activities unprotected and allows for discipline.
Lion Elastomers makes synthetic rubber. Roughly half of its workforce are members of the union. In May 2020, the company disciplined an employee, Joseph Colone, for an “unacceptable … line of questioning” during a safety meeting with supervisors. Colone said his questions were protected activity for which he could not be legally disciplined. The NLRB agreed with Colone, and Lion Elastomers filed a petition for review to the Fifth Circuit in June 2020.
On July 21, 2020, however, the Board issued a new decision in General Motors, LLC that changed the standard for evaluating whether a union member’s behavior constituted protected activity. The decision overruled the previous standard that the Board applied to Lion Elastomers (known as the Atlantic Steel standard).
At that point, the NLRB asked the Fifth Circuit to send the case back to the Board. Given the change in the standard, the NLRB filed a motion to remand the case “in light of the Board’s decision in General Motors” that “overruled Atlantic Steel and announced a new framework for analyzing whether an outburst to management in the workplace causes an employee to lose the protection of the NLRA.” The remand would allow the Board to “determine whether General Motors affects the Board’s analysis in this case.” The Fifth Circuit granted the motion to remand in a one sentence order.
But Then the Board Pulls a Bait and Switch
In May 2023, after asking for and receiving the parties’ submissions, the Board issued an opinion that overruled the General Motors decision and returned to the previous Atlantic Steel standard. Lion Elastomers then appealed, arguing that the Board exceeded the scope of the Fifth Circuit’s remand order and that the Board could not ignore the law in place at the time of remand. The Board’s position was that the remand order was broader because it did not explicitly order the Board to apply the General Motors standard, but “simply gave the Board the opportunity to determine what legal standard, in its view, was applicable.”
Second Time Around
In the second appeal, the Fifth Circuit found that while the NLRB is afforded some deference when applying the general provisions of the NLRA to the “complexities of industrial life,” it did not have such deference in interpreting “this court’s remand order.” The court found that the Board was not free to determine that the General Motors standard had no bearing on the case before it because it believed it was incorrectly decided and should be overruled.
The court noted that the remand motion clearly implied that the Board would simply apply the General Motors standard to the facts of the case, and also noted that if the Board intended to defend the Atlantic Steel standard, it should have done so and not requested remand at all. In the court’s words, “by granting the NLRB’s motion for voluntary remand, this court decided that the NLRB was to apply General Motors to this case.” The remand order was not an invitation for the Board to reconsider what legal standards should apply but rather an instruction to apply the legal standards in General Motors.
Additionally, the court found that the Board had violated Lion Elastomers’ due process rights. The court vacated the Board’s supplemental decision in the Lion Elastomers case and remanded back to the Board to apply the General Motors standard.
It was significant to see the Board get reined in by the Fifth Circuit in this attempted bait and switch.