The National Labor Relations Board will need to revisit its standard for assessing employee outbursts if it wants to shore up vulnerabilities left by its recent decision nixing a Biden-era precedent.

Rather than explicitly overturning the board’s 2023 ruling in Lion Elastomers, the NLRB’s Republican majority abandoned it last month by recognizing an appeals court ruling that threw it out.

The board reverted to the employer-friendly framework set in General Motors LLC during the first Trump administration without doing the type of work to justify the change that’s normally seen in precedent-altering decisions.

“It is a pretty efficient way to return to General Motors, but also not an effective way,” said Bryance Metheny, chair of Burr & Forman LLP’s labor and employment practice group.

Reviving that standard through a quickie procedural maneuver leaves it susceptible to being rejected by courts as unreasoned decision-making or summarily reversed by the next Democratic-majority NLRB, labor law observers said.

The NLRB’s framework for deciding when workers’ language or conduct is so excessive that they lose the protection of the National Labor Relations Act has been a hot-button issue over the last decade.

Lion Elastomers overturned General Motors and brought back three standards used for specific settings: one applying to employee interactions with management, another governing picket-line interactions, and a third covering social media posts and most cases involving employee conversations in the workplace. The tests require employers to give workers some leeway while they exercise their protected rights during labor disputes that can get heated.

Employer advocates have complained that the three tests made it hard for companies to simultaneously comply with federal laws prohibiting discrimination and protecting organizing rights.

The board has applied those standards to find employees retained NLRA protection when writing “whore board” on an overtime sign-up sheet, shouting racist taunts at replacement workers while picketing, and posting on social media that a manager “is such a NASTY MOTHER FUCKER.”

‘There is Ambiguity’

The NLRB’s decision to reinstate General Motors involves the interaction of two principles that come into play when appeals courts reject board decisions.

The doctrine of nonacquiescence holds that the NLRB — which is in charge of setting national labor policy — doesn’t stop applying a precedent just because an appeals court invalidated it. But under the law of the case doctrine, the board accepts the impact of a court’s ruling on the individual dispute at hand.

“There is ambiguity there,” said Michael Duff, a University of St. Louis labor law professor and former NLRB attorney. “What happens to an administrative rule when a circuit court vacates the board decision purporting to change that rule?”

The NLRB’s Republican majority said it followed the law of the case doctrine by accepting the US Court of Appeals for the Fifth Circuit’s 2024 decision that vacated Lion Elastomers and remanded the matter for the board to apply General Motors. The panel of three Republican-appointed judges didn’t weigh in on the merits of the Biden-era precedent for employee outbursts, instead nixing it based on procedural and due process flaws.

NLRB Chair James Murphy wrote a short concurring opinion saying he agreed that the appeals court decision eliminated Lion Elastomers’ precedential value. But he emphasized that he didn’t reach the merits of whether General Motors or another standard would be preferable.

“The chair is going out of his way to say nonacquiescene is the board’s policy,” Steven Swirsky, head of Epstein Becker Green PC’s labor-management relations practice, said of Murphy’s concurrence.

But David Prouty, the board’s sole Democratic member, said in dissent that the NLRB’s Republicans improperly acquiesced to the Fifth Circuit, allowing a single appeals court to determine what standard the board will use in future cases.

The dissent deliberately suggested that a future, Democratic-controlled NLRB could justify a return to Lion Elastomers by saying the board wrongly departed from it in the first place, Swirsky said.

Case Teed Up

Prouty also argued the Republican majority ran afoul of the Administrative Procedure Act by changing substantive law without proper explanation.

The NLRB’s Republican members will have an opportunity to “fix the mistake” by ruling on the proper standard for assessing employee outbursts before an appeals court considers whether they violated the APA, said Zachary Kimmel, an attorney with Reed Smith LLP.

“They have the control,” Kimmel said. “The full opinion is definitely coming.”

The board could use a pending case involving software company Atlassian Corp. as a vehicle to more formally adopt General Motors, as the NLRB general counsel’s office urged.

In that case, the general counsel’s office said in a brief that General Motors — which dumped the setting-specific standards in favor of the same Wright Line framework typically used for discipline and discharge cases — is the more reliable, predictable, and fair approach.

The board should follow the evolution of society and reject the idea that racist or sexist slurs can possibly be tolerated in any circumstances, according to the GC’s office.

“It does not matter where, when, or in what setting racist, bigoted, discriminatory, hostile, or harassing actions occur — misconduct is misconduct, and should be treated as such to maintain physically and psychologically safe workplaces,” the brief said.