Dive Brief:
- The National Labor Relations Board said in a Wednesday decision that it would return to the General Motors standard for analyzing whether employers lawfully took adverse action against employees engaged in protected activity.
- The 2020 General Motors standard, which the Board overruled in a May 2023 decision, applies the Wright Line burden-shifting standard and requires the NLRB’s general counsel to first prove the employee’s protected activity was a motivating factor in the discipline. “If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity,” NLRB previously said.
- The move is among the first major decisions for the board since it confirmed a Republican majority in August.
Dive Insight:
The case is the most recent turn in a judicial back-and-forth that started in 2020, when a union representative at Lion Elastomers was fired and his union filed a petition for an NLRB review on his behalf.
NLRB found the employer had violated the National Labor Relations Act in several ways, including threatening him with discharge during a grievance meeting, disciplining the worker for engaging in union activity during a safety meeting and firing the worker for his union activity.
Notably, the board applied the Atlantic Steel four-factor balancing test — which considers 1) the place of the discussion; 2) the subject matter of the discussion; 3) the nature of the employee’s outburst; and 4) whether the outburst was provoked by an unfair labor practice — to reject the employer’s argument that the worker lost his protection under the NLRA due to his conduct.
Later that year, the board issued its General Motors decision, which overruled setting-specific standards like Atlantic Steel when determining whether employers legally took adverse action against employees engaged in protected activity due to abusive conduct that arose in the course of the protected activity. The Board determined it would use the Wright Line framework going forward.
Lions Elastomers asked the 5th U.S. Circuit Court to review the decision, and the court remanded it back to NLRB, asking it to consider the impact of the framework change on their decision.
In 2023, following a political shift, NLRB obliged, ditching its recent General Motors decision and instead reapplying Atlantic Steel. The 5th Circuit rejected this decision, saying NLRB had “exceeded the scope of the remand” and violated Lion Elastomers’ due-process rights by depriving them of the chance to argue against the decision.
In its Wednesday decision, NLRB accepted the 5th Circuit’s reasoning and remanded the case to an administrative law judge to analyze using General Motors.
The board also determined General Motors would be “extant Board precedent” for analyzing future cases.
David Prouty, the only remaining member of the Board appointed by former President Joe Biden, dissented in part on the decision, particularly the determination to apply General Motors moving forward.
“My colleagues, in effect, are attempting to use the court’s decision to overrule substantive precedent and establish a new standard to govern future cases,” he wrote. “Needless to say, that is beyond the scope of the court’s remand and constitutes arbitrary and capricious action under the Administrative Procedure Act.”