Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Attempt to overrule General Motors in Lion Elastomers II was invalid, (Sep 24, 2026)

By Ronald Miller, J.D.

In this case, the Fifth Circuit made clear that the Board’s decision in Lion Elastomers II exceeded the scope of the court’s first remand order.

On remand from the Fifth Circuit for a second time, a four-member panel of the NLRB, in a 3-1 decision, ruled that it is “impossible to reconcile the court’s finding that the Board’s attempt to overrule General Motors in Lion Elastomers II was invalid because it was beyond the scope of the court’s remand with any argument that General Motors remains overruled.” In light of the court’s holding, the change in law set forth in Lion Elastomers II did not survive judicial vacatur. Accordingly, the Board remanded this case to the ALJ to decide this matter under General Motors. Member Prouty filed a separate opinion concurring in part and dissenting in part (Lion Elastomers, LLC, 375 N.L.R.B. No. 41 (Sept. 23, 2026)).

Unfair labor practices. On May 29, 2020, the Board issued Lion Elastomers I, 369 N.L.R.B. No. 88 (2020), finding that an employer violated Section 8(a)(1) by threatening an employee with discharge during a grievance meeting. Next, the Board found that the employer violated Section 8(a)(3) and (1) by disciplining the employee on July 20, 2017, for engaging in protected union activity at a safety meeting.

The Board rejected the employer’s defense that the employee lost the Act’s protection by his conduct at the safety meeting under the four-factor balancing test articulated in Atlantic Steel, 245 NLRB 814 (1979). Finally, the Board found that the employer violated Section 8(a)(3) and (1) by discharging the employee for engaging in union activity. The Board adopted an administrative law judge’s findings that the employee’s activity of filing and pursuing grievances constituted protected Section 7 activity and that he did not lose the Act’s protection by engaging in such activity.

Petition for review. The employer filed a petition for review of the Board’s Order with the Fifth Circuit. While the case was pending before the court, however, the Board issued General Motors LLC, 369 N.L.R.B. No. 127 (2020). General Motors overruled a series of Board decisions that established setting-specific standards to be used by the Board in determining whether employers lawfully took adverse action against employees engaged in protected activity due to abusive conduct that arose in the course of the protected activity. In place of these various standards, General Motors established that the Board would apply the Wright Line framework in deciding these cases.

In light of General Motors, the Board filed an unopposed motion with the court, asking it to “remand the instant case to determine whether General Motors affects the Board’s analysis in this case.” The court granted the Board’s motion and remanded Lion Elastomers I.

The then-General Counsel argued that Board should reverse General Motors. The employer argued that the case should be remanded to the ALJ for further consideration.

Lion Elastomers II. On May 1, 2023, the Board issued Lion Elastomers II, 372 N.L.R.B. No. 83 (2023), overruling General Motors, announcing that it would “return to earlier Board precedent, including Atlantic Steel, applying setting-specific standards aimed at deciding whether an employee has lost the Act’s protection,” and applying its holding retroactively to all pending cases. The Board also reaffirmed its findings in Lion Elastomers I.

The employer petitioned for review of the Board’s order in Lion Elastomers II, and the Board cross-applied for enforcement. On July 9, 2024, the court issued its decision on review, vacating the Board’s decision on the grounds that it both exceeded the scope of the court’s remand order and violated the employer’s constitutional due process rights by failing to provide it with the opportunity to address whether General Motors should be overruled.

On remand, the General Counsel argued that the Board, accepting the court’s remand as law of the case, should find that the employer violated Section 8(a)(3) and (1) by disciplining the employee under General Motors. The General Counsel also argued that the Board should reaffirm the Board’s findings in Lion Elastomers II that the employer violated Section 8(a)(3) and (1) by discharging the employee, consistent with the ALJ’s alternative Wright Line analysis, and that the employer violated Section 8(a)(1) by threatening the employee with discharge.

The employer requested that the Board remand the case to the ALJ for initial consideration under General Motors or, in the alternative, reverse the law judge’s findings that the employer unlawfully threatened, disciplined, and discharged the employee.

Binding law. Consistent with the principle that the “decision of a federal appellate court establishes the law binding further action in the litigation by another body subject to its authority,” the Board has recognized that it is “required to faithfully comply with the terms of [a] court’s remand and its instructions contained therein” and acknowledged that the court “is the authoritative interpreter of its own remand.”

In this case, the Fifth Circuit made clear that the Board’s decision in Lion Elastomers II exceeded the scope of the court’s first remand order. The Board’s transgression here, the court found, was that “there was no ‘intervening’ change of authority independent from the adjudication controlled by [the court’s] mandate.” Rather, “the Board had sought remand to implement a newly developed rule, but rather than implementing the rule, the Board overturned it.”

The Board gave no suggestion to the court that it intended to seek the overturning of General Motors. Thus, the court stated that its remand order “was not an invitation for the Board to re-consider what legal standards should apply but rather an instruction to apply the legal standards set forth in General Motors. The court concluded that, by failing to apply General Motors, the Board violated both the “letter and spirit” of the court’s remand order, and, as a result, the court vacated the Board’s decision in Lion Elastomers II.

Change in law. The court did not disagree with the change in law as a matter of policy or disagree with the application of the change in law to the facts at issue, observed the Board. Instead, the court held that the Board exceeded its authority by attempting to use this case to overrule General Motors. It necessarily follows that the Board’s attempt to overrule General Motors in Lion Elastomers II was invalidated by the court’s decision and did not survive judicial vacatur, concluded the Board.

Accordingly, the Board remanded this case to the ALJ to decide this matter under General Motors, including, if necessary, giving the parties the opportunity to introduce evidence relevant to the standard set forth in General Motors.

Concurring in part and dissenting in part. Member Prouty agreed with the Board that it must apply the appeals court’s decision as the law of the case. However, he strongly disagreed with the Board’s view that, under the law of the case doctrine, the decision of the Board in Lion Elastomers LLC, 372 N.L.R.B. No. 83 (2023) (Lion Elastomers II), overruling General Motors LLC, 369 N.L.R.B. No. 127 (2020), is no longer good law, and therefore that General Motors “constitutes extant Board precedent for deciding whether an employee has lost the Act’s protection for abusive conduct that arose in the course of Section 7 protected activity.”

The slip opinion is 375 NLRB No. 41.

Attorneys: Steven Cupp (Fisher Phillips) for Lion Elastomers LLC. David Jury, Office of the General Counsel, for United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228.

Companies: Lion Elastomers, LLC; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228

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