In a recent SHRM article, titled The NLRB Has the Votes Required to Overturn Precedent, Kimberly Ricci addressed how the Board declined to use those votes in a recent decision, Lion Elastomers III.
- James Macy’s entrance at the NLRB gave the GOP the third vote traditionally needed to reverse precedent.
- In Lion Elastomers III, the Board’s majority restored the General Motors standard after the 5th Circuit vacated Lion Elastomers II.
- The Board did not formally overturn Lion Elastomers II. The majority made clear that they were simply recognizing the court’s holding.
- Employers are now subject to the Wright Line test. That is, the general counsel must show protected activity was a motivating factor, and employers can respond that discipline would have happened anyway.
- Democratic Board member David Prouty dissented in part, citing Administrative Procedure Act concerns.
- Another upcoming test of the majority is Cemex, which is still in briefing.
Read the full article on SHRM (membership required):
The NLRB Has the Votes Required to Overturn Precedent
