United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60270

____________

Lion Elastomers, L.L.C., 

Petitioner/Cross-Respondent, 

versus

National Labor Relations Board, 

Respondent/Cross-Petitioner. 

United Steel, Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied Industrial, and Service 

Workers International Union, Local 228

Intervenor.

______________________________

Petition for Review of an Order of the from the National Labor Relations 

Board

Agency Nos. 16-CA-190681, 

16-CA-203509, 16-CA-225153

______________________________

Before Jones, Clement, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge: 

The National Labor Relations Board was historically afforded 

deference when its interpretations of the National Labor Relations Act were 

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2024

Lyle W. Cayce

Clerk

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2

subject to judicial review.1 But what about when the NLRB2 tells us that it 

plans to use one interpretation on remand and then uses another? In Lion 

Elastomers v. NLRB I, the NLRB sought a remand to apply a new 

interpretation of the NLRA that was announced in General Motors—an

agency adjudication issued after the dispute underlying this proceeding was 

initially adjudicated but before briefing on appeal. But that’s not what the 

Board did on remand. Instead, the Board used the remand proceeding as a 

vehicle to overrule General Motors. Because the NLRB not only exceeded the 

scope of the remand but also violated Lion Elastomers’s due-process rights 

during the remand proceeding, we VACATE the remand determination and 

REMAND once more.

I.

Lion Elastomers manufactures synthetic rubber in Port Neches, 

Texas. Around eighty-five to ninety of its approximately 200 employees are 

part of a bargaining unit represented by the United Steel, Paper and Forestry, 

Rubber, Manufacturing, Energy, Allied Industrial, and Service Workers 

International Union, Local 228.

A.

Section 7 of the National Labor Relations Act (NLRA) provides 

employees “the right to self-organization, to form, join, or assist labor 

_____________________

1 After this case was argued, the Supreme Court issued Loper Bright Enterprises v. 

Raimondo, No. 22-1219, 2024 WL 3208360, at *1 (U.S. June 28, 2024), which formally 

overturned Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 

Although we discuss how an agency has understood a question of statutory interpretation, 

we resolve this case on other grounds and need not reach the validity of the agency’s 

interpretation. See Loper Bright, 2024 WL 3208360, at *21.

2 We use “Board” when referring to the National Labor Relations Board in its 

capacity as a quasi-judicial body and “NLRB” when referring to the National Labor 

Relations Board as an agency and party to this proceeding.

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organizations, to bargain collectively through representatives of their own 

choosing, and to engage in other concerted activities for the purpose of 

collective bargaining”—so called “protected activities.” 29 U.S.C. § 157. 

Section 8 of the NLRA, among other things, bars employers from 

“interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of” 

protected activities. 29 U.S.C. § 158(a). Doing so is an unfair labor practice.3

 

The NLRA is silent as to when bad behavior during union activities—

e.g., through threats or the use of racial epithets during grievance meetings or 

picketing—renders those activities unprotected under Section 7 and

therefore reasonable grounds for employee discipline. The NLRB has sought 

to fill that gap by issuing legal rules through adjudications, as is its standard 

practice. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 

(1998) (“The [NLRB], uniquely among major federal administrative 

agencies, has chosen to promulgate virtually all the legal rules in its field 

through adjudication rather than rulemaking.”) (citation omitted). The 

Board treats its precedents as binding if and until a new majority of the Board 

deems a precedent incorrect. See Epilepsy Found. of Ne. Ohio v. NLRB, 268 

F.3d 1095, 1097 (D.C. Cir. 2001) (“It is a fact of life in NLRB lore that certain 

substantive provisions of the NLRA invariably fluctuate with the changing 

compositions of the Board.”). 

_____________________

3 To carry out the NLRA, Congress created the five-member National Labor 

Relations Board. The Board and its General Counsel are appointed by the President and 

confirmed by the Senate. 29 U.S.C. § 153. The General Counsel acts as prosecutor of 

charges of unfair labor practices. The Board plays a quasi-judicial role, adjudicating, among 

other disputes, charges brought by the General Counsel. Board members’ terms are 

staggered so that one member’s term expires annually. 29 U.S.C. § 153(a). It is customary, 

although not legally required, that a majority of the Board’s members belong to the 

President’s political party, which can ensure that a majority of the Board shares the 

President’s policy views. 

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Until July 2020, whether a union member’s behavior constituted

protected activity depended on “setting-specific” standards—i.e., different 

factors applied depending on where the behavior took place. For workplace 

outbursts, for instance, the NLRB applied a four-factor standard pronounced 

in Atlantic Steel Co., which considered “(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, in any way, provoked by an 

employer’s unfair labor practice.” Atlantic Steel Co., 245 N.L.R.B. 814, 816 

(1979). 

B.

In May 2020, the Board found that Lion Elastomers had committed 

unfair labor practices by threatening, disciplining, and discharging an 

employee, Joseph Colone, for engaging in protected activities. In so holding, 

the Board adopted an Administrative Law Judge’s (ALJ) decision that, 

among other things, applied Atlantic Steel to assess whether Colone’s 

behavior lost its protected status. Lion Elastomers filed a petition for review 

of the Board’s Decision and Order in this court in June 2020. 

But on July 21, 2020—before the appeal of the Board’s decision had 

even been briefed—the Board issued General Motors LLC, which announced 

that the agency would no longer use Atlantic Steel or other setting-specific 

standards to assess “whether employers have unlawfully discharged or 

otherwise disciplined employees who had engaged in abusive conduct in 

connection with activity protected by Section 7 of the [NLRA].” 369

N.L.R.B. No. 127, 2020 WL 4193017, at *1 (2020). The decision held that 

the Board would instead apply its Wright Line burden-shifting framework, 

which first requires the General Counsel to make an initial showing that “(1)

the employee engaged in Section 7 activity, (2) the employer knew of that 

activity, and (3) the employer had animus against the Section 7 activity, 

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which must be proven with evidence sufficient to establish a causal 

relationship between the discipline and the Section 7 activity.” Id. at *2. 

Under Wright Line, if the General Counsel makes a prima facie case, the 

burden shifts to the employer to prove that it would have taken the same 

action absent the Section 7 activity. Id. Accordingly, General Motors 

“overrule[d] all pertinent cases to the extent they [were] inconsistent with 

[the Wright Line framework].” Id. General Motors determined that the Board 

would “apply Wright Line retroactively to all pending cases in which the 

Board would have determined, under one of its setting-specific standards, 

whether abusive conduct in connection with Section 7 activity had lost an 

employee or employees the [NLRA]’s protection.” Id. at *17. 

The NLRB then filed an unopposed motion to remand the case to the 

Board “in light of the Board’s decision in General Motors.” The NLRB 

explained that General Motors “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]” and 

argued that remand was appropriate so that the Board could “determine 

whether General Motors affects the Board’s analysis in this case.” The court

granted the motion in a single-sentence per curiam order. Lion Elastomers v. 

NLRB, No. 20-60499 (5th Cir. June 15, 2021).

On remand, the Board sought “statements of position” on “the issues 

raised by the remand.” Lion Elastomers filed a brief arguing that the case 

should be remanded to an ALJ to apply the General Motors framework in the 

first instance or that, alternatively, the Board should reverse the ALJ’s 

findings that Lion Elastomers unlawfully threatened, disciplined, and 

discharged Colone using the Wright Line approach. By contrast, the NLRB’s 

General Counsel argued that the Board should overrule General Motors and 

return to the setting-specific standards that applied before the adjudication. 

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The General Counsel made no effort to apply the Wright Line approach to 

the case or explain how General Motors affected the Board’s analysis. 

Although the Board’s letter to parties seeking statements of position 

did not contemplate response briefing, Lion Elastomers sought leave to file a 

response addressing the General Counsel’s argument that the Board should 

overturn General Motors.

4 But the Board found that Lion Elastomers “ha[d] 

not presented any circumstances warranting leave to file an answer or reply.” 

On May 1, 2023, the Board issued a Supplemental Decision and Order 

in this case that “overrule[d] General Motors” and “return[ed] to earlier 

Board precedent, including Atlantic Steel, applying setting-specific standards 

aimed at deciding whether an employee has lost the [NLRA]’s protection.” 

The Board therefore “reaffirm[ed] [its] original Decision and Order.” Board 

Member Marvin Kaplan dissented. 

II.

“We review de novo a district court’s interpretation of our remand 

order, including whether the law-of-the[-]case doctrine or mandate rule 

forecloses any of the district court’s actions on remand.” Gen. Universal Sys., 

Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (internal quotation marks 

and citation omitted). While much of the relevant case law concerns the 

scope of remands to district courts rather than administrative agencies, the 

same standards generally apply. See FCC v. Pottsville Broadcasting Co., 309 

U.S. 134, 140–41 (1940); accord Grigsby v. Barnhart, 294 F.3d 1215, 1218 (10th 

Cir. 2002).

_____________________

4 Lion Elastomers principally argued that they should be entitled to file a response 

under 29 C.F.R. § 102.46(b)—the Board rule that allows for answering briefs on 

“exceptions” to be filed within 14 days—and only requested leave “out of an abundance 

of caution.” But it appears that the Board determined that the regulation did not apply. 

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III.

Lion Elastomers argues that the Board exceeded the scope of this 

court’s remand order. According to Lion Elastomers, the Board lacked 

authority to revisit the correctness of General Motors because the remand 

limited the Board to “determin[ing] whether General Motors affects the 

Board’s analysis in this case.” Lion Elastomers argues that the Board was not 

permitted to “ignore . . . applicable law in place at the time of remand . . . by 

simply changing the standard itself.” In other words, according to Lion 

Elastomers, the Board violated the “mandate rule”—a corollary of the lawof-the-case doctrine. United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004)

(“[A]bsent exceptional circumstances, the mandate rule compels 

compliance on remand with the dictates of a superior court and forecloses 

relitigation of issues expressly or impliedly decided by the appellate court”).

In its Supplemental Decision and Order, the Board read the court’s 

remand more broadly, holding as follows: 

The court’s remand did not order the Board to apply General 

Motors, nor did the court decide any issue related to the 

governing legal standard here. It simply gave the Board the 

opportunity to determine what legal standard, in its view, was 

applicable. The Board was entirely free, then, to determine that 

General Motors has no bearing on this case because it was 

incorrectly decided and is overruled.

Now, on appeal, the NLRB argues that 29 U.S.C. § 160(e) deprives 

this court of jurisdiction to consider Lion Elastomers’s scope-of-the-remand 

argument because the argument “was not pressed before the Board.” See 29 

U.S.C. § 160(e) (“No objection that has not been urged before the Board, its 

member, agent, or agency, shall be considered by the court, unless the failure 

or neglect to urge such objection shall be excused because of extraordinary 

circumstances.”). According to the NLRB, to preserve its argument, Lion 

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Elastomers was required to file a motion for reconsideration before the Board 

prior to any appeal. 

The NLRB’s argument lacks merit. This court has rejected the notion 

that this provision of 29 U.S.C. § 160(e) is jurisdictional and instead has 

characterized it as “an exhaustion of remedies provision.” Indep. Elec. 

Contractors of Houston, Inc. v. NLRB, 720 F.3d 543, 550 (5th Cir. 2013); see 

also Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023) (holding the 

Immigration and Nationality Act’s exhaustion requirement is 

nonjurisdictional). And, in any event, Lion Elastomers did raise its scope-ofthe-remand argument to the Board via its (denied) motion to file an answer 

to the General Counsel’s brief on remand.5 Indeed, the Board’s 

Supplemental Decision and Order specifically addressed whether its decision 

exceeded the scope of this court’s mandate. Where, as here, the Board is on 

notice of a party’s purportedly unexhausted argument, a motion for 

reconsideration is not required. See Indep. Elec. Contractors, 720 F.3d at 551

(“The purpose of [29 U.S.C. § 160(e)] is to give the Board notice and an 

opportunity to confront objections to its rulings before it defends them in 

court.”); Bath Marine Draftsmen’s Ass’n v. NLRB, 475 F.3d 14, 24 (1st Cir.

2007) (holding that a motion for reconsideration was not required to exhaust 

where the Board had “adequate notice” of the party’s position). 

We turn now to the merits. The NLRB argues that “the one-sentence 

per curiam judgment granting remand did not order the Board to apply any 

_____________________

5 The NLRB also claims that Lion Elastomers failed to adequately raise the issue 

because its argument was underdeveloped and unsupported in its motion to file an answer. 

But of course it was. The Board denied Lion Elastomers the opportunity to file a brief on 

the issue, which is precisely where the company would have developed and supported the 

argument. As Lion Elastomers argues, if anything, it provided the Board greater notice of 

its argument by raising the scope-of-remand issue before the Board issued its Supplemental 

Decision and Order. 

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particular standard and did not foreclose the possibility of the Board 

overruling any particular case.” The agency contends this is because “[t]he 

motion and order granting remand left all options open as it is ultimately the 

Board’s ‘central role’ [to] balance[e] between employees’ right to selforganization and an employer’s right to maintain discipline.”

True, the Board has been afforded “deference” when engaging in its 

“special function of applying the general provisions of the [NLRA] to the 

complexities of industrial life.” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 

266 (1975) (internal quotation marks and citations omitted). But the NLRB 

cites no authority as to why it should be afforded deference in interpreting 

this court’s remand order. To the contrary, the Board was bound to “proceed 

within the letter and spirit of the mandate by taking into account the appeals 

court’s opinion and the circumstances it embraces.” United States v. Pineiro, 

470 F.3d 200, 205 (5th Cir. 2006). And this court reviews de novo whether 

the Board complied with the “letter and spirit” of the remand order. See 

United States v. Hoffman, 70 F.4th 805, 812 (5th Cir. 2023); see also NLRB v. 

Donnelly Garment Co., 330 U.S. 219, 227 (1947) (“[T]he court that issues a 

mandate is normally the best judge of its content” because “the author of a 

document is ordinarily the authoritative interpreter of its purposes”).

Looking at the “letter and spirit” of this court’s remand order, we 

disagree with the NLRB’s position that the Board was “free to determine 

that General Motors has no bearing on this case because it was incorrectly 

decided and is overruled.” The “circumstances [that the remand order] 

embraces” are of critical importance. See Pineiro, 470 F.3d at 205. It was the 

NLRB—not Lion Elastomers—that sought remand “in light of the Board’s 

decision in General Motors LLC.” The agency’s remand motion explained 

that the Board had relied on Atlantic Steel when deciding the case below and 

argued that because the Board overruled Atlantic Steel in General Motors, the 

case should be remanded so that the Board could “determine whether 

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General Motors affects the Board’s analysis in this case.” The NLRB’s 

motion gave no suggestion to the court that it intended to seek the 

overturning of General Motors. Rather, the clear implication was that the 

agency would simply apply the General Motors standard to the facts of this 

case. In determining that General Motors did not “affect[] [its] analysis” 

because the adjudication was wrongly decided was a bait-and-switch. Indeed, 

if the NLRB intended to defend Atlantic Steel and its application to Lion 

Elastomers, it’s unclear why the agency sought remand at all.6 Said another 

way, by granting the NLRB’s motion for a voluntary remand, this court 

decided that the NLRB was to apply General Motors to this case. See Lee, 358 

F.3d at 321.

To be sure, the mandate rule does not apply when there has been an 

intervening change of law by a controlling authority. Collins v. Dep’t of the 

Treasury, 83 F.4th 970, 984 (5th Cir. 2023). And, in the context of an agency 

action, a reviewing court may relax the obligation to abide by the mandate rule 

to permit uniform implementation of a newly developed rule to the extent it 

was developed in an adjudication independent of those controlled by a judicial 

mandate. 18B Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and 

Procedure § 4478.3 (3d ed. 2024); accord Padilla-Caldera v. Holder, 637 

F.3d 1140, 1145–1147 (10th Cir. 2011). Here, however, there was no 

“intervening” change of authority independent from the adjudication 

controlled by our mandate. Instead, the Board had sought remand to 

_____________________

6 That the remand order simply granted the NLRB’s motion is of no matter. Had 

Lion Elastomers been on notice that the NLRB intended to revisit the viability of General 

Motors on remand, Lion Elastomers purportedly would have objected to the motion. This 

court, therefore, would have confronted at that point the question of whether and the 

extent to which remand was appropriate. 

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implement a newly developed rule, but rather than implementing the rule, 

the Board overturned it. 

Put simply, 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 set forth in General Motors. The Board thus 

exceeded the scope of the remand by failing to do so. 

IV. 

In addition to exceeding the scope of the remand, the Board also

violated Lion Elastomer’s due-process rights when it decided to overturn 

General Motors without providing the company an opportunity to be heard on 

the issue. 

Under the Fifth Amendment, “[t]he fundamental requirement 

of due process is the opportunity to be heard at a meaningful time and in a 

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) 

(quotation marks and citation omitted); see also NLRB v. Smith Indus., Inc., 

403 F.2d 889, 895 (5th Cir. 1968) (“While the consideration of whether an

administrative body must give notice and an opportunity to be heard to

interested individuals frequently involves difficulties of statutory

interpretation, the ultimate legal problem is whether the procedure utilized

satisfies the guarantee of due process of law.” (citation omitted)).

7 What 

_____________________

7 The Administrative Procedure Act provides statutory due-process rights too: 

“Persons entitled to notice of an agency hearing shall be timely informed of . . . the matters 

of fact and law asserted,” and the agency must “give all interested parties opportunity for 

. . . the submission and consideration of facts, arguments, offers of settlement, or proposals 

of adjustment when time, the nature of the proceeding, and the public interest permit.” 

5 U.S.C. § 554(b)–(c). These rights reflect constitutional standards. Indep. Elec. 

Contractors, 720 F.3d at 552.

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procedures are required to satisfy due process is context dependent. 

Mathews, 424 U.S. at 334. 

The Supreme Court has explained that part of the reason why the 

Board may pronounce new legal rules through adjudications is because 

“[t]hose most immediately affected [by the adjudication], the [parties] in [a]

particular case, are accorded a full opportunity to be heard” before the Board 

announces a new policy. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 

U.S. 267, 295 (1974). Relatedly, “the [NLRB] knows that it cannot change 

theories in midstream [of an adjudication] without giving respondents 

reasonable notice of the change.” Indep. Elec. Contractors, 720 F.3d at 552 

(quotation marks and citation omitted). For instance, when the NLRB “has 

chosen to litigate against a respondent on a narrow theory of liability, and the 

respondent was reasonably led to believe that it would not have to defend on 

a broader theory, an ALJ is not free to resolve the case on a broader theory.” 

Id.

That logic applies here. Lion Elastomers had no reason to anticipate 

that the Board would reinstate Atlantic Steel on remand: the NLRB had 

sought remand from the Fifth Circuit specifically so that the agency could 

apply the General Motors standard. The first time Lion Elastomers received 

notice that the Board may overrule General Motors was when the General 

Counsel submitted its statement of position following remand.8 Lion 

Elastomers, therefore, could not have foreseen the need to argue for the 

continued viability of General Motors in its own statement of position. 

Because the Board denied Lion Elastomers’s motion to respond to the 

_____________________

8 Indeed, just two weeks before the NLRB filed its position statement in this case, 

the Board issued a decision applying General Motors in another case where the Board had 

initially applied Atlantic Steel and a court of appeals remanded. Constellium Rolled Prods. 

Ravenswood, LLC, 371 NLRB No. 16 (Aug. 25, 2021).

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General Counsel’s argument, Lion Elastomers was deprived of a full 

opportunity to be heard. See Bell Aerospace, 416 U.S. at 295.

In fact, the Board’s Supplemental Decision and Order appears to 

concede that Lion Elastomers was not heard on the issue of whether General 

Motors should be overruled. The Board also held, however, that no dueprocess problem existed because Lion Elastomers “was not prejudiced by the 

Board’s action.” According to the Board, because the agency simply 

returned to the law under which the case was originally decided, its failure to 

give Lion Elastomers the opportunity to argue against such action was 

harmless. But that’s not how due process works. A due-process violation “is 

not remedied by observing that the outcome would perhaps or even likely 

have been the same” absent the violation. NLRB v. Complas Indus., Inc., 714 

F.2d 729, 734 (7th Cir. 1983) (quoting Rodale Press, Inc. v. FTC, 407 F.2d 

1252, 1257 (D.C. Cir. 1968)). Rather “[i]t is the opportunity to present 

argument under the new theory . . . [that] must be supplied.” Id.

On appeal, the NLRB continues to hang its hat on a purported lack of 

prejudice to Lion Elastomers. First, the NLRB argues that Lion Elastomers 

did not file a motion for reconsideration below addressing due process, failing 

to exhaust the argument and thus requiring a showing that the company was

prejudiced by the procedural violation. But as Lion Elastomers rightly points 

out, due process ensures parties a right to be heard before a decision is made, 

not after. Here, Lion Elastomers was deprived of a pre-decision opportunity 

to be heard. The fact that it could have complained after the fact via a motion 

for reconsideration is of no consequence. Moreover, Board Member Kaplan 

led his dissent with a section dedicated to Lion Elastomers’s due-process 

rights, stating “that [Lion Elastomers]’s due process rights [were] being 

violated by the majority’s decision to use this case to overrule General 

Motors” and that Kaplan “ha[d] serious concerns whether the decision 

[would] survive judicial review on due process grounds.” So, the Board was 

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clearly on notice that Lion Elastomers’s due-process rights were implicated. 

Nonetheless, the Board proceeded to overturn General Motors without Lion 

Elastomers’s input. 

Second, the NLRB asserts that Lion Elastomers was not prejudiced 

because the NLRB “merely returned to the law as it stood when Lion 

[Elastomers] disciplined and discharged Colone.”9 This argument ignores 

the posture of this case and the nature of the harm at issue. At the NLRB’s 

request, this court remanded the case to the Board for it to apply a new legal 

standard—General Motors—that was announced between the close of the 

adjudication and briefing on appeal. But that’s not what the Board did on 

remand. Instead, without accepting any arguments from Lion Elastomers on 

the issue, it decided that General Motors did not apply at all. So, while Lion 

Elastomers may not have been prejudiced by the mere fact that the Board 

decided to return to the Atlantic Steel standard, it was prejudiced by the fact 

that it essentially had no say in that outcome. 

Finally, the NLRB argues that Lion Elastomers had no substantive 

right to have the General Motors standard applied to its case and, therefore,

that no due-process violation occurred here. Given that the Board exceeded 

the scope of this court’s remand, Lion Elastomers had at least some interest 

in the Board applying General Motors during the remand proceeding. But 

regardless, this argument again misses the point. Lion Elastomers is not 

arguing that the Board’s failure to apply General Motors constitutes a dueprocess violation. Rather, Lion Elastomers is arguing that it had no 

opportunity to be heard before the Board decided to overturn General Motors. 

_____________________

9 The Union, as intervenor on appeal, raises a similar argument, contending that 

Lion Elastomers was not deprived of due process because the Board simply applied the 

same legal standard—Atlantic Steel—that it used in the initial adjudication. 

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Lion Elastomers’s asserted due-process violation was its loss of the “chance 

to persuade” the Board not to overturn General Motors in the first place. 

The bottom line is that the Board’s ability to change policies via 

adjudication is premised on the assumption that the parties to that 

adjudication will be “accorded a full opportunity to be heard before the Board 

makes its determination.” Bell Aerospace, 416 U.S. at 295. Lion Elastomers 

was afforded no such opportunity here.

V.

For the foregoing reasons, we VACATE the Board’s Supplemental 

Decision and Order and REMAND for the Board to apply General Motors to 

this case.10

_____________________

10 We need not reach the question of whether Atlantic Steel comports with the 

NLRA or other federal laws. We also decline to reach the question of whether the agency’s 

Decision and Order are supported by substantial evidence. 

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