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NLRB gets its hand slapped, twice

October 13th, 2016  |  David Stephanides

In September, the NLRB suffered two notable rebukes from the D.C. Circuit. In the first case, though the appeals court agreed that an employer unlawfully suspended two employees for alleged misconduct during a strike and eliminated a position held by a union worker, it remanded the case as to the discharge of a third employee, finding the NLRB had misapplied the legal standard in evaluating that employee’s strike misconduct. Striker misconduct justifies disciplinary action if it may reasonably tend to coerce or intimidate employees in the exercise of NLRA-protected rights, including the right to refrain from striking. By stressing the “absence of violence,” the NLRB compounded the error by holding that any ambiguity as to the seriousness of the employee’s conduct should be resolved in favor of the employee. Judge Millett filed a separate concurring opinion, taking the Board to task for regularly tolerating sexually and racially offensive conduct during strikes that would never be tolerated in other contexts. Time and again the Board’s decisions have given short shrift to gender-targeted behavior, she said, pointing out that the Board had been equally unmoved by racially derogatory and demeaning epithets and behavior (Consolidated Communications, Inc. dba Illinois Consolidated Telephone Co. v. NLRB, September 13, 2016, Millett, P.).

In the second case, the D.C. Circuit ruled that the Board litigated in bad faith, against Circuit precedent, and was hit with attorneys’ fees totally $17,649. The Board’s suit was predicated upon its view that the employer unlawfully refused to bargain on a matter allegedly within the scope of a collective bargaining agreement without a “clear and unmistakable” waiver. But D.C. Circuit precedent has consistently rejected that view, regarding the contents of a CBA to be a question of “contract coverage.” The appeals court assumed that the Board would recognize a stalemate with circuit case law and seek certiorari to the Supreme Court to resolve it, yet the Board neither confessed the error of its underlying order against the employer under D.C. Circuit law, nor sought to preserve its argument against that precedent for certiorari (or even en banc reconsideration). It did not even seek a transfer to the Sixth Circuit, which embraces the Board’s “clear and unmistakable” waiver policy—and which covers Michigan, where the employer’s operations exist, and where the conduct underlying the dispute occurred. Proper nonacquiescence should be characterized by the agency clearly asserting its nonacquiescence, and specifying its arguments against adverse precedent to preserve them for Supreme Court review. Here, the Board chose obstinacy, and its nonacquiescence amounted to bad faith. The legal dispute in this case demonstrated persistent nonacquiescence without either candor or the pursuit of judicial finality. Judge Millett dissented (Heartland Plymouth Court MI, LLC dba Heartland Health Care Center–Plymouth Court v. NLRB, September 30, 2016, Brown, J.).