D.C. Cir. Finds NLRB Order Clashed With Precedent

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

June 21 — The National Labor Relations Board didn't properly conclude that a construction company interfered with employee rights and unlawfully assisted a union where the board failed to distinguish its earlier ruling in another case that was “on point and controlling,” the U.S. Court of Appeals for the District of Columbia Circuit held ( NLRB v. Southwest Regional Council of Carpenters, 2016 BL 197743, D.C. Cir., No. 11-1212, 6/21/16 ).

The NLRB held that Garner/Morrison LLC illegally conducted “surveillance” of employees and assisted the Southwest Regional Council of Carpenters at a meeting with employees, but Judge Thomas B. Griffith wrote for the court June 21 that the board “evaluated nearly identical conduct and the same legal questions” and reached a contrary result in a 1964 decision involving another employer.

Finding the similarities between the two cases were significant enough that the board needed to distinguish the earlier case or explain its deviation from the precedent, the appeals court vacated the board's unfair labor practice findings against Garner/Morrison and the Carpenters.

Dispute Over Recognition of Carpenters

According to the decision and NLRB records, Garner/Morrison had a collective bargaining relationship with the Carpenters council that covered the company's drywall employees.

Painters and tapers were included in the Carpenters bargaining unit only if they weren't covered by Garner/Morrison's contract with the International Union of Painters and Allied Trades.

In 2007, the court said, Garner/Morrison “had grown dissatisfied with the Painters Union, began to explore whether the Carpenters Union would cover its painters and tapers.” The company allowed its Painters contract to expire and contacted the Carpenters about representing the painters and tapers.

The Carpenters held a meeting in a rented hotel room with employees, union agents, and health plan representatives in attendance. The owners of Garner/Morrison were also present. They urged employees to listen to the Carpenters' presentation, but claimed they were 60 to 70 feet away from the employees and didn't see the workers sign union authorization cards.

The Carpenters told Garner/Morrison they had the support of a majority of the painters and tapers, and demanded recognition. The company agreed, but the Painters filed unfair labor practices claims and the NLRB general counsel issued a complaint against the company for unlawful surveillance of union activity and illegally assisting the Carpenters. The complaint also alleged the Carpenters violated the NLRA by accepting recognition.

Labor Board Found NLRA Violations

The NLRB found violations by the company and union in a 2009 decision ( Garner/Morrison LLC, 353 N.L.R.B. 719, 185 LRRM 1225 (2009)) when the board only had two members.

The company and union petitioned for review in the D.C. Circuit.

After the U.S. Supreme Court ruled in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, 188 LRRM 2833 (2010) that panels with only two members lack authority to issue decisions, the appeals court remanded the case to the board for decision by a three-member panel, which again found the same unfair labor practices (356 N.L.R.B. 1301, 190 LRRM 1417 (2011)).

Parties Raised 1964 Precedent

After the board issued its 2011 decision, Garner/Morrison and the Carpenters filed a motion for reconsideration.

The company and union argued that the board's finding of unlawful surveillance and its unfair labor practice findings were inconsistent with a 1964 ruling in Coamo Knitting Mills, Inc., 150 N.L.R.B. 579, 58 LRRM 1116 (1964).

The board denied the motion for reconsideration, briefly stating that Coamo was distinguishable because it didn't involve the same kind of surveillance that the board found in Garner/Morrison.

Court Finds NLRB Decision ‘Cannot Stand.'

However, the D.C. Circuit said that in both cases a union held a meeting for the company’s employees, which management representatives attended while union representatives solicited the employees' support.

Griffith acknowledged the NLRB didn't refer to unlawful surveillance in its Coamo decision, but he said “that is a distinction without a difference.”

The appeals court said that the board “evaluated nearly identical conduct and the same legal questions here and in Coamo.”

“The only material difference was the result.” the court said. “Without any other justification for distinguishing Coamo, the Board’s decision cannot stand.”

Judges Stephen F. Williams and David B. Sentelle joined in the opinion.

James A. Bowles of Hill, Farrer & Burrill LLP in Los Angeles argued for Garner/Morrison LLC and the Southwest Regional Council of Carpenters. NLRB attorney Nina Schichor in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.