D.C. Cir. Overrules NLRB in Verizon ‘Picketing' Dispute

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By Lawrence E. Dubé

June 21 — The National Labor Relations Board acted unreasonably when it rejected an arbitration decision and held that Verizon New England Inc. illegally ordered employees to stop displaying pro-union signs in their private vehicles, the U.S. Court of Appeals for the District of Columbia Circuit held ( Verizon New England Inc. v. NLRB, 2016 BL 197813, D.C. Cir., No. 15-1062, 6/21/16 ).

Writing for the court, Judge Brett M. Kavanaugh said June 21 the NLRB should have deferred to the arbitration panel's decision that the display was a form of “picketing” that was prohibited by a collective bargaining agreement between the telecommunications company and an International Brotherhood of Electrical Workers local.

While the D.C. Circuit often defers to NLRB interpretation of the National Labor Relations Act, the decision shows that the court requires the board to give arbitrators appropriate deference when they decide cases based on their interpretation of a collective bargaining agreement.

Kavanaugh said there is no “hard-and-fast” definition of what constitutes picketing, but the arbitration panel's assessment was not “palpably wrong” and the board should have deferred to it. The court refused to enforce the board's unfair labor practice finding.

Signs Appeared in Vehicle Windows

According to NLRB findings, IBEW Local 2324 distributed picket signs to union members in March 2008 as the union prepared for contract negotiations with Verizon New England.

Employees displayed signs reading “Verizon, Honor our Existing Contract” or “Honor Our Contract” inside the windows of their personal vehicles when they parked at Verizon.

When Verizon instructed employees to remove the signs, Local 2324 filed unfair labor practice charges alleging the company interfered with employee rights in violation of the NLRA.

The union also filed a grievance challenging the company's action, and an NLRB regional director deferred action on the charges to the union-management grievance and arbitration process.

NLRB Rejected Arbitration Decision

Verizon's 2003-2008 collective bargaining agreement with the IBEW local prohibited strikes and “picketing of any of the Company's premises” during the term of the contract, and an arbitration panel concluded 2-1 the union members violated the contractual ban by displaying picket signs in their cars.

An NLRB administrative law judge deferred to the arbitration award and dismissed the unfair labor practice allegation, but the board reversed in a 2-1 decision (362 N.L.R.B. No. 24, 202 LRRM 1841 (2015)).

The NLRB majority said the arbitration award was “devoid of any reasoning to support its conclusion that the conduct constitutes picketing.” Finding the arbitration award couldn't be interpreted in a way that would make it consistent with the NLRA, the majority said deferral was inappropriate, and ordered Verizon to post a notice advising employees that they wouldn't be prohibited from displaying signs in their vehicles when parked on company property.

Verizon petitioned for review, and the D.C. Circuit denied enforcement of the board's order.

Board Should Have Deferred

Kavanaugh said the issue before the arbitrators was whether the union had waived the right of employees to display union-related messages in their cars by agreeing to a contractual prohibition of “picketing.”

The arbitration panel found that displaying signs in parked cars was picketing, and the court said the arbitration decision was “far from egregiously wrong.” The panel's view was reasonable, “especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line,” Kavanaugh wrote.

Concluding the arbitration decision was not repugnant to the National Labor Relations Act or a “palpably wrong” interpretation of Verizon's contract with the union, Kavanaugh wrote that the NLRB should have deferred to the arbitration award, and the court denied enforcement of the board's order.

Concurring, Dissenting Opinions

Judge Karen LeCraft Henderson concurred, but wrote separately that the NLRB has recently appeared unwilling to defer to an arbitrator's interpretation of a union contract unless “Board law” reasonably permits it. Henderson said contract interpretation is the responsibility of arbitrators and courts, and they don't defer to the NLRB when it is “so engaged.”

Judge Sri Srinivasan concurred in Kavanaugh's explanation of the legal standard under which the NLRB reviews arbitration awards, but dissented from the rejection of the board's decision, finding it could have reasonably concluded the arbitration board's 2-1 decision on the meaning of “picketing” was palpably wrong.

Arthur J. Telegen of Seyfarth Shaw LLP in Boston argued the case for Verizon New England Inc. Alfred Gordon O'Connell of Pyle Rome Ehrenberg in Boston argued for IBEW Local 2324. NLRB attorney Joel A. Heller 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

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