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...
Aug. 5 — A rental car company waited too long to challenge an order that it reimburse a labor organization out of its own funds for union dues that should have been deducted from employee paychecks, the U.S. Court of Appeals for the District of Columbia Circuit held ( Enterprise Leasing Co. of Fla., LLC v. NLRB, 2016 BL 153618, D.C. Cir., No. 15-1200, 8/5/16 ).
The court closed the case without reaching the merits of an unusual order that precludes the employer from recouping dues payments from the employees who would have made them but for the employer's labor law violations.
Enterprise Leasing Co. of Florida argued that the National Labor Relations Board lacked authority to make the company shoulder the dues obligations of union-represented employees, but Judge Cornelia T. L. Pillard wrote for the court Aug. 5 that the company failed to preserve its objection in proceedings before the NLRB.
The appeals court said the NLRB had substantial evidence that Enterprise illegally withdrew recognition from an International Brotherhood of Teamsters local and refused to honor the union dues checkoff authorizations of bargaining unit employees.
In 2013, an NLRB panel mostly adopted the findings of an administrative law judge that Enterprise illegally withdrew recognition from International Brotherhood of Teamsters Local 769 (359 N.L.R.B. No. 149, 196 LRRM 1613 (2013)).
The panel also found that Enterprise committed a number of National Labor Relations Act violations after its withdrawal of recognition, including failing to honor a dues checkoff provision that remained in effect until the collective bargaining agreement expired.
Enterprise filed a petition for review in the D.C. Circuit, and the board set aside that ruling after the U.S. Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (U.S. 2014) that President Barack's Obama's January 2012 recess appointments to the NLRB, including those of two members on the Enterprise panel, were unconstitutional.
A new three-member panel issued an order in 2015 (362 N.L.R.B. No. 135, 203 LRRM 2779 (2015)). The board members agreed that the employer had committed unfair labor practices, including withdrawing recognition from Local 769, and they ordered the company to recognize and bargain with the union.
However, a board majority (Chairman Mark Gaston Pearce and Member Lauren McFerran) also required Enterprise to make the union whole for union dues that should have been withheld from employee wages under the union's contract. The board's order precluded Enterprise from recouping the dues amounts from workers.
Requiring employees to make the back dues payments would impose “an additional burden” on the workers, the board said, “for which they might well blame the Union, undermining its standing—and exacerbating the consequences of the Respondent's unlawful conduct.”
Member Philip A. Miscimarra dissented from the remedial order. Writing that Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, limits employer payments to labor unions, Miscimarra said the board should order Enterprise to “remit past dues that, in turn, are deducted from unit employees' wages or otherwise recouped by the Respondent.”
Enterprise challenged the board order, including the dues remedy, in the appeals court, but the D.C. Circuit enforced the NLRB order.
Pillard said the board's unfair labor practice findings were supported by substantial evidence, and she found the court lacked jurisdiction to consider the employer's challenge to the dues reimbursement remedy.
Section 10(e) of the NLRA, 29 U.S.C. § 160(e), precludes a reviewing court from considering an objection that has not been “urged before the board.”
Pillard wrote that the NLRB's general counsel, not Enterprise, brought the remedial issue to the board by filing exceptions to an administrative law judge's decision.
“Nowhere in any of its filings in the proceedings below did Enterprise argue that it was impermissibly punitive or otherwise unlawful for the Board to prevent Enterprise from collecting from its employees the dues it had failed to pay to the Union,” she wrote.
Enterprise could not rely on Miscimarra's dissent to excuse its failure to raise an objection, Pillard said. The employer could have filed a motion for board reconsideration after the 2015 decision but did not do so, she added.
Finding the company's objection to the remedial order was not timely, the appeals court concluded “We thus lack jurisdiction to consider it” and enforced the board order in full.
Judges Thomas B. Griffith and Robert L. Wilkins joined in the opinion.
D. John Sauer of James Otis Law Group LLC argued the case for Enterprise Leasing Co. of Florida. NLRB attorney Greg Lauro in Washington argued for the board.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Enter_Leasing_Co_of_Fla_v_NLRB_No_151200_Consolidated_with_151255.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)