Summary
The D.C. Circuit reviewed an NLRB decision concerning CC1 Limited Partnership’s discharge of employees involved in a work stoppage and an unauthorized wildcat strike. The court upheld the finding that CC1 unlawfully discharged employee Miguel Colón, but remanded for further explanation of whether the wildcat strike was protected activity under the NLRA. The court dismissed or summarily enforced the remaining issues because CC1 failed to properly preserve or present them.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported the Board's conclusion that CC1 unlawfully discharged Colón because of protected union-related activity rather than because he encouraged the September work stoppage.
- Whether the Board adequately explained its conclusion that the October unauthorized wildcat strike was protected concerted activity under sections 7 and 9 of the NLRA despite the union's disavowal of the strike.
- Whether the court could review CC1's challenge to the Board's tax-consequence remedy when CC1 had not raised that objection before the Board.
- Whether CC1 forfeited its challenge to the Board's determination that the last-chance agreements were unlawful by raising it for the first time in its reply brief.
Holdings
- The Board reasonably concluded that CC1 did not discharge Colón because it believed he had encouraged the September work stoppage and that CC1 instead acted for an unlawful union-related motive. The court affirmed that portion of the Board's order.
- The court did not decide whether the wildcat strike was protected activity. It held that the Board failed to provide a reasoned explanation of how it applied the governing standard to employees who continued striking after learning that the union had disavowed the strike.
- The court dismissed CC1's challenge to the tax-consequence remedy because CC1 failed to raise the objection before the Board and did not establish extraordinary circumstances excusing that failure.
- CC1 forfeited its challenge to the finding that the last-chance agreements were unlawful by raising the argument for the first time in its reply brief; the uncontested portion of the Board's order was therefore subject to summary enforcement.
Key quotations
“It is only when employees’ activity undermines the Union’s objectives or position as bargaining authority that it loses NLRA protection.” (14)
“We cannot determine if the Board based its decision on a reasonably defensible interpretation of the NLRA if we do not know how the Board reached its conclusions.” (14)
“We vacate and remand for further explanation the Board’s conclusion that the striking employees were unlawfully terminated for engaging in protected activity.” (16)
Factual background
CC1 operated a bottling plant whose warehouse employees were represented by a Teamsters local union. After a September 9, 2008 work stoppage arising from a union meeting at the plant, CC1 suspended several shop stewards and later discharged them, including Miguel Colón, whom the Board found had not encouraged the stoppage. In October, more than 100 employees participated in an unauthorized wildcat strike seeking reinstatement of the shop stewards and renewed collective bargaining; the union later disavowed the strike, while some employees continued striking. CC1 suspended or discharged eighty-six strikers and required some reinstated employees to sign last-chance agreements.
Procedural history
An NLRB administrative law judge found that CC1 unlawfully discharged José Colón for his participation in a September work stoppage, found that the October wildcat strike was protected activity, and found CC1's last-chance agreements unlawful. The Board initially affirmed with modifications, but that decision was set aside after the Supreme Court held that several Board members' recess appointments were unlawful in NLRB v. Noel Canning. A lawfully appointed Board panel later reviewed the matter de novo and again affirmed the relevant findings. CC1 sought review, and the Board cross-applied for enforcement.
Remand instructions
The Board must further explain the importance of the provenance of the letter disavowing the strike and whether the Union's message to CC1 accurately represented the Union's position, so the court can determine whether the wildcat strike was protected activity and whether the Board's decision was supported by substantial evidence.