CC1 Ltd. P'ship v. Nat'l Labor Relations Bd.

Summary

The D.C. Circuit reviewed the National Labor Relations Board’s determination that CC1 unlawfully discharged an employee for alleged participation in a work stoppage and discharged employees who participated in a later wildcat strike. The court affirmed the finding concerning the individual employee, but remanded the Board’s determination that the wildcat strike was protected activity for further explanation. The court declined to consider additional challenges that CC1 had failed to preserve or properly raise.

Holdings

1. The Board reasonably found that CC1 did not discharge Colón because it believed he had encouraged the September 9 work stoppage and that CC1 failed to establish an alternative lawful motive. The discharge therefore violated the NLRA.
2. The Board's interpretation that some wildcat strikes may be protected when they do not undermine the union's objectives or exclusive bargaining position was reasonably defensible. However, the Board failed to explain how it applied that standard to employees who continued striking after learning that the Union had disavowed the strike, so the court could not determine whether the conclusion was supported by substantial evidence.
3. The court could not consider CC1's challenge to the tax-consequence remedy because CC1 failed to raise it before the Board, and CC1 forfeited its challenge to the last-chance agreements by raising it for the first time in its reply brief. The uncontested portion of the Board's order was therefore subject to summary enforcement.

Questions Presented

1. Whether substantial evidence supported the Board's finding that CC1 unlawfully discharged Colón for protected union activity rather than for encouraging the September 9 work stoppage.
2. Whether the Board adequately explained its conclusion that the October unauthorized wildcat strike remained protected activity under sections 7 and 9 of the NLRA despite the Union's disavowal of the strike.
3. Whether the court could review CC1's challenges to the Board's tax-consequence backpay remedy and last-chance-agreement ruling when those arguments were not properly preserved.

Disposition

vacated