The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a ruling recently in which the court had some rather harsh things to say to the National Labor Relations Board’s (NLRB) current Democratic majority. In its decision issued on March 26, the court ridiculed the Board’s April 2023 Stern Produce decision, which found the company in question had violated the National Labor Relations Act (NLRA) for the flimsiest of reasons.
Stern Produce is a company based out of Arizona that operates a produce distribution business and has been the target of an organizing effort by the United Food and Commercial Workers (UFCW). As is common in such situations, the union made various allegations of unfair labor practices (ULPs), resulting in proceedings before the NLRB, including a ruling against the company in 2019. In 2020, the UFCW again filed charges over rehiring laid-off drivers, but the company settled by recalling the drivers in question without the NLRB ruling on that complaint.
One of those drivers subsequently had a very brief text exchange with a supervisor. The supervisor reminded him of a policy regarding electronic monitoring equipment—including dash cameras—used on the company’s trucks to promote safe driving. That policy states explicitly that the trucks are subject to monitoring “at all times,” and drivers may not cover up the cameras. After that exchange, the subject apparently never came up again.
A month or so later, a different driver received a written warning after an internal company investigation found that he had violated a policy regarding the use of disparaging language during a seemingly trivial verbal exchange overheard by a supervisor.
Based on those two incidents, the UFCW filed a new set of ULPs, and the NLRB’s general counsel issued a complaint against the company alleging that the text exchange about the dash camera policy created “an impression of surveillance.” The complaint also alleged that Stern Produce had singled out the second driver for a written warning over a first offense because he had allegedly supported the UFCW’s organizing efforts.
After holding a hearing on those issues, an NLRB administrative law judge ruled in favor of Stern Produce, but a three-member panel consisting of the current three Democratic Board appointees overturned the judge’s decision and ruled against Stern, which prompted the appeal to the D.C. Circuit.
In its analysis regarding the camera policy, the court found that the agency essentially overinflated the issue, saying “a single phrase in one text message on a subject the manager never mentioned again” could not sustain a finding that the employer was engaged in “surveillance,” especially since all of the drivers are well aware of the policy. Quoting a Supreme Court case, the D.C. Circuit said, “the Board’s explanation is ‘nonsense.’ … There is nothing ambiguous about ‘at all times,’” and it was mere “speculation” that there was an anti-union animus for the episode at all.
It went on to criticize the NLRB further, saying, “[a]t bottom, the Board’s errors reveal just how far it strayed from its statutory mandate. Its finding of a … violation cannot be squared with any reasonable understanding of the [NLRA’s] prohibition on practices that ‘coerce employees in the exercise of the rights guaranteed’” by it.
The decision continued, “[t]he Board’s misguided attempt to find a labor-law violation in one text message is ‘the product of a familiar phenomenon’: years ago the Board took an expansive view of the scope of the [NLRA] and, over time, it ‘it presse[d] the rationale of that expansion to the limits of its logic.’ The Board then focused its analysis here not on the statutory text—the ‘authoritative source of the law’—but on its own construction of the [NLRA.]” In other words, they were making things up.
With respect to the driver who received a written warning, the court said, “the General Counsel must present evidence of [anti-union] animus that, when coupled with the employer’s knowledge of the employee’s protected conduct, suffices to support a ‘reasonable inference’ that a ‘causal relationship’—or, put otherwise, a ‘link,’ or a ‘nexus’—existed between the employee’s union activity and the employer’s adverse action. … The General Counsel failed to clear that bar here,” it concluded.
Again, the D.C. Circuit dispensed with the NLRB’s finding that Stern Produce maintained an anti-union bias based on the text exchange, which it said did not violate the NLRA in the first place. Nor, it said, could the general counsel or the Board use the company’s 2020 settlement against it because there had been no finding that it violated the law by failing to recall certain drivers. It went on to say, “[t]hat approach is—to repeat once more the Supreme Court’s statement in Allentown Mack—'nonsense.'"
All of that is just a representative sample of the D.C. Circuit’s Stern opinion dispensing with the NLRB’s overreach. Whether this rises to the level of neglect of duty is, perhaps, in the eye of the beholder. In an ideal world, the Board would take this judicial smack-down to heart, but its track record suggests otherwise.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
