Wednesday, October 10, 2007
Another day, another couple of 3-2 decisions limiting employees' ability to enforce their rights under the NLRA. The first is Anheuser-Busch Inc., 351 N.L.R.B. No. 40 (Sept. 29, 2007), which involved an employer’s unlawful surveillance of its employees (unlawful because they did not bargain over it). That surveillance turned up activity, including drug use, that resulted in termination and discipline for certain workers. The Board had earlier refused to provide make-whole relief to the employees. The D.C. Circuit reversed because the Board failed to justify its move away from earlier precedent and remanded the case, leaving the possibility open that the Board could come to the same conclusion. It now has, based in large part on its interpretation of Section 10(c):
Under Weingarten, an employer violates the Act if it conducts an investigatory interview after denying the interviewed employee’s request for the assistance of a union representative. Notwithstanding that fact, both the Board and reviewing courts consistently have held that Section 10(c) precludes the Board from granting a make-whole remedy to employees disciplined for misconduct uncovered through an unlawfully-conducted investigatory interview. See Taracorp Industries. . . .
We recognize that the Board, in its initial decision herein, cited Taracorp in support of its denial of a make-whole remedy, and that the court distinguished Taracorp on the basis that the employer in that case had a separate and untainted source of information regarding the employee’s misconduct. The dissent contends that Taracorp and other Weingarten cases are distinguishable from the instant case because in those cases, the employer suspected the employee’s misconduct prior to conducting the disciplinary interview. However, the Taracorp Board’s holding did not turn on the presence of an untainted source. Indeed, the Taracorp decision does not even refer to the untainted information source, and instead relies heavily on Section 10(c)’s prohibition against making whole employees who have been discharged for cause.
The dissent responds:
Today, the majority overrules Board precedent and holds that an employer that disciplines employees based solely on information obtained in violation of Section 8(a)(5) need not make those employees whole. The majority reaches that conclusion by: (1) relying on a reading of Section 10(c) that a reviewing court has rejected as a matter of law, (2) advancing policy arguments at odds with the Act, and (3) relying on a line of cases that has no appropriate application here. We dissent. The employees here, whom the Respondent disciplined based solely on its unquestionably unlawful use of hidden surveillance cameras, are entitled to make-whole relief. . . .
It is well settled that the Board’s authority under Section 10(c) is broad and discretionary. In exercising its authority, the Board is guided by the principle that remedial orders should “restor[e] the situation, as nearly as possible, to that which would have obtained but for [the unfair labor practice].” Die Supply Corp. “Effective redress for a statutory wrong should both compensate the party wronged and withhold from the wrongdoer the ‘fruits of its violations.’” International Union of Electrical Radio and Machine Workers v. NLRB. . . .
Even if the [D.C. Circuit] had not already rejected the argument that Section 10(c) bars a make-whole remedy, the majority’s 10(c) argument would not withstand scrutiny. The majority contends that the legislative history of Section 10(c) shows an intent to insure that employees who engaged in misconduct would be subject to discipline for it. That is true, insofar as it involves 8(a)(1) and (3) cases in which the Board must determine whether an employee was disciplined because of Section 7 activity. But the legislative history gives no indication that it was intended to preclude make-whole relief in the circumstances present here, where the discipline was the direct result of a 8(a)(5) violation without which the employer would have had no grounds for discipline.