Tuesday, December 9, 2008
We posted earlier on Anheuser-Busch, one of the NLRB September Massacre cases in which the Board (3-2) concluded that the employer did not need to give make-whole relief to employees who were caught using illegal drugs during the employer's unlawful surveillance. The Blog of the Legal Times is reporting that the D.C. Circuit has enforced the Board's order in an unpublished order (which I don't have yet). According to BLT, the court held that the NLRB “'offered an acceptable rationale for overturning its precedent' that an employer cannot discipline an employee if the misconduct was discovered unlawfully."
Sounds like a case of agency deference, which I'm normally supportive of (and could've certainly benefited from more of as an NLRB attorney). Although I'm not a fan of the NLRB's decision in this case--at least its broad reversal of precedent on the general issue in that case--from an appellate court's point of view it's probably not so unreasonable as to warrant reversal.
Hat Tip: Paul Secunda