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NLRB allows a ‘do-over’ after ALJ error
FRANK J, SAIBERT
Law Bulletin columnist
Published: April 3, 2017
A divided National Labor Relations Board recently remanded a board administrative law judge’s pro-union but clearly erroneous decision in a union discharge case.
The remand very well may allow the ALJ to correct his erroneous reasoning and still reach the clear pro-union result.
The case, Taylor Motors Inc., 365 NLRB No. 21 (March 13, 2017), arose from a 2014 union representation election at Taylor Motors’ Fort Campbell, Ky., facility.
According to two Taylor employees who were waiting to vote, their co-worker Anthony Williams on Election Day threatened to hang “like they did … back in the ’60s” any employee who did not vote for the union.
Williams, of course, denied making the threat.
Taylor suspended Williams, investigated the matter, determined that Williams in fact had made the threatening and racially charged statement and then fired him.
The American Federation of Government Employees filed an unfair labor practice charge with the board challenging Williams’ firing.
A board ALJ conducted an evidentiary hearing regarding Williams’ termination and other matters pertaining to the union election.
The ALJ, noting that three other Taylor employees testified that they had not heard Williams’ threat, ruled that Williams did not make the statement about the aforementioned hanging threats to co-workers.
Accordingly, the ALJ concluded, Taylor violated the National Labor Relations Act by suspending and firing Williams.
Yet later in his written decision, the ALJ inexplicably cast substantial doubt upon his own reasoning.
He wrote that he “might well be wrong” and that “some doubt persists” regarding the Williams threat.
Seizing upon these equivocations, the board majority suggested that the ALJ had “undercut his own analysis” by, among other things, not making a definitive credibility call.
The board majority further found that the ALJ appeared confused about the act’s burden-shifting requirements in this case, where Williams, in trying to persuade other employees to vote for the union, arguably was engaged in protected activity.
The board majority explained that under its long-established precedent in NLRB v. Burnup & Sims, 379 U.S. 12 (1964), if an employer proves that it had an honest belief that an otherwise protected employee had engaged in misconduct, the board’s general counsel, to prevail, must demonstrate that the employee in fact did not engage in the misconduct.
Here, the board majority determined, the ALJ seemed to believe that Taylor had the burden of proving that Williams made the statement about hanging people, not that the NLRB’s general counsel had the burden of proving that he did not.
But in finding that the ALJ erred, the board majority, rather than dismissing the complaint outright, remanded the case back to the ALJ for a determination of whether the general counsel carried his burden to prove that Williams did not actually make the statement about hanging.
A lengthy and blistering dissent from the board’s acting chairman followed.
In the dissent’s view, the factual record was sufficiently developed to require the case’s dismissal.
The dissent concluded that, “[A] remand is unwarranted, and the record evidence, which properly evaluated under the burden allocations dictated by Burnup & Sims, compels a finding that Williams’ suspension and discharged were lawful.”
Two new members are expected to join the NLRB later this year.
Will they help put an end to cases like Taylor Motors?
Frank J. Saibert is a partner in the labor and employment practice at Nixon, Peabody LLP. He represents public- and private-sector employers nationwide in labor relations and employment matters. He is past president of the Chicago chapter of the National Human Resources Association and a former Lyons Township committeeman. He can be reached at fjsaibert@nixonpeabody.com.