Time to Rein in the Nlrb
| Publication year | 2000 |
| Pages | 160 |
| Citation | Vol. 07 No. 2000 Pg. 160 |
July 2000, pg. 160. Time to Rein in the NLRB
July 2000
The National Labor Relations Board has been a feature of the legal landscape for two generations. The federal courts traditionally have shown great deference to the Board's rulings, and this policy of judicial deference makes sense in the abstract. However, the courts of appeal frequently have expressed frustration at the lack of an adequate or consistent rationale for the Board's decisions.(fn1) For its part, the Board has shown what can only be described as institutionalized contempt(fn2) for the courts' decisions. This article will examine four cases in which the Courts of Appeal and the U.S. Supreme Court refused to defer to the Board's findings of fact, resolution of credibility or conclusions of law, and will consider some possible solutions for the abuse of power by the NLRB.
I. JUDICIAL DEFERENCE TO THE BOARD'S CONSTRUCTION OF THE STATUTE.
During the last 60 years, the Board's interpretation of the National Labor Relations Act has swung back and forth like a pendulum, due in large measure to the fact that the Board consists of political appointees and its agenda changes as vacancies among its five members are filled by Administrations of one political party or the other. The federal courts(fn3) have afforded the Board great latitude in interpreting the NLRA, deferring to the Board so long as its interpretation of the Act is not contrary to the "unambiguously expressed intent of Congress," Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984), is reasonable, and is consistent with the Board's prior holdings, see Holly Farms Corp. v. NLRB, 517U.S. 392 (1996). Moreover, the courts generally have been tolerant of the Board's right to change its interpretation of the Act, so long as it offers a "reasoned justification" for departing from precedent. Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C. Cir. 1992); see also C.C.Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir. 1995), and Gibson Greetings v. NLRB, 53 F.3d 385 (D.C. Cir. 1995). In other words, even where the courts of appeal may disagree with the Board's interpretation of the law, they will generally defer to it, provided that the Board explains its reasons sufficiently, and that the Board's interpretation of the law does not clearly contradict what Congress or the Supreme Court has said the law means.
II. THE NLRB'S REFUSAL TO EXPLAIN ITS REASONING.
In Acme Die Casting v. NLRB, 26 F.3d 162 (D.C. Cir. 1996)
Background. Section 8(a)(5) of the NLRA makes it an unfair labor practice for an employer to refuse to bargain in good faith with the union that represents its employees. Except in certain circumstances (not present in the Acme case) it is a violation of §8(a)(5) for an employer to unilaterally change existing wages, benefits or working conditions. . .that is, to make such change without first bargaining over the issue with the union. In this case, the union claimed that the company unilaterally changed the employees' terms and conditions of employment by failing to give the employees a wage increase in 1988, as it had in previous years.
Prior case law established that a history of wage increases is governed by Section 8(a)(5) "if they are of such a fixed nature and have been paid over a sufficient length of time to have become a reasonable expectation of the employees and, therefore, part of their anticipated remuneration." Phelps Dodge Mining Co., Tyrone Branch v. NLRB, 22 F.3d 1493, 1496 (10 Cir. 1994) (quoting NLRB v. Nello Pistoresi & Son, Inc., 500 F.2d 399, 400 (9th Cir. 1974)). However, if the employer "retain[s] total discretion to grant [wage] increases based on any factors it cho[oses], we doubt that discontinuing the policy [will result] in a violation of Section 8(a)(5)." Daily News of Los Angeles v. NLRB, 73 F.3d 406, 412 n.3 (DC Cir. 1996). Wage increases that "are fixed as to timing but discretionary in amount do not become part of the employee's reasonable expectations and thus are not considered `terms and conditions' of employment." Phelps Dodge, 22 F.3d at 1496.
The Facts. The facts relevant to this particular issue were simple and straight forward. In October of 1987, the company's production and maintenance employees voted to be represented for purposes of collective bargaining by the United Electrical Radio and Machine Workers of America. The company had given wage increases ranging from fifteen cents to thirty cents on:
January 4, 1980 20 cents
June 2, 1980 20 cents
January 5, 1981 23 cents
June 1, 1981 25 cents
November 9, 1981 22 cents
January 4, 1982 30 cents
September 13, 1982 25 cents
March 21, 1983 25 cents
October 17, 1983 25 cents
April 30, 1984 25 cents
November 5, 1984 25 cents
May 12, 1985 20 cents
December 2, 1985 25 cents
June 30, 1986 20 cents
February 16, 1987 15 cents
However, the company gave no wage increases in 1988. On January 2, 1989, the company increased wages across the board by 30 cents.
The company argued that the wage increases were discretionary, as shown by the varying dates and amounts. However, the Board concluded that the company's failure to increase wages in 1988 represented a unilateral change in the terms and conditions of employment without bargaining with the union, in violation of Section 8(a)(5) of the Act, and also that the company's failure to give an increase in 1988 was motivated by anti-union animus, in violation of Section 8(a)(3) of the Act.(fn4)
The D.C. Circuit's Decision in Acme I. In Acme I, the court observed that the Board's prior decisions on this issue were "all over the map" and that the Board's previous decisions had failed "to clarify when the timing and amount of the increase is sufficiently consistent to constitute a settled practice." 26 F.3d at 166. In remanding to the Board, the court instructed it to "formulate a clearer standard for determining when granting or withholding a wage increase violates . . .Section §8(a)(5)," and observed that "[t]he Board needs to set comprehensible rules as to when the frequency and quantity of wage increases constitutes a settled practice that the employer must continue." Id. at 168. Any reasonable rule adopted by the Board would be afforded the usual judicial deference, the court said, under the principles set forth in Chevron USA, Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-43 (1984).
In a two-page supplemental decision after remand, the Board merely reiterated the facts and its conclusion that the company's wage increases from 1980 through 1987 were sufficiently regular in timing and amount to constitute a settled practice.
The D.C. Circuit's Decision in Acme II. In Acme II,93 F.3d 854 (D.C. Cir. 1996), the court had this to say about the Board's decision on remand:
[t]he Board merely reiterated its earlier conclusion and made no attempt to comply with our instructions. Because a resolution of this particular question will have no material effect on the remedies the Board has petitioned us to enforce, we will not remand a second time. Rather, we throw up our judicial hands and will enforce the Board's remedial order only with respect to those findings of unfair practices that we have already affirmed.
93 F.3d at 855-856.
The court observed that the company's wage increases usually occurred at intervals of from six to seven and a half months and generally fell between 20 and 30 cents an hour. However, in one year there were three raises and in another just one, and the amounts varied from a high of 30 cents to a low of 15 cents.
The difficulty we noted in Acme is that the Board's perspective seems to shift from case to case. Predicting whether the Board will view a pattern of wage increases as established or discretionary has proven difficult not only for employers and employees, but for the Board's own ALJs as well.
93 F.3d at 858.
The court suggested that the Board's refusal on remand to state a rationale for its decision appeared to be a willful refusal to follow the court's instruction in Acme I:
We did not expect the Board to state with mathematical precision when a pattern of wage increases is sufficiently regular to constitute a settled practice; we simply asked the Board to "set the parameters." . . . The Board, however, not only failed to formulate a rule, it failed even to explain why it was unable to do so_if that indeed was the case.
93 F.3d at 858 (emphasis added).
III. THE "SUBSTANTIAL EVIDENCE" STANDARD FOR JUDICIAL REVIEW OF THE BOARD'S FINDINGS OF FACT.
The NLRB's findings of fact must be upheld if they are supported by "substantial evidence on the record considered as a whole." Universal Camera v. NLRB, 346 U.S. 474 (1951). "Substantial evidence" means more than a "mere scintilla" of evidence:
"It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. Accordingly, it "must do more than create a suspicion of the existence of the fact to be established. . . . it must be enough to...
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