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It’s never a good sign when a court calls your reasoning “nonsense” or instructs your lawyers to “brush up” on their familiarity with legal doctrines. But that’s exactly what a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit did in a decision that overturned the National Labor Relations Board’s (NLRB or Board) ruling on two unfair labor practice claims against an Arizona-based produce distribution company. In Stern Produce Company Inc. v. NLRB, the court concluded that the NLRB went too far in inferring that anti-union sentiment motivated actions the employer took with respect to two pro-union employees who each violated company policies.
Prologue
Since 2015, a union had been attempting to organize workers at Stern Produce. The union filed unfair labor practice charges against the company in 2015 and 2016. The two employees at issue in the current case—Jose Ruiz and Uvaldo Ponce—both testified for the union in those proceedings. The union later brought additional unfair labor practice charges in 2020 after the company laid off its hourly workers (including Ruiz and Ponce) in response to the COVID-19 pandemic and later brought back some drivers when business resumed. The union claimed that the company selectively failed to recall pro-union employees after the layoff in an attempt to dilute union support within its workforce. Stern Produce settled that dispute (without admitting fault) and agreed to bring back several workers, including Ruiz and Ponce, as part of the settlement terms.
This background context is important for understanding why the court rejected the NLRB’s finding that Stern Produce later violated the law because, as discussed below, that decision centered around how much weight, if any, the NLRB should have given to this prior history in determining whether anti-union sentiment motivated the company’s actions in response to Ruiz and Ponce when each of them later violated company policy in 2021. Here’s a quick summary of each dispute.
Ruiz’s Dash Cam
Stern Produce equips all of its trucks with two cameras—one that faces the road, and one that faces the driver. Its driver manual advises drivers that “[a]ll vehicle safety systems, telematics, and dash-cams must remain on at all times unless specifically authorized to turn them off or disconnect.” One day, Ruiz covered the inward-facing camera during an unscheduled lunch break. Upon noticing that the camera was covered, Ruiz’s supervisor sent him a text message stating, “Got the uniform guy for sizing bud, and you cant [sic] cover the camera it’s against company rules.” The company never issued Ruiz any discipline for covering the camera, and the supervisor never brought the matter up with Ruiz again. The union nevertheless filed an unfair labor practice charge over the supervisor’s text message instruction to Ruiz to uncover his camera.
The NLRB determined that the supervisor’s single text message violated federal labor law, specifically, Section 8(a)(1) of the National Labor Relations Act (“NLRA”), because – in its estimation – that text message created the impression that the company was monitoring Ruiz’s potential union activity, even there was no evidence that Ruiz covered the camera for that purpose. In doing so, the Board cited the fact that Ruiz was a “union supporter” in 2015 and 2016, that he had just returned to working at Stern Produce pursuant to a settlement agreement and that it was “out of the ordinary” for the company to monitor the live feed of the dash cams. The court, however, easily disposed of the NLRB’s dubious conclusion, noting that “a driver who knows he can be monitored (1) at any time, (2) without warning, and (3) for any reason, has every reason to expect to be watched while on the job—and, without more, no reason to assume that any particular instance of monitoring reflects an attempt by the company to weed out or suppress union activities.” The court also specifically rejected the notion that Ruiz’s support of the union in 2015 and 2016 was relevant in determining whether the single text message created the impression Ruiz was under surveillance by the company in an effort to thwart union-related activity.
Ponce’s Written Warning
In August 2021, Ponce heard two fellow drivers jokingly call each other “baby.” Ponce remarked to one of the drivers, “you know they kill people like that in your country.” When the driver asked Ponce what he meant, Ponce replied, “gays.” The driver then asked Ponce where he thought he was from. Ponce guessed Afghanistan and then said, “no no, I mean where Saddam Hussein is from.” The driver told Ponce he was wrong and left the room. The company issued Ponce a written warning for making statements in violation of its anti-harassment policy.
The NLRB determined that Stern Produce’s issuing Ponce a written warning violated Sections 8(a)(1), (3), and (4) of the NLRA for similar reasons it cited for Ruiz and because the company had, on at least two prior occasions, failed to discipline others who made inappropriate comments. Here too the court refused to go along with the NLRB’s logic, stating the prior history “does not give the [NLRB’s] General Counsel the green light to cite every labor-law violation a company ever committed as evidence of its anti-union animus.” The court also criticized the NLRB for accepting the union’s allegations as true even though the union had not produced evidence to substantiate them. This led the court to call the NLRB’s reasoning “nonsense.”
Conclusion
The Stern Produce decision is one of a growing number of cases where courts are reigning in the current NLRB’s breathtakingly overly expansive interpretation of the NLRA. It likely didn’t help the Board’s cause that this case involved only “two brief workplace incidents,” prompting the court to not-so-subtly suggest that this was not a case that should have landed on the court’s busy docket and chide the NLRB that it “should have brushed up on the ancient and wise legal doctrine de minimis non curat lex – that is, the law does not concern itself with trifles. Or should not.”
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