Justia Labor & Employment Law Opinion Summaries

This appeal focused on two Decisions and Orders issued by the Board. Allied petitioned for review to challenge certain aspects of the Board's actions and the Board cross-petitioned for enforcement. The principal issue on appeal was whether the relationship between Allied and the Union - which had extended over two decades - was governed by section 8(f), 29 U.S.C. 158(f), or section 9(a) of the National Labor Relations Act. The court held that substantial evidence in the record, reasoned decisionmaking, and established case law supported the Board's finding that Allied and the Union were parties to a 9(a) bargaining relationship. Therefore, the Board's decision was eminently reasonable. The court found no merit in Allied's petition for review and granted the Board's cross-petition for enforcement.

The Department petitioned for review of a decision of the Authority that adopted a new standard to determine when a negotiated contract provision was an "appropriate arrangement" under 5 U.S.C. 7106(b)(3) and an agency head's disapproval thereof would therefore be set aside. Because the Department failed to move for reconsideration objecting to the Authority's use of the abrogation standard to review the agency head's disapproval of the negotiated agreement, the court dismissed the Department's petition for lack of subject matter jurisdiction pursuant to section 7123(c).

Plaintiff contended that his supervisor at the Department of State gave him negative performance reviews in retaliation for his opposition to discriminatory conduct, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. The district court granted the Department's motion for summary judgment and dismissed the case. The court held that because plaintiff failed to offer evidence from which a jury could conclude that he opposed a practice that could "reasonably be thought" to violate Title VII, he failed to satisfy the first element of his cause of action. Plaintiff also failed to establish the third element of a Title VII retaliation claim: that the employer took a materially adverse action against the employee "because" the employee opposed a protected practice. Accordingly, the court affirmed the district court's grant of summary judgment in favor of the Department.

Petitioner sought review of a decision of the Board affirming the findings of an ALJ that petitioner committed eight unfair labor practices (ULPs) in violation of section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), (5). The Board filed a cross-application for enforcement. The court granted the petition in part and set aside the Board's findings that petitioner committed ULPs when it prematurely declared impasse and unilaterally implemented a wage increase on September 1, 2005. The court denied the petition and granted enforcement as to the remaining ULP findings because petitioner had forfeited any objection thereto.

Appellant, an African American man employed by the IRS, alleged that the IRS discriminated against him on the basis of race and gender when it awarded a temporary detail and then a permanent promotion to a white female employee. Appellant also claimed that the IRS retaliated against him when he pursued the matter with the Equal Employment Opportunity office. The district court granted summary judgment to the government on all claims. The court agreed that appellant failed to exhaust his claim regarding the temporary detail and so affirmed that portion of the district court's judgment. But because the court concluded a reasonable jury could find that the government's proffered nondiscriminatory reason for denying appellant the permanent promotion was pretextual and that discrimination was the real reason, the court reversed the grant of summary judgment on the discriminatory promotion claim and remanded to allow that claim to proceed to trial. And because the court concluded that appellant established a prima facie case of retaliation, the court remanded that claim for further proceedings.

In the mid-1990's, the Navy began providing employees with bottled water after an EPA report indicated that water fountains in some Navy buildings in Newport contained components manufactured with lead. Beginning in 2005, the Navy replaced the problematic water fountains, tested the tap water, and determined it safe to drink. The Navy then stopped providing bottled water; it did not negotiate with employee unions before removing the bottled water. The unions objected to the removal of the bottled water. Funds appropriated for agency operations could be used for "necessary expenses" but not for employees' "personal expenses." As the Comptroller General has long determined, when safe and drinkable tap water was available in the workplace, bottled water constituted a personal expense for which appropriated funds could not be expended. Under federal collective bargaining law, moreover, an agency had not duty or authority to bargain over or grant benefits that were "inconsistent with any Federal law." Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.

This case arose when Southern Power terminated its service agreement with Georgia Power, represented by Local 84, and Alabama Power, represented by Local 801-1, taking over four electricity generating plants' operations. Local 84 and Local 801-1 requested recognition, contending that Southern Power qualified as a successor employer to Georgia Power and Alabama Power. After a hearing, an ALJ found that Southern Power violated sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., ordering it to recognize and bargain with the unions. The ALJ also found that the three-plant bargaining unit represented by Local 84 was inappropriate. On March 20, 2009, the Board, acting with only two sitting members, issued an order affirming the ALJ's findings but found, however, that the Georgia Power three-plant bargaining unit was proper given the unit's bargaining history. Southern Power petitioned for review and the court remanded in light of New Process Steel, which required at least three members to exercise the Board's authority. On November 30, 2010, a three-member panel of the Board affirmed the ALJ's decision and adopted the recommended Order. Southern Power subsequently petitioned for review of the Board's November 30 Order. The court held that it lacked jurisdiction to consider two of Southern Power's arguments, another was time-barred, and two others failed on the merits. Accordingly, the court denied the petition and granted the Board's cross-application for enforcement.

Petitioners petitioned for review of a decision and order of the Board, and the Board cross-applied for enforcement. The Board found, among other things, that petitioners violated the National Labor Relations Act, 29 U.S.C. 151 et seq., by implementing new terms and conditions of employment before reaching a lawful impasse in collective bargaining negotiations. The court held that because substantial evidence supported the Board's findings, the petition for review was denied and the Board's cross-application for enforcement was granted.

This case arose when the Board found petitioner had acted unlawfully by unilaterally reducing the hours of its full-time respiratory department employees. The Board ordered petitioner to rescind the hours reduction, bargain with the labor union representing the affected employees, and make whole any employee for any loss of earnings and other benefits suffered (2004 Order). An ALJ subsequently determined that petitioner owed 13 current and former employees roughly $105,000 in backpay to compensate them for the unlawful hour reduction and the Board adopted the ALJ's findings without elaboration, ordering petitioner to pay (2011 Order). Petitioner appealed the 2011 Order and the Board cross-applied for enforcement. The court granted in part the Board's cross-application for enforcement with respect to all issues except the matter relating to interim earnings. The Board did not err in applying a backpay remedy to those employees hired into the bargaining unit after petitioner unlawfully reduced the employees' hours; and the Board correctly held the Union's failure to communicate with petitioner did not toll the employer's liability, because petitioner had not rescinded the unlawful unilateral reduction in hours when it sought to negotiate with the Union. However, the Board did not adequately explain its failure to consider interim earnings when calculating the backpay award. Therefore, the court vacated the Board's backpay computation and remanded so the Board could amplify its position on interim earnings.

This case involved the Railway Labor Act, 45 U.S.C. 152, which provided that "the majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class." For 75 years, the Board had counted non-voters as voting against union representation, thereby requiring a majority of eligible voters to affirmatively vote for representation before a union could be certified. In 2010, the Board issued a new rule that elections would be decided by a majority of votes cast, and those not voting would be understood as acquiescing to the outcome of the election. Appellants challenged the new rule, claiming that it violated the statute and was arbitrary and capricious. The district court rejected these arguments and granted summary judgment to the Board. Upon review, the court agreed with the district court and affirmed the judgment.