Criticism of the NLRB is not confined to federal courts, members of Congress and others not connected to the agency. Now, NLRB Administrative Law Judges are criticizing the NLRB’s General Counsel, and – if you can imagine it – even the NLRB for placing their activist agendas ahead of sound reasoning and respect for precedent. BCI Coca-Cola Bottling Co. of Los Angeles, 2013 NLRB Lexis 574 (Aug. 29, 2013), offers one example of this phenomenon.
The case raised this question: When should an unfair labor practice charge be “deferred” to the grievance and arbitration procedure typically included in a collective bargaining agreement?
The employer, which had a collective bargaining agreement, laid off eight employees. The union asserted it did so for discriminatory reasons and filed a charge with the NLRB. Since the parties' contract had a grievance-arbitration procedure and the union's charge arguably alleged a violation of the agreement, the employer requested that the layoff matters be "deferred" to arbitration. This resort to contractual dispute resolution procedures has been common for more than 40 years, ever since the NLRB's decision in Collyer Insulated Wire, 192 NLRB 837 (1971).This time, however, the NLRB's General Counsel refused to go along, and issued a complaint. The Board's Administrative Law Judge dismissed the complaint, finding that dismissal was required under Collyer where deferral is ordered but, as here, the parties do not proceed to arbitration. The Board reversed and remanded the case to the ALJ, with instructions for him to assess the settlement agreement the parties had reached in light of Board standards – a thoroughly unwarranted and unnecessary undertaking in the ALJ's view.
The Board's Administrative Law Judge scolded the General Counsel for disregarding well- established Board law. Dismissing the complaint again as “an ideal case for deferral . . . under Collyer,” the ALJ accused the General Counsel of “flippantly” ignoring the NLRB’s deferral policies and the NLRB of “ignor[ing] decades of precedent.” Still more surprisingly, he accused the NLRB (along with the General Counsel) of a lack of “intellectual integrity” in resisting application of a proper Collyer result (dismissal) and said pointedly the NLRB’s refusal to defer was “erroneous.” The ALJ's frustration was palpable.
All in all, a remarkable dressing down of top agency officials by a subordinate, albeit sitting in a quasi-judicial capacity.
In the second case, Interbake Foods, LLC, 2013 NLRB Lexis 583 (Aug. 30, 2013), the employer was accused in an unfair labor practice complaint of having terminated several employees because of their union activities and of having engaged in other unlawful conduct (i.e., making unlawful statements about the consequences of unionization). However, after a hearing, an ALJ decided to dismiss many of the allegations. Concerning the alleged unlawful discharges, the ALJ wrote that, in pursuing the case, the General Counsel had focused too narrowly on the employer's opposition to union organizing activity and that a number of the discharged employees were union supporters. The ALJ accused the Board prosecutor as viewing matters too simplistically:
In my view, counsel for the General Counsel in this case tends to see the people involved as stick figures, the issues as always being drawn in stark shades of black and white and the plot line as being a melodrama of the type once associated with mustachioed mortgage holders and destitute grieving widows. Both life and labor law are far more complicated and nuanced.
While it is not unusual for ALJs to fault the General Counsel’s position, it is unusual for an ALJ to levy such aggressive criticism as they did in these two decisions. It is even more unusual for an ALJ to score his superior agency officers for unprincipled decision-making.