Watching baseball in Fenway Park is different than watching baseball in Wrigley Field. My sons noted that distinction within an inning, commenting that Fenway fans cheered players hitting the cutoff man whereas, back home at Wrigley, the party is more important than such finer points of the game.

This is a case for those who cheer players who hit the cutoff man and run out every grounder. It is also perhaps a reminder of why those small details add significant value regardless of the outcome of any single game in the season. I love to cheer for those consummate professionals so forgive me that here he is one of our own: Dave Durham.

The case is American Baptist Homes v. NLRB (DC Cir. 2017). The issue is a familiar one in managing a unionized workforce: the duty to share information with the union. Here, a nursing assistant was fired for sleeping on the job. The union filed a grievance and asked for the statements of witnesses collected during the company’s investigation.

Historically, the NLRB had immunized witness statements from the broader duty to share relevant information with unions. In this case, the NLRB shifted its views too late for the nursing home to conform its practices to those new views:

  1. the NLRB concluded that only two of the three witnesses had been given sufficient assurances of confidentiality (a novel twist on its prior rule) and thus the third statement must be produced (but not the others),
  2. the NLRB decided that it would apply a new balancing test but only in future cases: a technique called “sunbursting” ever since Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932).

Disappointing results, despite that getting a favorable ruling on 2 out of 3 of those witness statements (which is outstanding work for any baseball pitcher or hitter). But, the NLRB is not final and is subject to judicial review so the case proceeded onward to the appellate court.

The first issue reveals an inherent problem in current review of administrative agencies: deference. Thus, the Court of Appeals did not judge whether confidentiality is a proper test but merely copped out: “…this Court defers to the Board’s reasonable interpretation of its own precedent.” That is a problem that will need Supreme Court review.

Justice Gorsuch (before his 2017 appointment to the Supreme Court) framed it this way:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is [deference doctrines] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.

Gutierrez-Bruzella v. Lynch, 834 F.3d 1142 (2016).

The second issue, however, is the reason for applause. Although the appellate court ducked (saying that any review of this new and as-yet unapplied rule was premature), raising this issue generated another win: a limitation on the NLRB’s ability to seek contempt sanctions for enforcement against American Baptist.

Here, as always, the NLRB’s order directed the employer to “cease and desist from …refusing to provide information that is relevant and necessary to the processing of a grievance.” This created the risk that the NLRB would/could backdoor American Baptist with its new test in contempt proceedings. Raising the issue on appeal, however, forced the NRLB to concede that it couldn’t and forced the court to limit the NLRB: “we could not uphold a cease-and-desist order that did so.”

For those fans who prefer to party at the ballpark and cheer only home runs, I apologize for this dissertation between innings on the inner game of incremental steps that determine over the course of 162 games who does and does not make the playoffs; I will buy y’all the next round of beers.

But, for fans who go to sleep wondering whether the NLRB and other administrative agencies should be required to use “sunbursting” as a rule and who appreciate the finesse that Mr. Durham pulled in using an appeal on an issue without standing in order to secure a bill of particulars limiting the NLRB’s adverse ruling, please join me in toasting Dave Durham for his fine work.