Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

Alaska Communications provides telecommunications services throughout Alaska and in Oregon. While most of the company’s employees are based in Alaska, some are in Oregon. The union that represents a majority of the company’s employees did not previously represent any of the Oregon-based employees and sought to hold a representation election among a subset of the Oregon-based employees. The National Labor Relations Board certified a voting group that differed slightly from the petitioned-for unit, 29 U.S.C. 157, and that group voted to join the preexisting bargaining unit. The petitioned-for unit encompassed 12 Cable Systems Group employees, including both Holmes and Pavlenko. The Board excluded those individuals as being supervisors and added the only two employees who had not been included in the petition, finding that their exclusion “would unduly fragment the workforce and render the proposed Voting Group an irrational and indistinct one.”The D.C. Circuit rejected the company’s challenge to the certification of the voting group. The D.C. Circuit ruled in favor of the Board. The Board permissibly adjusted the composition of the voting group and permissibly determined that the group shares a community of interest with the preexisting bargaining unit it voted to join. View "Alaska Communications Systems Holdings, Inc. v. National Labor Relations Board" on Justia Law

T-Mobile’s Wichita service center employs approximately 600 customer service representatives. Since 2009, the Union has been attempting to organize the workers. In 2015, Befort, a customer service representative, emailed her coworkers on her work computer from her work email address encouraging them to join union organizing efforts. She sent several separate email batches sent over the course of a day, while she was on break or finished with her shift, stating, “contact me with any questions, but please do so outside of working hours.” T-Mobile reprimanded Befort for sending the email and sent a facility-wide email stating that it did not permit its employees to send mass emails through the company email system for non-business purposes. An ALJ held that T-Mobile violated the National Labor Relations Act by discriminating against the employee based on the union-related content of her email. The Board reversed, distinguishing evidence that T-Mobile had previously permitted mass emails on the ground that those emails were not similar in character to Befort’s email. The D.C. Circuit reversed. The Board erred by relying on its own post hoc distinction between permissible and impermissible employee conduct to reject the evidence of disparate treatment. The policies and rationales that T-Mobile offered in defense of its actions do not support them. Actions taken and statements made by T-Mobile in response to Befort’s email reflect a singling out of union content. View "Communications Workers of America v. National Labor Relations Board" on Justia Law

FCI Miami employees work in several departments. When the Custody Department was short-staffed, FCI either left Custody positions vacant or paid a Custody employee overtime. In 2016, FCI notified the union (AFGE) that it planned to start using Non-Custody employees to fill vacant Custody positions; it called the process “augmentation.” AFGE sought to negotiate the matter. FCI denied the request, stating that it had implemented augmentation consistent with the Master Agreement, which permits FCI to change the shift or assignment of Custody and Non-Custody employees: FCI viewed augmentation as “reassignment.”AFGE filed a formal grievance. An arbitrator concluded that FCI had breached a binding past practice of non-augmentation and violated the Master Agreement by implementing and failing to bargain over augmentation. FCI filed exceptions. The Federal Labor Relations Authority concluded that the arbitrator award failed to draw its essence from the parties’ agreement because the Master Agreement unambiguously “gives [FCI] broad discretion to assign and reassign employees”—encompassing the practice of augmentation— and set aside the award. The D.C. Circuit dismissed an appeal for lack of jurisdiction. The Federal Service Labor-Management Relations Statute allows for judicial review of an Authority decision arising from review of arbitral awards only if “the order involves an unfair labor practice, 5 U.S.C. 7123(a)(1). The Authority decision does not “involve” an unfair labor practice. View "American Federation of Government Employees Local 3690 v. Federal Labor Relations Authority" on Justia Law

Farrar began working for NASA in 2010. When NASA fired him five months later, he filed an administrative action alleging disability discrimination under the Rehabilitation Act, 29 U.S.C. 791 –794g. For the most part, Farrar prevailed. NASA awarded him compensatory damages, costs, and fees of about $13,000. Farrar appealed to the Equal Employment Opportunity Commission, which increased the award to about $35,000 and ordered NASA to pay Farrar within 60 days. Farrar could either accept the Commission’s disposition or file a civil action within 90 days. After NASA paid him, Farrar filed a civil action. Because Farrar accepted the money from NASA, the district court dismissed his case.The D.C. Circuit reinstated the suit, finding no statute or regulation that required Farrar to return, or offer to return, the money before filing suit. A federal employee cannot bind the government to an administrative finding of liability and then litigate only the remedy in court but that rule does not address whether a federal employee who has retained an administrative remedy must disgorge, or offer to disgorge, the award upon filing a de novo lawsuit. The Commission’s regulations show it is aware that it sometimes orders agencies to pay an employee’s damages before the employee files a civil action but nevertheless retained discretion to order payment before 120 days. View "Farrar v. Nelson" on Justia Law

After the Department of Labor determined that Overdevest had violated regulations governing the H-2A temporary visa program, the plant nursery challenged the regulations in district court. The Department concluded that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. Overdevest argued that the regulations were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest.The DC Circuit affirmed the district court's grant of summary judgment in favor of the Department, concluding that 8 U.S.C. 1188(a)(1) is not unambiguous and the Department's definition of "corresponding employment" was reasonable. The court explained that the regulation advances the statute's purpose by ensuring that when H-2A workers are performing duties that do not implicate their qualifications, non-H-2A workers will not be placed at a disadvantage. The court rejected Overdevest's argument that the Department arbitrarily and capriciously promulgated the definition of corresponding employment. Finally, the court concluded that the Secretary's enforcement of the 2010 rule against Overdevest was not arbitrary and capricious. View "Overdevest Nurseries, LP v. Walsh" on Justia Law

The Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. 7101, requires federal agencies to bargain with unions over conditions of employment, with exceptions, including management’s rights to assign work and to direct employees. During negotiations over a new collective bargaining agreement (CBA), the Food and Nutrition Service (FNS) declared that the number of days that an employee was permitted to telework was non-negotiable. The National Treasury Employees Union disagreed and filed a negotiability petition with the Federal Labor Relations Authority (FLRA), which found the Union’s proposed telework provision was outside the duty to bargain because it affected management’s rights to assign work and to direct employees.The D.C. Circuit remanded, finding that FLRA failed to adequately address the relevant provisions in the proposed CBA. FLRA did not reasonably explain its interpretation of the proposal, that it “dictates to management how often the [FNS] can require an employee to perform work at the duty station.” FLRA failed to address proposed CBA provisions limiting telework eligibility and maintaining management discretion to deny a telework request. To receive approval for “[a]ll telework arrangements,” an employee must get “prior supervisory approval.” based on whether the telework request “interfere[s] with the [FNS]’s ability to accomplish its work.” Supervisors could deny a telework request if they determine the request negatively affects the FNS’s work. View "National Treasury Employees Union v. Federal Labor Relations Authority" on Justia Law

Slot-machine technicians at Palace Casino voted to organize. The NLRB certified Local 501 to represent them. The union asked Palace to produce documents. Palace refused, believing that the union should not have been certified. Certification is not a final agency action, so an employer cannot seek judicial review but must first refuse to bargain and suffer an unfair labor practice charge to obtain judicial review, with the claimed invalidity of certification serving as an affirmative defense.The Board found that Palace violated 29 U.S.C. 158(a)(1) and (5). Palace claimed that an order to furnish all requested information would require disclosure of confidential information, like its plans to combat illegal gaming activity and money laundering. The Board concluded that Palace raised a specific confidentiality interest that was “legitimate on its face,” and ordered Palace to bargain over the union’s request. Separately, the Board ruled that the customer complaints requested by the union were not presumptively relevant to the union’s duty as the employees’ bargaining representative but might be relevant in a particular case, and remanded that issue “for further appropriate action.” The D.C. Circuit affirmed with respect to the confidentiality order but dismissed the “customer complaints” remand and not being a final order subject to review. View "National Labor Relations Board v. NP Palace LLC" on Justia Law

Trinity employee Victoria’s timecard indicated that she had earned three days of paid leave. The company’s records indicated otherwise. Victoria and her unionized coworkers had a unique paid-leave plan, different from the plan at Trinity’s other, nonunionized facilities. In response to the discrepancy, Victoria’s boss, Rivera, stated, “[T]hat is a problem that the Union created” and “You need to fix that with the Union.” A split panel of the National Labor Relations Board found that these remarks “had a reasonable tendency to interfere with” employees’ labor rights, in violation of 29 U.S.C. 158(a)(1), because there was “no objective basis for blaming the Union” and the remarks came amidst “ongoing contract negotiations and grievance proceedings” regarding paid leave.The D.C. Circuit ruled in favor of Trinity, declining to enforce the Board’s order. The National Labor Relations Act protects an employer’s right to “express[] . . . any views, argument, or opinion,” 29 U.S.C. 158(c). Unless the employer threatens “reprisal or force” or promises “benefit[s],” such expressions “cannot be used as evidence of an unfair labor practice.” Rivera’s remarks were “opinion[s]” containing no threats or promises and evoking no future consequences. The court declined to recognize an exception for misstatements involving no threat or promise. Section 8(c) does not require fairness or accuracy and says nothing about materiality or knowledge. View "Trinity Services Group, Inc. v. National Labor Relations Board" on Justia Law

At issue in this labor dispute case is who decides whether the arbitrator was validly (i.e., mutually rather than unilaterally) appointed: the challenged arbitrator himself, or instead a court. The district court concluded that the collective bargaining agreement (CBA) assigns to the arbitrator himself the authority to determine the validity of his own appointment.The DC Circuit vacated the district court's judgment and remanded for the district court to determine whether the challenged arbitrator was validly appointed. The court concluded that the dispute over the arbitrator's appointment involves the kind of question that is presumptively for judicial rather than arbitral resolution. The court also concluded that the parties' CBA does not overcome this presumption through a clear and unmistakable assignment of power to the challenged arbitrator himself to decide the validity of his own appointment. View "District No. 1, Pacific Coast District, Marine Engineers' Beneficial Ass'n v. Liberty Maritime Corp." on Justia Law

Preeminent took over a security services contract but refused to hire two guards who had previously worked at the D.C. site. According to the Union, SEIU, the refusal violated a collective-bargaining agreement. In May 2018, the district court ordered the parties to arbitrate. Preeminent stalled for over a year, first refusing to commit to paying its share of the arbitration fees and then accusing an arbitrator of bias for seeking assurance of payment. SEIU moved for contempt. In November 2018, the court ordered Preeminent to pay half the cost. In January 2019, the court found that Preeminent had acted in bad faith and awarded SEIU attorneys’ fees. In June 2019, the court found Preeminent in civil contempt, imposed a $20,000 fine if Preeminent failed to arbitrate within 30 days, and awarded further costs and attorneys’ fees. A third arbitrator completed the arbitration. In November 2019, the court fixed the total amount of costs and attorneys’ fees at $51,000. Days later, Preeminent filed a notice of appeal, challenging the order compelling arbitration, the June 2019 contempt order, and the November 2019 fee order.The D.C. Circuit concluded that it lacked jurisdiction to review the arbitration and contempt orders, which were final decisions not timely appealed, 28 U.S.C. 2107(a), but affirmed the fee award. The 30-day filing deadline is jurisdictional. View "Service Employees International Union Local 32BJ v. Preeminent Protective Services, Inc." on Justia Law