New England Biz Law Update
In a scathing rebuke of the National Labor Relations Board, a federal appeals court in the District of Columbia has overturned the Board’s ruling in two unfair labor practice claims against Stern Produce Company.
The decision, which twice referred to the NLRB’s reasoning as “nonsense,” highlights the growing tension between the courts and the current NLRB’s expansive interpretation of the National Labor Relations Act.
The case centered around two incidents involving pro-union employees. While the NLRB determined anti-union sentiment was the driving force behind the company’s actions, the court firmly rejected this notion, saying the agency has “strayed from its statutory mandate.”
Employee actions at issue
In the first incident, driver Jose Ruiz covered his dash camera during an unscheduled lunch break. This prompted a single text message from his supervisor reminding him of the company’s electronic monitoring policy. Drivers had no set time for lunch and Ruiz later informed his supervisor he’d been on break. No further discussion or action on the subject occurred.
The second incident involved a different driver, Uvaldo Ponce. After hearing two fellow drivers jokingly call each other “baby,” Ponce commented, “you know they kill people like that in your country.” When one of the drivers asked Ponce to clarify, he replied “gays.” And when the driver asked Ponce where he thought he was from, Ponce guessed Afghanistan and then Iraq. The driver told Ponce he was wrong and left the room.
A supervisor who had been in the room at the time reported the incident to a manager who in turn informed Stern Produce’s owner. After investigating, the company issued Ponce a written warning — the second tier on the company’s disciplinary scale. The warning stated that Ponce’s comments violated “company policy around the use of disparaging or abusive words, phrases, slurs, and negative stereotyping.”
Union complaint and background
The United Food and Commercial Workers union, which had been attempting to organize workers at Stern Produce, filed unfair labor practice charges against the company based on these two incidents. The NLRB’s general counsel issued a complaint, alleging that the text message created an “impression of surveillance” and that the written warning was issued because of the driver’s alleged support for the union.
Notably, both Ruiz and Ponce had testified for the union in 2015 and 2016 in a previous unfair labor practice charge against the company. In that instance the company was found to have violated multiple provisions of the NLRA.
In 2020, both Ruiz and Ponce were laid off in response to the COVID-19 pandemic. Subsequently, the union claimed the company selectively failed to recall pro-union employees in order to dilute union support in the workforce. Before the matter went to hearing, Stern Produce agreed to settle the dispute, recalling with backpay the employees it had been accused of unlawfully failing to recall, including Ponce and Ruiz.
D.C. Circuit finding
The U.S. Court of Appeals for the D.C. Circuit firmly rejected the NLRB’s findings, stating that the agency had engaged in mere speculation about the company’s motives. The court criticized the NLRB for making a “misguided attempt” to find labor law violations where none existed.
“We recognize that Ruiz was a known supporter of the union organizing drive and that he had previously been subjected to unfair labor practices. But those facts cannot automatically render suspect any interaction between him and management in perpetuity,” the court said.
The court also dismissed the NLRB’s reliance on a previous settlement between Stern Produce and the UFCW as evidence of the company’s anti-union bias, noting that there had been no finding of wrongdoing in that case.
The court rebuked the NLRB, writing that the Board “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.”
