Once Again, NLRB Scolded by Federal Court for Overstepping Authority

The case, Stern Produce Co. v. NLRB, involved a truck driver for a produce company who was instructed by a supervisor via text message to uncover his truck’s interior camera during a lunch break. 

• The company fitted each truck with interior and exterior cameras as well as other tracking systems that enabled supervisors to track the vehicles’ location and operation. 
• Drivers were on notice through their employee handbooks that such monitoring regularly took place. 
• Under Board law, employers are prohibited from creating an impression that union activities are under surveillance. 
• The Board found that the text asking the driver to uncover the camera created an unlawful impression of surveillance that was motivated by the driver’s history of union-related activity. 

D.C. Circuit decision: A three-judge panel of the D.C. Circuit overturned the Board’s decision, holding that in general, the drivers knew that they could be monitored at any time without warning, per the company’s stated policy. Accordingly, the driver at issue here would not reasonably assume that a single text asking to uncover his camera was for the purpose of surveilling union activity, and therefore the text was not unlawful. 

“The Board’s explanation is nonsense.” The D.C. Circuit’s decision did not hold back in its rejection of the Board’s reasoning and lambasted the agency for “just how far it strayed from its statutory mandate.” D.C. Circuit Judge A. Raymond Randolph went on to note that “the Board’s misguided attempt to find a labor law violation in one text message is the ‘product of a familiar phenomenon’” in which the Board takes “an expansive view of the scope of the Act” and “press[es] the rationale of that expansion to the limits of its logic.” 

Familiar pattern emerging: The D.C. Circuit joins the ongoing parade of Courts of Appeals decisions that not only overturn Board decisions but in the process question the agency’s decision-making and authority. As Board decision-making has becoming increasingly partisan and ideological over the years – resulting in a never-ending game of policymaking ping pong (does your neck hurt yet?) – Courts of Appeals have proven to be an increasingly effective firewall that reins in some of the more egregious judgements. Meanwhile, challenges to the Board’s constitutionality currently before the Supreme Court threaten its very existence. 

UAW-Volkswagen election scheduled: The UAW is inching towards its goal of winning representation of factory workers at a Tennessee Volkswagen plant, with an election officially scheduled for April 17-19. The union has lost in two previous attempts to organize the plant but claims it has support of more than 70% of workers this time around. Volkswagen has pledged neutrality during the campaign but has said it would speak up to correct “misinformation.” A win for UAW would mark the first time a foreign automaker is unionized on American soil.