Employment Law Daily NLRB 'clarification' failed to clarify single nationwide bargaining unit; Board must try again
Thursday, February 25, 2016

NLRB 'clarification' failed to clarify single nationwide bargaining unit; Board must try again

By Ronald Miller, J.D. Concluding that it was unable to discern the rationale underlying a significant portion of an NLRB order, the D.C. Circuit remanded the case for clarification. The appeals court observed that the Board’s unfair labor practice findings were largely based on the findings made by an acting Regional Director (ARD) in a Clarification Decision without explanation or elaboration. The court could not discern how the Clarification Decision applied relevant Board precedent to the facts of this case. However, the court expressed no opinion regarding the merits of the case (NBCUniversal Media, LLC v. NLRB, February 23, 2016, Edwards, H.). Unit clarification. In 2009 and 2010, NBC reorganized its production methods resulting in a shift of work previously assigned to employees covered by a collective bargaining agreement, to a new position, Content Producer, that the employer conceived of as not being a bargaining unit position. Thereafter, the NLRB received unit clarification petitions from the union representing broadcast employees. The petitions requested that the Board clarify that all NBC employees represented by the union under a collective bargaining agreement were part of a single, nationwide bargaining unit. The petitions also sought to clarify that any persons assigned to the newly created Content Producer position at NBC were both covered by the agreement and were part of the nationwide bargaining unit. An ARD found that all NBC employees represented by the Union were part of one nationwide bargaining unit and that the Content Producer position should be included in that unit. On September 25, 2013, the Board denied NBC’s request for review of the ARD’s decision. NBC then declined to bargain over the terms and conditions of employment for Content Producers. The union filed unfair labor practice charges against NBC, and the NLRB found that it unlawfully refused to recognize and bargain with the union as the bargaining representative of the Content Producers, and failed to provide the union with information necessary to fulfill its duties. The Board decision was largely based on the findings made by the ARD. NBC refused to comply with the Board’s order and filed a petition for review. Explanation of agency action. On appeal, NBC argued that the Board erred in adopting the findings of the ARD. It contended that the Clarification Decision rested on the erroneous conclusion that the union represented a single, integrated bargaining unit. According to NBC, Content Producers cannot be added to a consolidated unit that does not exist. The D.C. Circuit was at a loss to understand the Board’s view of the effect of either the certification decision proffered by the union or the apparently indeterminate state of the record with respect to agreements negotiated pursuant to voluntary recognition. Moreover, the Clarification Decision offered no useful analytical framework. In addition, the appeals court was unable to understand the precedential basis for the ARD’s two-step, bifurcated approach to determining the appropriate unit in a unit clarification proceeding. Under the ARD’s approach, the parties’ history of collective bargaining and the structure of their agreement were not relevant unless the Board first found that the literal terms of the contract were ambiguous. The appeals court found little support in the Board’s decisions for this bifurcated analysis. Master agreement. The appeals court noted that there was no doubt in this instance that the parties’ Master Agreement covered all of the groups of job classifications identified in the Individual Articles. However, the question was not whether the Master Agreement reached all of the positions; rather, the issue was whether each group identified in the Individual Articles was a separate bargaining unit or whether all of the positions covered by the Master Agreement constituted one nationwide bargaining unit. The court concluded that it could not be sure what the Board meant to say because it simply adopted the Clarification Decision without amplification. As a consequence, the D.C. Circuit concluded that it could not decipher how the Board determined that all NBC employees represented by the union were part of a single, nationwide bargaining unit. It found the ARD’s application of Board precedent incomprehensible. When an agency’s decision lacks adequate justification because it is neither logical nor rational, or because it fails to offer a coherent explanation of agency precedent, the judgment under review is wanting for lack of reasoned decisionmaking. Under such circumstances, the appeals court was constrained to remand the case to the Board for further consideration and an opportunity to explain the rationale supporting its judgment in a fashion that was consistent with reasoned decisionmaking. On remand, the Board was required to explain both the principles embodied in the relevant precedent and how application of those principles to the facts here supported its resolution of the parties’ dispute.

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