Civil Serv. Empl. Ass'n, Loc. 1000 v. N.L.R.B.

• Decision Date: 19 June 2009
• Docket Number: Docket No. 07-5041-ag.
• Citation: 569 F.3d 88
• Parties: CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Correctional Medical Services, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

569 F.3d 88

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Correctional Medical Services, Intervenor.

Docket No. 07-5041-ag.

United States Court of Appeals, Second Circuit.

Argued: December 4, 2008.

Decided: June 19, 2009.

Harold Craig Becker (Nancy Hoffman, General Counsel, Miguel G. Ortiz, Senior Associate Counsel, Daren Rylewicz, Senior Associate Counsel, CSEA/AFSCME Local 1000, Albany N.Y., on the brief), Chicago, IL, for Petitioner Civil Service Employees Association, Local 1000, AFSCME.

Elizabeth A. Heaney, Attorney (Fred B. Jacob, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, on the brief), Washington, DC, for Respondent National Labor Relations Board.

Cynthia K. Springer, Baker & Daniels LLP, Indianapolis, IN, for Intervenor Correctional Medical Services, Inc.

Before LEVAL, POOLER, and B.D. PARKER, Circuit Judges.

B.D. PARKER, Jr., Circuit Judge:

This petition by the Civil Service Employees Association, Local 1000, AFSCME, requires us to consider whether the National Labor Relations Board offered a defensible construction of section 8 of the National Labor Relations Act when it upheld a health care institution's discharge of employees by reason of their having participated in picketing for the purpose of securing recognition of a union as their collective bargaining agent without having given the 10-days notice which is required of a labor organization by section 8(g). We conclude that the Board's construction was not defensible and grant the petition.

BACKGROUND

The Petitioner ("Union") represents correctional officers at the Albany County Correctional Facility in Albany, New York, and sought to organize and represent employees of a health clinic located in the Albany facility operated by Correctional Medical Services, Inc. ("CMS"), the Intervenor.¹ In August 2002, the Union requested that CMS recognize it as the collective-bargaining representative of all clinic employees except physicians, supervisors and one clerical worker. CMS rejected the request.

The Union responded by organizing a demonstration at the facility without giving prior notice to CMS. On September 12, twenty individuals, including five clinic employees, walked in a circle in front of the facility's main entrance for approximately 40 minutes, demonstrating and picketing for recognition of the Union by CMS as their collective bargaining agent. The entrance was used, among other things, by vehicles making daily deliveries of pharmaceuticals and other supplies to the clinic, and served as the point of exit for vehicles transporting inmates in need of off-site emergency medical care. None of the five picketing clinic employees was a member of the Union. None was on duty at the time. They did not block the entrance, and vehicles were able to enter and exit the facility unimpeded. The demonstration was peaceful.

The next day, CMS issued letters to its five employees who had participated. The letters stated that the Union's picketing without advance notice had been illegal and that "[e]mployees who participate in an unlawful picket lose their protection under the Act." The letters indicated that CMS intended to file charges with the NLRB ("Board") and that, upon completion of the Board's investigation, CMS would advise the employees of what it intended to do. On September 16, CMS filed charges alleging that the picketing violated section 8(g) because the Union failed to provide 10-days prior notice, as required by that section.

Subsequently, the Regional Office issued a complaint against the Union, alleging that it violated section 8(g).² Shortly thereafter, CMS fired the five employees for engaging in an "illegal picket." CMS also posted a notice advising its employees of section 8(g)'s notice requirement and stating, apparently based on the issuance of the complaint alone, that "[t]he NLRB has ruled [the Union's] picket was illegal." One month after the employees' dismissal, CMS reinstated them without backpay.

In October 2002, the Union filed charges with the NLRB alleging that CMS had violated the Act by terminating the five employees. The Regional Office issued a complaint alleging that, notwithstanding the Union's prior violation of section 8(g), CMS violated section 8(a)(1) and (a)(3) by dismissing the participating employees. The parties agreed to waive a hearing before an Administrative Law Judge and provided the NLRB with a stipulated record.

On May 31, 2007, a divided panel of the NLRB held that CMS's dismissal of the employees did not violate the Act. The majority reasoned that:

[t]he Union violated Section 8(g) of the Act by conducting picketing of a health care institution without giving the required advanced notice. The employees who engaged in the picketing were not protected by the Act, and, accordingly, [CMS] did not violate the Act by discharging them.

The majority contended that, even though section 7 had been interpreted to permit employees to engage in picketing, an "employee who pickets in violation of section 8(g) is engaged in unprotected conduct, and is thus vulnerable to employer discipline." For support, the majority cited NLRB precedent that identified picketing that violated sections 8(b)(4) and 8(b)(7) as unprotected conduct that interfered with the "legitimate interests of the employer." Finally, the majority rejected the dissent's contention that the Act expressly limited the Board's authority to determine that picketing in violation of section 8(g) was unprotected employee conduct, contending instead that, notwithstanding section 7's general authorization of picketing, the Board had discretion to fashion this exception.

The dissenting member argued that "Congress [chose] to preclude employers from taking action against picketing [health care industry] employees" because, unlike its treatment of health care employees who engage in an improperly noticed strike, section 8(d) does not eliminate the "employee" status of health care workers who engage in improperly noticed pickets. According to the dissenting member, the majority's approach rendered superfluous section 8(d)'s disparate treatment of improperly noticed striking, on the one hand, and improperly noticed picketing, on the other, because the net effect is that "[b]oth strikers and picketers could be lawfully discharged without reference to [s]ection 8(d) solely because [s]ection 8(g) proscribes both kinds of conduct." Moreover, unlike picketing under section 8(b), where Congress left "the Board free to fashion its own rule with respect to sanctions," the dissent argued that "[w]here picketing of health-care employers is concerned ... [s]ection 8(d), in conjunction with 8(g), provides an express limitation on the Board's authority." She argued that the majority's decision exceeded this limitation because sections 8(d) and 8(g) show "Congress itself chose not to treat employees' picketing, as opposed to striking, as lawful grounds for discharge, notwithstanding the unlawfulness of the Union's failure to provide proper notice of the picketing."

DISCUSSION

A. Standard of Review

We review the NLRB's decisions with deference so long as the result is based on a construction of the Act that does not extend the NLRB's authority beyond what Congress assigned. As a general matter, we "review[] the Board's legal conclusions to ensure they have a reasonable basis in law," and "afford the Board a degree of legal leeway" when it interprets the Act. Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336, 339 (2d Cir.2008) (internal quotation marks omitted). However, the NLRB's interpretation is not due substantial deference automatically; it must constitute a reasonable reading of the statute. In other words, the Board construction is entitled to considerable deference when it "represents a defensible construction of the statute." See Elec. Contractors., Inc. v. NLRB, 245 F.3d 109, 116 (2d Cir.2001) (quoting NLRB v. Local Union No. 103, Int'l Assoc. of Bridge, Structural & Ornamental Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978)). This deference is not owed when the NLRB moves "into a new area of regulation which Congress [has] not committed to it." Local Union No. 103, 434 U.S. at 350, 98 S.Ct. 651 (internal quotation marks omitted). The courts are called on to guard against the "unauthorized assumption by [the Board] of major policy decisions properly made by Congress." Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965).

The dispositive issue for us is whether the NLRB advanced a defensible construction of the Act when it concluded that, after the 1974 amendments, picketing for the purpose of collective bargaining that does not accord with the notice section 8(g) requires of the labor organization exposes employees who participate in such picketing to discharge, notwithstanding "employee" protections under section 7 of the Act. This exercise in statutory analysis necessarily begins with the plain meaning of the Act and, absent ambiguity, generally ends there. Puello v. BCIS, 511 F.3d 324, 327 (2d Cir.2007). To discern plain meaning, we examine the statutory language and design of the statute as a whole. Id. When analyzing the meaning of successive legislative actions, we "assume that Congress passed each subsequent law with the full knowledge of the existing legal landscape." In re Northwest Airlines Corp., 483 F.3d 160, 169 (2d Cir.2007). Finally, we may resort to legislative history to determine a statute's meaning if, after this analysis, the meaning of the statute is ambiguous. Puello, 511 F.3d at 327. Although the parties devote substantial portions of their briefs to argument based on the 1974 amendments' legislative history, we find it unnecessary to engage in an...