Time Warner Cable of N.Y.C., LLC v. Nat'l Labor Relations Bd., Docket No. 18-2323-cv(L), 18-2552-cv(XAP)
| Citation | 982 F.3d 126 |
| Decision Date | 10 December 2020 |
| Docket Number | Docket No. 18-2323-cv(L), 18-2552-cv(XAP),August Term, 2019 |
| Parties | TIME WARNER CABLE OF NEW YORK CITY LLC, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
George Peter Clark, Kauff McGuire & Margolis LLP, New York, NY (Daniel Kirschbaum, Kenneth A. Margolis, Kauff McGuire & Margolis LLP, New York, NY on the brief), for Petitioner/Cross-Respondent.
Kira Dellinger Vol, National Labor Relations Board, Washington, D.C. (Valerie L. Collins, National Labor Relations Board, Washington, D.C., on the brief), for Respondent/Cross-Petitioner.
Before: Livingston, Chief Judge, Leval, and Wesley, Circuit Judges.
Time Warner Cable of New York City LLC ("Time Warner") petitions for review of a June 22, 2018 Decision and Order by the National Labor Relations Board ("the Board") finding that Time Warner engaged in unfair labor practices ("ULP") in violation of Section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1) ; the Board cross-petitions for enforcement. For the reasons set forth below, we VACATE the Board's Decision and Order and REMAND.
Time Warner operates facilities in New York City and New Jersey, including one on Paidge Avenue in Brooklyn that provides telecommunication services to customers in southern Manhattan. The staff at that facility includes service technicians and their foremen, who are jointly represented by Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO ("the Union") in a single, multi-facility unit.
On March 31, 2013, the regional collective bargaining agreement ("CBA") between the Union and Time Warner expired. That agreement contained a no-strike clause, which provided: "There shall be no cessation or stoppage of work, service or employment on the part of or the instance of either party, during the term of this agreement." Joint App'x 632. Several days earlier, on March 28, 2013, the Union and Time Warner had executed a Memorandum of Understanding ("MOU"), which summarized agreed-upon changes for a renewed CBA. Time Warner's May 14, 2013 proposed draft of a successor CBA retained an identical no-strike clause, and neither the MOU nor the negotiations regarding proposed riders to the CBA (which continued for over a year) included any mention of changing it.
On April 1, 2014, Time Warner issued two-day suspensions to several foremen for violating a new company directive regarding when and where employees were required to carry tools. Several of the foreman notified Derek Jordan, the Union's business agent, that they had been suspended and that, in at least one instance, a foreman was suspended without union representation, in arguable violation of the foreman's rights under NLRB v. J. Weingarten, Inc. , 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975) (). Jordan and other Union representatives then called for a "safety meeting" for union members, to be held outside the facility on the following morning.
Shortly before 6:30 a.m. on April 2, 2014, Jordan positioned his car in the middle of the street, perpendicular to the direction of traffic, outside the Paidge Avenue facility. By 6:33 a.m., at Jordan's direction, six more employees had similarly positioned their vehicles on Paidge Avenue, where they obstructed public traffic and prevented Time Warner's service trucks from departing for work assignments. Over the next hour, approximately fifty employees, many of whom were scheduled to start work between 6:30 and 8:00 a.m., gathered around the vehicles, contributing to the obstruction of traffic. During that time, Jordan and other union representatives distributed fliers regarding workplace safety and employees’ Weingarten rights. At about 7:30 a.m., Jordan gathered the participants around him and spoke to them about the topics covered by the distributed fliers. The gathering dispersed and the traffic obstruction was removed at about 8:00 a.m. Because service trucks were effectively trapped within the facility from 6:30 to 8:00 a.m., "this obstruction caused a ‘ripple effect’ of delayed or missed service appointments for the rest of the day." Joint App'x 625.
Time Warner investigated the incident to identify those responsible for the demonstration and the resulting disruption to service appointments. Using video recorded by the facility's security cameras, Time Warner identified a number of the employees who had been present. Each identified employee was then summoned to an investigatory interview at which supervisors and human resource managers asked each employee a series of questions from a standardized questionnaire. The questions put to the employees included whether they attended the April 2 gathering, how and when they arrived, and whether they parked. If an employee denied being present, he or she was shown photographic evidence to the contrary. Interviewees were also asked about their familiarity with the CBA's no-strike clause, which the interviewers then read aloud to each interviewee. Employees were informed that their participation in the demonstration subjected them to "discipline" and "possible termination." Joint App'x 634–35. The employees were also asked about conduct predating the demonstration, specifically: "Who told you about this gathering?"; "When did you receive notification of the gathering?"; "How was this event communicated to you?"; and "What were you told about the reason for the protest?" Joint App'x 628. The first three of these questions regarding pre-demonstration communications are the focus of this appeal.
Several separate proceedings regarding the demonstration followed. On April 16, 2014, Time Warner filed suit in the United States District Court for the Eastern District of New York, alleging claims under the Labor Management Relations Act, 29 U.S.C. § 185 (1994), and under state law, seeking injunctive relief and damages. See Time Warner Cable of N.Y.C. LLC v. Int'l Brotherhood of Elec. Workers , 170 F. Supp. 3d 392, 402, 409 (E.D.N.Y. 2016). On April 18, 2014, the Union filed an unfair labor practice ("ULP") charge before the Board (the action that ultimately led to this appeal). And, on May 5, 2014, Time Warner initiated an arbitration against the Union, contending that the demonstration violated the no-strike clause. In the latter proceeding, the Union and Time Warner voluntarily submitted to arbitration the question whether the demonstration violated the no-strike clause. Having concluded that the Union had waived its argument that the no-strike clause had not been extended after the March 2013 expiration of the CBA, the arbitrator determined that the April 2 demonstration violated that clause. This court affirmed the arbitral decision. See Time Warner Cable of N.Y.C. LLC v. Int'l Brotherhood of Elec. Workers , 684 Fed. App'x 68, 71 (2d. Cir. 2017) (summary order).
This appeal arises from the Board's June 22, 2018 Decision and Order resolving the Union's ULP charge of April 18, 2014. The Union alleged that Time Warner's post-demonstration interrogation of employees constituted coercive interrogation in violation of Section 8(a)(1) of the Act and that the suspensions of employees who attended that demonstration unlawfully discriminated against those employees for participation in protected union activity in violation of Section 8(a)(3). Based on the prior arbitration proceeding and its affirmance by this court, the Board "treat[ed] it as established that the April 2 demonstration violated the parties’ no-strike clause" and therefore concluded that the demonstration was unprotected. Joint App'x 627. It accordingly found that Time Warner did not violate the Act by suspending employees who participated in that demonstration. In this appeal, the parties do not challenge the Board's determinations that the demonstration was unprotected and that the resulting suspensions were lawful.
On the other hand, the Board concluded that three of Time Warner's questions—"Who told you about this gathering?"; "When did you receive notification of the gathering?"; and "How was this event communicated to you?"—were unlawfully coercive under Section 8(a)(1). Joint App'x 629. The Board ruled that, in conducting interrogations into this unprotected activity, Time Warner was "required to focus closely on the unprotected misconduct and to minimize intrusion into Section 7 activity," and that "[t]here was therefore no need for [Time Warner] to inquire into the activity of any employees prior to the event, except ... specifically to identify the additional individuals who were actual participants in the demonstration." Joint App'x 628-29; Pet'r’s Br. 11. With respect to the three questions specified above, the Board concluded that Time Warner failed to observe those limitations and accordingly committed an unfair labor practice. Time Warner brought this petition to set aside the Board's Decision and Order.
Time Warner challenges the Board's conclusion barring coercive questioning about anything that occurred prior to the actual demonstration except the identification of additional "actual participants in the demonstration" and the Board's resulting decision that the three questions constituted unfair labor practices under Section 8(a)(1). It argues that decision lacks a reasonable basis in law and departs from the Board's prior interpretations of the Act without explanation for why such a departure is necessary or appropriate. Because we agree that the Board's enunciated standard, at least as applied here, lacks a reasonable basis in law, we remand to the Board for further proceedings not inconsistent with this opinion.
"On appellate review, the Board's findings of fact will not be...
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