Verizon New Eng. Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 21 June 2016 |
| Docket Number | C/w 15-1087,No. 15-1062,15-1062 |
| Citation | 826 F.3d 480 |
| Parties | Verizon New England Inc., Petitioner v. National Labor Relations Board, Respondent Local 2324, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Arthur G. Telegen, Boston, MA, argued the cause for petitioner. With him on the briefs was Sarah K. Hamilton.
Joel A. Heller, Attorney, National Labor Relations Board, argued the cause for petitioner. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.
Alfred Gordon O'Connell, Boston, MA, argued the cause and filed the brief for intervenor.
Before: Henderson, Kavanaug h, and Srinivas an, Circuit Judges.
Opinion for the Court filed by Circuit Judge Kavanaugh
, with whom Circuit Judge Henderson joins as to all but Parts II-A and II-C-1 and with whom Circuit Judge Srinivasan joins as to Parts I, II-A, II-B, and II-C-1.
.
.
Kavanaugh
, Circuit Judge:
When a union and an employer enter into a collective bargaining agreement, each party may waive certain rights they otherwise would possess under the National Labor Relations Act—for example, the union members' right to picket. In a collective bargaining agreement, the union and employer also may (and often do) agree to have an arbitrator decide disputes arising out of that agreement. The National Labor Relations Board may still review an arbitration decision in certain circumstances when the losing party says it has been deprived of a right otherwise guaranteed by the National Labor Relations Act. But consistent with the national labor policy favoring arbitration, the Board reviews arbitration decisions under a highly deferential standard, known as the Spielberg
–Olin standard.
This case concerns a collective bargaining agreement between a union and Verizon New England. In the agreement, the union waived its members' right to picket, a right the members otherwise would possess under the National Labor Relations Act. During a subsequent labor dispute, Verizon employees visibly displayed pro-union signs in cars that were parked on Verizon property and lined up so that passers-by would see the signs. Verizon ordered the employees to stop displaying the signs. The union challenged Verizon's action. The legal question was this: Did the collective bargaining agreement's waiver of the union members' right to picket also waive their right to visibly display pro-union signs in cars that were parked on Verizon property and lined up so that passers-by would see the signs?
The collective bargaining agreement between the union and Verizon provided for arbitration of disputes arising out of that agreement. Verizon and the union therefore proceeded to arbitration to resolve their dispute about the signs in the cars. An arbitration panel interpreted the collective bargaining agreement in Verizon's favor. Not satisfied, the union then took the matter to the NLRB. An administrative law judge again ruled in favor of Verizon. The union appealed the matter to the Board. Although the Board reviews arbitration decisions under a highly deferential standard, the Board in a 2-1 ruling overturned this arbitration decision. The Board determined that the union's waiver of its members' right to picket did not waive their right to visibly display pro-union signs in cars on Verizon property.
We conclude that the Board misapplied its highly deferential standard for reviewing arbitration decisions. Under that standard, the Board should have upheld the arbitration decision in this case. The Board acted unreasonably by overturning the arbitration decision. Therefore, we grant Verizon's petition for review and deny the Board's cross-application for enforcement.
Section 7 of the National Labor Relations Act guarantees employees the right to engage in certain “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157
.1 Included among the concerted activities protected by Section 7 is the right of employees to visibly display pro-union signs in employees' personal vehicles parked on an employer's property. See, e.g. , International Business Machines Corp. , 333 N.L.R.B. 215, 219–21 (2001), enforced , 31 Fed.Appx. 744 (2d Cir. 2002) ; District Lodge 91, International Association of Machinists & Aerospace Workers, AFL
–
CIO v. NLRB , 814 F.2d 876, 879 (2d Cir. 1987).
Just as surely as Section 7 protects employees' right to picket and display pro-union signs in their cars, unions may waive that right in a collective bargaining agreement. See, e.g. , American Freight System Inc. v. NLRB , 722 F.2d 828, 832 (D.C. Cir. 1983)
(). Absent a waiver, however, Section 8 of the Act makes an employer's violation of a Section 7 right an “unfair labor practice.” 29 U.S.C. § 158(a).
Verizon New England is a well-known telecommunications provider that services Massachusetts and Rhode Island. It maintains facilities in three towns in Massachusetts: Westfield, Springfield, and Hatfield. Employees at those facilities are represented by the International Brotherhood of Electrical Workers, Local 2324. Verizon New England and Local 2324 were parties to a collective bargaining agreement valid from August 3, 2003, to August 2, 2008.
The parties' collective bargaining agreement provided for arbitration—at the union's option—of disputes arising out of the contract. The agreement stated: “If the Union contends that the intent and meaning of one or more of the Articles of [the] Agreement ... has been violated by the Company, it may demand arbitration.” Joint Appendix at 38. Pursuant to the agreement, arbitration was to be conducted by a three-member Arbitration Board consisting of one representative selected by each party, as well as a mutually agreed-upon neutral arbitrator. The agreement provided that a decision of the Arbitration Board would be “final and binding on the Union and the Company.” Joint Appendix at 39.
As relevant here, the collective bargaining agreement also contained a waiver of the union members' right to picket: “The Union agrees that during the term of this Agreement, or any extension thereof, it will not cause or permit its members to cause, nor will any member of the Union take part in, any strike of or other interference with any of the Company's operations or picketing of any of the Company's premises.” Joint Appendix at 42.
In early 2008, a few months before the collective bargaining agreement was to expire, Local 2324 planned to picket Verizon's Westfield, Springfield, and Hatfield facilities. In March 2008, the union prepared for the picketing campaign by distributing pro-union picket signs to employees at those Verizon facilities. The signs were 22 inches by 28 inches and bore pro-union slogans such as “Verizon, Honor Our Existing Contract” and “Honor Our Contract.”
Employees at the three locations visibly displayed the signs in the windshields of their cars while the cars were parked on Verizon property. In response, Verizon directed the employees to stop visibly displaying the signs in their cars while on Verizon property. The employees complied. But after Verizon's order to stop displaying the signs, the union filed unfair labor practice charges with the National Labor Relations Board. The union alleged that Verizon had violated its members' Section 7 right to display pro-union signs in their cars.
The Board's Regional Director declined to rule on the charges. The Regional Director did so because, in her view, the dispute arose “from the contract between the parties,” and “contractual grievance-arbitration procedures are available for resolving the dispute.” Letter from Rosemary Pye, NLRB Regional Director, to Local 2324 (June 18, 2008), Joint Appendix at 56.
The union then submitted to arbitration the issue of whether Verizon had violated the collective bargaining agreement by requiring the employees to stop displaying the signs in their parked cars.
The arbitration panel ruled for Verizon over the dissent of the union-selected member of the panel. The arbitration panel relied on the provision in the collective bargaining agreement expressly waiving the union members' right to picket. The panel decided that the term “picketing” included the visible display of pro-union signs in the windshields of employees' cars.
Notwithstanding the arbitration panel's reading of the collective bargaining agreement, the Acting General Counsel of the National Labor Relations Board issued a complaint alleging that Verizon had committed an unfair labor practice. The Acting General Counsel alleged that Verizon had violated Section 8 of the National Labor Relations Act by ordering the employees to stop displaying the pro-union signs in their cars.
Under the Board's highly deferential Spielberg
–Olin standard (as relevant here), the Board will defer to an arbitration award unless the award is “clearly repugnant” to the National Labor Relations Act. See
Olin Corp. , 268 N.L.R.B. 573, 574 (1984) ; Spielberg Manufacturing Co. , 112 N.L.R.B. 1080, 1082 (1955).
Applying that standard, the Administrative Law Judge upheld the arbitration decision in Verizon's favor. According to the Administrative Law Judge, the arbitration decision was not clearly repugnant to the Act because the contractual term “picketing” could be read to cover the union activities in question here.
The union appealed to the National Labor Relations Board. In a divided 2-1 decision, the Board ruled against Verizon. Applying the Spielberg
–Olin standard, the Board...
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