National Labor Relations Board v. Chipotle Services, LLC
849 F.3d 1161
| 8th Cir. | 2017Background
- Patrick Leeper, a Chipotle crewmember in St. Louis, participated in a fast-food wage-organizing campaign and discussed wages with coworkers.
- Chipotle discharged Leeper, asserting poor performance and missing a mandatory meeting; the General Counsel charged the firing was unlawful antiunion discrimination under Section 8(a)(1) and (3).
- An Administrative Law Judge applied the Wright Line framework: GC must show (1) protected activity, (2) employer knowledge, and (3) antiunion animus; then burden shifts to employer to show it would have fired the employee anyway.
- The NLRB adopted the ALJ’s recommended order finding Chipotle violated the Act (also finding additional unlawful threats and discouragements at the store), and ordered remedies; Chipotle petitioned for review in the Eighth Circuit.
- Chipotle argued on appeal that the Board used the wrong causation standard and that the GC must prove a but-for causation (that but for union activity the discharge would not have occurred), relying on Nichols Aluminum; however Chipotle never raised that argument before the Board.
- The Eighth Circuit held Chipotle forfeited the new causation argument because it was not presented to the Board and no extraordinary circumstances excused failure to raise it; the court enforced the NLRB order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper causation standard under Wright Line | NLRB/GC: initial burden is to show protected activity, employer knowledge, and antiunion animus (motivating factor) | Chipotle: GC must show but-for causation (that union activity was the cause in fact of discharge) | Forfeited: Chipotle failed to raise but-for argument before Board; court lacked jurisdiction to consider it |
| Futility as excuse for failure to raise issue | N/A | Chipotle: it would have been futile to raise Nichols Aluminum to the Board | Rejected: Eighth Circuit does not recognize futility exception here and finds no extraordinary circumstances |
| Reliance on later Board decisions to show futility | N/A | Chipotle relied on Dish Network and other NLRB language disavowing Nichols Aluminum | Rejected: Dish Network postdated the Board decision here and did not clearly repudiate Nichols Aluminum; prediction of futility insufficient |
| Enforcement of other unchallenged Board findings | NLRB: Board also found unlawful threats/discouragements | Chipotle: did not challenge those findings on appeal | Court: Enforced the unchallenged portions without further discussion |
Key Cases Cited
- NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (Sup. Ct.) (approving Wright Line burden-shifting framework)
- Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (Sup. Ct.) (failure to raise objections before the Board forfeits review)
- Nichols Aluminum, LLC v. NLRB, 797 F.3d 548 (8th Cir.) (discussion including but-for phrasing criticized by Chipotle)
- NLRB v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir.) (no futility exception recognized for failing to raise issues before the Board)
- HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir.) (recognizes narrow futility exception when agency already rejected argument)
- Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351 (6th Cir.) (futility may excuse failure to raise objection only in narrow circumstances)
- Calloway v. Miller, 147 F.3d 778 (8th Cir.) (discussion of but-for causation concept)