Stephens Media, LLC v. National Labor Relations Board
677 F.3d 1241
D.C. Cir.2012Background
- Hawaii Tribune-Herald (Stephens) faced NLRA charges by the Union; Board found widespread ULPs and ordered remedies.
- Bishop was suspended and then discharged after a confrontational incident involving a union representation request at a meeting.
- Smith, Sur, Loos, and Ing planned and executed a surreptitious recording of a meeting with management; Smith recorded the meeting.
- Company lacked a policy on secret recordings; no local/state law prohibited such conduct.
- Board adopted a framework from O'Daniel Oldsmobile to assess postdischarge misconduct affecting reinstatement/backpay, and the Court considered severed issues.
- Court held the Board’s decision final and enforceable; severed issue regarding witness statements was not before the Court for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bishop's conduct was protected concerted activity | Stephens argues Bishop was not protected | NLRB found Bishop engaged in protected activity | Protected; reinstatement and backpay ordered |
| Whether postdischarge misconduct defeats reinstatement/backpay | Stephens argues pretextual or disqualifying misconduct | NLRB adopted O'Daniel Oldsmobile standard | Waived objections; Board’s standard sustained; reinstatement/backpay approved |
| Whether Smith's secret recording was protected activity | Stephens asserts recording was unprotected | Board found recording was protected under Weingarten framework | Protected; remedies for Smith and Sur upheld |
Key Cases Cited
- Weingarten, Inc. v. Board of Education, 420 U.S. 251 (U.S. 1975) (employee right to union witness in investigatory interview)
- O'Daniel Oldsmobile, Inc., 179 N.L.R.B. 398 (NLRB 1969) (standard for postdischarge misconduct affecting reinstatement/backpay)
- Jefferson Standard, 346 U.S. 464 (U.S. 1953) (postdischarge conduct and reinstatement standards)
- Opryland Hotel, 323 N.L.R.B. 723 (NLRB 1997) (no per se rule against secret recordings; case-by-case approach)
- Crown Zellerbach Corp., 284 NLRB 111 (NLRB 1987) (protective framework for concerted activity and disciplinary actions)
- Atlantic Steel Co., 245 NLR.B. 814 (NLRB 1979) (multifactor test for assessing unprotected conduct vs. protected activity)