NLRB Orders Tort-like Remedies for Manager's Battery on Non-employee Union Agent | Practical Law

NLRB Orders Tort-like Remedies for Manager's Battery on Non-employee Union Agent | Practical Law

In Norquay Construction, Inc., the National Labor Relations Board (NLRB) held that a construction company committed an unfair labor practice (ULP) under Section 8(a)(1) of the National Labor Relations Act (NLRA) when one of its managers inflicted physical harm on a non-employee union agent whom he was ejecting from the premises. The NLRB imposed tort-like remedies for the physical harm.

NLRB Orders Tort-like Remedies for Manager's Battery on Non-employee Union Agent

Practical Law Legal Update 5-525-8544 (Approx. 6 pages)

NLRB Orders Tort-like Remedies for Manager's Battery on Non-employee Union Agent

by PLC Labor & Employment
Published on 18 Apr 2013 • USA (National/Federal)
In Norquay Construction, Inc., the National Labor Relations Board (NLRB) held that a construction company committed an unfair labor practice (ULP) under Section 8(a)(1) of the National Labor Relations Act (NLRA) when one of its managers inflicted physical harm on a non-employee union agent whom he was ejecting from the premises. The NLRB imposed tort-like remedies for the physical harm.

Key Litigated Issues

In Norquay Construction, Inc., the key litigated issues were:
  • Whether an employer violated the NLRA when one of its managers ejected non-employee union agents from the employer's trailer on a construction site and in the process battered and physically injured one of the agents.
  • If the employer violated the NLRA, what remedy may the NLRB impose.

Background

Norquay Construction, Inc. is a nonunion general contractor that was managing a construction project for the City of Phoenix, Arizona. The employees of its concrete subcontractor, Progressive Concrete Works, Inc., were unionized and represented by a local union affiliate of the Southwest Regional Council of Carpenters. Under the collective bargaining agreement (CBA) between the union and Progressive, the union's representatives had access during working hours to jobsites where union members were working, if the union made reasonable efforts to notify Progressive of their presence and did not interfere with the work.
In October 2010, two union-employed organizers, Harrison and DeMott, visited Norquay's project manager and superintendant, Rankin, in his trailer at the Phoenix jobsite. Although Rankin had placed a sign on the door prohibiting visitors from entering without an appointment, he allowed the organizers to enter.
The organizers identified themselves as members of the union and asked for subcontractor information on some of the carpentry work at the site. The organizers testified that if Rankin had told them that Norquay had more subcontracting to bid out, they would have:
  • Given him the union's list of area-standards contractors, which are signatory contractors whose employees are represented by the union.
  • Asked him if the union could invite those contractors to bid on the upcoming projects.
Rankin told them to find the information in a publicly available source, complained about the union's visits to the jobsite and asked the two organizers to leave the trailer. In response, Harrison warned that the union could picket that jobsite if there was a labor dispute between Norquay and the union, which DeMott qualified by explaining that a union demonstration would occur only if area-standard wages and benefits were not paid and only if authorized by their superiors in the union.
Rankin demanded in a loud and vulgar way that the two organizers leave his trailer. As they left, Rankin pushed DeMott down the trailer's metal stairs, injuring DeMott's hand and neck. DeMott sought treatment for his injuries at a local clinic and did not work in any capacity for the union after that day.
DeMott filed a ULP charge and the NLRB issued a complaint. An NLRB Administrative Law Judge (ALJ) dismissed most of the complaint allegations. Specifically, the ALJ held that:
  • The union agents were not engaged in Section 7 activity in Norquay's trailer.
  • Even if the union agents were engaged in Section 7 activity in the trailer, the employer could lawfully expel them from the trailer, in which Norquay had a exclusionary property interest.
  • Norquay was permitted to prohibit solicitation in its trailer and did so in a non-discriminatory way.
  • Norquay unlawfully ordered the union agents to leave the construction site outside of its trailer, where:
    • Norquay did not have an exclusionary property right; and
    • the union had an access right under its CBA with Progressive.
  • Rankin's battery on DeMott:
    • was repugnant and inexcusable;
    • likely violated civil or criminal laws; and
    • did not violate the NLRA.
The NLRB Acting General Counsel filed exceptions to the ALJ's decision.

Outcome

On April 15, 2013, the three-member panel (Board) heading the NLRB's judicial functions issued a decision and order, holding that:
  • Norquay violated Section 8(a)(1) of the NLRA by ejecting the union agents from the trailer and in the process inflicting bodily injury on DeMott.
  • Declined to decide whether:
    • the battery of the union agent was an independent ULP because the NLRB's Acting General Counsel failed to brief the issue and effectively waived its appeal on that issue; and
    • Rankin's summoning of security guards to escort the union agents from the construction site was an independent ULP from ordering the union agents to leave the construction site, because the liability determination and remedies for that ULP would be redundant.
  • Affirmed the ALJ's rulings that:
    • Norquay unlawfully attempted to expel the union agents from the construction site outside of its trailer; and
    • Norquay lawfully prohibited solicitation in its trailer.
The Board reasoned that:
  • By seeking to induce Norquay to use the area-standards contractors, including contractors with CBAs with the union, for future subcontracting work, the union agents engaged in protected conduct under Section 7 of the NLRA (Petrochem Insulation, Inc.; J.A. Croson Co.).
  • Section 7 protects area-standards conduct even when the union does not represent the employer's workers at the time of the relevant area-standards activity (Petrochem Insulation, Inc.; J.A. Croson Co.).
  • An employer violates Section 8(a)(1) of the NLRA when it interferes with area-standards activity by harassing or physically assaulting non-employee union agents engaged in that activity, even when no employee of that employer witnesses the assault (Roger D. Hughes Drywall; H. R. McBride).
  • Rankin expelled the union agents from its trailer and assaulted DeMott in response to, and to interfere with, DeMott's protected activity.
  • It was irrelevant whether Norquay had an exclusionary property interest in the trailer because the assault occurred when the organizers were leaving the trailer.
Beyond the customary order that Norquay cease and desist from interfering with union agents' rights to engage in Section 7 activity by prohibiting access to areas on the worksite to which it had no exclusionary property interest and post a notice about its ULPs in this case, the Board also ordered Norquay to:
  • Cease and desist from physically assaulting representatives of the Carpenters union.
  • Make DeMott whole for losses related to his physical injuries including:
    • lost pay and benefits for missing work at the union; and
    • reimbursement for medical expenses related to the injuries.
The Board did not cite any legal authority permitting it to order this tort-like relief or to require an employer to pay "back pay" to a non-employee. The Board instructed the NLRB's compliance division to calculate DeMott's back pay using computation methods traditionally used to calculate back pay for an employer's own employees (F. W. Woolworth Co.; New Horizons for the Retarded; Kentucky River Med. Ctr.).

Practical Implications

Traditionally, the NLRB remedies harms to employees from ULPs arising from:
  • Employees exercising Section 7 rights.
  • Labor disputes affecting interstate commerce.
(See 29 U.S.C. § 152(3), 29 U.S.C. § 164(c) and NLRB Jurisdictional Limits and Standards Chart: Jurisdiction Over Workers.)
If an employer engages in battery against persons engaged in Section 7 activity, the Board considers how the action immediately interferes with Section 7 activity and how it will later deter that activity by employees who witnessed the action. It is uncommon, but not unprecedented, for cases to involve actions exclusively against non-employee union agents, unwitnessed by the respondent-employer's employees (H. R. McBride). In the battery cases involving physical injuries to either employees or non-employees, the Board has required only traditional remedies. These include:
  • Cease and desist orders.
  • Notice postings.
  • For former employees, reinstatement and back pay.
  • Occasionally, litigation costs for union agents.
(H. R. McBride; Roger D. Hughes Drywall; Highland Plastics, Inc.)
This case, in which the Board ordered "back pay" for non-employees and tort-like compensatory damages including payment of medical bills, portends further expansion of:
  • The scope of actions prohibited by the NLRA to include various civil and criminal law violations.
  • The variety of remedies that the Board will order, going beyond traditional remedies to make employees who have been discriminated against for Section 7 activities whole or to restore conditions to permit effective collective bargaining.
(See Legal Update, Employers' State Lawsuits Were ULPs Because They Were Preempted by the NLRA: NLRB.)

Court Documents