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BRGS Attorneys Persuade D.C. Circuit to Overturn NLRB Decision in Wrongful Discharge Case

BRGS Attorneys Persuade D.C. Circuit to Overturn NLRB Decision in Wrongful Discharge Case

John B. Golper and John J. Manier represented an employer which won a major victory over the National Labor Relations Board in the United States Court of Appeals in Washington, D.C. In Windsor Redding Care Center, LLC v. NLRB, 944 F.3d 294 (D.C. Cir. 2019), the D.C. Circuit overturned the Board’s ruling that the Firm’s client, which operates a skilled nursing facility, wrongfully discharged one of its nurses in violation of federal labor law.

The employer’s investigation concluded that the nurse screamed a violent threat at an elderly resident suffering from dementia: “If you don’t knock it off, I’m going to beat your ass.” After a four-day trial held in August 2012, an Administrative Law Judge concluded the discharge was lawful. However, more than five and one-half years after that ruling, the Board rejected the judge’s conclusions and found the discharge violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. According to the Board, the employee’s union activity was a motivating factor in her discharge, and the employer failed to prove it would have made the same decision absent her union activity. One member of the Board dissented and would have upheld the Administrative Law Judge’s decision.

The D.C. Circuit unanimously granted the employer’s petition for review and refused to enforce the Board’s decision, concluding it was not supported by substantial evidence. The court ruled the Board neglected to confront evidence from the trial which favored the employer and contradicted the Board’s conclusions—including the employer’s policy of “zero-tolerance” for elder abuse, which authorized discharge even for a “first offense” and demonstrated how seriously the employer treated its obligation to address suspected abuse. The Board asserted the employer’s continuation of its investigation after discharging the nurse suggested it did not believe the nurse had threatened the resident. But the D.C. Circuit found the Board’s conclusion was unreasonable in light of the employer’s “innocuous, lawful explanations” for continuing the investigation, the thoroughness of the investigation, and three neutral, highly credible witnesses who confirmed the threat was made. The D.C. Circuit explained the Board was not required to agree with the Administrative Law Judge or the dissenting Board member, but it was obligated to adequately consider their reasoning, and it failed to do so.

We initially reported on the Administrative Law Judge’s ruling in favor of the employer on its decisions to discharge this nurse and a co-employee, and all other alleged unfair labor practices, in December 2012 in Verdicts/Favorable Outcomes.