The St. Louis case of Anheuser-Busch, Inc., 14-CA-25299; 351 NLRB No. 40, holds by a 3-2 NLRB vote, that the Board is prohibited from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer.

Without notice to or bargaining with the Union that represents the employees at its St. Louis facility, the Brewery installed hidden surveillance video cameras. Through the use of the cameras, Anheuser-Busch learned that certain employees were engaged in misconduct and it disciplined or discharged sixteen (16) of them.

Initially, the Board found that the installation and use of the cameras was an unlawful unilateral change in the terms and conditions of employment and in the collective bargaining agreement, and it issued a Cease and Desist Order against the Brewery. However, by a 2-1 decision, the Board declined to order reinstatement or back pay for the employees. The Board held that it lacked authority to order reinstatement or back pay because the employees were disciplined for cause, regardless of the fact that their employer only learned of their misconduct as a result of its own unfair labor practice.

On review, the United States Court of Appeals for the District of Columbia, affirmed the Board’s unfair labor practice, finding the Board had not adequately reconciled its decision to withhold a reinstatement and back pay remedy for the employees.

On remand, the Board majority reviewed the NLRA and its legislative history and determined that the statute and compelling policy considerations bar the Board from granting a remedy to employees who have been disciplined or discharged for cause. Expressly, the majority ruled that employees should not benefit from their misconduct through a windfall award of reinstatement and back pay. The Board then overruled cases that were previously identified by the Court as inconsistent with that holding. The NLRB majority consisted of Chairman Battista, Schaumber and Kirsanow. The dissent was limited to members Liebman and Walsh, who stated that the Court’s decision precluded the Board from deciding the case on purely statutory grounds. In their view, neither the statutory language relied upon by the majority, nor the legislative history addresses the presented issues. The dissenters stated that a make-whole remedy for the employees is necessary to repair the damage that Anheuser Busch’s unlawfully unilateral changes caused to the Union’s status as the employees’ bargaining representative, and to deter future unlawful unilateral changes.


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