 
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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