Satellite Installer Pushes Back on NLRB Ruling

Fired worker James DeCommer wasn't engaged in concerted activity when he talked about Alternative Entertainment's (AE) compensation policy changes with his supervisors, and the National Labor Relations Board has no evidence DeCommer spoke with coworkers about the changes, the satellite TV installation company said in a reply brief (in Pacer) Friday in the 6th U.S. Circuit Court of Appeals. The record in the case lacks any evidence backing the contention other AE workers were worried about or opposed the compensation change, the company said. Asking the court not to enforce the board's February order, AE also said NLRB's decision DeCommer's firing was unlawful was based on a theory not even alleged in the complaint -- that the firing was for discussing the pay change with other workers at times when no management person was around. AE said if it knew about that new theory before the trial, "there was a whole group of additional witnesses who could be interviewed and provide potentially exculpatory testimony." NLRB also never argued that theory before the Administrative Law Judge at trial or in its brief, with the new theory only coming up in the ALJ decision. "This is not full and fair litigation, and [AE] was very definitely prejudiced in its ability to present its defense," AE said. The Chamber of Commerce filed an amicus brief on behalf of AE, and the AFL-CIO did likewise for the NLRB (see 1608300042). Oral argument is scheduled for Nov. 30. The NLRB didn't comment Monday.