# Steven Lucas v. National Labor Relations Board

> Court of Appeals for the Ninth Circuit · April 16, 2003 · 333 F.3d 927

URL: https://www.frixlaw.com/law-library/cases/9496183

## Case

- **Full name:** Steven LUCAS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 16, 2003
- **Citations:** 333 F.3d 927; 2002 Daily Journal DAR 4061; 172 L.R.R.M. (BNA) 2206; 2003 Cal. Daily Op. Serv. 3190; 2003 U.S. App. LEXIS 7146; 2003 WL 1878280
- **Precedential status:** Published
- **Opinion:** Concurrence by Wallace
- **Judges:** Wallace, Kozinski, Paez
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WALLACE, Senior Circuit Judge,
concurring:
While I join the majority’s conclusion that the Board’s decision was not supported by substantial evidence, I cannot join in its remand for entry of an order in favor of Lucas. Because I would remand for further findings, I write separately.
In support of its remand for entry of an order in favor of Lucas, the majority cites International Union, United Automobile Aerospace & Agriculture Implement Workers, Local 283 v. Scofield, 382 U.S. 205, 212 , 86 S.Ct. 373 , 15 L.Ed.2d 272 (1965), which held, “[a] decision of the reviewing court to set aside a Board order dismissing a complaint has the effect of returning the case to the Board for further proceedings. This normally results in the Board’s entering an order against the charged party.” 382 U.S. 205, 212 , 86 S.Ct. 373 , 15 L.Ed.2d 272 (1965). The majority ignores footnote 5 on the same page, where the Supreme Court emphasized, “[t]here are, of course, cases in which the Court of Appeals will remand to the Board to take additional evidence.” Id. n. 5.
Despite this clear language, the majority inexplicably interprets the Supreme Court’s recognition that the Board “normally” enters an order against the charged party as obviating the need to remand for further proceedings. Not only does this ignore Scofield’s unambiguous text, it also violates the Supreme Court’s later command that a Board’s order may be corrected without remand only in the “exceptional situation in which crystal-clear Board error renders a remand an unnecessary formality.” N.L.R.B. v. Food Store Employees Union, 417 U.S. 1, 8 , 94 S.Ct. 2074 , 40 L.Ed.2d 612 (1974). This case does not present such an exceptional situation. It appears that the Union could present substantial evidence of Lucas’s misconduct. To hold that the Board’s finding of fact in this case was not supported by substantial evidence does not mean that substantial evidence does not exist.
The majority’s disposition is also at odds with years of Ninth Circuit precedent. SKS Die Casting & Machining, Inc. v. N.L.R.B., 941 F.2d 984, 990 (9th Cir.1991) (remanding to the Board for further find *938 ings where the Board failed to make a necessary factual finding to support its decision); M.W. Kellogg Constructors, Inc. v. N.L.R.B., 806 F.2d 1435 , 1442 (9th Cir.1986) (same); Dash v. N.L.R.B., 793 F.2d 1062, 1070, 1071 (9th Cir.1986) (same, explaining that the court “must” remand). The majority does not attempt to distinguish this case from SKS, M.W. Kellogg, and Dash .
Finally, the majority’s disposition is at odds with common sense. The Board determined that the Union satisfied the necessity defense without requiring evidence of the fact or nature of Lucas’s alleged misconduct. The Union did not offer to the Board the evidence the majority now requires because, at the time, the Union did not need to. The Board found for the Union on a different basis. Similarly, the ALJ thought this evidence irrelevant to his decision and neither admitted nor excluded it. It could very well be that the Union had boxes and boxes of evidence it wanted admitted. Now, the majority holds that the Board needed this evidence, a holding with which I fully agree. But the majority then concludes that Lucas is entitled to an order in his favor although the Union never got a full opportunity to present all its evidence to a competent fact-finding authority. We cannot blame the Union for sins of the ALJ and the Board.
I would remand to permit the Union an opportunity — its first — to present evidence that Lucas either engaged in misconduct or, though he did not engage in misconduct, he was accused of committing acts of misconduct of such a nature that it was necessary for the Union to refuse to refer Lucas. The opinion expresses no opinion as to whether evidence of the latter would be sufficient for the necessity defense, and I would leave it to the Board to decide. See, e.g., 48 AM. JUR.2d Labor & Labor Relations § 1562 (2002).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496183. Public record. Not legal advice.