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8th U.S. Circuit Court of Appeals Digest: Oct. 5

Minnesota Lawyer//October 5, 2017//

8th U.S. Circuit Court of Appeals Digest: Oct. 5

Minnesota Lawyer//October 5, 2017//

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Unfair Practices; Petition for Enforcement


Where an employer challenged an order from the National Labor Relations Board that it recognize and bargain with the union, and the board cross petitioned for enforcement, the board erred in determining that it violated Section 8(a)(1) by communicating to employees that continued unionization was futile because there was no determination that the statements contained a threat of reprisal or force or promise of benefit, but the board’s determination that an executive’s statements were unlawful threats was supported by substantial evidence, so the employer’s petition for review is granted in part, denied in part and the board’s cross petition for enforcement is granted in part and denied in part since the board erred by finding that the employer violated the NLRA by making efforts to restrict the union’s visits other than those described in the collective bargaining agreement and sufficient evidence supported the board’s findings that the 2012 petition was tainted by the company’s unfair labor practices.

Opinion concurring in part; dissenting in part by Gruender, J.: “By its own terms, the National Labor Relations Act (‘NLRA’) is designed to protect workers, not unions. See 29 U.S.C. § 157; see also, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992) (‘[T]he NLRA confers rights only on employees, not on unions or their nonemployee organizers.’). Notwithstanding this clear statutory mandate, the Board’s decision protects a union at the expense of employees. It does so by trumpeting several alleged unfair labor practices, the majority of which are unsupported by substantial evidence. Because I believe that ‘[t]he wrongs of the parent should not be visited on the children, and the violations of [this employer] should not be visited on these employees,’ Overnite Transp. Co., 333 N.L.R.B. 1392, 1398 (2001) (Member Hurtgen, dissenting), I respectfully dissent from the bulk of the court’s opinion.”

16-3328 Southern’s petition for review denied in part; cross petition to enforce order granted.

Southern Bakeries, LLC v. National Labor Relations Board, petition for review of the National Labor Relations Board, Murphy, J.






Armed Career Criminal Act; Predicate Offense


Where a defendant challenged the District Court’s application of the Armed Career Criminal Act to him at sentencing, the sentence is vacated and remanded for resentencing because a burglary conviction under the relevant Illinois law could not operate as an ACCA predicate offense.

Vacated; remanded.

16-3616 U.S. v. Byas, appealed from the Southern District of Iowa, per curiam.

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