A Circuit Court has un-tipped the NLRB’s scales in a refusal-to-bargain case. Ozark Auto. Distribs., Inc. v. NLRB, No. 11-1320 (D.C. Cir. February 10, 2015). An employer lost a tight union election and contested the election results, arguing that the campaign ringleaders engaged in severe misconduct that directly impacted the election. To prove its point, the employer subpoenaed the ringleaders and the union for phone records and other materials to show the ringleaders were acting at the union’s behest. The NLRB found the subpoenas invaded employee privacy, affirmed the election results, and ordered the employer to bargain.

The Court of Appeals vacated the bargaining order because the NLRB failed to balance the employee privacy implications against the employer’s need for the subpoenaed materials. So, is this just another case of the Board applying the wrong standard, or is it another instance of the Board going rogue on employers? In light of the powerful dissent of Member Hayes in the Board’s opinion, laying out the very same arguments and conclusions the Court later adopted, this has to be seen as an attempt to further tilt the playing field toward unions.