King Soopers, Inc. v. National Labor Relations Board ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 3, 2017 Decided June 9, 2017
No. 16-1316
KING SOOPERS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 16-1367
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Raymond M. Deeny argued the cause for petitioner. With
him on the briefs was Jonathon M. Watson.
Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Robert J. Englehart, Supervisory
Attorney.
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Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
EDWARDS, Senior Circuit Judge: Petitioner King Soopers,
Inc. (“King Soopers” or “the Company”) owns and operates a
grocery store in Denver, Colorado, where its employees are
represented by the United Food and Commercial Workers,
Local 7 (“Union”). Wendy Geaslin was a member of the Union
who worked as a barista at the Starbucks kiosk located inside
of the store until she was terminated in May of 2014. Geaslin
filed a charge with the National Labor Relations Board
(“NLRB” or “the Board”), and the Board’s General Counsel
issued a complaint against the Company asserting multiple
violations of the National Labor Relations Act (“the Act”).
Following a hearing before an Administrative Law Judge
(“ALJ”), the Board held that King Soopers had violated
Sections 8(a)(1) and (3) of the Act by twice suspending and
finally discharging Geaslin for engaging in protected activity,
and, additionally, violated Section 8(a)(1) of the Act by
unlawfully interrogating Geaslin about complaints that she
raised with the Union. The Board ordered the Company, inter
alia, to reinstate Geaslin with make-whole relief.
In providing make-whole relief for Geaslin, the Board
ordered the Company to reimburse her for search-for-work and
interim employment expenses regardless of whether those
expenses exceeded her interim earnings. In the past, the Board
had declined to award search-for-work and interim
employment expenses that exceeded a complainant’s interim
earnings, but the Board acknowledged that it had never
explained or justified its approach. In this case, the Board found
that its traditional approach not only failed to make victims of
unlawful discrimination whole, but also likely discouraged
complainants in their job search efforts. The Board thus
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concluded that its new remedial framework was necessary to
ensure that make-whole remedies fully compensated
unlawfully discharged employees for the losses they incurred
and deterred further violations of the Act.
In its petition for review, the Company argues that the
Board’s decision should be set aside on four principal grounds:
(1) the Board erred by not deferring to the grievance/arbitration
procedures adopted by the Company and Union in their
collective bargaining agreement; (2) the Board erred in
adopting the ALJ’s credibility determinations and in finding
that the Company violated the Act by interrogating, twice
suspending, and terminating Geaslin; (3) the Board erred in
permitting the General Counsel to amend the Complaint twice
to add a request for an enhanced remedy and to add the
unlawful interrogation charge; and (4) the Board erred in
expanding the Act’s remedies to include search-for-work and
interim employment expenses regardless of an alleged
discriminatee’s interim earnings. We agree with the Company
that the Board’s determination that King Soopers unlawfully
interrogated Geaslin must be vacated because this charge was
not added to the General Counsel’s complaint until after the
commencement of the hearing before the ALJ. The Company
thus had no reasonable notice of the interrogation charge or a
fair opportunity to defend itself. We find no merit in King
Soopers’ remaining claims.
We grant the Board’s cross-application for enforcement as
to all matters except the finding that the Company violated the
Act when it allegedly interrogated Geaslin about complaints
that she raised with the Union. We grant the Company’s
petition for review on the interrogation charge, but deny the
petition for review as to all other matters.
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I. Background
Two collective bargaining agreements (“CBAs”) cover the
employees at the King Soopers grocery store where the events
in this case occurred. The “Meat Agreement” primarily applies
to workers in the meat, deli, and seafood departments. The
“Retail Agreement” covers the Company’s retail workers and
clerks, including those whose duties involve bagging sold
merchandise. The contracts generally restrict bargaining unit
work to members of the respective units. Article 2, Section 2
of the Meat Agreement states that “[a]ll work performed in the
meat, delicatessen and seafood department(s) will be done by
members of the bargaining unit.” Similarly, Article 2, Section
2 of the Retail Agreement states that “[a]ll work and services
performed in the bargaining unit connected with the handling
or selling of merchandise to the public shall be performed
exclusively by bargaining unit members.” However, both
Agreements allow employees to perform “incidental” work
outside of their classification.
Geaslin worked for King Soopers from August 2009 until
May 21, 2014. As a barista in the coffee department, she was
covered by the Meat Agreement. In the months leading up to
her termination, Geaslin and her supervisor, Theresa Pelo, had
a number of disagreements regarding Geaslin’s work
responsibilities. These disputes eventually led to Geaslin’s
discharge.
In March of 2014, Geaslin complained to her coworker,
Latrice Jackson, about the Company’s practice of sometimes
requiring baristas to help the bakery department prepare its
products for sampling. Geaslin did not know it at the time, but
Jackson was a Union steward and brought these complaints to
the attention of King Soopers management. Pelo allegedly
asked Geaslin whether she had complained to the Union. When
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Geaslin denied having done so, Pelo accused her of failing to
tell the truth. However, no action was taken by the Company
against Geaslin with respect to this matter.
On May 9, 2014, when the supermarket was very busy,
Pelo instructed available employees, including baristas, to help
bag groceries. Geaslin informed Pelo that she was scheduled to
take her lunch break, but Pelo told her to first assist with
groceries. Geaslin then questioned whether she should be
bagging groceries at all, based on her understanding of the
applicable terms of the collective bargaining agreement. Pelo
again ordered Geaslin to bag groceries. While some facts were
disputed, the Board determined that Geaslin walked towards
the checkout station to do as instructed, but raised her hands in
the air and commented that she was just asking about her lunch
break. Pelo then called Geaslin back to her to continue talking.
At Geaslin’s suggestion, the two went to Pelo’s office, along
with an assistant manager who had witnessed part of the
exchange. In the office, Geaslin and Pelo engaged in a heated
discussion. Pelo accused Geaslin of refusing to bag groceries.
Geaslin asserted that she had been on her way to bag when Pelo
stopped her. Geaslin also continued to insist that she should not
be required to pack groceries under the terms of her CBA. Pelo
then placed Geaslin on a five-day suspension for
insubordination. Geaslin responded by contacting her Union
representative, Danny Craine.
On May 14, Geaslin and Craine met with Pelo and two
other managers to discuss Geaslin’s suspension. This meeting
was also contentious, and both Geaslin and Pelo became
agitated. Pelo admitted that Geaslin was not supposed to bag
groceries under the terms of the CBA, but again accused her of
refusing to listen to the instructions that were given to her on
May 9. Geaslin, in turn, insisted that she had not refused to
follow Pelo’s instruction, and Craine asserted that requiring
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Geaslin to bag groceries violated the applicable terms of the
CBA. During the course of the discussion, Geaslin also made
facial expressions which Pelo took to be disrespectful. The
meeting ended with Pelo placing Geaslin on a second five-day
suspension based on Geaslin’s allegedly insubordinate
behavior during the meeting. Subsequently, on May 21, Pelo
met with Geaslin and Craine and advised them that Geaslin was
being terminated due to her “gross misconduct” during the May
14 meeting.
Geaslin filed a grievance pursuant to the procedures in the
parties’ collective bargaining agreement. The Company denied
the grievance. Geaslin then presented her grievance to the
Union’s Executive Grievance Committee, which decided not
to pursue it. Geaslin appealed this decision to the Executive
Board of the Union, which declined to appeal the grievance to
arbitration. Union officials never explained on the record their
reasons for declining to pursue Geaslin’s grievance.
Geaslin then filed unfair labor practice charges with the
NLRB. The General Counsel issued a complaint against King
Soopers, accusing it of violating Sections 8(a)(1) and (3) of the
Act by twice suspending and then terminating Geaslin in
response to her protected activity. The General Counsel later
moved to amend the complaint twice. The first motion, made
five days prior to the hearing, sought to expand the remedies
available to Geaslin to include reimbursement for all search-
for-work and work-related expenses, regardless of her interim
earnings. Later, during the course of the hearing before the
ALJ, the General Counsel moved to amend the complaint to
assert that Pelo had unlawfully interrogated Geaslin about her
union activities in March of 2014. The ALJ allowed both
amendments and also denied King Soopers’ motion to defer the
charges to the grievance/arbitration procedures in the parties’
collective bargaining agreement.
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The ALJ found King Soopers had committed the unfair
labor practices as alleged, and the Board largely endorsed the
ALJ’s rulings, findings, and conclusions. The Board
determined that Pelo had unlawfully questioned Geaslin about
her Union-related activity in March. It also held that Geaslin
had engaged in protected activity on May 9 when she
questioned whether she should bag groceries, and on May 14
when she and Craine met with the Company’s managers.
Applying the test from Atlantic Steel Co., 245 NLRB 814(1979), the Board stated that Geaslin’s “conduct during the
May 9 and 14, 2014 meetings did not cause her to lose the
protection of the Act.” King Soopers, Inc., 364 NLRB No. 93,
at 3 (2016). The Board therefore found that the Company had
violated the Act by twice suspending and finally terminating
Geaslin in response to her protected activity.
Much of the Board’s decision is devoted to the “search-for-
work and work-related expenses” make-whole remedy. Prior
to the Board’s decision in this case, recovery of these expenses
was limited by a worker’s interim earnings. However, as noted
above, the Board acknowledged that it “ha[d] never provided
an explanation or reasoned policy rationale for its” approach.
Id. at 5.
In addressing the make-whole remedy question, the Board
found that “[t]he practical result of [its] traditional approach
has been less than make-whole relief for the most seriously
aggrieved victims of unlawful conduct, contrary to the central
remedial principle underlying the Act.” Id. The Board
concluded that amending its approach would better effectuate
the purposes of the Act, and would additionally deter bad
behavior without running afoul of the Act’s prohibition on
punitive damages. Id. at 5–7. Member Miscimarra dissented
from the Board’s remedial change.
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King Soopers petitioned for review, and the Board cross-
applied for enforcement. We have jurisdiction to decide this
case pursuant to 29 U.S.C. §§ 160(e) and (f).
II. Analysis
A. Standard of Review
It is well understood that we may set aside a decision of
the Board “when it departs from established precedent without
reasoned justification, or when the Board’s factual
determinations are not supported by substantial evidence.”
Titanium Metals Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir.
2004) (citations omitted). Substantial evidence “means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Micro Pac. Dev. Inc. v.
NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999). Pursuant to this
standard, we will reverse a judgment of the Board “only when
the record is so compelling that no reasonable factfinder could
fail to find to the contrary.” Bally’s Park Place, Inc. v. NLRB,
646 F.3d 929, 935 (D.C. Cir. 2011) (quotation marks omitted)
(quoting United Steelworkers of Am. v. NLRB, 983 F.2d 240,
244 (D.C. Cir. 1993)). In evaluating the record, we “accept all
credibility determinations made by the ALJ and adopted by the
Board unless those determinations are ‘patently
insupportable.’” Inova Health Sys. v. NLRB, 795 F.3d 68, 80
(D.C. Cir. 2015) (quoting Traction Wholesale Ctr. Co. v. NLRB,
216 F.3d 92, 99 (D.C. Cir. 2000)).
It is also well understood that the Board has broad
authority to allow amendments to complaints, but this mandate
“is limited by fundamental principles of fairness.” Bruce
Packing Co. v. NLRB, 795 F.3d 18, 23 (D.C. Cir. 2015).
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Finally, a remedy “will not be disturbed ‘unless it can be
shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of
the Act.’” Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.
203, 216 (1964) (quoting Va. Elec. & Power Co. v. NLRB, 319
U.S. 533, 540 (1943)).
B. The Board Was Not Obliged to Defer to the Negotiated
Grievance and Arbitration Procedures Adopted by the
Company and Union in Their CBA
As a threshold matter, the Company asserts that the Board
was required to defer this matter to the grievance and
arbitration procedures outlined in the CBA covering Geaslin.
We disagree. On the facts of this case, the Board reasonably
found that deferral was inappropriate.
The Board has long declined to adjudicate disputes that are
better resolved pursuant to the terms of grievance/arbitration
procedures adopted by employers and unions in their collective
bargaining agreements.
[I]t was long ago recognized by the Board that it was
contrary to the purposes of the [Act] for the Board to
assume the role of policing collective contracts
between employers and labor organizations by
attempting to decide whether disputes as to the
meaning and administration of such contracts
constitute unfair labor practices under the Act. . . .
[T]here has been a historical acceptance of
arbitration as a legitimate means of resolving labor
disputes. Simply stated, the Board’s willingness to
defer to arbitration reflects the underlying conviction
that the parties to a collective-bargaining agreement
are in the best position to resolve, with the help of a
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neutral third party if necessary, disputes concerning
the correct interpretation of their contract.
Harry T. Edwards, Deferral to Arbitration and Waiver of the
Duty to Bargain: A Possible Way Out of Everlasting Confusion
at the NLRB, 46 OHIO ST. L.J. 23, 24–25 (1985) (footnotes and
quotation marks omitted) (discussing the early evolution of the
Board’s deferral doctrine).
Over the years, the deferral doctrine has expanded to
include a number of situations in which purported unfair labor
practices are subject to resolution pursuant to the parties’
contractual grievance procedures.
• If a CBA explicitly provides for arbitration of what
might be an unfair labor practice charge, see Babcock
& Wilcox Constr. Co., 361 NLRB No. 132, at 13
(2014), “the Board will not pursue unfair labor practice
proceedings until arbitration has run its course.”
DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 438
(D.C. Cir. 2002) (discussing Collyer Insulated Wire,
192 NLRB 837 (1971)). As the Board has explained,
“[w]here an employer and a union have voluntarily
elected to create dispute resolution machinery . . . it is
contrary to the basic principles of the Act for the Board
to jump into the fray prior to an honest attempt by the
parties to resolve their disputes through that
machinery.” United Techs. Corp., 268 NLRB 557, 559
(1984).
• Relatedly, the Board will not pursue unfair labor
practice charges if an employee, who is free to do so,
has declined to exhaust all available contractual
grievance procedures. See Gen. Dynamics Corp., 271
NLRB 187 (1984). In General Dynamics, an employee
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grieved his discipline, but only completed four of the
five steps outlined in the CBA. Id. Prior to arbitration,
he withdrew his grievances and filed a charge with the
Board. The Board deferred the case based on the
“fundamental . . . concept of collective bargaining that
the parties to a collective-bargaining agreement are
bound by the terms of their contract.” Id. at 189
(quoting United Techs. Corp., 268 NLRB at 559). The
Board thus declined to pursue the unfair labor practice
charges of the employee in a situation in which the
employee had declined to pursue the contract
procedures that were available to address his claims.
• The Board will also accept the results of arbitration, so
long as the arbitrator’s decision meets certain criteria.
See Babcock & Wilcox, 361 NLRB No. 132, at 5.
• Deferral is required when there has been a full and fair
final disposition of a grievance that is rendered pursuant
to a grievance procedure in the parties’ CBA, whether
or not the matter was appealed to formal arbitration. See
Am. Freight Sys. v. NLRB, 722 F.2d 828 (D.C. Cir.
1983). In American Freight, an employee “pursued a
contract grievance claim . . . over precisely the same
question that was subsequently presented to the
NLRB.” Id. at 829. Pursuant to the terms of the CBA
between the union and employer, a “Grievance
Committee” composed of three union and three
employer representatives conducted a full hearing and
rejected the employee’s claim. Id. at 830. The employee
then filed an unfair labor practice charge with the
Board, which refused to defer the matter. We held that
the Board’s decision was an abuse of discretion because
“the Grievance Committee’s decision satisfied all of the
Board’s deference requirements.” Id. at 832.
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• Deferral is likewise appropriate where there is a pre-
arbitration settlement agreement, so long as certain
requirements are met. See Babcock & Wilcox, 361
NLRB No. 132, at 13 (discussing and modifying the
doctrine set out in Alpha Beta, 273 NLRB 1546 (1985),
and Postal Serv., 300 NLRB 196 (1990)).
The situation in this case does not fit any of these deferral
paradigms. Therefore, there is no controlling precedent that
required the Board to defer in this case. Furthermore, we agree
with the Board that it acted reasonably in declining to defer
Geaslin’s unfair labor practice charges to the grievance
procedures in the CBA. Geaslin made every effort to pursue
her grievances under the CBA, but she was rebuffed. Given
these circumstances, the Board surely was not required to defer
in this case.
After being discharged, Geaslin filed a grievance, which
was denied by the Company. She then appealed the matter to
the Executive Grievance Committee of the Union, seeking to
have her claims pursued in arbitration. This Committee denied
her request, with no explanation on the record. The Union’s
Executive Board denied her appeal, with no explanation on the
record. The Union simply informed Geaslin that it had
“considered [her] request to have [her] grievance
arbitrated . . . . [and] it was the decision of the [Executive]
Board to deny the same.” Joint Appendix (“JA”) 805. Geaslin
then filed unfair labor practice charges with the NLRB.
King Soopers argues that the Board should have dismissed
the charges filed by Geaslin because “the parties mutually
resolved Geaslin’s grievance,” and the merits of her claims had
been considered and resolved pursuant to the parties’
contractual grievance procedure. Br. of Pet’r at 26. In other
words, the Company asserts that the Board should have
13
deferred to the disposition of the claims in the grievance
procedure. We disagree.
Geaslin did not withdraw her grievances. Quite the
contrary. She attempted to exhaust the procedures available to
her under the contract. The Union, however, blocked her
request to arbitrate the case. There were thus no further
contractual proceedings to which the Board could have
deferred. Therefore, this case is not comparable to the deferral
patterns endorsed in Collyer Insulated Wire, 192 NLRB 837,
and General Dynamics, 271 NLRB 187. In addition, there was
no settlement agreement between the parties here, nor was
there any arbitration decision. See Babcock & Wilcox, 361
NLRB No. 132, at 5, 13. And, importantly, Geaslin’s
grievances were not resolved on the merits pursuant to an
agreed-upon Company-Union disposition process outlined in
the contract. See Am. Freight, 722 F.2d 828.
It is true that Union and Company officials were of a like
mind in determining that the grievance matter should be
dismissed and that there should be no arbitration of Greaslin’s
claims. They were free to do this under the terms of the CBA.
Nevertheless, there is no clear record evidence to explain why
the Union declined to pursue Geaslin’s grievances. As the
Board found, the record contains only Geaslin and Craine’s
speculation as to why the Union refused to arbitrate Geaslin’s
claim. See King Soopers, 364 NLRB No. 93, at 23. In these
circumstances, the Board did not abuse its discretion in holding
that an employee in Geaslin’s position is free to seek relief from
the Board. This case might be different if, based on the terms
of the CBA, the Union had assessed the employee’s claim on
the merits and reached a reasonable judgment that it would not
pursue arbitration because the employer had acted with just
cause under the CBA. But that is not this case. Therefore, the
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Board reasonably determined that it would not be appropriate
to defer.
C. The Board Did Not Err in Adopting the ALJ’s Credibility
Determinations
Over exceptions by the Company, the Board adopted the
ALJ’s witness credibility findings in full. King Soopers, 364
NLRB No. 93, at 1 n.1. The Company asserts that the Board
erred in doing so because the ALJ’s determinations were not
based on reasoned analysis. We reject this argument.
Courts “accept all credibility determinations made by the
ALJ and adopted by the Board unless those determinations are
‘patently insupportable.’” Inova Health Sys., 795 F.3d at 80
(quoting Traction Wholesale Ctr., 216 F.3d at 99). This high bar
is not met here. The ALJ clearly explained her decisions to
credit and discredit the testimony of various witnesses. In
making her findings she relied on important contextual factors,
including demeanor, her knowledge of industrial practices, the
record, and the presence of consistencies or inconsistencies in
a witness’ story. There is nothing here to suggest that the ALJ’s
credibility findings are “hopelessly incredible,” “self-
contradictory,” or “patently insupportable.” Capital Cleaning
Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.
1998) (citations and quotation marks omitted).
D. The Board Erred in Finding That the Company
Interrogated Geaslin in Violation of the Act
The Board held that the Company violated Section 8(a)(1)
of the Act when Pelo questioned Geaslin about whether she had
complained to the Union about baristas being required to help
the bakery department prepare its products for sampling. This
charge was only added to the complaint, however, at the close
15
of the General Counsel’s case in chief. The Board nonetheless
allowed the charge to be added. The Company asserts that the
finding of unlawful interrogation should be set aside because
the charge was added to the complaint too late and, also,
because there is no substantial evidence to support the charge.
We agree that the Board erred in granting the General
Counsel’s motion to amend. Therefore we need not address
whether substantial evidence in the record supports the Board’s
finding that the Company committed an unfair labor practice
when it allegedly interrogated Geaslin.
The Board may amend a complaint “in its discretion at any
time prior to the issuance of an order based thereon,” 29 U.S.C.
§ 160(b), but this “provision is limited by fundamental
principles of fairness.” Bruce Packing Co., 795 F.3d at 23. The
Board therefore “allows amendments only if they are ‘just,’”
examining “three factors: (1) whether there was surprise or lack
of notice, (2) whether the General Counsel offered a valid
excuse for its delay in moving to amend, and (3) whether the
matter was fully litigated.” Stagehands Referral Serv., LLC,
347 NLRB 1167, 1171 (2006). These circumstances are all
missing from this case.
King Soopers had no fair notice of the interrogation
charge, which was only added in the middle of the hearing
before the ALJ. The General Counsel provided no valid excuse
for the delay in adding the charge. In fact, the General Counsel
had access to all of the relevant information necessary to
investigate this charge for nearly a full year before the hearing,
but nevertheless did not include the charge in the initial
complaint. And, finally, the issue was not fully litigated. While
the Company cross-examined Geaslin, it never did so while
armed with the knowledge that it was defending itself against
an unfair interrogation charge.
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The Board held that “the [Company] had the opportunity
to fully litigate this allegation because the amendment was
made mid-trial, giving the [Company] the opportunity to call
Geaslin as a witness.” King Soopers, 364 NLRB No. 93, at 1
n.1. Although in some cases an employer may be able to fully
litigate a matter by recalling a witness, this is not such a case.
Geaslin, the victim of King Soopers’ alleged unfair labor
practices, was the key witness of the entire trial, and counsel
for King Soopers had just cross-examined her without any
knowledge of a potential interrogation charge. In this situation,
we cannot conclude that King Soopers’ ability to later recall
Geaslin mitigates the prejudice created by the late amendment.
Cf. Bruce Packing Co., 795 F.3d at 23.
To be sure, mid-trial amendments by the General Counsel
are not categorically unfair. But in light of the confluence of
factors in this case – a lack of any notice for the employer; an
unexcused delay by the General Counsel despite ample time to
investigate the charge; and an amendment postdating the
employer’s cross-examination of the General Counsel’s pivotal
witness – this amendment was impermissible. We therefore set
aside the Board’s finding that the Company committed an
unfair labor practice by unlawfully interrogating Geaslin.
E. The Board Reasonably Found That the Company
Committed Unfair Labor Practices by Suspending and
Terminating Geaslin
The Board also found that King Soopers violated the Act
by punishing Geaslin for engaging in protected activity when
it suspended her on May 9 and May 14, 2014, and then
discharged her on May 21, 2014. The Company argues that
Geaslin did not engage in protected activity on May 9 and 14,
and that even if she did, she was lawfully disciplined for
insubordination. The Company also asserts that the Board erred
17
in applying Atlantic Steel, 245 NLRB 814, to find that
Geaslin’s behavior was not so offensive that it lost the
protection of the Act. We find no merit in these claims. The
Board reasonably held that Geaslin’s behavior on May 9 and
14 was protected, and substantial evidence supports its
determination that the Company punished her in response to
that activity.
1. The Board reasonably found that Geaslin engaged
in protected activity on May 9 and May 14, 2014
Determining whether a worker’s behavior is protected
under Section 7 of the Act “implicates [the Board’s] expertise
in labor relations,” and so “a reasonable construction by the
Board is entitled to considerable deference.” NLRB v. City
Disposal Sys., Inc., 465 U.S. 822, 829 (1984); accord United
Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C. Cir.
2004). We defer here to the Board’s “reasonable construction”
regarding the events of May 9 and May 14.
On May 9, Pelo asked Geaslin to help bag groceries.
Geaslin questioned whether she should be doing so under her
CBA and the CBA governing retail clerks, whose duties
include “bagging . . . sold merchandise.” JA 448. Pelo and
Geaslin then engaged in a heated discussion, which resulted in
Pelo suspending Geaslin for five days.
The Board appropriately held that under Interboro
Contractors, Inc., 157 NLRB 1295 (1966), Geaslin’s behavior
was protected by the Act. King Soopers, 364 NLRB No. 93, at
2–3. Pursuant to the Interboro doctrine, an individual employee
who honestly and reasonably asserts a right grounded in a CBA
engages in protected activity, even if the employee later turns
out to have been wrong in her construction of the contract. City
Disposal, 465 U.S. at 839–41 (approving and applying
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Interboro Contractors, 157 NLRB 1295). The Board agreed
with the ALJ “that Geaslin’s interpretation of the contract was
honest and reasonable,” because “it was consistent with her
union representative’s interpretation of the agreements, the
assistant deli manager’s testimony that it was unusual for
employees outside the retail unit to bag groceries, and Pelo’s
own admission that Geaslin’s duties did not include bagging
groceries.” King Soopers, 364 NLRB No. 93, at 2. Substantial
evidence supports the Board’s finding.
The Meat and Retail Agreements may be understood to
prohibit baristas from bagging groceries. Both CBAs generally
restrict bargaining unit work to members of the bargaining unit.
And while the Agreements contemplate employees performing
“incidental” work outside of their job classifications, this
could, as the Board found, “reasonably be interpreted to permit
incidental work among the enumerated [bargaining unit]
classifications rather than the exchange of incidental work
between [bargaining units].” Id. at 3. The reasonableness of
Geaslin’s interpretation of the contracts is underscored by the
other testimony relied upon by the Board. See id. at 2.
King Soopers, however, asserts that Geaslin did not have
an “honest and reasonable belief she was not required to sack”
groceries because its “Customer First” program emphasizes
service to customers above all else, Br. of Pet’r at 37, she had
previously been required to assist another department, and her
CBA does not contain an express provision prohibiting baristas
from bagging merchandise, id. at 36–41. But the Company’s
emphasis on customer service cannot serve to wholly supplant
contractual rights. And, as discussed, the CBAs can be
reasonably interpreted to support Geaslin’s view.
The Company next argues that “Geaslin was required to
follow Pelo’s work order and then file a grievance if she
19
believed Pelo’s directive violated the CBA.” Id. at 42. But the
Board credited Geaslin’s consistent testimony that she did
attempt to follow Pelo’s work order, but was stopped from
doing so. King Soopers, 364 NLRB No. 93, at 23, 26–27. We
have no basis to overturn this determination.
The Board also reasonably found that Geaslin’s behavior
on May 14 was protected. On that day, Geaslin and Craine, her
Union representative, met with Pelo and two other managers to
discuss the events of May 9. This meeting became contentious
and resulted in Geaslin’s second five-day suspension. The
Board held that the protections of the Act applied to this
meeting because “Geaslin continued to assert her contractual
rights,” and because “the May 14 meeting . . . constitute[d] a
‘grievance’ meeting since Geaslin and her representative met
with [the Company’s] managers to discuss her discipline from
the week prior.” King Soopers, 364 NLRB No. 93, at 25.
We defer to this finding as well. Craine testified that he
asserted Geaslin’s contractual rights on her behalf during this
meeting. And the Board’s determination that this was a
grievance meeting was justifiable because it consisted of a
conference between management, an employee, and the
employee’s representative to discuss a disciplinary action. The
Board reasonably found that Geaslin was engaged in protected
activity. See City Disposal, 465 U.S. at 836.
2. The Board reasonably held that the Company
punished Geaslin in response to her protected
activity in violation of the Act
The Company argues that even if Geaslin engaged in
protected activity on May 9 and 14, it nevertheless did not
violate the Act because it terminated her for insubordination. It
also claims that the Board committed reversible error by
20
applying Atlantic Steel to the facts of this case. We find no
merit in these arguments.
While employees may be punished for insubordination,
they cannot be lawfully punished for misconduct that is
intertwined with protected activity unless that behavior is so
“opprobrious” as to “lose the protection of the Act.” Atlantic
Steel Co., 245 NLRB at 816. As the Board has explained
The decision as to whether the employee has crossed
that line depends on several factors: (1) the place of
the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst;
and (4) whether the outburst was, in any way,
provoked by an employer’s unfair labor practice.
Id. Thus, “[a]lthough ‘employees are permitted some leeway
for impulsive behavior when engaging in concerted activity,
this leeway is balanced against an employer’s right to maintain
order and respect’ in the workplace.” Kiewit Power
Constructors Co. v. NLRB, 652 F.3d 22, 26 (D.C. Cir. 2011)
(quoting Piper Realty Co., 313 NLRB 1289, 1290 (1994)).
The NLRB applied the Atlantic Steel factors and
determined that “[Geaslin’s] conduct during the May 9 and 14,
2014 meetings did not cause her to lose the protection of the
Act.” King Soopers, 364 NLRB No. 93, at 3. The Company
does not challenge the Board’s application of the Atlantic Steel
factors, but asserts that it should have instead applied the test
from NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Under
Burnup & Sims, an employer does not discipline an employee
in violation of the Act if it demonstrates a good faith belief that
the worker has committed misconduct in the course of
protected activity, and the employee has actually done so. See
id. at 23. The Company thus asserts that because Pelo honestly
21
believed Geaslin was being insubordinate, and Geaslin did
engage in some insubordination, the Company did not violate
the Act by disciplining Geaslin.
King Soopers misapprehends the relationship between the
Burnup & Sims and Atlantic Steel tests. As we recently
explained, under Burnup & Sims an employer’s defense of
good faith may be rebutted by a showing that the misconduct
“was not serious enough to forfeit the protection of the [Act]
and to warrant the discipline imposed.” Consol. Commc’ns,
Inc. v. NLRB, 837 F.3d 1, 8 (D.C. Cir. 2016). The Board
appropriately applied Atlantic Steel and reached this
conclusion.
The Company has presented no reason why we should
reverse the Board’s reasonable determination that it twice
suspended and then terminated Geaslin in response to her
protected activity. We therefore affirm these unfair labor
practice findings.
F. The Board’s Change to Its Make-Whole Remedial
Framework Was Lawful, Reasonable, and Fully Justified
Finally, as explained above, the Board amended its
approach to make-whole relief for unlawfully-discharged
employees, determining that they may recover for all
reasonable search-for-work and work-related expenses,
without any cap based on interim earnings. As a threshold
matter, we hold that the Board did not err in allowing the
General Counsel to amend the complaint to request expanded
remedies. This amendment was added at the hearing before the
ALJ, but the Board and not the ALJ decided the question
regarding whether to adjust the Board’s remedial policy. King
Soopers had notice and a full and fair opportunity to argue the
issue, and the record shows that it did so. See King Soopers,
22
364 NLRB No. 93, at 1 n.1 (listing filings submitted by the
Company); id. at 6–9 (addressing the Company’s arguments).
On the merits, King Soopers argues that the Board’s
decision must be vacated because it is inadequately reasoned
and will lead to unfair results that are incompatible with the
Act. We disagree. The Board is entitled to considerable
deference in crafting remedies for unfair labor practices, and
the reasons given by the Board to justify the new make-whole
remedial framework pass muster.
The courts have recognized that “the Board’s remedial
authority is ‘a broad discretionary one, subject to limited
judicial review,’ and a remedy ‘will not be disturbed unless it
can be shown that the order is a patent attempt to achieve ends
other than those which can fairly be said to effectuate the
policies of the Act.’” United Food & Comm. Workers v. NLRB,
447 F.3d 821, 827 (D.C. Cir. 2006) (quoting Fibreboard Paper
Prods., 379 U.S. at 216). Pursuant to this standard, it is clear
that the Board’s decision in this case easily survives review.
Under its old make-whole remedial framework, the Board
would not award search-for-work and interim employment
expenses that exceeded a discriminatee’s interim earnings, but
the Board never explained or justified this approach. In support
of its decision in this case, the Board offered clear, reasonable,
and compelling justifications for the new remedial framework:
Because the Board’s traditional approach treats search-
for-work and interim employment expenses as an
offset to interim earnings, discriminatees who are
unable to find interim employment do not receive any
compensation for their search-for-work expenses.
Similarly, discriminatees who find jobs that pay wages
lower than the amount of their expenses will not
23
receive full compensation for the search-for-work and
interim employment expenses. As expressed by
amicus SEIU, “In cases of low wage workers, where
the costs associated with the reasonable search for
interim employment can quickly outweigh the interim
pay received, if any, the employee is, in essence,
subsidizing the employer’s violation.” An example
illustrates the shortcomings of the Board’s traditional
approach. Juana Perez worked at a remote location
earning $1,000 per month prior to her unlawful
discharge. During the month following her discharge,
Perez spent $500 travelling to different locations
looking for work. Perez could only find interim
employment in another state that paid $750 per month.
Perez moved to the new state to be closer to her new
job and was also required to obtain training for her new
position, costing her $5000 and $500, respectively.
Under the Board’s traditional approach, Perez would
receive compensation for only $1500 of her $6000
total expenses, far less than make-whole relief.
King Soopers, 364 NLRB No. 93, at 5.
The Board further explained that:
The Board’s traditional approach not only fails to
make victims of unlawful discrimination whole, but
may also discourage discriminatees in their job search
efforts. The Board imposes a duty on discriminatees to
mitigate by engaging in reasonable efforts to seek and
to hold interim employment. Discriminatees do not
receive backpay for any periods during which they fail
to mitigate. Yet, under the Board’s traditional
approach, discriminatees, who have already lost their
source of income, risk additional financial hardship by
24
searching for interim work if their expenses will not be
reimbursed.
Modifying the Board’s treatment of search-for-
work and interim employment expenses to eliminate
the offset will bring these payments in line with the
Board’s treatment of similar expenses incurred by
discriminatees. When a respondent unlawfully
discharges an employee, the respondent not only
deprives the employee of his or her wages, but may
also cause the employee to lose benefits and to incur
additional expenses. The Board compensates
discriminatees for the inequity of lost wages through
backpay. However, in order to make discriminatees
whole, the Board also compensates discriminatees for
the separate inequity of additional expenses, such as
medical expenses and retirement fund contributions.
The Board awards compensation for these expenses
regardless of discriminatees’ interim earnings and
separately from taxable net backpay, with interest.
Like medical expenses and retirement fund
contributions, search-for-work and interim
employment expenses are a direct result of a
respondent’s unlawful actions. No other expense
incurred by discriminatees as a result of a respondent’s
unlawful conduct is treated as an offset to interim
earnings. Thus, in order to fully compensate
discriminatees for their losses, we shall treat search-
for-work and interim employment expenses in a
manner consistent with our treatment of other losses
suffered by the discriminatee.
Id. at 5–6 (citations omitted).
25
In reaching this decision, the Board rested on its clear
authority to adjust its make-whole relief frameworks as
necessary to achieve the goals of the Act. Section 10(c) of the
Act instructs the NLRB to take such action “as will effectuate
the policies of th[e Act].” 29 U.S.C. § 160(c). One important
policy goal is to achieve “a restoration of the situation, as
nearly as possible, to that which would have obtained but for
the illegal discrimination.” Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1941); see also NLRB v. J.H. Rutter-Rex Mfg.
Co., 396 U.S. 258, 263 (1969) (“A back pay order is . . .
designed to vindicate the public policy of the statute by making
the employee[] whole . . . .”) (quoting Nathanson v. NLRB, 344
U.S. 25, 27 (1952)). And the Board has in the past adapted its
scheme in order to achieve this goal. See, e.g., NLRB v. Seven-
Up Bottling Co. of Miami, 344 U.S. 344 (1953) (approving the
remedial approach adopted by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950)). In short, both the terms of the Act
and the case law construing the Act support the Board’s action
in this case.
In his dissenting opinion, Member Miscimarra argued that
“the Board’s traditional approach to compensating claimants
for these expenses makes claimants whole in most cases, and
the change adopted by my colleagues will result in greater than
make-whole relief in other cases.” King Soopers, 364 NLRB
No. 93, at 9. Specifically, the dissent claimed that the Board’s
remedial change “will produce a financial windfall . . . where
claimants have interim earnings that equal or exceed the sum
of their lost earnings and their employment/search expenses.”
Id. at 13. The dissent also claimed, inter alia, that “the new
standard does not adequately safeguard against the risk that
awarding search-for-work and interim employment expenses,
divorced from interim earnings, will tend to produce more
protracted Board litigation over such expenses, particularly
when such expenses are disproportionately high in comparison
26
to the claimants’ lost earnings or interim earnings . . . .” Id. The
Board majority found no merit in these contentions:
Contrary to the dissent, discriminatees will not
receive more than make-whole relief under the
General Counsel’s request, because incurring search-
for-work and interim employment expenses represent
a different injury than losing wages. Thus,
reimbursement of these expenses compensates
discriminatees for a separate injury than lost pay. As
discussed above, the Board has recognized this
distinction by awarding other expenses incurred by
discriminatees regardless of interim earnings and
separately from taxable net backpay, with interest.
Further, even if the Board’s revised remedial
policy might result in a limited number of
discriminatees with unusually high interim earnings
receiving additional reimbursement, this fact would
not cause us to reject it. In our view, such a
circumstance would constitute “a permissible remedial
outcome if it bears ‘an appropriate relation to the
policies of the Act.” See Mimbres Memorial Hospital
& Nursing Home, 361 NLRB No. 25, slip op. at 6
(quoting NLRB v. Seven-Up Bottling Co., 344 U.S. at
342).
King Soopers, 364 NLRB No. 93, at 7. The Company resists
the Board’s decision because, in its view, it is bad policy and
exceeds the Board’s statutory authority. We reject these claims
for the reasons explained by the Board. It is clear here that the
Board’s action in this case is well within its statutory authority.
In reaching this result, we need not decide whether a Board
remedy that arguably produces what Member Miscimarra
27
characterized as a financial windfall – i.e., in a situation in
which a claimant’s interim earnings equal or exceed the sum of
his lost earnings and employment-search expenses – will
survive review. There is nothing here to suggest that this case
involves such a “windfall.” See, e.g., EPA v. EME Homer City
Gen., L.P., 134 S. Ct. 1584, 1609 (2014) (“The possibility that
the rule, in uncommon particular applications, might exceed
[the agency’s] statutory authority does not warrant judicial
condemnation of the rule in its entirety.”). We also reject the
Company’s argument that the Board’s new remedial approach
will incentivize employees to seek jobs for which they are not
qualified in an effort to game the system and drive up
employment expenses. As the Board explained, the General
Counsel continues to bear the burden of establishing that an
employee’s search-for-work and work-related expenses are
reasonable. Id. at 8.
On the record before us, we have no reason to find that the
Board’s decision to change its remedial framework is “a patent
attempt to achieve ends other than those which can fairly be
said to effectuate the policies of the Act.” Fibreboard Paper
Prods., 379 U.S. at 216 (quoting Va. Elec. & Power Co., 319
U.S. at 540). We therefore deny the petition for review
challenging the Board’s new make-whole remedial framework.
III. Conclusion
For the reasons stated above, we grant the petition for
review only with regard to the Board’s unlawful interrogation
finding. We therefore grant the NLRB’s cross-application for
enforcement with regard to the remaining issues.