Neoprene Craftsmen Union Local 788 v. National Labor Relations Board

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0442n.06
Filed: June 27, 2006
No. 03-2623
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NEOPRENE CRAFTSMEN UNION LOCAL 788, )
)
Petitioner, )
)
v. ) PETITION FOR REVIEW OF AN
) ORDER OF THE NATIONAL
) LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD, )
)
Respondent, )
)
DUPONT DOW ELASTOMERS, L.L.C., )
)
Intervenor.
Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.
SILER, Circuit Judge. Petitioner Neoprene Craftsmen Union (the “Union”) petitions for
review of an order of the National Labor Relations Board (the “Board”) denying the Union’s request
for review of a compliance determination issued by the Board’s Regional Director and affirmed by
the Board’s General Counsel. For the following reasons, the petition is DENIED.
BACKGROUND
This case arises out of a compliance proceeding enforcing the Board’s prior determination
that Dupont Dow Elastomers (“DDE”) had committed unfair labor practices in violation of the
National Labor Relations Act (“NLRA”). See Dupont Dow Elastomers, 332 NLRB 1071, 1071-73
(2000). The unfair labor practices claim arose out of a merger between Dupont and Dow Chemical
No. 03-2623
Neoprene Craftsmen v. N.L.R.B.
Company that created a joint venture known as DDE. DDE, among other things, was to take over
production of neoprene at the Dupont facility in Louisville. While DDE decided to extend offers
of employment to almost all of the employees at the Louisville plant, it refused to recognize or
bargain with the Union, which represented all of the workers at Dupont’s Louisville neoprene
production facility. The Union promptly filed suit alleging that DDE, as an alter ego of Dupont,
or alternatively, as a perfectly clear successor, was committing unfair labor practices. Ultimately,
the Board found DDE to be a perfectly clear successor of Dupont and held that it had engaged in
unfair labor practices. Id. at 1075-76. As a remedy, the Board ordered DDE to: (1) cease and desist
from its refusal to recognize and bargain with the Union; (2) “rescind the changes in employment
terms made on April 1, 1996”; and (3) “make whole all unit employees for any loss of wages and
other benefits suffered.” Id. at 1076. We affirmed the Board’s decision on appeal. See Dupont Dow
Elastomers, Inc. v. N.L.R.B., 296 F.3d 495 (6th Cir. 2002).
The case was then sent to a compliance proceeding before the Board’s Regional Director in
order to more specifically enforce the prior Board order. During this proceeding, the Union argued
that its members were entitled to certain backpay and other monetary awards because of several
unilateral changes DDE made to the terms of employment. DDE, on the other hand, contended that
these alleged unilateral changes were unlitigated unfair labor practice claims that the Union had
failed to assert in the original Board proceeding. Finding that much of the conduct alleged by the
Union during the compliance proceedings had not been litigated in front of the Board in the prior
decision, the Regional Director determined that a cease and desist order was the appropriate remedy
and denied the Union’s request for monetary relief. The Regional Director found that the “only
-2-
No. 03-2623
Neoprene Craftsmen v. N.L.R.B.
unilateral change in established terms and conditions of employment” proven during the prior
proceeding was the addition of a success sharing program and therefore no backpay or other
monetary award was in order given that this change did not result in any loss of pay or benefits. The
Union appealed this decision to both the Board’s General Counsel and the Board and was denied
in both instances. The Union now petitions this court for review of the Board’s decision, arguing
that the prior order in fact dealt with unilateral changes other than success sharing and therefore the
Board abused its discretion in issuing solely a cease and desist order as a remedy.
STANDARD OF REVIEW
We have repeatedly stated that the “Board’s remedial authority is a ‘broad discretionary one,
subject to limited judicial review.’” Taylor Warehouse Corp. v. N.L.R.B., 98 F.3d 892, 903 (6th Cir.
1996) (citation omitted). Therefore,
[o]ur review is circumscribed by the principle that a remedial order of the Board will
not be disturbed unless the order is a patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of the NLRA. The deference
necessarily accorded to remedial orders stems from the Board’s primary
responsibility and broad discretion to devise remedies for NLRA violations.
Adair Standish Corp. v. N.L.R.B., 912 F.2d 854, 864 (6th Cir. 1990) (internal quotations, alterations,
and citations omitted). Furthermore, courts have “long recognized the Board’s normal policy of
modifying its general [remedial orders] in subsequent compliance proceedings as a means of
tailoring the remedy to suit the individual circumstances of each discriminatory charge.” Sure-Tan,
Inc. v. N.L.R.B., 467 U.S. 883, 902 (1984) (citations omitted).
DISCUSSION
-3-
No. 03-2623
Neoprene Craftsmen v. N.L.R.B.
Looking initially at the prior Board order, that decision repeatedly references the fact that
success sharing was the only change made to employment terms at the Louisville plant.1 See Dupont
Dow Elastomers, 332 NLRB at 1074. Likewise, our decision affirming the judgment of the Board,
while mentioning the addition of the success sharing program repeatedly, fails to discuss any of the
other unilateral changes that the Union claims require a monetary remedy. See Dupont Dow
Elastomers, Inc., 296 F.3d at 501-02.
Nonetheless, the Union argues that: (1) although success sharing was the only announced
unilateral change made by DDE, the evidence introduced in the proceedings below unmistakably
shows that DDE also instituted numerous other unilateral changes that were unannounced; (2) it was
not required to litigate the remedy at the unfair labor practices hearing; and (3) it was not required
to enumerate the exact relief requested in its complaint and, in any event, the complaint did set out
monetary losses such as discontinued overtime.
As to the first and third arguments, the Union correctly points out that it introduced an
assortment of evidence at the unfair labor practices hearing concerning a number of other unilateral
changes by DDE and also specified in its complaint specific losses resulting from those alleged
changes. However, as detailed above, the Board barely mentions these unilateral changes in its
decision and, in fact, repeatedly emphasizes that DDE “announced no new terms and conditions of
1
The Board does mention the loss of bidding and bumping rights (a unilateral change alleged
by the Union) at the outset of its opinion; nevertheless, it is not revisited and plays no role in the
ultimate decision. See Dupont Dow Elastomers, 332 NLRB at 1072. The Board also notes several
unilateral changes instituted by DDE at a second facility. 332 NLRB at 1072-73; see also Dupont
Dow Elastomers, 296 F.3d at 499. Because this appeal concerns only the Louisville facility, these
noted changes are immaterial to its resolution.
-4-
No. 03-2623
Neoprene Craftsmen v. N.L.R.B.
employment other than the success sharing bonus plan.” Dupont Dow Elastomers, 332 NLRB at
1074. Despite the Board’s inattention to these other alleged unilateral changes, the Union chose not
to contest those omissions in the subsequent proceedings before this court. In fact, the Union opted
not to appeal the initial decision by the Board. See Dupont Dow Elastomers, 296 F.3d at 495.
The Union responds with its other primary argument: that it was not required to litigate the
remedy during the unfair labor practices hearing. While the Union correctly notes that the issue of
remedy is often appropriately resolved during compliance proceedings, see Sure-Tan, Inc., 467 U.S.
at 900-01, its argument misses the mark. Despite the validity of bifurcated proceedings in which
the unfair labor practice allegation and remedy are separately litigated, “the Board’s established
policy does not permit subsequent unfair labor practices to be litigated during the compliance stage
of the proceedings.” Flambeau Airmold Corp., 337 NLRB 1025, 1025 (2002). Therefore, all
specific unfair labor practices claims for which remedial relief is sought must be litigated on the
merits during the initial Board proceeding.
In the end, the Board did not abuse its discretion in ruling that the unilateral changes made
by DDE for which the Union seeks monetary relief were neither litigated fully in the original Board
proceeding nor encompassed within the scope of the prior order. As detailed above, the prior order
almost completely omits mention of any unilateral changes imposed by DDE, with the exception of
success sharing. Moreover, in portions of the prior order, the Board states specifically that DDE
neither announced nor implemented any changes other than success sharing at the Louisville plant
prior to beginning operations. Dupont Dow Elastomers, 332 NLRB at 1074. Given that the prior
Board order paid, at best, minimal attention to these issues, the Board’s interpretation of the previous
-5-
No. 03-2623
Neoprene Craftsmen v. N.L.R.B.
order as not covering the various unlawful unilateral changes asserted by the Union is supported by
the record. Lastly, this conclusion neither implies that the unilateral changes the Union asserts did
not occur nor that these changes did not constitute unfair labor practices. We are simply stating that,
irrespective of the merit of those allegations, the Board did not abuse its discretion when deciding
that those claims had not been previously litigated.
Turning to the validity of the Board’s remedial order itself, recognizing our deferential
standard of review, the Board’s decision to issue only a cease and desist order was well within its
discretion. Under the Board’s reading of the prior order, the only unilateral change established with
respect to the Louisville plant was the addition of a success sharing program. Since the Union does
not argue that the success sharing resulted in any loss of pay or benefits, there is no basis upon
which it may claim either backpay or other monetary award. Furthermore, the Union identifies no
policy of the NLRA with which this order conflicts. Accordingly, the remedial order was not an
abuse of discretion.
The petition is DENIED.
-6-