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King Soopers, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 9, 2017

King Soopers, Inc., Petitioner
v.
National Labor Relations Board, Respondent

          Argued April 3, 2017

         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.

          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 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.

         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 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 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.

         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.

         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 ...


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