United States Court of Appeals, District of Columbia Circuit
April 3, 2017
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.
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.
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").
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
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.
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'
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.
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
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.
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.
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
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.
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
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.
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
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.
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
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).
Standard of Review
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.
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 ...