Neoprene Craftsmen v. NLRB , 187 F. App'x 477 ( 2006 )


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  •                        NOT RECOMMENDED FOR PUBLICATION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
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    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
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    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.
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    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
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    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.
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