Pa. State Corr. Officers Ass'n v. Nat'l Labor Relations Bd.
| Decision Date | 06 July 2018 |
| Docket Number | C/w 16-1396,No. 16-1328,16-1328 |
| Citation | 894 F.3d 370 |
| Parties | PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSOCIATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Michael McAuliffe Miller, Harrisburg, PA, argued the cause for petitioner. With him on the briefs was Edward R. Noonan, Washington, DC.
Micah P.S. Jost, Attorney, National Labor Relations Board, argued the cause for respondent. With him 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. Ruth E. Burdick, Deputy Assistant General Counsel, entered an appearance.
Before: Henderson, Circuit Judge, and Williams and Ginsburg, Senior Circuit Judges.
The Pennsylvania State Corrections Officers Association (the Employer) petitions for review of an order of the National Labor Relations Board holding it had committed an unfair labor practice by failing to bargain with the Business Agents Representing Statewith the necessary precision. Dissenting Union Employees Association (the Union) before terminating five employees. The Board therefore ordered the Employer to bargain with the Union over the effects of the discharge and to pay back wages to the employees. The parties bargained over the effects to an impasse, but the Board subsequently held it was not a lawful impasse because the Employer sought to bargain about, and reduce, the back pay amount set by the Board. The Board therefore held the Employer was liable for a substantially longer period of back pay. The Employer contends (1) the Board lacks substantial evidence that it failed to bargain over the effects to a lawful impasse, (2) the back pay requirement is arbitrary, capricious, and contrary to law, and (3) one of the five employees is not eligible to receive back pay. The Board cross-appeals for enforcement of the order. We hold the order is not supported by substantial evidence and therefore grant the petition for review, vacate the order, and remand the case to the Board to re-determine the back pay due to each employee.
The Employer is a union representing approximately 11,000 corrections officers. It deploys a number of corrections officers, on leave from their jobs with the Commonwealth of Pennsylvania, as "business agents" to represent it in disciplinary matters involving members. The business agents remain employees of the Commonwealth, which pays their salaries and receives reimbursement from the Employer. In June 2010, several of the business agents organized their own union (the Union), which then negotiated a collective bargaining agreement with the Employer.
For reasons not relevant here, later in 2010 the Employer terminated five of the business agents. Four of them returned to the corrections officer positions from which they were on leave during their tenure at the Employer. The Employer gave each terminated employee one week of severance pay. The Union filed a complaint with the NLRB alleging the Employer’s action violated the National Labor Relations Act because the Employer did not first bargain with the Union over the effects of the terminations.
An Administrative Law Judge conducted a hearing and issued a recommended decision holding the failure to bargain was an unfair labor practice. Pa. State Corrections Officers Ass’n and Bus. Agents Representing State Union Emps. Ass’n (PSCOA I) , 358 NLRB 108, 115 (2012). He ordered what the Board calls a Transmarine remedy, after Transmarine Navigation Corp. , 170 NLRB 389 (1968), which required the Employer to do two things. First, upon request, it had to engage in effects bargaining with the Union. PSCOA I , 358 NLRB at 115. Second, it had to pay the employees an amount of back pay tied to the pace of the negotiations. Back pay would begin to accrue "5 days after the date of [the] order" and run until the Employer and the Union reached "a bona fide impasse in bargaining." Id. The ALJ also imposed minimum and maximum amounts; regardless of the amount due under the formula he prescribed, in no event could back pay be "less than the employees would have earned for a 2–week period at the rate of their normal wages when last in [the Employer’s] employ" or more than "the amount they would have earned as wages from the date they were discharged to the time they secured equivalent employment elsewhere." Id. The remedy also provided that the back pay award was subject to reduction in the amount of "any net interim earnings" the employee received from other work during that period. Id. On March 23, 2012 the Board summarily affirmed and issued an order (the "Initial Order") adopting the remedies recommended by the ALJ. Pa. State Corrections Officers Ass’n and Bus. Agents Representing State Union Emps. Ass’n (PSCOA II) , 358 NLRB 108, 108–09 (2012).
Soon thereafter the Employer and the Union began bargaining over the effects of the terminations. On April 4, 2012, the Employer offered to pay each of the business agents two weeks of back pay (i) without any reduction for other wages they had earned but (ii) minus the one week of post-termination severance pay each agent had already received and (iii) subject to withholding the other week of back pay as a credit to offset disputed automobile mileage expense payments for which it had reimbursed several of the employees. The Union counteroffered on April 11, demanding "2 weeks’ severance pay and all unused leave paid back" for each of the five and reimbursement of additional expenses that one of them claimed. Later the same day the Employer rejected the Union’s counteroffer, disputed the vacation time and expense requests, declared the parties at an impasse, and said it would implement its April 4 offer. Thereafter neither party contacted the other, the Employer made no payments to the employees, and the Union’s bargaining authority lapsed when it became defunct on September 28, 2012.
In late 2013 the General Counsel of the Board initiated compliance proceedings against the Employer before the ALJ. The General Counsel claimed the Employer’s insistence on a credit against disputed expenses was contrary to the Initial Order, which allowed deductions from back pay only for net wages the employees had earned in other employment. The General Counsel therefore alleged that the Employer had insisted upon an "illegal" topic of bargaining, to wit, offering back pay below the minimum set by the Initial Order, that undercut the validity of the April 11 impasse. The Employer acknowledged that during the bargaining it had "identified the sum which it intended to pay as a Transmarine remedy and offset that against previously improperly paid benefits." Nonetheless it moved to dismiss the compliance proceeding on the ground that it had complied with the Initial Order by bargaining to a bona fide impasse with the Union. It also argued that one employee, Mr. Bill Parke, was not entitled to any back pay because he had decided not to return to his job as a corrections officer, and therefore had failed to mitigate his losses. While the compliance case was pending before the ALJ, the parties stipulated that the Employer and Union reached an impasse in bargaining on April 11, 2012.
Following a hearing, the ALJ issued a recommended decision concluding the Employer had not complied with the Initial Order. Pa. State Corrections Officers Ass’n and Bus. Agents Representing State Union Emps. Ass’n (PSCOA III) , 364 NLRB No. 108, 2014 WL 2194809 (May 23, 2014). He found "the Board’s order required a minimum of two weeks of back pay," the Employer "offered two weeks of back pay, but required that there be a set off against that amount," thereby "[i]nsist[ing] to impasse on a position that derogates from a specific Board remedy" and was therefore "an illegal subject of bargaining." Id. at 12. "At the least, such a position does not constitute a mandatory subject, about which the other party must bargain." Id. He therefore concluded "that the impasse of April 11 was not a valid impasse and the back pay period continued to run thereafter" until September 28, 2012, when the Union lost its bargaining authority; hence the back pay period was 26 weeks. Id. With regard to Parke, the ALJ found he failed to mitigate his lost wages by not returning to his position as a corrections officer, which the ALJ regarded as equivalent to his position as a business agent because the two were "intrinsically intertwined." Id. He therefore ordered the Employer to pay Parke the minimum two weeks of back pay. Id. at 13.
Both the Employer and the General Counsel of the Board filed exceptions to the recommended decision. The Employer challenged all the ALJ’s findings and conclusions save those related to Parke, which the General Counsel challenged.
In 2016 the Board issued, over Commissioner Miscimarra’s partial dissent, a Supplemental Decision and Order adjudicating the compliance case. Pa. State Corrections Officers Ass’n and Bus. Agents Representing State Union Emps. Ass’n (PSCOA IV) , 364 NLRB No. 108, 2016 WL 4582492 (Aug. 26, 2016). The Board and the dissenter agreed the Transmarine remedy was mandated by the Board, and therefore a topic over which the parties could not bargain. Id. at 3 ; id. at 6 (Miscimarra, Comm’r, dissenting). The Board found the Employer had attempted to "bargain about the Transmarine backpay remedy"; because "from the outset, the [Employer had] proposed reducing the Transmarine amount," it "in effect demanded a modification of the Transmarine remedy." Id. at 3–4. From these facts the Board concluded the Employer "never made a proposal that met its effects-bargaining obligation" and therefore did not reach a lawful impasse. Id . It also held that, "even if the [Employer] was permitted to bargain over the Board’s Transm...
To continue reading
Request your trial
-
Napleton 1050, Inc. v. Nat'l Labor Relations Bd.
...critical question is whether the Board received adequate notice of the basis for the objection." Pennsylvania State Corr. Officers Ass'n v. NLRB , 894 F.3d 370, 376 (D.C. Cir. 2018) (quoting Camelot Terrace, Inc. v. NLRB , 824 F.3d 1085, 1090 (D.C. Cir. 2016) ). As to the surveillance findi......