McBurney Corp.

MCBURNEY CORP. 352 NLRB No. 35 241 The McBurney Corporation and International Broth- erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO. Cases 26–CA–17564, 26–CA–17979, and 26–CA– 18017 February 29, 2008 ORDER DENYING MOTIONS FOR RECONSIDERATION BY MEMBERS LIEBMAN AND SCHAUMBER On September 29, 2007, the National Labor Relations Board, by a three-member panel, issued a Decision and Order in this proceeding, finding that the Respondent violated Section 8(a)(3) and (1) by discriminatorily re- fusing to hire certain union-affiliated applicants.1 The Board ordered the Respondent to remedy its unlawful conduct by providing instatement and backpay to all of the discriminatees. The Board specified, however, that the awards of instatement and backpay to union salts2 James Bragan and Dale (Skip) Branscum would be sub- ject to the remedial limitations established in Oil Capitol, 349 NLRB 1348 (2007). The Board also permitted the Respondent to show in compliance that additional dis- criminatees were salts and therefore subject to the same remedial limitations. McBurney Corp., supra, 351 NLRB at 781–782 (2007).3 1 McBurney Corp., 351 NLRB 799 (2007). Previously, on July 7, 2000, the Board remanded this case to the judge for further considera- tion under FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). Member Schaumber did not participate in these proceedings. Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three- member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec- tion 3(b) of the Act. 2 Under Board law, salts are “individuals, paid or unpaid, who apply for work with a nonunion employer in furtherance of a salting cam- paign.” Oil Capitol Sheet Metal, supra at fn. 5. A salting campaign, in turn, is defined as a campaign in which a union sends its member(s) to an unorganized jobsite “to obtain employment and then organize the employees.” Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996). 3 In Oil Capitol, the Board held that “the traditional presumption that [a discriminatee’s] backpay period should run from the date of dis- crimination until the respondent extends a valid offer of reinstatement” no longer applies where the discriminatee is a union salt. Oil Capitol, supra, 349 NLRB at 1349. The Board accordingly held that it would “now require the General Counsel, as part of his existing burden of proving a reasonable gross backpay amount due, to present affirmative evidence that the salt/discriminatee, if hired, would have worked for the employer for the backpay period claimed in the General Counsel’s compliance specification.” Id. The Board also held that an instatement On November 19 and December 18, 2007, respec- tively, the Charging Party and the General Counsel each filed a motion for reconsideration arguing that Oil Capi- tol should not be applied at the compliance stage of this case. Having duly considered the matter, we find that neither the Charging Party’s motion nor the General Counsel’s motion presents “extraordinary circumstances” warrant- ing reconsideration under Section 102.48(d)(1) of the Board’s Rules and Regulations. The Charging Party contends that the Board is pre- cluded from applying Oil Capitol in compliance and that therefore the Board’s decision should be reconsidered. The Charging Party notes that the Respondent did not file exceptions to the judge’s recommended remedy inso- far as he applied preexisting Board precedent, and that the Board’s July 7, 2000 remand order was limited to consideration of FES. The Charging Party argues that the Board is therefore precluded from modifying the judge’s recommended remedy. The Charging Party also argues that the Board’s remedy is internally inconsistent insofar as it applies both Oil Capitol and F. W. Wool- worth Co., 90 NLRB 289 (1950). Further, the Charging Party argues that discriminatees Daniel Barney and Bruce Kemp were not salts and that therefore Oil Capitol should not apply to them. Finally, the Charging Party contends that retroactive application of Oil Capitol would cause “manifest injustice”; that Oil Capitol should not apply because the discriminatees (in general) were not “salts”; and that Oil Capitol was wrongly decided. The General Counsel argues only that retroactive ap- plication of Oil Capitol would cause manifest injustice here. We find that neither the Charging Party’s nor the Gen- eral Counsel’s arguments establish “extraordinary cir- cumstances” warranting reconsideration of the Board’s decision. See NLRB Rules and Regulations, Section 102.48(d)(1). Accordingly, we shall deny their respec- tive motions for reconsideration.4 order for a salt/discriminatee would be subject to defeasance if, at the compliance stage, the General Counsel failed to prove that the salt/discriminatee “would still be employed by the [r]espondent if he had not been the victim of discrimination.” Id. at 1354. 4 Contrary to the Charging Party’s argument, no extraordinary cir- cumstances are presented by the absence of exceptions to the judge’s remedy or by the scope of the Board’s remand order; remedial issues are always before the Board. See General Motors Corp., 347 NLRB No. 67, slip op. at 1 fn. 4 (2006) (not reported in Board volumes). Nor is there inconsistency between Oil Capitol and F. W. Woolworth, 90 NLRB 289 (1950), warranting reconsideration. The former case con- cerns the General Counsel’s burden to show that a salt-discriminatee would have worked throughout the backpay period alleged in the com- pliance specification, while the latter case holds that backpay must be calculated quarterly. Nor is reconsideration warranted by the Charging DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242 In particular, we find no merit to the Charging Party’s and General Counsel’s argument that Oil Capitol should not be retroactively applied in this case. The Board in Oil Capitol stated that it would “apply this new eviden- tiary requirement in the present case and in all cases where the discriminatee is a union salt.” Oil Capitol, supra at 1353. Subsequent to the issuance of Oil Capitol, Party’s premature argument that discriminatees Barney and Kemp are not salts; the Respondent must show in compliance that particular dis- criminatees (other than Bragan and Branscum) were “salts,” as defined above. Although Member Liebman dissented in Oil Capitol, and from the denial of a motion for reconsideration (unpublished dated Nov. 15, 2007), she recognizes that the majority view in Oil Capitol is current Board law, and accordingly, for institutional reasons, she concurs in the denial of the motions here. the Board has routinely applied Oil Capitol in appropri- ate pending cases, all of which were instituted well be- fore Oil Capitol was decided.5 Moreover, Oil Capitol addressed matters presented in certain compliance pro- ceedings. No compliance proceeding has yet been held in the present case. Thus, application of Oil Capitol does not require relitigation of any previously completed por- tion of this proceeding. ORDER IT IS ORDERED that the Charging Party’s and the Gen- eral Counsel’s motions for reconsideration are denied. 5 See Dial One Hoosier Heating & Air Conditioning Co., 351 NLRB 776, 782 (2007); Sproule Construction Co., 350 NLRB 774, 776 (2007); Shaw, Inc., 350 NLRB 354 fn. 4 (2007).