This National Labor Relations Board (NLRB) Supplemental Decision and Order addresses a case where the Board had previously affirmed an Administrative Law Judge's (ALJ) findings that Coreslab Structures (Tulsa) Inc. (the Respondent) committed several violations of the National Labor Relations Act (the Act). Specifically, the initial Board decision found that the Respondent violated Section 8(a)(5), (3), and (1) of the Act.
The ALJ and the initial Board Decision found that the Respondent engaged in discriminatory conduct by failing to make contractually required pension contributions to the Central Pension Fund (CPF) on behalf of unit employees who were not union members, beginning January 1, 2011. Furthermore, the Respondent was found to have violated Section 8(a)(5) and (1) by unilaterally modifying the 2015-2019 collective-bargaining agreement, which mandated these payments, and by ceasing all contractually required pension contributions to the CPF on behalf of all unit employees as of September 30, 2019. The initial remedy ordered the Respondent to make affected employees whole by fulfilling all delinquent pension contributions from January 1, 2011, to the present.
Additionally, the initial Board decision found that the Respondent violated Section 8(a)(5), (3), and (1) by unilaterally and discriminatorily changing the terms and conditions of employment for its unit employees. This involved offering a profit-sharing plan only to unit employees who were not union members, without providing the Union notice or an opportunity to bargain. The remedy for this violation included ordering the Respondent to rescind the unlawful change upon request from the Union and to make affected employees whole for any loss of earnings and other benefits. The Respondent was also ordered to compensate employees for other direct or foreseeable pecuniary harms resulting from these unlawful actions.
The Respondent petitioned for review of this Order with the U.S. Court of Appeals for the Tenth Circuit, and the General Counsel cross-applied for enforcement. On April 24, 2024, the Tenth Circuit issued a decision that granted in part and denied in part the Respondent's petition and the Board's cross-application, remanding the case to the Board for further proceedings.
The Court of Appeals affirmed the Board's findings of Act violations related to the refusal to make full pension contributions and the institution of a profit-sharing plan that excluded union members. However, the Court held that the Board exceeded its statutory authority in two key areas. First, the Court found that the Board's orders for full back-pension contributions and back-profit-sharing payments without offset for compensation already provided were not "sufficiently tailored" to the actual harms suffered by employees. Second, the Court determined that the Board's order to retain the profit-sharing program unless the Union requested its rescission also exceeded its authority, as the Board cannot dictate the terms of a labor contract. The Court emphasized that the decision to continue the profit-sharing program, either alongside or in lieu of the pension program, is a matter for the parties to negotiate during the bargaining process.
Following the Court of Appeals' judgment, the Respondent submitted a Certification of Posting. The Board then notified the parties that it would accept the remand and invited statements of position. The General Counsel and Respondent filed their positions.
In this Supplemental Decision, the Board acknowledges that the Court of Appeals' opinion is the law of the case. Consequently, the Board remands the case to Region 14 to calculate the appropriate remedy. This calculation must include offsets, in accordance with the Court's directive that the remedial obligation be "sufficiently tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices." The Regional Director for Region 14 is instructed to ensure that all current and former unit employees unlawfully excluded from the profit-sharing plan or the CPF due to their union membership status are made whole for any applicable loss of earnings and other benefits suffered since January 1, 2011, with offsets as calculated by the Region, and for any other direct or foreseeable pecuniary harms consistent with the Court's Order. The Board also notes that it declines to affirm the remedy in its initial decision in light of the Court's opinion.
Significant Cases Cited
- Coreslab Structures (Tulsa), Inc. v. NLRB, 100 F.4th 1123 (10th Cir. 2024): This case represents the Court of Appeals' decision that reviewed and remanded the initial NLRB Order, affirming some violations but finding the Board exceeded its authority in certain remedial aspects.
- Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984): This Supreme Court case provides a foundational principle for tailoring remedies to the actual consequences of unfair labor practices.
- Scepter Ingot Castings, Inc., 341 NLRB 997 (2004): This NLRB decision, enforced by the D.C. Circuit, is cited for the principle that the Board lacks jurisdiction to modify a court-enforced order.
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