King Soopers, Inc. v. National Labor Relations Board
2017 U.S. App. LEXIS 10260
| D.C. Cir. | 2017Background
- King Soopers employed Wendy Geaslin as a Starbucks barista covered by a collective bargaining agreement (Meat Agreement); disputes over whether baristas may bag groceries arose in May 2014.
- Manager Theresa Pelo ordered Geaslin to bag groceries; a heated exchange on May 9 led to a five-day suspension. A grievance meeting on May 14 produced a second five-day suspension; Geaslin was discharged May 21 for "gross misconduct."
- Geaslin pursued the union grievance process; the union declined to take the matter to arbitration with no explanation on the record. She then filed unfair labor practice charges with the NLRB.
- The NLRB General Counsel sued, alleging unlawful interrogation (March), and unlawful discipline/termination in retaliation for protected activity (May). The General Counsel moved twice to amend the complaint—once to seek expanded remedial relief for search-for-work and interim employment expenses, and once to add the interrogation charge mid-hearing.
- The ALJ found, and the Board largely adopted, that King Soopers violated Sections 8(a)(1) and (3) by suspending and firing Geaslin for protected activity; the Board also adopted a new remedial rule awarding search-for-work and interim employment expenses without offset for interim earnings.
- The D.C. Circuit granted review: it enforced the Board’s findings except it vacated the unlawful-interrogation finding because that charge was added too late to give fair notice or a meaningful opportunity to defend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NLRB should have deferred to the CBA grievance/arbitration process | Geaslin: union refused to arbitrate; Board may hear unfair practice charges | King Soopers: grievance process resolved the dispute; Board should defer | No deferral; Board reasonably declined given union refusal to arbitrate and lack of a merits resolution under the CBA |
| Whether ALJ/Board credibility findings were supported | NLRB/GC: ALJ credibly resolved conflicts, relied on demeanor and record | King Soopers: ALJ credibility not reasoned | Board adoption of ALJ credibility upheld; not patently insupportable |
| Whether the Company unlawfully interrogated Geaslin about union complaints (added mid-trial) | GC: Pelo questioned Geaslin in March about union complaints; supports §8(a)(1) charge | King Soopers: amendment was untimely; no fair notice or opportunity to defend | Interrogation finding vacated—amendment was untimely, prejudicial, and unjustified |
| Whether suspensions and discharge were unlawful retaliation for protected activity | GC/Board: Geaslin reasonably and honestly asserted CBA rights (Interboro); discipline was in retaliation | King Soopers: conduct was insubordination; employer had good-faith belief (Burnup & Sims) | Board reasonably found May 9 and 14 activity protected and discipline unlawful under Atlantic Steel framework; findings enforced |
| Whether the Board lawfully changed remedial rule on search-for-work and interim employment expenses | GC/Board: prior offset rule lacked reasoned rationale; new rule better effectuates make-whole and deterrence goals | King Soopers: change is inadequately reasoned, exceeds authority, may create windfalls | Change upheld as within Board discretion and reasonably justified; petition denied as to remedy change |
Key Cases Cited
- Interboro Contractors, Inc. v. NLRB, 157 NLRB 1295 (Board 1966) (employee’s honest, reasonable interpretation of a CBA is protected activity)
- Atlantic Steel Co., 245 NLRB 814 (Board 1979) (test for when misconduct forfeits Act protection)
- NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (1984) (deference to Board’s construction on protected activity and Interboro doctrine)
- Bruce Packing Co. v. NLRB, 795 F.3d 18 (D.C. Cir. 2015) (limits on allowing late amendments to NLRB complaints—fairness factors)
- Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964) (scope of judicial review of Board remedies)
- Burnup & Sims, Inc. v. NLRB, 379 U.S. 21 (1964) (employer’s good-faith belief defense to disciplining an employee during protected activity)
- Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) (backpay and make-whole remedial principle)
- Consol. Commc’ns, Inc. v. NLRB, 837 F.3d 1 (D.C. Cir. 2016) (relationship between Burnup & Sims and Atlantic Steel tests)