and Submitted May 15, 2017 San Francisco, California
Petition for Review of an Order of the National Labor
Relations Board No. 28-CA-022625
L. Scott (argued), Law Office of Myron Scott, Tempe, Arizona,
E. Burdick (argued), Deputy Assistant General Counsel;
Heather S. Beard, Attorney; Robert J. Engleheart, Supervisory
Attorney; Linda Dreeben, Deputy Associate General Counsel;
John H. Ferguson, Associate General Counsel; Jennifer
Abruzzo, Deputy General Counsel; Richard F. Griffin Jr.,
General Counsel; National Labor Relations Board, Washington,
D.C.; for Respondent.
A. Trout (argued), Akron, Ohio, for Respondent-Intervenor.
Michael Goldberg (argued), Cherry Hill, New Jersey, for
Amicus Curiae Association for Union Democracy.
Before: William A. Fletcher and Richard C. Tallman, Circuit
Judges, and Paul C. Huck, [*] District Judge.
Labor Relations Board
panel denied an employee's petition for review, held that
the National Labor Relations Board ("NLRB")
properly applied a new standard for deferring to arbitral
decisions only prospectively, and upheld the NLRB's
substantive decision to affirm an arbitral decision - denying
the employee's unfair labor practice complaint - under
the previous more deferential standard.
panel applied the five factors articulated in Montgomery
Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir.
1982), to review the NLRB's decision to apply only
prospectively the new standard for arbitral deferral. First,
the panel held that this case was a case of "first
impression, " and the factor weighed in favor of
retroactive application of the new standard. Second, the
panel held that the new standard represented an abrupt
departure from well-established practice, and this factor
strongly favored prospective application. Third, the panel
held that the employer relied on the old standard that was in
place for nearly 60 years, and this reliance and other
equitable considerations supported only the prospective
application of the new standard. Fourth, the panel held that
retroactive application would severely burden the employer,
and this favored prospective application. Fifth, the panel
held that the balance of statutory interests favored
prospective application. The panel concluded that the NLRB
did not abuse its discretion when it deferred to the arbitral
decision under the old more deferential standard set forth in
Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1995), and
Olin Corp., 268 N.L.R.B. 573 (1984).
Fletcher concurred in the result. Judge Fletcher dissented
from the majority's use of the factors articulated in
Montgomery Ward & Co. to review the NLRB's
decision to apply only prospectively the new deference rule.
Instead, Judge Fletcher would address the prospective-only
application of the new rule under the NLRB v.
Wyman-Gordon, 394 U.S. 759 (1969), framework, which
addresses concerns of informed and deliberate agency
central issue on appeal is whether the National Labor
Relations Board (the "NLRB" or "Board")
properly determined that a new standard for deferring to
arbitral decisions, which was developed by the Board in the
underlying case, should only be applied prospectively. As a
result of the prospective application of the new standard,
Petitioner Coletta Kim Beneli's unfair labor practice
complaint against Respondent-Intervenor Babcock & Wilcox
Construction Co., Inc. ("B&W") was analyzed
under the previous standard and consequently denied. Beneli
also challenges the Board's substantive decision to
affirm the arbitral decision under the previous deferral
Board's usual practice is to apply its new policies and
standards in all pending cases, at whatever stage, subject to
balancing such retroactivity against "the mischief of
producing a result which is contrary to a statutory design or
to legal and equitable principles." Levitz Furniture
Co. of the Pac., Inc., 333 N.L.R.B. 717, 729
(2001). This Court has adopted a five-factor analysis to
balance the interests in considering retroactive application
of a new standard. Oil, Chem. & Atomic Workers
Int'l Union Local 1-547 v. NLRB, 842 F.2d 1141, 1145
(9th Cir. 1988) (citing Montgomery Ward & Co. v.
FTC, 691 F.2d 1322, 1333 (9th Cir. 1982)). Balancing
those factors here, the NLRB properly applied the new
standard only prospectively. Therefore, we deny Beneli's
petition for review.
worked for B&W as a forklift and crane operator and
served as a job steward for her union, the International
Union of Operating Engineers ("the Union"). Beneli
was fired from her job approximately two months after she was
hired. According to Beneli, her firing culminated a running
dispute over her actions as a union job steward. According to
B&W, Beneli was fired for cause because of repeated
safety violations and inappropriate conduct.
day she was fired, B&W's project superintendent
summoned Beneli to a meeting with two B&W safety
representatives. One of the representatives told Beneli that
she was being suspended for three days without pay for two
safety policy violations. Beneli responded to the proposed
suspension by stating, "[i]s this the fucking game you
guys are going to play?"-a statement which she then
repeated. The representatives told Beneli that they
considered that language a threat and terminated her. Beneli
refused to sign termination papers that claimed that she was
fired for "inappropriate conduct."
Union, in accordance with its collective-bargaining agreement
("CBA") with B&W, filed a grievance over
Beneli's suspension and termination, alleging that she
had been fired for union activities and without just cause.
The grievance moved through the CBA process to binding
arbitration before a joint labor-management Grievance Review
Subcommittee (the "Subcommittee"). Both Beneli and
B&W presented witness testimony before the Subcommittee
supporting their respective positions. The Subcommittee
denied the grievance ...