Trump's NLRB Chair vs. Biden's Acting GC

A clever appeal by a longtime Republican Board Member sets up the first internal showdown from Peter Robb's firing.

Republican politicians and employer groups promised swift and steady challenges to President Joe Biden’s firing of Peter Robb as the NLRB’s General Counsel. I’ve written several times about why such challenges to Acting GC Ohr will be legally dubious and likely unsuccessful, even given the conservative bent of the federal courts, but that doesn’t mean the attempts wouldn’t be made by interested parties.

The first major challenge comes in the joint litigation of United Natural Foods Inc. (“UNFI”) (Case 19-CA-249264) and Teamsters Local 117 (Case 19-CB-250856). UNFI is represented by none other than Philip Miscimarra, a veteran management-side lawyer who served as a longtime Republican dissenter on the Obama Board before briefly serving as Trump’s first Chairman. Even though he left the Labor Board before 2018, Miscimarra has served as the brains and soul of the Trump Board, as many of his dissents from 2013 to 2017 have essentially been copied and pasted into the majority opinions since then. To my eyes, Miscimarra’s writing and arguments are noticeably more convincing than any of his replacements, and he is a prolific author in labor law academia. There is a genuine sense of formidability when he’s taking up a case in private practice, and the ones he litigates are often far more complex than the standard 8(a)(3) discrimination charges.

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The Underlying Case

The UNFI/Teamsters case is no exception. The facts are simple, but the application of the law is esoteric. Local 117 represented warehouse workers at UNFI’s Tacoma, Washington State facility. The parties’ collective bargaining agreement contained the following clause, captioned “Movement of Existing Facility”:

In the event that the Employer moves an existing facility to any location within the jurisdiction of the Joint Council of Teamsters No. 28, as currently defined excluding current facilities under the jurisdiction of and the service area of Teamsters Local Union No. 690, the terms of this contract shall continue to apply with respect to the new facility. In addition, all employees working under the terms of this Agreement at the old facility shall be afforded the opportunity to work at the new facility under the same terms and conditions and without any loss of seniority or other contractual rights or benefits. The designated Union will be required to show a majority representation in accordance with controlling law. In addition, the parties agree to enter into effects bargaining in accordance with controlling law regarding the impact on employees of the movement of an existing facility.

(The italicized portions are important to keep in mind.) In early 2019, UNFI decided to close the Tacoma plant and consolidate all of its work at a new, larger facility in Centralia, WA. UNFI provided employment offers for Tacoma employees to transfer to Centralia only after the last layoffs at the Tacoma facility were complete. But the parties disagreed on whether Local 117’s contract should continue to cover the Tacoma employees after they transferred to Centralia. The union argued that the above provision clearly provided as such. UNFI refused, arguing that because the Tacoma employees wouldn’t represent a statistical majority at the Centralia facility, applying the contract would create an “arbitrary” minority bargaining unit and require the employer to violate Section 8(a)(3) of the NLRA by discriminatorily favoring the union over the rest of the newly hired nonunion workforce. The offers extended were thus for unilaterally-established terms and conditions of employment.

The union filed a grievance and won handily at arbitration. But once the union tried to enforce the arbitration award and establish the Tacoma contract for its transferred workers, UNFI simultaneously filed (1) a flurry of unfair labor practice charges with the NLRB’s Seattle office and (2) a lawsuit in federal court seeking to vacate the award. The main ULP was predicated on the 8(a)(3) theory of unlawful pro-union discrimination, as Section 8(b)(2) of the Act forbids unions from causing or attempting to cause employers to favor members over non-members (for example, by demanding that an employer fire an employee who refuses to join the union).

This is where the case becomes difficult. In a twin-filing situation such as this, the employer will usually ask the federal court to stay the proceedings in the lawsuit until the NLRB has processed the ULPs. UNFI made such a motion. This seems counterintuitive, as most observers generally view the NLRB regional offices (even under a Republican administration) as more friendly to unions than the average federal judge, who probably knows very little about labor law and more likely than not comes from a corporate background. But the nature of the 8(b)(2) ULP charge triggers (what the employer hopes is) a representational issue. If the NLRB agrees that the underlying issue in the case—i.e., can the Tacoma contract be applied to still cover the workers who transferred to Centralia—involves a question of union representation rather than a simple matter of contractual application, then it falls within the primary jurisdiction of the Labor Board. Both the NLRB and federal courts have concurrent jurisdiction regarding ULPs underlying contract disputes, but only the NLRB is able to decide matters of union representation. The proceedings in court would thus have to be paused. The union would be sunk, as the Tacoma workers do not represent a majority of the Centralia shop, nor do they want to (yet). That would require bargaining from scratch with a new unit instead of migrating over the Tacoma contract.

Where is the distinction between contract cases and representation issues? Conceptually, it’s razor thin, mostly relying on which end of the dispute you start from. But the fair outcome for UNFI and the Teamsters would be enforcing the contract that the parties bargained for. The contract clearly supports the arbitrator’s award of porting the contract to Centralia. UNFI did not bargain for language which specified what would happen in a situation where the new facility’s workforce was substantially larger than Tacoma, and the workers should not be punished for any resulting ambiguity.

Importantly, Board law has long favored the union’s interpretation. Anheuser-Busch, Inc., 296 NLRB 1025 (1989). As the Teamsters’ able lawyers make clear in their briefs, it is well established that unions may enforce post-transfer maintenance of benefit rights without raising questions of “any representational rights over employees at the [new] store.” UFCW v. Alpha Beta Co., 736 F.2d 1371, 1377 (9th Cir. 1984). Former GC Robb, as evidenced by the issuance of the complaint after going through his Advice division, was seeking to reverse this case law before he was fired.

[For nerds who like to do digging on PACER, Miscimarra has litigated a similar contractual/representational case in Ohio in the context of an alter ego/single employer situation.]

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The Appeal

That finally brings us to Miscimarra’s appeal. Acting GC Ohr signaled in the first days of his tenure that he would consider withdrawing current litigation from Robb that attempted to change Board law, but experienced lawyers like Miscimarra probably sensed that would happen the second that Robb was fired. The union, smelling blood as well, filed a motion to continue the February ULP trial to give Ohr a chance to withdraw the complaint. Challenges to Robb’s firing notwithstanding, it is undisputed that the GC has the power to retract litigation at the hearing stage.

So what did Miscimarra do? He filed a motion for summary judgment on the Section 8(b) charges in the days between the union’s request and the Seattle Regional Director’s order delaying the hearing. The brief accompanying Miscimarra’s motion contains arguments on the underlying case, but more importantly includes the claim that any and all of Ohr’s actions are null and void due to the unlawful firing of Robb. Why is the MSJ important? Summary judgment review goes directly to the Board for grant or denial, bypassing the GC’s jurisdiction. This would assumedly preserve UNFI’s charges without Ohr being able to withdraw them.

I’ll be honest: I don’t know enough about this arcane duel of internal Board procedural law to assess the merits of the maneuver. The federal courts are where the legality of Robb’s termination will be determined, not the NLRB, but Miscimarra just wants to keep the case alive in the interim and delay proceedings in federal court. He may have succeeded in doing that.

Of course, the stakes here are lower than in many other areas of the law, including the attacks on neutrality agreements and Scabby the Rat that Ohr has already vanquished. The Anheuser-Busch precedent is safe under the coming Biden Board. But Miscimarra is representing UNFI, and UNFI just cares about keeping the Teamsters’ Tacoma contract out of the Centralia plant. There is a very foreseeable scenario in which the nonunion workers in Centralia eventually want the (presumably superior) Tacoma wages and benefits for themselves and seek union representation for the whole facility. That is the worst-case scenario that Miscimarra was hired to prevent.

I suggest all fellow Board-watchers keep an eye on this case going forward.