Asociacion de Empleados Del Estado Libre Asociado De Puerto Rico

National Labor Relations Board - Unpublished Board Decisions

Jun 14, 2021

12-CA-218502 (N.L.R.B. Jun. 14, 2021)

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NOT TO BE INCLUDED McER
IN BOUND VOLUMES Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ASOCIACION DE EMPLEADOS DEL ESTADO
LIBRE ASOCIADO DE PUERTO RICO
and Cases 12–CA–218502
12–CA–232704
UNION INTERNACIONAL DE TRABAJADORES
DE LA INDUSTRIA DE AUTOMOVILES,
AEROESPACIO E IMPLEMENTOS AGRICOLAS,
U.A.W., LOCAL 1850
ORDER DENYING MOTION FOR RECONSIDERATION1
The Charging Party’s Motion for Reconsideration of the Board’s Decision and
Order reported at 370 NLRB No. 71 (2021) is denied.2 The Charging Party has not
identified any material error or demonstrated extraordinary circumstances warranting
reconsideration under Section 102.48(c)(1) of the Board’s Rules and Regulations.
As discussed in the underlying decision, a Puerto Rico statute required the
Respondent to pay annual bonuses of up to $600 to its employees unless it agreed to
pay more under a collective-bargaining agreement. The Respondent’s 2013-2017
collective-bargaining agreement with the Charging Party (CBA) obligated it to pay
bonuses “as provided in [the Puerto Rico statute]” with “modifications” – higher bonuses
– specified for 2013, 2014, 2015, and 2016. After paying the “modification” amounts in
the four specified years, the Respondent paid employees $600 bonuses in December
1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 The Respondent filed a brief in opposition to the Charging Party’s motion.
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2017 during a hiatus period after the CBA expired and in December 2018 after the
parties extended the CBA.
The Board dismissed allegations that the 2017 and 2018 bonuses were unlawful.
First, it found that the Respondent did not unilaterally change employees’ terms and
conditions of employment during the 2017 hiatus period in violation of Section 8(a)(5)
and (1) because (i) the CBA made the statutory $600 bonus the contractual bonus in
the absence of a “modification” specified for that year, (ii) no modification was specified
for 2017, (iii) the terms of the expired CBA constituted the post-expiration status quo the
Respondent was required to maintain during the hiatus period, and therefore (iv) the
Respondent lawfully maintained the status quo during the hiatus period in 2017 by
paying $600 bonuses. 370 NLRB No. 71, slip op. at 2-4. Second, based on its
determination that the statutory $600 bonus was the contractual bonus in any year other
than 2013, 2014, 2015, and 2016, the Board found that the Respondent “[n]ecessarily
. . . had a sound arguable basis” for its interpretation of the extended CBA to require
only $600 bonuses in 2018, and the Respondent did not modify the CBA in violation of
Section 8(a)(5) and (1) of the Act within the meaning of Section 8(d). Id., slip op. at 4-5.
In its motion for reconsideration, the Charging Party does not address the
Board’s determination of the status quo during the hiatus period and its dismissal of the
unilateral change allegation. It also does not contest the Board’s finding that the
Respondent had a sound arguable basis for its interpretation of the extended CBA.
Rather, the Charging Party argues only that the Board improperly went beyond the
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“sound arguable basis” standard set forth in Bath Iron Works3 by stating that “[t]here are
not two equally plausible contract interpretations here. There is only one plausible
interpretation, and it favors the Respondent.” The Charging Party contends that the
Board thereby exceeded the scope of its authority to interpret contracts and improperly
prejudiced the Charging Party’s ability to pursue a breach of contract claim in court
against the Respondent under Section 301(a) of the Labor Management Relations Act.
We find no merit in the Charging Party’s argument. Under the sound arguable
basis standard, where an employer contends that a challenged action was permitted
under the terms of a collective-bargaining agreement, and that contention is based on
an interpretation of the agreement that is at least colorable, the Board will find that the
employer had a sound arguable basis for its action and did not modify the contract. In
applying this standard, the Board does not seek to determine which of two equally
plausible interpretations is correct. See id. at 503; NCR Corp., 271 NLRB 1212, 1213
(1984). It does not follow, however, that there will always be competing, equally
plausible interpretations. In a particular case, the language of the contract may admit of
only one interpretation.
In determining the post-expiration status quo and dismissing the unilateral
change allegation, the Board found that the language of the expired CBA made the
statutory $600 bonus the contractual bonus in any year other than those specified in the
agreement, i.e., 2013, 2014, 2015, and 2016. The Board’s dismissal of the allegation
that the Respondent modified the contract in 2018 when it paid $600 bonuses, and its
3 345 NLRB 499 (2005), enfd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475
F.3d 14 (1st Cir. 2007).
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rationale that “[t]here is only one plausible interpretation [of the CBA], and it favors the
Respondent,” followed inexorably from that finding. It was within the Board’s authority
to recognize this inevitable result and interpret the agreement accordingly. See Litton
Financial Printing Division v. NLRB, 501 U.S. 190, 202 (1991) (Board is empowered to
interpret contracts in the context of unfair labor practice adjudication). Thus, there is no
merit to the Charging Party’s claim that the Board’s decision exceeded the scope of its
authority. Accordingly, if the decision prejudiced the Charging Party’s ability to bring a
Section 301 action, it did not do so improperly.
IT IS ORDERED that the Charging Party’s Motion for Reconsideration is denied.
Dated, Washington, D.C., June 14, 2021
William J. Emanuel, Member
John F. Ring, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN McFERRAN, concurring in the result.
I adhere to my dissenting view in the underlying decision that the Respondent
had no sound arguable basis for decreasing employees’ Christmas bonuses to the
statutory minimum, but I nonetheless agree that the Charging Party’s limited arguments
do not establish grounds for reconsideration under Section 102.48(c)(1) of the Board’s
Rules and Regulations. I acknowledge the basis for the Charging Party’s contention
that the Board’s “only one plausible interpretation” remark threatens to have preclusive
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effect on an LMRA Section 301(a) breach of contract claim, contrary to precedent.4 But
judicial decisions suggest that the disputed remark in the majority decision should not
lead to collateral estoppel or issue preclusion in another forum.5 Thus, I concur in the
denial of the Charging Party’s motion.
Dated, Washington, D.C., June 14, 2021

Lauren McFerran, Chairman
(SEAL) NATIONAL LABOR RELATIONS BOARD
4 See Bath Iron Works, supra at 503 (finding a sound arguable basis for an employer’s
contract interpretation while refusing to pass on which party’s contract interpretation
was more compelling because “the arbitration process and the courts are well equipped
to deal with such matters if the parties choose those avenues of redress”).
5 See, e.g., NLRB v. Master Slack, 773 F.2d 77, 81-82 (6th Cir. 1985) (a finding not
essential to judgment is dicta that does not bar relitigation); Glaziers & Glassworkers
Local Union 767 v. Custom Auto Glass Distributors, 689 F.2d 1339, 1341-1342 (9th Cir.
1982) (district court properly refused to apply collateral estoppel doctrine to NLRB
finding that was not a “necessary determination of an issue”); O’Hare v. General Marine
Transport Corp., 534 F. Supp. 120, 124-125 (S.D.N.Y. 1981) (district court retains
jurisdiction over Sec. 301(a) breach of contract claim regardless of potential conflict with
Board decision).