LEGGETT & PLATT, INC.

National Labor Relations Board - Unpublished Board Decisions

Feb 19, 2020

09-CA-194057 (N.L.R.B. Feb. 19, 2020)

1
Winchester, KY
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
LEGGETT & PLATT, INC.
and
INTERNATIONAL ASSOCIATION OF Cases 09-CA-194057
MACHINISTS AND AEROSPACE WORKERS 09-CA-196426
(IAM), AFL-CIO 09-CA-196608
ORDER DENYING MOTION FOR RECONSIDERATION
The Respondent’s motion for reconsideration of the Board’s Decision and
Order reported at 368 NLRB No. 132 (2019) is denied.1 The Respondent has not
identified any material error or demonstrated extraordinary circumstances

1 Member Emanuel is a member of the panel but did not participate in this
decision on the merits.
In New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-member
quorum when one of the panel members has recused himself. Under the Court’s
reading of the National Labor Relations Act, “the group quorum provision [of Sec.
3(b)] still operates to allow any panel to issue a decision by only two members if
one member is disqualified.” New Process Steel, 130 S. Ct. at 2644. See also,
e.g., D.R. Horton, 357 NLRB 2277, 2277 fn. 1 (2012), enfd. in relevant part 737
F.3d 344, 353 (5th Cir. 2013); NLRB v. New Vista Nursing and Rehabilitation,
870 F.3d 113, 127–128 (3d Cir. 2017); 1621 Route 22 West Operating Company,
357 NLRB 1866, 1866 fn. 1 (2011), enfd. 725 Fed. Appx. 129, 136 fn. 7 (3d Cir.
2018).
2
warranting reconsideration under Section 102.48(d)(1) of the Board’s Rules and
Regulations.2
Dated, Washington, D.C., February 19, 2020.
___________________________________
John F. Ring, Chairman
___________________________________
Marvin E. Kaplan, Member
____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 In support of its motion, the Respondent argues that the Board
erroneously failed to retroactively apply Johnson Controls, Inc., 368 NLRB No. 20
(2019), to the present case absent a finding that doing so would impose a
“manifest injustice.” To be sure, the Board’s “usual practice” is to retroactively
apply changes in the law unless doing so would work a “manifest injustice.” See
SNE Enterprises, 344 NLRB 673, 673 (2005). But nothing in the Act compels the
Board to retroactively apply such changes, whether to all pending cases or to any
particular case. To the contrary, whether to retroactively apply a change in the
law is “a matter of agency discretion in the first instance.” See NLRB v. Mosely
Mfg. Co., 595 F.2d 375, 377 fn. 7 (7th Cir. 1979). To the extent it was not clear
in the Board’s prior Decision or Supplemental Decision, we find that retroactive
application of Johnson Controls would have worked a manifest injustice under
the specific circumstances of this case. As noted by the Board in its prior
decision, this case had been decided by the Board and was pending appeal at
the time Johnson Controls issued; the affirmative bargaining order included in the
Board’s remedy in this case had been in effect for over 6 months; and reversing
the Board’s decision would have disrupted the parties’ bargaining relationship
and incentivized parties in other cases to delay compliance with bargaining
orders in the hope or expectation of a change in the law. 368 NLRB No. 132, slip
op. at 2. We also observed that under the particular circumstances of this case,
institutional reasons counseled against retroactive application. Id. Those
remain.