PCMC/Pacific Crane Maintenance Company, Inc.

National Labor Relations Board - Unpublished Board Decisions

Sep 20, 2017

32-CA-021925 (N.L.R.B. Sep. 20, 2017)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PCMC/PACIFIC CRANE MAINTENANCE
COMPANY, INC. and/or PACIFIC MARINE
MAINTENANCE CO., LLC, a single employer,
and/or PCMC/PACIFIC CRANE MAINTENANCE
COMPANY, LP, their successor
Cases 32-CA-021925
and 32-CA-021974
(formerly 19-CA-029645)
32-CA-021977
(formerly 19-CA-029692)
INTERNATIONAL ASSOCIATION OF 32-CA-023613
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, DISTRICT LODGE
190, LOCAL LODGE 1546, and DISTRICT
LODGE 160
ORDER1
The Request for Review filed by Rolando Hernandez, Gerardo Serrano, Ricky
Voto-Bernales, Jesus Villalpando, Bob Flanagan, and Robert E. Pohl, Jr. (the
mechanics) of the General Counsel’s dismissal of the mechanics’ compliance
determination appeal is denied.2 The mechanics contend that the General Counsel
erred in dismissing their appeal based on their lack of standing. In rejecting the
mechanics’ attempt to file a compliance determination appeal in this case, the General
Counsel found that the National Labor Relations Board’s Rules and Regulations,

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel. Chairman Miscimarra is recused from consideration of this case.
2 Member Kaplan concurs in the result, but would have dismissed the mechanics'
request for review because the Board's Rules and Regulations do not permit the filing of
an appeal in this matter. Sections 102.52 and 102.53 of the Board's rules provide only
for an appeal of a Regional Director's compliance determination. Because the Region
did not issue a compliance determination in this case, the mechanics' motion is not
properly before the Board. Further, there is no precedent supporting the mechanics'
assertion that the Regional Director's approval of the parties' non-Board settlement
constitutes a "compliance determination" under the Board's rules.
2
Section 102.53, provides that only a charging party adversely affected by a compliance
determination can appeal a compliance determination. The General Counsel concluded
that the mechanics here had no right to appeal the Regional Director’s failure to include
the mechanics as discriminatees in this matter because the Regional Director did not
issue a compliance determination, and the mechanics are not the charging party.
Lack of a compliance determination. The mechanics argue that because the
NLRB issued a written acceptance of the terms of the non-Board settlement agreement
between the Respondent Employer and the Charging Party Union as fully satisfying any
and all compliance obligations imposed on the Respondent Employer, that acceptance
was “a determination of full compliance, § 102.53 applies and the mechanics have the
right to challenge the Regional Director’s actions.” Request for Review, p. 6. However,
the non-Board settlement provided that the Charging Party Union would receive a lump
sum from the Respondent Employer, and the Charging Party Union - not the Board -
would determine which employees were entitled to a monetary payment and the
amounts they would receive.
Section 102.52 of the Board’s Rules states that:
After entry of a Board order directing remedial action, or the entry of a court
judgment enforcing such order, the Regional Director will seek compliance from
all persons having obligations under the order. As appropriate, the Regional
Director will make a compliance determination and notify the parties of that
determination. A Charging Party adversely affected by a monetary, make-whole,
reinstatement, or other compliance determination will be provided, on request,
with a written statement of the basis for that determination.
The provisions of this Section are specific regarding the circumstances in which a
regional director will issue a compliance determination letter, and contrary to the
mechanics’ contention, the fact that the Regional Director here issued a letter stating
3
that the Region considered the settlement to constitute full compliance by the
Respondent Employer does not equate to the issuance of a compliance determination
within the meaning of Section 102.52. As noted, the parties’ non-Board settlement
contemplates no involvement by the Board in the calculation or distribution of the funds.
In these circumstances, the Regional Director properly referred the mechanics to the
Charging Party Union’s attorney to resolve questions about their claims. Regarding the
mechanics claim that they may be aggrieved by the actions or inactions of the Charging
Party Union in distributing the settlement money, there is no provision in the Board’s
Rules for the Board to resolve that issue and, to the extent the mechanics believe that
they have been improperly denied payments under the settlement agreement, the
mechanics should seek relief from the Charging Party Union.
Lack of charging party status. Sections 102.52 and 102.53 of the Board’s Rules
contain no provision for individuals who are not charging parties to appeal compliance
determinations. Nevertheless, as pointed out by the mechanics, the General Counsel
and the Board considered an appeal by a non-charging party employee from a regional
director’s compliance determination in Seaport Printing & Ad Specialties, Inc., 15-CA-
017976, 2011 WL 6936390, at *5 (unpublished Order issued Dec. 30, 2011). In
Seaport, an individual who was a beneficiary under a Board make-whole order
challenged the calculations provided in the Region’s compliance determination letter.
The Board granted the employee’s request for review from the General Counsel’s denial
of his appeal from that letter, and remanded the matter to the Region for further
processing. However, although the Board addressed the individual’s request for review
in Seaport, that case does not support the same result here.
4
In Seaport, the employee who appealed the compliance determination was a unit
employee included in the make whole remedy in the Board’s order, and a compliance
determination letter was issued to him regarding the Region’s calculation of the amount
that he was owed. Here, conversely, there was no Board compliance determination,
and it is the Charging Party Union, not the Board, that controls the distribution of the
lump sum paid by the Respondent Employer pursuant to the parties’ non-Board
settlement agreement. Thus, even assuming that Seaport establishes that a non-
charging party employee may file an appeal to a compliance determination letter in
certain circumstances, we find that those circumstances are not present here.
Dated, Washington, D.C., September 20, 2017.
MARK GASTON PEARCE, MEMBER

LAUREN McFERRAN, MEMBER
MARVIN KAPLAN, MEMBER