Rochester Gas & Electric Corporation

National Labor Relations Board - Board Decisions

May 24, 2016

364 NLRB No. 6 (N.L.R.B. 2016)

364 NLRB No. 6
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rochester Gas & Electric Corporation and Local Un-
ion 36, International Brotherhood of Electrical
Workers, AFL–CIO. Case 03–CA–025915
May 24, 2016
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On August 16, 2010, the National Labor Relations
Board issued a Decision and Order finding, in relevant
part, that the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain over the effects of dis-
continuing its practice of allowing employees to drive
company vehicles to and from work.1 Among other
things, the Board ordered the Respondent to pay bargain-
ing unit employees the monetary value of the vehicle
benefit for a period of no less than 2 weeks, commencing
5 days after the date of the Board’s Decision and Order.2
On January 17, 2013, the United States Court of Appeals
for the Second Circuit entered its judgment enforcing, in
full, the Board’s Order.3
On November 5, 2015, the Acting Regional Director
for Region 3 issued a compliance specification and no-
tice of hearing alleging the amounts due under the
Board’s Order. On November 19, 2015, the Respondent
filed an answer admitting certain allegations in the speci-
fication and denying other allegations. The Respondent
denied the allegation in paragraph 1 of the specification
that the backpay period begins on August 23, 2010.4 The
Respondent asserted, rather, that the backpay period be-
gins on July 1, 2014, the date the Supreme Court denied
the Respondent’s petition for certiorari.
On January 27, 2016, the General Counsel filed with
the Board a Motion to Transfer Proceedings to the Board
for Summary Judgment and a brief in support, on the

1 355 NLRB 507.
2 355 NLRB at 508. The Board required the Respondent to compen-
sate employees for its failure to bargain over the effects of the loss of
the vehicle benefit in a manner similar to that required in Transmarine
Navigation Corp., 170 NLRB 389 (1968).
3 706 F.3d 73, cert. denied 134 S.Ct. 2898 (2014). On February 8,
2013, the court granted the Respondent’s motion to stay the court’s
mandate while the Respondent petitioned the Supreme Court for certio-
rari. On July 1, 2014, the Supreme Court denied the Respondent’s
petition, and on the same date, the Second Circuit issued its mandate.
4 The Respondent also denied the allegations in the specification
concerning the number of days certain employees worked during the
backpay period. The General Counsel concedes for the purposes of his
motion for summary judgment that the number of days worked are as
set forth by the Respondent in its answer.
ground that there are no issues of material fact in dispute
that would warrant a hearing in this matter. Also on Jan-
uary 27, 2016, the Respondent filed a cross-motion for
summary judgment and brief in support, agreeing that
there are no material questions of fact and that transfer of
the proceeding to the Board is appropriate. The Union
filed a brief in support of the General Counsel’s motion
and in opposition to the Respondent’s motion. On March
7, 2016, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
either motion should not be granted. The General Coun-
sel, the Respondent, and the Union each filed a re-
sponse.5
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Ruling on Motions for Summary Judgment
The parties agree that the only issue in this proceeding
is the legal question regarding the starting date of the
modified Transmarine remedy. The specification alleges
that the backpay period begins on August 23, 2010, 5
business days after the Board issued its Decision and
Order in the underlying unfair labor practice proceeding
on August 16, 2010, as stated in that decision. The Re-
spondent contends, however, that the backpay period
does not begin until July 1, 2014, the date the Supreme
Court denied the Respondent’s petition for certiorari.
The Respondent submits that starting backpay 5 days
after the Board issued its decision would impermissibly
penalize the Respondent for appealing when there were
debatable issues of law, and its only means of obtaining
review was to refuse to bargain. In the alternative, the
Respondent contends that the period of time that the Se-
cond Circuit stayed its mandate (February 8, 2013 until
July 1, 2014) should be excluded from the calculation, as
the Board’s order was also stayed during that time.
As noted above, the Board’s Decision and Order stated
that the Respondent is “to pay each employee the mone-
tary value of the vehicle benefit from 5 days after the
date of this Decision and Order until the occurrence of
the earliest of” one of five conditions. 355 NLRB at 508.
The Order’s requirement that payment is to commence 5
days after the issuance of the Order is in accordance with
well-established law.6 The Second Circuit enforced the

5 The Union filed a letter directing the Board’s attention to its previ-
ously filed brief.
6 The Regional Director determined that the backpay period should
be tolled as of August 22, 2014, because as of that date the Union had
failed to timely respond to the Respondent’s offer to bargain (and the
Respondent had provided relevant information), as required by the
Board’s Transmarine order. The General Counsel denied the Union’s
appeal of that determination. On September 2, 2015, the Board denied
the Union’s request for review of the General Counsel’s decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Board’s Order in full. Specifically, the court described
the Board-ordered Transmarine remedy, including that it
would commence “five business days after the date of
the Board’s decision”, and “affirm[ed] the determination
of the Board as to its chosen remedy.” 706 F.3d at 90–
91. Under Section 10(e) of the Act, the Board has no
jurisdiction to modify an Order that has been enforced by
a court of appeals because, upon the filing of the record
with the court of appeals, the jurisdiction of that court is
exclusive and its judgment and decree final, subject to
review only by the Supreme Court. 7 Scepter Ingot Cast-
ings, Inc., 341 NLRB 997, 997 (2004), enfd. sub nom.
Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C. Cir. 2006).8
The Respondent’s reliance on Yorke v. NLRB, 709
F.2d 1138 (7th Cir. 1983), cert. denied 465 U.S. 1023
(1984), is misplaced. In Yorke, the United States Court
of Appeals for the Seventh Circuit found, under the spe-
cific facts of that case, that the Board’s traditional
Transmarine remedy should be modified to commence
from the date of the court’s opinion rather than from the
Board’s Order. 709 F.2d at 1146. Because the Yorke
court expressly modified the starting date of the Trans-
marine remedy, no jurisdictional bar was present in that
case. In this case, unlike Yorke, the Second Circuit en-
forced the Board’s Order in full, including the starting
date of the backpay period.
Moreover, even assuming, arguendo, that we could
modify the starting date of the Transmarine remedy not-
withstanding Section 10(e) and the court’s enforcement
of our Order, we find no merit in the Respondent’s ar-
gument that we must do so to avoid penalizing the Re-
spondent. While the Respondent was clearly within its
rights to pursue all legal avenues available to it, includ-
ing petitioning the Supreme Court for certiorari, tolling
the accumulation of backpay during the pendency of the
Respondent’s appeals would unfairly shift the burden for
the delay to the wronged employees. As stated by the
Supreme Court in NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 264–265 (1969), “Wronged employees are
at least as much injured by the Board’s delay in collect-
ing their back pay as is the wrong doing employer. . . ..
[T]he Board is not required to place the consequences of
[such] delay, even if inordinate, upon wronged employ-
ees to the benefit of wrongdoing employers.” That ra-
tionale is even more compelling here, where there is no

7 Sec. 10(e) states, in relevant part: “Upon the filing of the record
with [the United States court of appeals] the jurisdiction of the court
shall be exclusive and its judgment and decree shall be final,” except
for potential further review by the Supreme Court. 29 U.S.C. § 160(e).
8 See also, Dupuy v. NLRB, 806 F.3d 556, 563–565 (D.C. Cir. 2015);
NLRB v. Mastro Plastics Corp., 261 F.2d 147, 148 (2d Cir. 1958).
contention that the Board was responsible for the delay
in the underlying litigation.9
Finally, there is no support for the Respondent’s alter-
native argument that the period of time that the Second
Circuit stayed its mandate should be excluded from the
backpay calculation. Section 10(g) of the Act expressly
provides that the commencement of proceedings in a
United States court of appeals pursuant to a petition for
enforcement or review “shall not, unless specifically or-
dered by the court, operate as a stay of the Board’s or-
der.” 29 U.S.C.A. § 160(g). No stay of the Board’s Or-
der was ever sought or granted, and the Respondent cites
no authority for its contention that the stay of the court’s
mandate operated as a stay of the Board’s Order. Indeed,
the Board rejected a similar argument in Louisiana In-
dustries, Inc., 182 NLRB 976, 980 fn. 16 (1970) (holding
that the stay of the court’s mandate “did not affect the
operability of the Board’s Order, but merely precluded
the Board from instituting contempt proceedings based
on the Respondent’s later refusal to bargain . . . while the
petition for a writ of certiorari was pending in the Su-
preme Court.”). See also Bob’s Big Boy Family Restau-
rants, 264 NLRB 432, 434 (1982) (“There is no merit to
the argument that a party’s duties under the Act are sus-
pended or relieved because litigation is pending before
the court of appeals. . . .”).
Accordingly, we grant the General Counsel’s motion
for summary judgment and deny the Respondent’s cross-
motion.
ORDER
The National Labor Relations Board orders that the
Respondent, Rochester Gas & Electric Corp., Rochester,
New York, its officers, agents, successors, and assigns,
shall make whole the employees named below by paying
them the amounts following their names, with interest
accrued to the date of payment as prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), compounded daily as set
forth in Kentucky River Medical Center, 356 NLRB 6
(2010), and minus tax withholdings required by Federal
and State laws:

9 We recognize that, in Yorke, the Seventh Circuit held that “the
Board cannot penalize the employer for challenging a Transmarine
order in good faith by imposing monetary liability retroactively to its
refusal to bargain after the Board’s decision.” 709 F.2d at 1146. See,
however, NLRB v. Emsing’s Supermarket, 872 F.2d 1279, 1291 (7th
Cir. 1989) (court rejected respondent’s request to apply holding in
Yorke and calculate Transmarine remedy from date of court decision
rather than Board order). We note that this case does not arise in the
jurisdiction of the Seventh Circuit and Yorke has not been followed in
other circuits.
ROCHESTER GAS & ELECTRIC CORP. 3
EMPLOYEE NAME AMOUNT DUE
Thomas Eichele $ 10,202.40
Steven Parnell 16,816.99
Jeffrey Pierce 7,006.09
Toney Proctor 4,342.30
Richard Shamp 10,487.40
Alfred Smith 15,076.26
John Spratt 20,965.10
Kim Williams 16,611.04
TOTAL AMOUNT DUE $101,507.58
Dated, Washington, D.C. May 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD