EDRO Corp. v. National Labor Relations Board

650 F. App'x 789
CourtCourt of Appeals for the Second Circuit
DecidedMay 31, 2016
DocketNo. 15-1451; 15-1760
StatusPublished

This text of 650 F. App'x 789 (EDRO Corp. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
EDRO Corp. v. National Labor Relations Board, 650 F. App'x 789 (2d Cir. 2016).

Opinion

SUMMARY ORDER

This case comes to the Court on the petition of EDRO Corporation d/b/a Dyna-wash (“EDRO” or the “Company”) to review a final Decision and Order of the National Labor Relations Board (the “Board”) issued with respect to the Company on March 31, 2015, and the cross-petition of the National Labor Relations Board (“NLRB”)1 to enforce that Order. The Decision affirmed the rulings and findings of an Administrative Law Judge (“ALJ”) who concluded that the Company had violated Section 8(a)(3) and (1) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(3) & (1), by discharging employee Vincent Davis (“Davis”) on October 29, 2013 for his union activity. The Order amended the ALJ’s remedy and adopted his recommended Order requiring the Company to reinstate Davis as an employee and awarding him full backpay.

EDRO does not dispute that it unlawfully terminated Davis, but it raises two challenges to the Board’s remedy. First, the Company argues that reinstatement is improper because Davis was a “temporary employee” at the time of his termination. Second, the Company contends that reinstatement is improper, and full backpay excessive, because it would have lawfully fired Davis in any event on November 5, 2013, when it discovered his criminal record. In its cross-petition, the Board asks us to reject EDRO’s arguments and sum[791]*791marily affirm the uncontested portions of the Decision and Order, including the underlying finding that Davis was unlawfully terminated.

We review the Board’s factual findings, legal conclusions, and remedial decisions under deferential standards. “Factual findings of the Board will not be disturbed if they are supported by substantial evidence in light of the record as a whole.” N.L.R.B. v. Starbucks Corp., 679 F.3d 70, 77 (2d Cir. 2012) (quoting N.L.R.B. v. Caval Tool Div., 262 F.3d 184, 188 (2d Cir. 2001)). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

The Board’s legal conclusions, in turn, must stand if they have “a reasonable basis in law.” Caval Tool, 262 F.3d at 188. “Legal conclusions based upon the Board’s expertise should receive, pursuant to longstanding Supreme Court precedent, considerable deference.” Starbucks Corp., 679 F.3d at 77 (internal quotation marks omitted).

Further, the Board “has ‘broad discretion’ in fashioning remedial orders.” Mohave Elec. Co-op., Inc. v. N.L.R.B., 206 F.3d 1183, 1192 (D.C. Cir. 2000) (quoting ABF Freight System, Inc. v. N.L.R.B., 510 U.S. 317, 325, 114 S.Ct. 835, 127 L.Ed.2d 152 (1994)). “[T]he remedy selected ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Morrison-Knudsen Co. v. N.L.R.B., 275 F.2d 914, 917 (2d Cir. 1960) (quoting Virginia Elec. & Power Co. v. N.L.R.B., 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943)).

Applying those deferential standards here, we order the enforcement of the Board’s Decision and Order in its entirety. We assume the parties’ familiarity with the facts and record below, which we recount only as necessary to explain our decision.

I. Davis’s “Temporary” Status

EDRO hired Davis through a staffing company named Westaff on the following terms:

Westaff was to be Davis’ nominal employer and ... [EDRO] would pay his wage plus a premium to Westaff for Davis’ services. At the end of 520 hours, (13 weeks), [EDRO] had the option of hiring Davis as its own employee without paying an additional fee to Westaff. If [EDRO] decided to directly hire Davis before the 520 hours, it would incur a fee.

J.A. 254. At the time of Davis’s termination, his initial 13-week period of employment was not yet complete and the Company had not opted to hire him directly-

The Board concluded that under those circumstances, EDRO qualified as one of Davis’s employers at the time of his termination. The Company does not dispute that finding. It argues, however, that reinstatement is nonetheless improper because Davis was a “temporary employee” without a guarantee of continued employment. Appellant’s Br. at 19. According to EDRO, two prior decisions of the Board—Vemco, Inc., 314 N.L.R.B. 1235 (1994), and Huck Store Fixture Co., 334 N.L.R.B. 119 (2001), enforced, 327 F.3d 528 (7th Cir. 2003)— establish that reinstatement is an improper remedy where a temporary employee is wrongfully terminated. In each of those decisions, the Board chose not to order reinstatement after a user firm wrongfully terminated a temporary worker hired through a staffing company. Instead, the Board ordered the user firm to notify the staffing company “that it has no objection to [the temporary workers’] employment” [792]*792going forward. Vemco, 314 N.L.R.B. at 1242; see also Huck Store, 334 N.L.R.B. at 123.

The Board rejected EDRO’s argument. It concluded that Vemco and Huck Store were inapposite because in each case, unlike here, there was no finding that the user firm qualified as an employer of the temporary workers — a prerequisite for reinstatement. See J.A. 279 n.3. The Board cited, to the contrary, two decisions — Skill Staff of Colo., 331 N.L.R.B. 815 (2000), and D&F Indus., 339 N.L.R.B. 618 (2003) — in which user firms had been found to quality as the employers of temporary workers. See J.A. 278-79; D&F Indus., 339 N.L.R.B. at 648; Skill Staff, 331 N.L.R.B. at 822. In those decisions, as here, the Board ordered the user firms to reinstate the temporary workers as a remedy for their wrongful termination. See D&F Indus., 339 N.L.R.B. at 649 & n. 86; Skill Staff, 331 N.L.R.B. at 816, 822.

In our view, the Board’s distinction between the Vemco and Skill Staff lines of authority, and its reliance on the latter, has “a reasonable basis in law.” Caval Tool, 262 F.3d at 188. We also conclude that the Board’s decision to reinstate Davis despite his provisional status at the time of his wrongful termination ‘“can fairly be said to effectuate the policies of the Act.’ ” Morrison-Knudsen, 275 F.2d at 917 (quoting Virginia Elec., 319 U.S. at 540, 63 S.Ct. 1214). We therefore decline to reverse the Board’s reinstatement order on the ground that Davis was a “temporary” employee.2

II. EDRO’s Discovery of Davis’s Criminal Record

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Bluebook (online)
650 F. App'x 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edro-corp-v-national-labor-relations-board-ca2-2016.