Outokumpu Stainless USA, LLC v. National Labor Relations Board

Eleventh Circuit

Outokumpu Stainless USA, LLC v. National Labor Relations Board

CourtCourt of Appeals for the Eleventh Circuit

DecidedMay 13, 2019

Docket17-15498

StatusUnpublished

This text of Outokumpu Stainless USA, LLC v. National Labor Relations Board (Outokumpu Stainless USA, LLC v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Outokumpu Stainless USA, LLC v. National Labor Relations Board, (11th Cir. 2019).

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Opinion

Case: 17-15498 Date Filed: 05/13/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 17-15498, 18-10198 _______________________

Agency No. 15-CA-070319

OUTOKUMPO STAINLESS USA, LLC,

Petitioner/Cross-Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

________________________

Petitions for Review of a Decision of the National Labor Relations Board _______________________

(May 13, 2019)

Before WILSON, JILL PRYOR and TALLMAN, * Circuit Judges.

* Honorable Richard C. Tallman, Senior United States Circuit Judge for the Ninth Circuit, sitting by designation. Case: 17-15498 Date Filed: 05/13/2019 Page: 2 of 9

TALLMAN, Circuit Judge:

Outokumpu Stainless USA, LLC (the “Company”) petitions for review of an

order of the National Labor Relations Board (“NLRB” or the “Board”), which

cross-applies for its enforcement. We have jurisdiction under 29 U.S.C. §§ 160(e)

& (f). We deny the petition for review and grant the application for enforcement.

I

On April 30, 2012, the parties entered into a settlement agreement (the

“Settlement Agreement”) that resolved unfair labor practices charges filed by the

AFL-CIO accusing the Company of implementing illegal anti-union policies to

frustrate organizing efforts at one of its steel rolling mills in Alabama. The

Settlement Agreement required the Company to post a stipulated remedial notice

(the “Notice”) on its bulletin board and online intranet site for its employees. The

Settlement Agreement also required the Company to “comply with all the terms of

the provisions of [the] Notice,” which included revoking union-related rules for

employee activity on employer time and expunging employee disciplinary records

related to enforcement of those rules.

The Settlement Agreement further explicitly provided for default

proceedings

in case of non-compliance with any of the terms of this Settlement Agreement by the [Company] . . . . [T]he General Counsel may file a motion for default judgment with the Board on the allegations of the complaint. The [Company] understands and agrees that all of the

2 Case: 17-15498 Date Filed: 05/13/2019 Page: 3 of 9

allegations of the complaint will be deemed admitted and it will have waived its right to file an Answer to such complaint. The only issue that may be raised before the Board is whether the [Company] defaulted on the terms of this Settlement Agreement.

In advance of posting the Notice on May 17, 2012, the Company posted a side

letter (“Side Letter”) on the bulletin board and intranet site that, among other

things, (1) blamed the union for “prevent[ing employees] from exercising [their]

right to vote and hav[ing] a choice,” and (2) repeatedly emphasized that the

Company had not been “found guilty” of labor law violations. The Side Letter also

remained posted for the 60-day period that the Company was required to post the

Notice.

Subsequently, the NLRB’s Regional Director informed the Company that it

believed the Side Letter constituted non-compliance with the terms of the

Settlement Agreement, and thus the Board could set aside the Settlement

Agreement and enter a default judgment against the Company for the original

violations of the National Labor Relations Act, 29 U.S.C. § 158(a) (“Section

8(a)”). After a complex procedural history, the Board’s general counsel eventually

went forward with default proceedings on the union’s original Section 8(a) charges

of unfair labor practices by the Company under this theory of liability.

On November 16, 2015, the parties filed a joint motion and stipulation of

facts and exhibits, requesting that the noncompliance issues be decided without a

hearing based on the stipulated record. An administrative law judge (“ALJ”) then 3 Case: 17-15498 Date Filed: 05/13/2019 Page: 4 of 9

set aside the Settlement Agreement and entered a default judgment pursuant to the

terms of that agreement. The Board affirmed on appeal.

II

We review the Board’s factual findings for substantial evidence. N.L.R.B. v.

Contemporary Cars, Inc., 667 F.3d 1364, 1370 (11th Cir. 2012) (citing 29 U.S.C.

§ 160(e)). This is a narrow standard of review designed to allow disruption of

the NLRB’s decision only when the NLRB exercises its discretion “in an arbitrary

or capricious manner.” Id. (citing Daylight Grocery Co. v. N.L.R.B., 678 F.2d 905,

908 (11th Cir. 1982)). “It is for the Board to regulate its own procedures and

interpret its own rules, so long as it does not act unfairly or in an arbitrary and

discriminatory manner,” and we “give significant deference to the Board’s chosen

remedy.” N.L.R.B. v. Goya Foods of Fla., 525 F.3d 1117, 1125–26 (11th Cir.

2008). Moreover, the Board’s “interpretation of its own precedent is entitled to

deference.”1 Ceridian Corp. v. N.L.R.B., 435 F.3d 352, 355 (D.C. Cir. 2006); see

also Boch Imports, Inc. v. N.L.R.B., 826 F.3d 558, 568–69 (1st Cir. 2016) (same).

III

We address two issues: (1) whether posting the Side Letter constituted “non-

compliance with any of the terms of th[e] Settlement Agreement,” and (2) if so,

whether immediate entry of default judgment was permissible. We hold that the

1 The Company’s counsel did not dispute this proposition at oral argument. 4 Case: 17-15498 Date Filed: 05/13/2019 Page: 5 of 9

Company’s posting of the Side Letter constituted non-compliance with the terms of

the Settlement Agreement, and that default judgment was thus proper under the

plain terms to which the Company had previously agreed.

A

Non-compliance with the terms of a settlement agreement is a term of art in

labor law that has existed for almost 50 years in the Board’s precedent, see, e.g.,

Gould, Inc., 260 N.L.R.B. 54, 58 (1982) (holding that a side letter castigating the

union in an attempt to influence employee voting undermines the purpose of a

notice and thus amounts to “noncompliance with [the] terms” of a settlement

agreement); Arrow Specialties, Inc., 177 N.L.R.B. 306, 308 (1969), enfd. 437 F.2d

522 (8th Cir. 1971) (a company “had committed acts constituting non-compliance

with the terms of a settlement agreement and had breached the agreement” by

posting a similar side letter that “minimize[d] the effect of the Board’s notice”),

and is a principle that has been adopted by multiple circuits, including the Fifth

Circuit prior to the separation of this Court, see News-Texan, Inc. v. N.L.R.B., 422

F.2d 381, 384–85 (5th Cir. 1970); N.L.R.B. v. Union Nacional De Trabajadores,

611 F.2d 926

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