Brown & Root Power and Manufacturing Inc., a Subsidiary of Brown & Root, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2014

29-CA-028815 (N.L.R.B. Aug. 29, 2014)

1
MHS
Panama City, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BROWN & ROOT POWER AND MANUFACTURING
INC., A SUBSIDIARY of BROWN & ROOT, INC.
and Case 29-CA-028815
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRONSHIP BUILDERS,
BLACKSMITHS, FORGES AND HELPERS, AFL-CIO
and Case 29-CA-028814
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CANADA,
LOCAL UNION NO. 229
ORDER DENYING RENEWED MOTION FOR RECONSIDERATION1
For the reasons stated below, we deny the Charging Parties’ Renewed Motion for
Reconsideration. Given the complexity of the proceedings in this case, we set out the procedural
history in detail before turning to the merits of the present motion.
I. Procedural History
On September 28, 2007, the Board issued a Supplemental Decision and Order in this
proceeding,2 in which it held that the Respondent violated the Act by refusing to hire or consider

1 The National Labor Relations Board has delegated its authority in this proceeding to a three-
member panel.
2 On August 13, 1996, Administrative Law Judge J. Pargen Robertson issued his decision in this
proceeding. The Respondent filed exceptions and a supporting brief, and the General Counsel
and Charging Party Boilermakers filed cross-exceptions and supporting briefs. On June 7, 2000,
the Board remanded the proceeding to the judge for consideration in light of the Board’s decision
in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). The judge issued a supplemental
2
for hire 56 job applicants, owing to antiunion animus. See Brown & Root Power & Mfg., 351
NLRB 168 (2007). The Board directed, in relevant part, that the evidentiary standards set forth
in Oil Capitol Sheet Metal, 349 NLRB 1348 (2007), be applied at the compliance stage in
determining issues related to instatement and the duration of the backpay period. See id. at 172.
The General Counsel and Charging Party Union, International Brotherhood of
Boilermakers (“Charging Party IBB”), filed timely motions for reconsideration regarding the
application of Oil Capitol. Specifically, the General Counsel argued that the retroactive
application of Oil Capitol would cause a manifest injustice because the parties had relied to their
detriment on the former rule of Dean General Contractors, 285 NLRB 573 (1987), and that,
given the passage of time, it might be impossible to establish the elements of Oil Capitol. The
General Counsel also argued that retroactive application of Oil Capitol would further delay
remedying the Respondent’s unfair labor practices. Charging Party IBB argued that Oil Capitol
was wrongly decided and, in any event, should not be retroactively applied. Charging Party IBB
also argued that it had not been established that the discriminatees were “salts” and that the
Board’s 2000 remand order to the judge established Dean General as the law of the case. On
August 29, 2008, in an unpublished decision, a two-member Board analyzed these arguments
and denied the motions, finding that they did not present any extraordinary circumstances
warranting reconsideration.3

decision on May 10, 2001. Thereafter, the General Counsel, Charging Party Boilermakers, and
the Respondent filed exceptions and supporting briefs.
3 Then-Member Liebman noted her dissent in Oil Capitol, but concurred in the denial of the
motions for institutional reasons. In doing so, she noted that while claims of manifest injustice
resulting from retroactive application of a new legal rule should be considered on a case-by-case
basis, denying the motions avoided delay in the disposition of the case, including the completion
of the compliance proceeding. Member Liebman further stated her view that if retroactive
application of Oil Capitol “had a demonstrably adverse effect on the backpay award in this case,
the General Counsel or the Charging Party would be free to pursue the manifest injustice issue.”
3
On May 20, 2010, the Second Circuit denied Charging Party IBB’s petition for review of
the Board’s 2007 Brown & Root decision. See International Brotherhood of Boilermakers v.
NLRB, 377 Fed.Appx. 125 (2d Cir. 2010). In so doing, the court, relying on a decision by the
D.C. Circuit in the direct appeal of the Board’s Oil Capitol decision, found that Charging Party
IBB’s challenge to the application of Oil Capitol in this proceeding was not ripe because the case
had not yet gone to compliance. See id. at 127, citing Sheet Metal Workers International
Association, Local 270, AFL-CIO v. NLRB, 561 F.3d 497 (D.C. Cir. 2009). The court therefore
dismissed the petition without prejudice to the ability of Charging Party IBB to renew its
arguments concerning Oil Capitol after the compliance proceedings had been conducted. See id.
at 128, 129.
On May 25, 2010, Charging Party IBB filed with the Board a “Motion for Briefing and/or
Consolidation or in the Alternative Stay in the Above-Referenced Case,” requesting that the
Board take the case for further briefing and to consider whether Oil Capitol should be overturned
or, alternatively, to stay compliance proceedings pending a decision on cases raising the Oil
Capitol issue. On June 17, 2010, the Supreme Court issued its decision in New Process Steel v.
NLRB, 560 U.S. 674 (2010), finding that two-member Board lacked a proper quorum. Also on
June 17, Charging Party IBB filed with the Board a document entitled “Supplemental Authority
in Support of Motion for Briefing and/or Consolidation or in the Alternative Stay,” arguing that
under New Process, supra, the Board lacked a proper quorum when it denied Charging Party
IBB’s Motion for Reconsideration on August 29, 2008, and that the then-current Board, with a
proper quorum, should consider Charging Party IBB’s previously filed motion for
reconsideration.
4
On June 23, 2011, in an unpublished Supplemental Order, a properly constituted three-
member panel of the Board denied Charging Party IBB’s May 25, 2010 motion in its entirety. In
addition, the Board, citing The Lorge School, 355 NLRB 558 (2010), and applying the principles
of res judicata, denied Charging Party IBB’s request that the Board reconsider its August 29,
2008 Order denying the General Counsel’s and Charging Party IBB’s motions for
reconsideration.
On February 27, 2013, the Region issued an Amended Compliance Specification and
Notice of Hearing, which the Respondent answered on May 6, 2013. On October 25, 2013, the
Respondent filed a petition for review with the D.C. Circuit, challenging the Board’s underlying
2007 Brown & Root decision to the extent it found that the Respondent violated the Act and
ordered remedial action and other relief.4 The D.C. Circuit placed the case into abeyance
pending the outcome of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550
(2014).
II. The Present Motion
On November 25, 2013, Charging Party IBB and Charging Party United Association of
Journeymen and Apprentices of the United States and Canada, Local Union No. 366
(collectively, the “Charging Parties”) filed the present “Renewed Motion for Reconsideration,”
along with a brief in support of this motion, requesting that the Board reconsider its 2007 Brown
& Root decision, reported at 351 NLRB 168.5 The Respondent filed an opposing brief. In their

4 The petition for review states that, in the event the court finds that the Respondent violated the
Act, the Respondent does not challenge the Board’s decision that the backpay period for any salt,
who is determined at compliance to be entitled to instatement and/or a make-whole remedy, shall
be determined in accordance with Oil Capitol.
5 Charging Party United Association of Journeymen and Apprentices of the United States and
Canada, Local Union No. 366 did not submit a motion for reconsideration following the issuance
of the Board’s 2007 Brown & Root decision, but on brief in the instant renewed motion “adopts
5
motion, the Charging Parties assert that because the 2007 Brown & Root decision is over 6 years
old, the D.C. Circuit lacks the Board’s current interpretation of the Act when considering the
Respondent’s October 25, 2013 petition for review. They also maintain that the confirmation of
the five-member Board supports renewed reconsideration.
We find the Charging Parties’ “Renewed Motion for Reconsideration” to be untimely.
Motions for reconsideration must be filed within 28 days of the Board’s decision or order under
Section 102.48(d)(2) of the Board’s Rules and Regulations. Here, the Charging Parties filed the
renewed motion over 6 years after the Board’s underlying 2007 Brown & Root decision and over
2 years after the Board issued its last order in this proceeding on June 23, 2011. Although the
Charging Parties appear to contend that the present motion is timely because Charging Party
IBB’s original motion for reconsideration was timely filed, we reject this contention. We also
reject the Charging Parties’ request that the Board exercise its discretion under Section
102.48(d)(2) to extend the filing period. The Charging Parties maintain that exercise of such
discretion is justified because in light of New Process Steel, supra, the two-member Board’s
August 29, 2008 Order denying Charging Party IBB’s original motion for reconsideration was
invalid. However, this argument inexplicably ignores the Board’s June 23, 2011 Supplemental
Order, issued by a properly constituted three-member panel, which effectively resolved all
motions pending before the Board in this proceeding.6
Even assuming the Charging Parties’ renewed motion is timely, they have not identified
any material error or demonstrated extraordinary circumstances warranting reconsideration under

the IBB’s Motion for Reconsideration, filed November 16, 2007, as its own.” The General
Counsel has not filed another motion for reconsideration.
6 Although Charging Party IBB’s document was styled as a “Motion for Briefing and/or
Consolidation or in the Alternative Stay in the Above-Referenced Case,” it was, in substance, a
request for reconsideration.
6
Section 102.48(d)(1) of the Board’s Rules and Regulations. The Charging Parties cite no Board
precedent to support their assertion that a supposed need to provide an appeals court with a
restatement of the law constitutes an extraordinary circumstance warranting reconsideration.
Nor does the confirmation of a full complement of Board members warrant the reconsideration
sought here. See Visiting Nurse Health System, 338 NLRB 1074 (2003) (changes in the
composition of the Board after the issuance of a decision is an inappropriate ground for
reconsideration).
Accordingly, having duly considered the matter, the Board finds that the Charging Parties
have not raised any extraordinary circumstances warranting reconsideration of the Board’s
decision under Section 102.48(d)(1) of the Board’s Rules and Regulations.
IT IS ORDERED, therefore, that the Charging Parties’ renewed motion for
reconsideration is denied.
Dated, Washington, D.C., August 29, 2014
____________________________________
Philip A. Miscimarra, Member
____________________________________
Kent Y. Hirozawa, Member
____________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD