Opinion
Nos. 09-0099-ag (L), 09-0864 (XAP).
December 23, 2009.
Appeal from a December 24, 2008 order of the National Labor Relations Board.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED the petition for review is DENIED and NLRB's cross-petition for enforcement is GRANTED.
Paul M. Sod, Lawrence, NY, for Petitioner-Cross-Respondent.
Jill A. Griffin (Gregory P. Lauro, Attorney, on the brief, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, of counsel) National Labor Relations Board, Washington, D.C., for Respondent-Cross-Petitioner.
PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, and B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Petitioner-cross-respondent Kingsbridge Heights Care Center, Inc. ("Kingsbridge") petitions for review of an order and decision of respondent-cross-petitioner National Labor Relations Board ("NLRB" or the "Board") which found that Kingsbridge failed to make complete contributions to various union-sponsored employee-benefit funds, in violation of the National Labor Relations Act, as amended, 29 U.S.C. § 151, 160(a) (the "Act"). The NLRB ordered Kingsbridge to reimburse the funds with the contributions that Kingsbridge had failed to make as well as to make employees whole for losses suffered. We assume the parties' familiarity with the remaining facts, procedural history, and issues on appeal.
On appeal, Kingsbridge argues that (1) the Board's order should be vacated for lack of a quorum of Board members, and (2) the Board erred in ordering repayment of all unpaid contributions without concrete evidence of the employees' interests in the benefit funds, making repayment a windfall to the funds. The NLRB seeks, as cross-petitioner, enforcement of its order of December 24, 2008, 2008 WL 5382911.
Kingsbridge's first argument, that the Board's order should be vacated because it was decided by only two members of the NLRB, was rejected by our Court in Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), which held that a two-member quorum may issue enforceable decisions. Here the Board's decision was issued by its two then-active members acting as a quorum of a three-member group to which the Board had previously designated all of its powers as permitted by the Act. Accordingly we move to the merits of the petition.
Kingsbridge contends that the Board erred by ordering the company to pay into the union funds the contributions it failed to make on behalf of its union employees, and to continue to make the required timely contributions until the parties reach an agreement or bargain to impasse. Under the Act, the Board may design a remedy for a violation of the Act that restores "the economic status quo that would have obtained but for the [unfair labor practice]." NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). The Board has "broad" discretion in formulating remedies, "subject to limited judicial review." Fibreboard Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). This Court accords deference to the remedies imposed by the Board, see NLRB v. Coca-Cola Bottling Co., 191 F.3d 316, 323 (2d Cir. 1999), and we will enforce a Board order "where [the Board's] legal conclusions are reasonably based, and its factual findings are supported by substantial evidence on the record as a whole." NLRB v. Katz's Delicatessen of Houston Street, Inc., 80 F.3d 755, 763 (2d Cir. 1996). We will overturn a remedy imposed by the Board only where it is proven to be "a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." NLRB v. Fugazy Continental Corp., 817 F.2d 979, 982 (2d Cir. 1987) (quoting Va. Elec. Power Co., 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943)).
Kingsbridge contends that "literal compliance" with the remedy imposed is punitive, speculative, and will result in a windfall to the union funds. However, on this record, we do not find the Board's order requiring reimbursement of those employees to be punitive or "a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Id. And, in any event, finding the Board's remedy unreasonable at this stage would be premature — the Board has yet to determine how Kingsbridge's payments should be structured because there has been no compliance proceeding. Compliance determinations are routinely made "after entry of a Board order directing remedial action, or the entry of a court judgment enforcing such [an] order." 29 C.F.R. § 102.52. "Formal proceedings, including a hearing before an ALJ, are instituted when it is necessary to resolve compliance issues." Katz's Delicatessen, 80 F.3d at 771 (citing 29 C.F.R. § 102.54).
Kingsbridge relies on our decision in Manhattan Eye Ear Throat Hosp. v. NLRB, where we declined to enforce the Board's order. 942 F.2d 151 (2d Cir. 1991). Manhattan Eye held that proper remedies must not provide windfalls to union funds and that "before the Board may award backpayments for failure to pay into the [union funds], it must have concrete evidence that the [employees] have an economic interest in the future of those [funds]." Id. at 157-58. However, that case was decided only after the NLRB had conducted compliance proceedings. Indeed, we have likened NLRB compliance proceedings "to the damages phase of a civil proceeding." Katz's Delicatessen, 80 F.3d at 771. We do not see a compelling reason to depart from the procedural posture of our precedent.
Accordingly, we remand this case to the NLRB, with instructions to initiate formal compliance proceedings in accordance with 29 C.F.R. § 102.54 to resolve remaining questions. "In doing so, we . . . emphasize that the compliance proceedings should aim to restore [the employer's] individual employees to the position they would have occupied had [Kingsbridge] not violated the NLRA, without creating a windfall for [the union]." Id. at 771-72.
CONCLUSION
For the reasons stated above, the petition for review is DENIED and NLRB's cross-petition for enforcement is GRANTED.