The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2009 Decided April 3, 2009
No. 07-1479
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
LOCAL 270, AFL-CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
OIL CAPITOL SHEET METAL, INC.,
INTERVENOR
No. 08-1009
CARPENTERS’ DISTRICT COUNCIL OF KANSAS CITY AND
VICINITY, LOCALS 311 AND 978, AFFILIATED WITH THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
EPI CONSTRUCTION COMPANY,
INTERVENOR
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Consolidated with 08-1039, 08-1081
On Petitions for Review and Cross-Application for
Enforcement of Orders of the
National Labor Relations Board
Michael T. Anderson argued the Standing and the Merits
of the Board’s Oil Capitol Rule for petitioner Sheet Metal
Workers International Association. With him on the briefs
were Arlus J. Stephens and Loren Gibson.
Michael J. Stapp argued the Standing and the Merits of
the Board’s Oil Capitol Rule for petitioners Carpenters’
District Council of Kansas City and Vicinity, Locals 311 and
978. With him on the briefs was Charles R. Schwartz.
Jason Walta, Attorney, National Labor Relations Board,
argued the Standing and the Merits of the Board’s Oil Capitol
Rule for respondent. With him on the brief were Ronald E.
Meisburg, General Counsel, John H. Ferguson, Deputy
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Meredith L. Jason, Supervisory Attorney.
Maurice Baskin argued the Standing and the Merits of the
Board’s Oil Capitol Rule for intervenor Oil Capitol Sheet
Metal, Inc. and amicus curiae Associated Builders and
Contractors, Inc. in support of respondent. With him on the
brief was Robert A. Hirsch.
Donald W. Jones argued the Merits of the Unfair Labor
Practices and filed the briefs for petitioner EPI Construction
Company.
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Steven Goldstein, Attorney, National Labor Relations
Board, argued the Merits of the Unfair Labor Practices for
respondent. With him on the brief were Ronald E. Meisburg,
General Counsel, John H. Ferguson, Deputy General Counsel,
Linda Dreeben, Deputy Associate General Counsel, and
Robert J. Englehart, Supervisory Attorney.
Michael J. Stapp argued the Merits of the Unfair Labor
Practices for intervenors Carpenters’ District Council of
Kansas City and Vicinity Locals 311 and 978.
Donald W. Jones was on the brief for intervenor EPI
Construction Company in support of respondent.
Before: ROGERS, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: “Salts” are union
members, and sometimes union employees, who apply for a
job with an unorganized employer, seeking either to organize
the employer’s workforce or to precipitate conditions
favorable to a future organizational campaign. See Oil
Capitol Sheet Metal, Inc., 349 NLRB 1348, 1348 n.5 (2007)
(“Oil Capitol”); NLRB v. Town & Country Elec., Inc., 516
U.S. 85, 87, 96 (1995). This case is about the National Labor
Relations Board’s new evidentiary rule for determining
backpay and instatement liability in cases of unfair labor
practices committed against salts. In Oil Capitol, the Board
concluded that “the traditional presumption that the backpay
period should run from the date of discrimination until the
[employer] extends a valid offer of reinstatement” did not
make sense in the salting context, given the limited duration
of salts’ employment objectives with the targeted employer
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(as opposed to those of regular job applicants, who typically
seek indefinite employment). Oil Capitol, 349 NLRB at
1349. Instead, the Board announced a new rule that would
require its General Counsel, “as part of his existing burden of
proving a reasonable gross backpay amount due, to present
affirmative evidence that the salt/discriminatee, if hired,
would have worked for the employer for the backpay period
claimed in the General Counsel’s compliance specification.”
Id. In a later case now also before us, the Board similarly
ordered that the rule should govern determination of the
remedy. Exceptional Professional, Inc., 350 NLRB 985, 985
n.5 (2007) (“EPI”).
The unions involved in the Oil Capitol and EPI orders are
challenging the Oil Capitol rule as discriminatory against
salts. Exceptional Professional, Inc., the responding employer
in the EPI case, also filed a petition, challenging several
adverse findings of unfair labor practices. The Board in turn
cross-applied to enforce these findings against Exceptional
Professional.
We do not get to the merits of the union petitioners’
challenge to the Oil Capitol rule; at this stage, with the
compliance proceedings still ahead, the challenge is unripe.
We therefore dismiss the petitions insofar as they attack the
Oil Capitol rule. As for the claims brought by Exceptional
Professional on the merits of the EPI order, we deny these
(and thus grant the Board’s cross-application to enforce the
order) in an unpublished judgment issued simultaneously with
this opinion.
* * *
First, a few words on the evidentiary standards governing
backpay calculations and the instatement remedy in unfair
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labor practice cases. The Board’s general course of action is
to “order[] the conventional remedy of reinstatement with
backpay, leaving until the compliance proceedings more
specific calculations.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
902 (1984). The point of the compliance proceedings is to
tailor the remedy to the facts of the violation. Id.
In all compliance proceedings, the burden of proving the
amount of backpay due lies with the Board’s General
Counsel. Oil Capitol, 349 NLRB at 1351. Before the Oil
Capitol decision, however, the Board applied a rebuttable
presumption that a discriminatee, salt or not, is entitled to
backpay from the date of unlawful refusal to hire to the date
of eventual instatement. See Tualatin Elec., Inc. v. NLRB,
253 F.3d 714, 718 (D.C. Cir. 2001). Because every
discriminatee was presumed likely to have remained with the
wrongdoing employer indefinitely but for the employer’s
unlawful conduct, the Board also presumed a right of
instatement. See Dean General Contractors, 285 NLRB 573,
575 (1987). The burden of overcoming these presumptions
rested with the responding employer. Of course the employer
“retain[ed] the correlative right to seek out and to present
evidence that a salt would not have” continued working for
the employer, “whether by reason of the union’s policies or of
its own.” Tualatin, 253 F.3d at 718. Contrary to the union
petitioners’ insistence, Sheet Metal Br. 18, there was no such
thing as a right to “immediate and unconditional” instatement
under the old rule; such a rule would have entailed automatic
Board orders requiring that the salt be offered a job before the
completion of compliance proceedings. Instead, instatement
and backpay issues are left to be resolved “by a factual
inquiry” in the compliance process. Dean, 285 NLRB at 575.
The Oil Capitol rule eliminates the rebuttable
presumption in cases involving union salts. Instead, the rule
places with the General Counsel the additional “burden of
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going forward with the evidence in regard to the length of the
backpay period” and “the burden of going forward with the
evidence that the discriminatee would still be employed by the
[responding employer] if he had not been the victim of
discrimination.” Oil Capitol, 349 NLRB at 1354.
Such evidence may include, but is not limited to, the
salt/discriminatee’s personal circumstances,
contemporaneous union policies and practices with
respect to salting campaigns, specific plans for the
targeted employer, instructions or agreements between
the salt/discriminatee and union concerning the
anticipated duration of the assignment, and historical data
regarding the duration of employment of the
salt/discriminatee and other salts in similar salting
campaigns.
Id. at 1349. And because instatement and backpay are closely
intertwined (truncation of the latter cuts off the former), the
right to instatement under the new rule “is subject to
defeasance . . . if, at the compliance stage, the General
Counsel fails to carry this burden of persuasion.” Id. at 1354.
* * *
The union petitioners are challenging the Oil Capitol rule
before seeing how it actually plays out in the compliance
proceedings. This poses a jurisdictional issue—whether the
challenge is ripe.
Ripeness depends on “[1] the fitness of the issues for
judicial decision and [2] the hardship to the parties of
withholding court consideration.” Fed. Express Corp. v.
Mineta, 373 F.3d 112, 118 (D.C. Cir. 2004) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967)). “In applying
the ripeness doctrine to agency action we balance the interests
7
of the court and the agency in delaying review against the
petitioner’s interest in prompt consideration of allegedly
unlawful agency action.” Id. (internal quotations omitted).
In Federal Express—a case dealing with the recovery of
losses that commercial airlines incurred as a result of post-
9/11 grounding orders—we held that petitioners’ challenge to
rebuttable accounting presumptions was not fit for review
before the agency made the calculations. First, we said, the
case dealt with rebuttable presumptions, leading to
“uncertain[ty] whether they will ever have the effect of
depriving any of the Carriers of any compensation.” Id. at
119 (declining “to anticipate a wrong when none may ever
arise” (internal quotation omitted)). And second, we reasoned
that “if and when [an actual wrong] does come to pass,
judicial review of the issue ‘is likely to stand on a much surer
footing in the context of a specific application of this
regulation than could be the case in the framework of the
generalized challenge made here.’” Id. (quoting Toilet Goods
Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967)).
These reasons apply with equal force in our case. First,
the compliance proceedings have not yet taken place, and so
at this point we do not know what effect, if any, the new
evidentiary rule will have on backpay and instatement
remedies. All that the Oil Capitol rule did was to remove a
rebuttable presumption, forcing the Board’s General Counsel
to present affirmative evidence that a discriminatee would
have remained with the employer up to the time of the
compliance decision. In Federal Express, challengers
attacked a rebuttable presumption; here they attack its
removal. The implication is the same—we do not know
whether the new rule will have any impact on the ultimate
remedy.
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Second, if and when the compliance proceedings do
result in an actual injury, the union petitioners’ challenge will
come to us in a concrete factual context, shedding light on
how the new rule operates in practice. The unions’ claims
here make details of the rule’s operation particularly vital.
They say the new rule will force them to turn over to the
General Counsel documents revealing their organizing
strategies, which they argue are the “equivalent of trade
secrets.” Sheet Metal Br. 13. These documents, the argument
goes, will then end up in the hands of “the very employer who
has already violated the Act to suppress organizing.” Id.
As the Board responds, however, we do not yet know
whether sensitive documents will be at issue, or whether the
risk of their exposure will be any greater than under the prior
rule. The General Counsel may choose to rely solely on the
discriminatees’ personal circumstances, obviating the need to
put union organizing strategies into evidence during the
compliance stage. NLRB Sheet Metal Br. 25. Alternatively,
if the unions believe the General Counsel’s subpoenas intrude
unduly into internal matters, they may resist, thus putting the
Board to a choice between petitioning for enforcement in the
district court, or proceeding without the information. See 29
C.F.R. § 102.31(b), (d). Even assuming the union’s
organizing plans will be introduced into evidence, and further
assuming they are in fact the equivalent of trade secrets—a
point the NLRB does not concede—the Board may be able to
shield the information from being disclosed to the employer.
“The Board is well equipped to ensure that a party’s sensitive
information is protected, whether through the use of protective
orders, in camera review, filing exhibits under seal, or
otherwise.” NLRB Sheet Metal Br. 27. The union petitioners
are contesting the existence and efficacy of these measures,
but the basic point remains true—we do not yet have enough
information to know. Further, as we said in Tualatin, the
employer was entitled under the old rule “to seek out and to
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present evidence,” 253 F.3d at 718, so it is quite unclear
whether there will be any increased scrutiny of union plans.
Delaying judicial review can eliminate guesswork in this area.
Lastly, we do not perceive any hardship to the union
petitioners from withholding our review at this point. The
petitioners fear losing the opportunity to challenge the Oil
Capitol rule if they wait until the compliance proceedings, but
they need not fear. While failure to object to a remedial rule
enunciated in a Board merits decision may forfeit an attack
when the remedial rule is objectionable on its face, see
Scepter, Inc. v. NLRB, 448 F.3d 388, 391–92 (D.C. Cir. 2006)
(contrasting NLRB v. Katz’s Delicatessen of Houston Street,
Inc., 80 F.3d 755, 771 (2d Cir. 1996)), the remedial rule here
is not objectionable on its face (for the reasons just
developed), and in any event the unions have (obviously)
raised their objections. See also Tualatin, 253 F.3d at 717–18
(allowing employer, after compliance proceeding, to
challenge the Dean presumption that preceded the Oil Capitol
rule). For now, therefore, the issue is unripe. And the same
goes for the Carpenters’ argument against applying the Oil
Capitol rule to events transpiring before its announcement.
* * *
The unions’ petitions for review are therefore
Dismissed.