King Soopers, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 2017 Decided June 9, 2017

No. 16-1316

KING SOOPERS, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 16-1367

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Raymond M. Deeny argued the cause for petitioner. With

him on the briefs was Jonathon M. Watson.

Amy H. Ginn, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Richard F. Griffin, Jr., General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, and Robert J. Englehart, Supervisory

Attorney.

2

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge: Petitioner King Soopers,

Inc. (“King Soopers” or “the Company”) owns and operates a

grocery store in Denver, Colorado, where its employees are

represented by the United Food and Commercial Workers,

Local 7 (“Union”). Wendy Geaslin was a member of the Union

who worked as a barista at the Starbucks kiosk located inside

of the store until she was terminated in May of 2014. Geaslin

filed a charge with the National Labor Relations Board

(“NLRB” or “the Board”), and the Board’s General Counsel

issued a complaint against the Company asserting multiple

violations of the National Labor Relations Act (“the Act”).

Following a hearing before an Administrative Law Judge

(“ALJ”), the Board held that King Soopers had violated

Sections 8(a)(1) and (3) of the Act by twice suspending and

finally discharging Geaslin for engaging in protected activity,

and, additionally, violated Section 8(a)(1) of the Act by

unlawfully interrogating Geaslin about complaints that she

raised with the Union. The Board ordered the Company, inter

alia, to reinstate Geaslin with make-whole relief.

In providing make-whole relief for Geaslin, the Board

ordered the Company to reimburse her for search-for-work and

interim employment expenses regardless of whether those

expenses exceeded her interim earnings. In the past, the Board

had declined to award search-for-work and interim

employment expenses that exceeded a complainant’s interim

earnings, but the Board acknowledged that it had never

explained or justified its approach. In this case, the Board found

that its traditional approach not only failed to make victims of

unlawful discrimination whole, but also likely discouraged

complainants in their job search efforts. The Board thus

3

concluded that its new remedial framework was necessary to

ensure that make-whole remedies fully compensated

unlawfully discharged employees for the losses they incurred

and deterred further violations of the Act.

In its petition for review, the Company argues that the

Board’s decision should be set aside on four principal grounds:

(1) the Board erred by not deferring to the grievance/arbitration

procedures adopted by the Company and Union in their

collective bargaining agreement; (2) the Board erred in

adopting the ALJ’s credibility determinations and in finding

that the Company violated the Act by interrogating, twice

suspending, and terminating Geaslin; (3) the Board erred in

permitting the General Counsel to amend the Complaint twice

to add a request for an enhanced remedy and to add the

unlawful interrogation charge; and (4) the Board erred in

expanding the Act’s remedies to include search-for-work and

interim employment expenses regardless of an alleged

discriminatee’s interim earnings. We agree with the Company

that the Board’s determination that King Soopers unlawfully

interrogated Geaslin must be vacated because this charge was

not added to the General Counsel’s complaint until after the

commencement of the hearing before the ALJ. The Company

thus had no reasonable notice of the interrogation charge or a

fair opportunity to defend itself. We find no merit in King

Soopers’ remaining claims.

We grant the Board’s cross-application for enforcement as

to all matters except the finding that the Company violated the

Act when it allegedly interrogated Geaslin about complaints

that she raised with the Union. We grant the Company’s

petition for review on the interrogation charge, but deny the

petition for review as to all other matters.

4

I. Background

Two collective bargaining agreements (“CBAs”) cover the

employees at the King Soopers grocery store where the events

in this case occurred. The “Meat Agreement” primarily applies

to workers in the meat, deli, and seafood departments. The

“Retail Agreement” covers the Company’s retail workers and

clerks, including those whose duties involve bagging sold

merchandise. The contracts generally restrict bargaining unit

work to members of the respective units. Article 2, Section 2

of the Meat Agreement states that “[a]ll work performed in the

meat, delicatessen and seafood department(s) will be done by

members of the bargaining unit.” Similarly, Article 2, Section

2 of the Retail Agreement states that “[a]ll work and services

performed in the bargaining unit connected with the handling

or selling of merchandise to the public shall be performed

exclusively by bargaining unit members.” However, both

Agreements allow employees to perform “incidental” work

outside of their classification.

Geaslin worked for King Soopers from August 2009 until

May 21, 2014. As a barista in the coffee department, she was

covered by the Meat Agreement. In the months leading up to

her termination, Geaslin and her supervisor, Theresa Pelo, had

a number of disagreements regarding Geaslin’s work

responsibilities. These disputes eventually led to Geaslin’s

discharge.

In March of 2014, Geaslin complained to her coworker,

Latrice Jackson, about the Company’s practice of sometimes

requiring baristas to help the bakery department prepare its

products for sampling. Geaslin did not know it at the time, but

Jackson was a Union steward and brought these complaints to

the attention of King Soopers management. Pelo allegedly

asked Geaslin whether she had complained to the Union. When

5

Geaslin denied having done so, Pelo accused her of failing to

tell the truth. However, no action was taken by the Company

against Geaslin with respect to this matter.

On May 9, 2014, when the supermarket was very busy,

Pelo instructed available employees, including baristas, to help

bag groceries. Geaslin informed Pelo that she was scheduled to

take her lunch break, but Pelo told her to first assist with

groceries. Geaslin then questioned whether she should be

bagging groceries at all, based on her understanding of the

applicable terms of the collective bargaining agreement. Pelo

again ordered Geaslin to bag groceries. While some facts were

disputed, the Board determined that Geaslin walked towards

the checkout station to do as instructed, but raised her hands in

the air and commented that she was just asking about her lunch

break. Pelo then called Geaslin back to her to continue talking.

At Geaslin’s suggestion, the two went to Pelo’s office, along

with an assistant manager who had witnessed part of the

exchange. In the office, Geaslin and Pelo engaged in a heated

discussion. Pelo accused Geaslin of refusing to bag groceries.

Geaslin asserted that she had been on her way to bag when Pelo

stopped her. Geaslin also continued to insist that she should not

be required to pack groceries under the terms of her CBA. Pelo

then placed Geaslin on a five-day suspension for

insubordination. Geaslin responded by contacting her Union

representative, Danny Craine.

On May 14, Geaslin and Craine met with Pelo and two

other managers to discuss Geaslin’s suspension. This meeting

was also contentious, and both Geaslin and Pelo became

agitated. Pelo admitted that Geaslin was not supposed to bag

groceries under the terms of the CBA, but again accused her of

refusing to listen to the instructions that were given to her on

May 9. Geaslin, in turn, insisted that she had not refused to

follow Pelo’s instruction, and Craine asserted that requiring

6

Geaslin to bag groceries violated the applicable terms of the

CBA. During the course of the discussion, Geaslin also made

facial expressions which Pelo took to be disrespectful. The

meeting ended with Pelo placing Geaslin on a second five-day

suspension based on Geaslin’s allegedly insubordinate

behavior during the meeting. Subsequently, on May 21, Pelo

met with Geaslin and Craine and advised them that Geaslin was

being terminated due to her “gross misconduct” during the May

14 meeting.

Geaslin filed a grievance pursuant to the procedures in the

parties’ collective bargaining agreement. The Company denied

the grievance. Geaslin then presented her grievance to the

Union’s Executive Grievance Committee, which decided not

to pursue it. Geaslin appealed this decision to the Executive

Board of the Union, which declined to appeal the grievance to

arbitration. Union officials never explained on the record their

reasons for declining to pursue Geaslin’s grievance.

Geaslin then filed unfair labor practice charges with the

NLRB. The General Counsel issued a complaint against King

Soopers, accusing it of violating Sections 8(a)(1) and (3) of the

Act by twice suspending and then terminating Geaslin in

response to her protected activity. The General Counsel later

moved to amend the complaint twice. The first motion, made

five days prior to the hearing, sought to expand the remedies

available to Geaslin to include reimbursement for all search-

for-work and work-related expenses, regardless of her interim

earnings. Later, during the course of the hearing before the

ALJ, the General Counsel moved to amend the complaint to

assert that Pelo had unlawfully interrogated Geaslin about her

union activities in March of 2014. The ALJ allowed both

amendments and also denied King Soopers’ motion to defer the

charges to the grievance/arbitration procedures in the parties’

collective bargaining agreement.

7

The ALJ found King Soopers had committed the unfair

labor practices as alleged, and the Board largely endorsed the

ALJ’s rulings, findings, and conclusions. The Board

determined that Pelo had unlawfully questioned Geaslin about

her Union-related activity in March. It also held that Geaslin

had engaged in protected activity on May 9 when she

questioned whether she should bag groceries, and on May 14

when she and Craine met with the Company’s managers.

Applying the test from Atlantic Steel Co., 245 NLRB 814

(1979), the Board stated that Geaslin’s “conduct during the

May 9 and 14, 2014 meetings did not cause her to lose the

protection of the Act.” King Soopers, Inc., 364 NLRB No. 93,

at 3 (2016). The Board therefore found that the Company had

violated the Act by twice suspending and finally terminating

Geaslin in response to her protected activity.

Much of the Board’s decision is devoted to the “search-for-

work and work-related expenses” make-whole remedy. Prior

to the Board’s decision in this case, recovery of these expenses

was limited by a worker’s interim earnings. However, as noted

above, the Board acknowledged that it “ha[d] never provided

an explanation or reasoned policy rationale for its” approach.

Id. at 5.

In addressing the make-whole remedy question, the Board

found that “[t]he practical result of [its] traditional approach

has been less than make-whole relief for the most seriously

aggrieved victims of unlawful conduct, contrary to the central

remedial principle underlying the Act.” Id. The Board

concluded that amending its approach would better effectuate

the purposes of the Act, and would additionally deter bad

behavior without running afoul of the Act’s prohibition on

punitive damages. Id. at 5–7. Member Miscimarra dissented

from the Board’s remedial change.

8

King Soopers petitioned for review, and the Board cross-

applied for enforcement. We have jurisdiction to decide this

case pursuant to 29 U.S.C. §§ 160(e) and (f).

II. Analysis

A. Standard of Review

It is well understood that we may set aside a decision of

the Board “when it departs from established precedent without

reasoned justification, or when the Board’s factual

determinations are not supported by substantial evidence.”

Titanium Metals Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir.

2004) (citations omitted). Substantial evidence “means such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Micro Pac. Dev. Inc. v.

NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999). Pursuant to this

standard, we will reverse a judgment of the Board “only when

the record is so compelling that no reasonable factfinder could

fail to find to the contrary.” Bally’s Park Place, Inc. v. NLRB,

646 F.3d 929, 935 (D.C. Cir. 2011) (quotation marks omitted)

(quoting United Steelworkers of Am. v. NLRB, 983 F.2d 240,

244 (D.C. Cir. 1993)). In evaluating the record, we “accept all

credibility determinations made by the ALJ and adopted by the

Board unless those determinations are ‘patently

insupportable.’” Inova Health Sys. v. NLRB, 795 F.3d 68, 80

(D.C. Cir. 2015) (quoting Traction Wholesale Ctr. Co. v. NLRB,

216 F.3d 92, 99 (D.C. Cir. 2000)).

It is also well understood that the Board has broad

authority to allow amendments to complaints, but this mandate

“is limited by fundamental principles of fairness.” Bruce

Packing Co. v. NLRB, 795 F.3d 18, 23 (D.C. Cir. 2015).

9

Finally, a remedy “will not be disturbed ‘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.’” Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.

203, 216 (1964) (quoting Va. Elec. & Power Co. v. NLRB, 319

U.S. 533, 540 (1943)).

B. The Board Was Not Obliged to Defer to the Negotiated

Grievance and Arbitration Procedures Adopted by the

Company and Union in Their CBA

As a threshold matter, the Company asserts that the Board

was required to defer this matter to the grievance and

arbitration procedures outlined in the CBA covering Geaslin.

We disagree. On the facts of this case, the Board reasonably

found that deferral was inappropriate.

The Board has long declined to adjudicate disputes that are

better resolved pursuant to the terms of grievance/arbitration

procedures adopted by employers and unions in their collective

bargaining agreements.

[I]t was long ago recognized by the Board that it was

contrary to the purposes of the [Act] for the Board to

assume the role of policing collective contracts

between employers and labor organizations by

attempting to decide whether disputes as to the

meaning and administration of such contracts

constitute unfair labor practices under the Act. . . .

[T]here has been a historical acceptance of

arbitration as a legitimate means of resolving labor

disputes. Simply stated, the Board’s willingness to

defer to arbitration reflects the underlying conviction

that the parties to a collective-bargaining agreement

are in the best position to resolve, with the help of a

10

neutral third party if necessary, disputes concerning

the correct interpretation of their contract.

Harry T. Edwards, Deferral to Arbitration and Waiver of the

Duty to Bargain: A Possible Way Out of Everlasting Confusion

at the NLRB, 46 OHIO ST. L.J. 23, 24–25 (1985) (footnotes and

quotation marks omitted) (discussing the early evolution of the

Board’s deferral doctrine).

Over the years, the deferral doctrine has expanded to

include a number of situations in which purported unfair labor

practices are subject to resolution pursuant to the parties’

contractual grievance procedures.

• If a CBA explicitly provides for arbitration of what

might be an unfair labor practice charge, see Babcock

& Wilcox Constr. Co., 361 NLRB No. 132, at 13

(2014), “the Board will not pursue unfair labor practice

proceedings until arbitration has run its course.”

DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 438

(D.C. Cir. 2002) (discussing Collyer Insulated Wire,

192 NLRB 837 (1971)). As the Board has explained,

“[w]here an employer and a union have voluntarily

elected to create dispute resolution machinery . . . it is

contrary to the basic principles of the Act for the Board

to jump into the fray prior to an honest attempt by the

parties to resolve their disputes through that

machinery.” United Techs. Corp., 268 NLRB 557, 559

(1984).

• Relatedly, the Board will not pursue unfair labor

practice charges if an employee, who is free to do so,

has declined to exhaust all available contractual

grievance procedures. See Gen. Dynamics Corp., 271

NLRB 187 (1984). In General Dynamics, an employee

11

grieved his discipline, but only completed four of the

five steps outlined in the CBA. Id. Prior to arbitration,

he withdrew his grievances and filed a charge with the

Board. The Board deferred the case based on the

“fundamental . . . concept of collective bargaining that

the parties to a collective-bargaining agreement are

bound by the terms of their contract.” Id. at 189

(quoting United Techs. Corp., 268 NLRB at 559). The

Board thus declined to pursue the unfair labor practice

charges of the employee in a situation in which the

employee had declined to pursue the contract

procedures that were available to address his claims.

• The Board will also accept the results of arbitration, so

long as the arbitrator’s decision meets certain criteria.

See Babcock & Wilcox, 361 NLRB No. 132, at 5.

• Deferral is required when there has been a full and fair

final disposition of a grievance that is rendered pursuant

to a grievance procedure in the parties’ CBA, whether

or not the matter was appealed to formal arbitration. See

Am. Freight Sys. v. NLRB, 722 F.2d 828 (D.C. Cir.

1983). In American Freight, an employee “pursued a

contract grievance claim . . . over precisely the same

question that was subsequently presented to the

NLRB.” Id. at 829. Pursuant to the terms of the CBA

between the union and employer, a “Grievance

Committee” composed of three union and three

employer representatives conducted a full hearing and

rejected the employee’s claim. Id. at 830. The employee

then filed an unfair labor practice charge with the

Board, which refused to defer the matter. We held that

the Board’s decision was an abuse of discretion because

“the Grievance Committee’s decision satisfied all of the

Board’s deference requirements.” Id. at 832.

12

• Deferral is likewise appropriate where there is a pre-

arbitration settlement agreement, so long as certain

requirements are met. See Babcock & Wilcox, 361

NLRB No. 132, at 13 (discussing and modifying the

doctrine set out in Alpha Beta, 273 NLRB 1546 (1985),

and Postal Serv., 300 NLRB 196 (1990)).

The situation in this case does not fit any of these deferral

paradigms. Therefore, there is no controlling precedent that

required the Board to defer in this case. Furthermore, we agree

with the Board that it acted reasonably in declining to defer

Geaslin’s unfair labor practice charges to the grievance

procedures in the CBA. Geaslin made every effort to pursue

her grievances under the CBA, but she was rebuffed. Given

these circumstances, the Board surely was not required to defer

in this case.

After being discharged, Geaslin filed a grievance, which

was denied by the Company. She then appealed the matter to

the Executive Grievance Committee of the Union, seeking to

have her claims pursued in arbitration. This Committee denied

her request, with no explanation on the record. The Union’s

Executive Board denied her appeal, with no explanation on the

record. The Union simply informed Geaslin that it had

“considered [her] request to have [her] grievance

arbitrated . . . . [and] it was the decision of the [Executive]

Board to deny the same.” Joint Appendix (“JA”) 805. Geaslin

then filed unfair labor practice charges with the NLRB.

King Soopers argues that the Board should have dismissed

the charges filed by Geaslin because “the parties mutually

resolved Geaslin’s grievance,” and the merits of her claims had

been considered and resolved pursuant to the parties’

contractual grievance procedure. Br. of Pet’r at 26. In other

words, the Company asserts that the Board should have

13

deferred to the disposition of the claims in the grievance

procedure. We disagree.

Geaslin did not withdraw her grievances. Quite the

contrary. She attempted to exhaust the procedures available to

her under the contract. The Union, however, blocked her

request to arbitrate the case. There were thus no further

contractual proceedings to which the Board could have

deferred. Therefore, this case is not comparable to the deferral

patterns endorsed in Collyer Insulated Wire, 192 NLRB 837,

and General Dynamics, 271 NLRB 187. In addition, there was

no settlement agreement between the parties here, nor was

there any arbitration decision. See Babcock & Wilcox, 361

NLRB No. 132, at 5, 13. And, importantly, Geaslin’s

grievances were not resolved on the merits pursuant to an

agreed-upon Company-Union disposition process outlined in

the contract. See Am. Freight, 722 F.2d 828.

It is true that Union and Company officials were of a like

mind in determining that the grievance matter should be

dismissed and that there should be no arbitration of Greaslin’s

claims. They were free to do this under the terms of the CBA.

Nevertheless, there is no clear record evidence to explain why

the Union declined to pursue Geaslin’s grievances. As the

Board found, the record contains only Geaslin and Craine’s

speculation as to why the Union refused to arbitrate Geaslin’s

claim. See King Soopers, 364 NLRB No. 93, at 23. In these

circumstances, the Board did not abuse its discretion in holding

that an employee in Geaslin’s position is free to seek relief from

the Board. This case might be different if, based on the terms

of the CBA, the Union had assessed the employee’s claim on

the merits and reached a reasonable judgment that it would not

pursue arbitration because the employer had acted with just

cause under the CBA. But that is not this case. Therefore, the

14

Board reasonably determined that it would not be appropriate

to defer.

C. The Board Did Not Err in Adopting the ALJ’s Credibility

Determinations

Over exceptions by the Company, the Board adopted the

ALJ’s witness credibility findings in full. King Soopers, 364

NLRB No. 93, at 1 n.1. The Company asserts that the Board

erred in doing so because the ALJ’s determinations were not

based on reasoned analysis. We reject this argument.

Courts “accept all credibility determinations made by the

ALJ and adopted by the Board unless those determinations are

‘patently insupportable.’” Inova Health Sys., 795 F.3d at 80

(quoting Traction Wholesale Ctr., 216 F.3d at 99). This high bar

is not met here. The ALJ clearly explained her decisions to

credit and discredit the testimony of various witnesses. In

making her findings she relied on important contextual factors,

including demeanor, her knowledge of industrial practices, the

record, and the presence of consistencies or inconsistencies in

a witness’ story. There is nothing here to suggest that the ALJ’s

credibility findings are “hopelessly incredible,” “self-

contradictory,” or “patently insupportable.” Capital Cleaning

Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.

1998) (citations and quotation marks omitted).

D. The Board Erred in Finding That the Company

Interrogated Geaslin in Violation of the Act

The Board held that the Company violated Section 8(a)(1)

of the Act when Pelo questioned Geaslin about whether she had

complained to the Union about baristas being required to help

the bakery department prepare its products for sampling. This

charge was only added to the complaint, however, at the close

15

of the General Counsel’s case in chief. The Board nonetheless

allowed the charge to be added. The Company asserts that the

finding of unlawful interrogation should be set aside because

the charge was added to the complaint too late and, also,

because there is no substantial evidence to support the charge.

We agree that the Board erred in granting the General

Counsel’s motion to amend. Therefore we need not address

whether substantial evidence in the record supports the Board’s

finding that the Company committed an unfair labor practice

when it allegedly interrogated Geaslin.

The Board may amend a complaint “in its discretion at any

time prior to the issuance of an order based thereon,” 29 U.S.C.

§ 160(b), but this “provision is limited by fundamental

principles of fairness.” Bruce Packing Co., 795 F.3d at 23. The

Board therefore “allows amendments only if they are ‘just,’”

examining “three factors: (1) whether there was surprise or lack

of notice, (2) whether the General Counsel offered a valid

excuse for its delay in moving to amend, and (3) whether the

matter was fully litigated.” Stagehands Referral Serv., LLC,

347 NLRB 1167, 1171 (2006). These circumstances are all

missing from this case.

King Soopers had no fair notice of the interrogation

charge, which was only added in the middle of the hearing

before the ALJ. The General Counsel provided no valid excuse

for the delay in adding the charge. In fact, the General Counsel

had access to all of the relevant information necessary to

investigate this charge for nearly a full year before the hearing,

but nevertheless did not include the charge in the initial

complaint. And, finally, the issue was not fully litigated. While

the Company cross-examined Geaslin, it never did so while

armed with the knowledge that it was defending itself against

an unfair interrogation charge.

16

The Board held that “the [Company] had the opportunity

to fully litigate this allegation because the amendment was

made mid-trial, giving the [Company] the opportunity to call

Geaslin as a witness.” King Soopers, 364 NLRB No. 93, at 1

n.1. Although in some cases an employer may be able to fully

litigate a matter by recalling a witness, this is not such a case.

Geaslin, the victim of King Soopers’ alleged unfair labor

practices, was the key witness of the entire trial, and counsel

for King Soopers had just cross-examined her without any

knowledge of a potential interrogation charge. In this situation,

we cannot conclude that King Soopers’ ability to later recall

Geaslin mitigates the prejudice created by the late amendment.

Cf. Bruce Packing Co., 795 F.3d at 23.

To be sure, mid-trial amendments by the General Counsel

are not categorically unfair. But in light of the confluence of

factors in this case – a lack of any notice for the employer; an

unexcused delay by the General Counsel despite ample time to

investigate the charge; and an amendment postdating the

employer’s cross-examination of the General Counsel’s pivotal

witness – this amendment was impermissible. We therefore set

aside the Board’s finding that the Company committed an

unfair labor practice by unlawfully interrogating Geaslin.

E. The Board Reasonably Found That the Company

Committed Unfair Labor Practices by Suspending and

Terminating Geaslin

The Board also found that King Soopers violated the Act

by punishing Geaslin for engaging in protected activity when

it suspended her on May 9 and May 14, 2014, and then

discharged her on May 21, 2014. The Company argues that

Geaslin did not engage in protected activity on May 9 and 14,

and that even if she did, she was lawfully disciplined for

insubordination. The Company also asserts that the Board erred

17

in applying Atlantic Steel, 245 NLRB 814, to find that

Geaslin’s behavior was not so offensive that it lost the

protection of the Act. We find no merit in these claims. The

Board reasonably held that Geaslin’s behavior on May 9 and

14 was protected, and substantial evidence supports its

determination that the Company punished her in response to

that activity.

1. The Board reasonably found that Geaslin engaged

in protected activity on May 9 and May 14, 2014

Determining whether a worker’s behavior is protected

under Section 7 of the Act “implicates [the Board’s] expertise

in labor relations,” and so “a reasonable construction by the

Board is entitled to considerable deference.” NLRB v. City

Disposal Sys., Inc., 465 U.S. 822, 829 (1984); accord United

Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C. Cir.

2004). We defer here to the Board’s “reasonable construction”

regarding the events of May 9 and May 14.

On May 9, Pelo asked Geaslin to help bag groceries.

Geaslin questioned whether she should be doing so under her

CBA and the CBA governing retail clerks, whose duties

include “bagging . . . sold merchandise.” JA 448. Pelo and

Geaslin then engaged in a heated discussion, which resulted in

Pelo suspending Geaslin for five days.

The Board appropriately held that under Interboro

Contractors, Inc., 157 NLRB 1295 (1966), Geaslin’s behavior

was protected by the Act. King Soopers, 364 NLRB No. 93, at

2–3. Pursuant to the Interboro doctrine, an individual employee

who honestly and reasonably asserts a right grounded in a CBA

engages in protected activity, even if the employee later turns

out to have been wrong in her construction of the contract. City

Disposal, 465 U.S. at 839–41 (approving and applying

18

Interboro Contractors, 157 NLRB 1295). The Board agreed

with the ALJ “that Geaslin’s interpretation of the contract was

honest and reasonable,” because “it was consistent with her

union representative’s interpretation of the agreements, the

assistant deli manager’s testimony that it was unusual for

employees outside the retail unit to bag groceries, and Pelo’s

own admission that Geaslin’s duties did not include bagging

groceries.” King Soopers, 364 NLRB No. 93, at 2. Substantial

evidence supports the Board’s finding.

The Meat and Retail Agreements may be understood to

prohibit baristas from bagging groceries. Both CBAs generally

restrict bargaining unit work to members of the bargaining unit.

And while the Agreements contemplate employees performing

“incidental” work outside of their job classifications, this

could, as the Board found, “reasonably be interpreted to permit

incidental work among the enumerated [bargaining unit]

classifications rather than the exchange of incidental work

between [bargaining units].” Id. at 3. The reasonableness of

Geaslin’s interpretation of the contracts is underscored by the

other testimony relied upon by the Board. See id. at 2.

King Soopers, however, asserts that Geaslin did not have

an “honest and reasonable belief she was not required to sack”

groceries because its “Customer First” program emphasizes

service to customers above all else, Br. of Pet’r at 37, she had

previously been required to assist another department, and her

CBA does not contain an express provision prohibiting baristas

from bagging merchandise, id. at 36–41. But the Company’s

emphasis on customer service cannot serve to wholly supplant

contractual rights. And, as discussed, the CBAs can be

reasonably interpreted to support Geaslin’s view.

The Company next argues that “Geaslin was required to

follow Pelo’s work order and then file a grievance if she

19

believed Pelo’s directive violated the CBA.” Id. at 42. But the

Board credited Geaslin’s consistent testimony that she did

attempt to follow Pelo’s work order, but was stopped from

doing so. King Soopers, 364 NLRB No. 93, at 23, 26–27. We

have no basis to overturn this determination.

The Board also reasonably found that Geaslin’s behavior

on May 14 was protected. On that day, Geaslin and Craine, her

Union representative, met with Pelo and two other managers to

discuss the events of May 9. This meeting became contentious

and resulted in Geaslin’s second five-day suspension. The

Board held that the protections of the Act applied to this

meeting because “Geaslin continued to assert her contractual

rights,” and because “the May 14 meeting . . . constitute[d] a

‘grievance’ meeting since Geaslin and her representative met

with [the Company’s] managers to discuss her discipline from

the week prior.” King Soopers, 364 NLRB No. 93, at 25.

We defer to this finding as well. Craine testified that he

asserted Geaslin’s contractual rights on her behalf during this

meeting. And the Board’s determination that this was a

grievance meeting was justifiable because it consisted of a

conference between management, an employee, and the

employee’s representative to discuss a disciplinary action. The

Board reasonably found that Geaslin was engaged in protected

activity. See City Disposal, 465 U.S. at 836.

2. The Board reasonably held that the Company

punished Geaslin in response to her protected

activity in violation of the Act

The Company argues that even if Geaslin engaged in

protected activity on May 9 and 14, it nevertheless did not

violate the Act because it terminated her for insubordination. It

also claims that the Board committed reversible error by

20

applying Atlantic Steel to the facts of this case. We find no

merit in these arguments.

While employees may be punished for insubordination,

they cannot be lawfully punished for misconduct that is

intertwined with protected activity unless that behavior is so

“opprobrious” as to “lose the protection of the Act.” Atlantic

Steel Co., 245 NLRB at 816. As the Board has explained

The decision as to whether the employee has crossed

that line depends on several factors: (1) the place of

the discussion; (2) the subject matter of the

discussion; (3) the nature of the employee’s outburst;

and (4) whether the outburst was, in any way,

provoked by an employer’s unfair labor practice.

Id. Thus, “[a]lthough ‘employees are permitted some leeway

for impulsive behavior when engaging in concerted activity,

this leeway is balanced against an employer’s right to maintain

order and respect’ in the workplace.” Kiewit Power

Constructors Co. v. NLRB, 652 F.3d 22, 26 (D.C. Cir. 2011)

(quoting Piper Realty Co., 313 NLRB 1289, 1290 (1994)).

The NLRB applied the Atlantic Steel factors and

determined that “[Geaslin’s] conduct during the May 9 and 14,

2014 meetings did not cause her to lose the protection of the

Act.” King Soopers, 364 NLRB No. 93, at 3. The Company

does not challenge the Board’s application of the Atlantic Steel

factors, but asserts that it should have instead applied the test

from NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Under

Burnup & Sims, an employer does not discipline an employee

in violation of the Act if it demonstrates a good faith belief that

the worker has committed misconduct in the course of

protected activity, and the employee has actually done so. See

id. at 23. The Company thus asserts that because Pelo honestly

21

believed Geaslin was being insubordinate, and Geaslin did

engage in some insubordination, the Company did not violate

the Act by disciplining Geaslin.

King Soopers misapprehends the relationship between the

Burnup & Sims and Atlantic Steel tests. As we recently

explained, under Burnup & Sims an employer’s defense of

good faith may be rebutted by a showing that the misconduct

“was not serious enough to forfeit the protection of the [Act]

and to warrant the discipline imposed.” Consol. Commc’ns,

Inc. v. NLRB, 837 F.3d 1, 8 (D.C. Cir. 2016). The Board

appropriately applied Atlantic Steel and reached this

conclusion.

The Company has presented no reason why we should

reverse the Board’s reasonable determination that it twice

suspended and then terminated Geaslin in response to her

protected activity. We therefore affirm these unfair labor

practice findings.

F. The Board’s Change to Its Make-Whole Remedial

Framework Was Lawful, Reasonable, and Fully Justified

Finally, as explained above, the Board amended its

approach to make-whole relief for unlawfully-discharged

employees, determining that they may recover for all

reasonable search-for-work and work-related expenses,

without any cap based on interim earnings. As a threshold

matter, we hold that the Board did not err in allowing the

General Counsel to amend the complaint to request expanded

remedies. This amendment was added at the hearing before the

ALJ, but the Board and not the ALJ decided the question

regarding whether to adjust the Board’s remedial policy. King

Soopers had notice and a full and fair opportunity to argue the

issue, and the record shows that it did so. See King Soopers,

22

364 NLRB No. 93, at 1 n.1 (listing filings submitted by the

Company); id. at 6–9 (addressing the Company’s arguments).

On the merits, King Soopers argues that the Board’s

decision must be vacated because it is inadequately reasoned

and will lead to unfair results that are incompatible with the

Act. We disagree. The Board is entitled to considerable

deference in crafting remedies for unfair labor practices, and

the reasons given by the Board to justify the new make-whole

remedial framework pass muster.

The courts have recognized that “the Board’s remedial

authority is ‘a broad discretionary one, subject to limited

judicial review,’ and a remedy ‘will not be disturbed 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.’” United Food & Comm. Workers v. NLRB,

447 F.3d 821, 827 (D.C. Cir. 2006) (quoting Fibreboard Paper

Prods., 379 U.S. at 216). Pursuant to this standard, it is clear

that the Board’s decision in this case easily survives review.

Under its old make-whole remedial framework, the Board

would not award search-for-work and interim employment

expenses that exceeded a discriminatee’s interim earnings, but

the Board never explained or justified this approach. In support

of its decision in this case, the Board offered clear, reasonable,

and compelling justifications for the new remedial framework:

Because the Board’s traditional approach treats search-

for-work and interim employment expenses as an

offset to interim earnings, discriminatees who are

unable to find interim employment do not receive any

compensation for their search-for-work expenses.

Similarly, discriminatees who find jobs that pay wages

lower than the amount of their expenses will not

23

receive full compensation for the search-for-work and

interim employment expenses. As expressed by

amicus SEIU, “In cases of low wage workers, where

the costs associated with the reasonable search for

interim employment can quickly outweigh the interim

pay received, if any, the employee is, in essence,

subsidizing the employer’s violation.” An example

illustrates the shortcomings of the Board’s traditional

approach. Juana Perez worked at a remote location

earning $1,000 per month prior to her unlawful

discharge. During the month following her discharge,

Perez spent $500 travelling to different locations

looking for work. Perez could only find interim

employment in another state that paid $750 per month.

Perez moved to the new state to be closer to her new

job and was also required to obtain training for her new

position, costing her $5000 and $500, respectively.

Under the Board’s traditional approach, Perez would

receive compensation for only $1500 of her $6000

total expenses, far less than make-whole relief.

King Soopers, 364 NLRB No. 93, at 5.

The Board further explained that:

The Board’s traditional approach not only fails to

make victims of unlawful discrimination whole, but

may also discourage discriminatees in their job search

efforts. The Board imposes a duty on discriminatees to

mitigate by engaging in reasonable efforts to seek and

to hold interim employment. Discriminatees do not

receive backpay for any periods during which they fail

to mitigate. Yet, under the Board’s traditional

approach, discriminatees, who have already lost their

source of income, risk additional financial hardship by

24

searching for interim work if their expenses will not be

reimbursed.

Modifying the Board’s treatment of search-for-

work and interim employment expenses to eliminate

the offset will bring these payments in line with the

Board’s treatment of similar expenses incurred by

discriminatees. When a respondent unlawfully

discharges an employee, the respondent not only

deprives the employee of his or her wages, but may

also cause the employee to lose benefits and to incur

additional expenses. The Board compensates

discriminatees for the inequity of lost wages through

backpay. However, in order to make discriminatees

whole, the Board also compensates discriminatees for

the separate inequity of additional expenses, such as

medical expenses and retirement fund contributions.

The Board awards compensation for these expenses

regardless of discriminatees’ interim earnings and

separately from taxable net backpay, with interest.

Like medical expenses and retirement fund

contributions, search-for-work and interim

employment expenses are a direct result of a

respondent’s unlawful actions. No other expense

incurred by discriminatees as a result of a respondent’s

unlawful conduct is treated as an offset to interim

earnings. Thus, in order to fully compensate

discriminatees for their losses, we shall treat search-

for-work and interim employment expenses in a

manner consistent with our treatment of other losses

suffered by the discriminatee.

Id. at 5–6 (citations omitted).

25

In reaching this decision, the Board rested on its clear

authority to adjust its make-whole relief frameworks as

necessary to achieve the goals of the Act. Section 10(c) of the

Act instructs the NLRB to take such action “as will effectuate

the policies of th[e Act].” 29 U.S.C. § 160(c). One important

policy goal is to achieve “a restoration of the situation, as

nearly as possible, to that which would have obtained but for

the illegal discrimination.” Phelps Dodge Corp. v. NLRB, 313

U.S. 177, 194 (1941); see also NLRB v. J.H. Rutter-Rex Mfg.

Co., 396 U.S. 258, 263 (1969) (“A back pay order is . . .

designed to vindicate the public policy of the statute by making

the employee[] whole . . . .”) (quoting Nathanson v. NLRB, 344

U.S. 25, 27 (1952)). And the Board has in the past adapted its

scheme in order to achieve this goal. See, e.g., NLRB v. Seven-

Up Bottling Co. of Miami, 344 U.S. 344 (1953) (approving the

remedial approach adopted by the Board in F. W. Woolworth

Co., 90 NLRB 289 (1950)). In short, both the terms of the Act

and the case law construing the Act support the Board’s action

in this case.

In his dissenting opinion, Member Miscimarra argued that

“the Board’s traditional approach to compensating claimants

for these expenses makes claimants whole in most cases, and

the change adopted by my colleagues will result in greater than

make-whole relief in other cases.” King Soopers, 364 NLRB

No. 93, at 9. Specifically, the dissent claimed that the Board’s

remedial change “will produce a financial windfall . . . where

claimants have interim earnings that equal or exceed the sum

of their lost earnings and their employment/search expenses.”

Id. at 13. The dissent also claimed, inter alia, that “the new

standard does not adequately safeguard against the risk that

awarding search-for-work and interim employment expenses,

divorced from interim earnings, will tend to produce more

protracted Board litigation over such expenses, particularly

when such expenses are disproportionately high in comparison

26

to the claimants’ lost earnings or interim earnings . . . .” Id. The

Board majority found no merit in these contentions:

Contrary to the dissent, discriminatees will not

receive more than make-whole relief under the

General Counsel’s request, because incurring search-

for-work and interim employment expenses represent

a different injury than losing wages. Thus,

reimbursement of these expenses compensates

discriminatees for a separate injury than lost pay. As

discussed above, the Board has recognized this

distinction by awarding other expenses incurred by

discriminatees regardless of interim earnings and

separately from taxable net backpay, with interest.

Further, even if the Board’s revised remedial

policy might result in a limited number of

discriminatees with unusually high interim earnings

receiving additional reimbursement, this fact would

not cause us to reject it. In our view, such a

circumstance would constitute “a permissible remedial

outcome if it bears ‘an appropriate relation to the

policies of the Act.” See Mimbres Memorial Hospital

& Nursing Home, 361 NLRB No. 25, slip op. at 6

(quoting NLRB v. Seven-Up Bottling Co., 344 U.S. at

342).

King Soopers, 364 NLRB No. 93, at 7. The Company resists

the Board’s decision because, in its view, it is bad policy and

exceeds the Board’s statutory authority. We reject these claims

for the reasons explained by the Board. It is clear here that the

Board’s action in this case is well within its statutory authority.

In reaching this result, we need not decide whether a Board

remedy that arguably produces what Member Miscimarra

27

characterized as a financial windfall – i.e., in a situation in

which a claimant’s interim earnings equal or exceed the sum of

his lost earnings and employment-search expenses – will

survive review. There is nothing here to suggest that this case

involves such a “windfall.” See, e.g., EPA v. EME Homer City

Gen., L.P., 134 S. Ct. 1584, 1609 (2014) (“The possibility that

the rule, in uncommon particular applications, might exceed

[the agency’s] statutory authority does not warrant judicial

condemnation of the rule in its entirety.”). We also reject the

Company’s argument that the Board’s new remedial approach

will incentivize employees to seek jobs for which they are not

qualified in an effort to game the system and drive up

employment expenses. As the Board explained, the General

Counsel continues to bear the burden of establishing that an

employee’s search-for-work and work-related expenses are

reasonable. Id. at 8.

On the record before us, we have no reason to find that the

Board’s decision to change its remedial framework is “a patent

attempt to achieve ends other than those which can fairly be

said to effectuate the policies of the Act.” Fibreboard Paper

Prods., 379 U.S. at 216 (quoting Va. Elec. & Power Co., 319

U.S. at 540). We therefore deny the petition for review

challenging the Board’s new make-whole remedial framework.

III. Conclusion

For the reasons stated above, we grant the petition for

review only with regard to the Board’s unlawful interrogation

finding. We therefore grant the NLRB’s cross-application for

enforcement with regard to the remaining issues.