Date: 10-17-2017

Case Style:

Case Number: 15-73426

Judge: Huck

Court: United States Court of Appeals on Petition for Review of an Order of the National Labor Relations Board

Plaintiff's Attorney: Myron L. Scott (argued), Law Office of Myron Scott,
Tempe, Arizona, for Petitioner.

Defendant's Attorney: Ruth E. Burdick (argued), Deputy Assistant General
Counsel; Heather S. Beard, Attorney; Robert J. Engleheart,
Supervisory Attorney; Linda Dreeben, Deputy Associate
General Counsel; John H. Ferguson, Associate General
Counsel; Jennifer Abruzzo, Deputy General Counsel;
Richard F. Griffin Jr., General Counsel; National Labor
Relations Board, Washington, D.C.; for Respondent.

Julie A. Trout (argued), Akron, Ohio, for Respondent-
Intervenor.

Michael Goldberg (argued), Cherry Hill, New Jersey, for
Amicus Curiae Association for Union Democracy.

Description: The central issue on appeal is whether the National
Labor Relations Board (the “NLRB” or “Board”) properly
determined that a new standard for deferring to arbitral
decisions, which was developed by the Board in the
underlying case, should only be applied prospectively. As a
result of the prospective application of the new standard,
Petitioner Coletta Kim Beneli’s unfair labor practice
complaint against Respondent-Intervenor Babcock &
Wilcox Construction Co., Inc. (“B&W”) was analyzed under
the previous standard and consequently denied. Beneli also
challenges the Board’s substantive decision to affirm the
arbitral decision under the previous deferral standard.
The Board’s usual practice is to apply its new policies
and standards in all pending cases, at whatever stage, subject
to balancing such retroactivity against “the mischief of
producing a result which is contrary to a statutory design or
to legal and equitable principles.” Levitz Furniture Co. of
the Pac., Inc., 333 N.L.R.B. 717, 729 (2001). This Court has
adopted a five-factor analysis to balance the interests in
considering retroactive application of a new standard. Oil,
Chem. & Atomic Workers Int’l Union Local 1-547 v. NLRB,
BENELI V. NLRB 5
842 F.2d 1141, 1145 (9th Cir. 1988) (citing Montgomery
Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982)).
Balancing those factors here, the NLRB properly applied the
new standard only prospectively. Therefore, we deny
Beneli’s petition for review.
I. BACKGROUND
Beneli worked for B&W as a forklift and crane operator
and served as a job steward for her union, the International
Union of Operating Engineers (“the Union”). Beneli was
fired from her job approximately two months after she was
hired. According to Beneli, her firing culminated a running
dispute over her actions as a union job steward. According
to B&W, Beneli was fired for cause because of repeated
safety violations and inappropriate conduct.
On the day she was fired, B&W’s project superintendent
summoned Beneli to a meeting with two B&W safety
representatives. One of the representatives told Beneli that
she was being suspended for three days without pay for two
safety policy violations. Beneli responded to the proposed
suspension by stating, “[i]s this the fucking game you guys
are going to play?”—a statement which she then repeated.
The representatives told Beneli that they considered that
language a threat and terminated her. Beneli refused to sign
termination papers that claimed that she was fired for
“inappropriate conduct.”
The Union, in accordance with its collective-bargaining
agreement (“CBA”) with B&W, filed a grievance over
Beneli’s suspension and termination, alleging that she had
been fired for union activities and without just cause. The
grievance moved through the CBA process to binding
arbitration before a joint labor-management Grievance
Review Subcommittee (the “Subcommittee”). Both Beneli
6 BENELI V. NLRB
and B&W presented witness testimony before the
Subcommittee supporting their respective positions. The
Subcommittee denied the grievance and upheld Beneli’s
discharge, finding just cause based on her “use of profanity
and insubordination.”
After reviewing the Subcommittee decision and
determining that it was “repugnant to the [National Labor
Relations] Act” (the “NLRA”), the NLRB issued a
complaint against B&W. Following a hearing before an
administrative law judge (“ALJ”) where Beneli and B&W
once again presented witness testimony, the ALJ issued a
proposed order recommending that the Board defer to the
Subcommittee decision and dismiss the complaint. In
explaining his deferral decision, the ALJ stated, in part, that
although he credited Beneli’s version of events, the
Subcommittee could have credited B&W’s witnesses and
reached a different conclusion.
The ALJ’s decision to defer was based on long-standing
NLRB precedent set forth in Spielberg Mfg. Co.,
112 N.L.R.B. 1080 (1955), and Olin Corp., 268 N.L.R.B.
573 (1984) (“Spielberg/Olin”). Under the Spielberg/Olin
standard, deferral to arbitral decisions is appropriate when:
(1) all parties agree to be bound by the decision; (2) the
proceedings appear to be fair and regular; (3) the arbitrator
adequately considers the unfair labor practice issue, which
requires the unfair labor practice issue and the contractual
issue to be “factually parallel” and the arbitrator to have been
“presented generally” with the relevant facts; and (4) the
arbitration award is not clearly repugnant to the NLRA.
Spielberg, 112 N.L.R.B. at 1082; Olin, 268 N.L.R.B. at 574.
The NLRB General Counsel filed exceptions to the ALJ’s
decision on the merits. In addition, the NLRB General
Counsel recommended that the Board revisit the standard for
BENELI V. NLRB 7
determining when to defer to an arbitral decision. The Board
requested briefing on whether to adhere to, modify, or
abandon the Spielberg/Olin standard.
Following an extensive review, the Board adopted the
ALJ’s decision, denying Beneli’s complaint. In its order, the
Board decided to change the standard for determining
whether to defer to an arbitration decision. Under the new
standard, the Board will now defer to an arbitral decision if
the party urging deferral shows that: (1) the arbitrator was
explicitly authorized to decide the unfair labor practice issue;
(2) the arbitrator was presented with and considered the
statutory issue, or was prevented from doing so by the party
opposing deferral; and (3) Board law reasonably permits the
award. This standard shifts the burden of proof and makes
deferral to an arbitral decision less likely. The NLRB
applied the new deferral standard prospectively and declined
to apply it in the present case because of its impact on settled
expectations of employers and unions, who had bargained
for dispute resolution mechanisms under the old NLRB
standard. Beneli petitions for review of this retroactivity
decision.
II. ANALYSIS
A. Standard of Review
Whether new standards should be applied retroactively
is a question of law, which we review de novo. Oil, Chem.
& Atomic Workers Int’l, 842 F.2d at 1144 n.2. However,
“while the court is not bound by the Board’s views on
retroactive application, it should defer to those views absent
manifest injustice.” NLRB v. Best Products Co., Inc.,
765 F.2d 903, 913 (9th Cir. 1985). See also Saipan Hotel
Corp. v. NLRB, 114 F.3d 994, 998 (9th Cir. 1997) (same);
Garfias-Rodriguez v. Holder, 702 F.3d 504, 518–19 (9th Cir.
8 BENELI V. NLRB
2012) (en banc) (“When an agency consciously overrules or
otherwise alters its own rule or regulation, we presume that
it does so as an exercise of its judgment.”). Accordingly,
where, as here, it is clear from the Board’s decision that it
considered the question of retroactive versus prospective
application, and it provided a reasoned explanation for its
choice, we are inclined to give considerable deference to the
Board’s expertise. See Hotel, Motel & Rest. Emps. &
Bartenders Union Local No. 19 v. NLRB, 785 F.2d 796, 798
(9th Cir. 1986).
Review of a Board decision to defer to an arbitral award
is limited to determining whether the Board has abused its
discretion. Garcia v. NLRB, 785 F.2d 807, 809 (9th Cir.
1986). We “will not deny enforcement of a deferral decision
unless the Board clearly departs from its own standards or
the standards themselves are invalid.” Id. (citing Servair,
Inc. v. NLRB, 726 F.2d 1435, 1439 (9th Cir. 1984)).
B. Retroactivity Analysis
The Board’s usual practice is to apply new policies and
standards in all pending cases at whatever stage, and to
balance “the mischief of producing a result which is contrary
to a statutory design or to legal and equitable principles.”
Levitz Furniture, 333 N.L.R.B. at 729. To effectuate that
balancing, we consider:
(1) whether the particular case is one of first
impression, (2) whether the new rule
represents an abrupt departure from well
established practice or merely attempts to fill
a void in an unsettled area of law, (3) the
extent to which the party against whom the
new rule is applied relied on the former rule,
(4) the degree of the burden which a
BENELI V. NLRB 9
retroactive order imposes on a party, and
(5) the statutory interest in applying a new
rule despite the reliance of a party on the old
standard.
Oil, Chem. & Atomic Workers Int’l, 842 F.2d at 1145 (citing
Montgomery Ward, 691 F.2d at 1333). Applying those five
factors to the present case, the balance tips in favor of
prospective application of the new standard.
1. This case is one of first impression
The first factor—whether the issue is one of first
impression—in this context means something different from
what is ordinarily referred to as a “case of first impression.”
As developed in Retail, Wholesale & Department Store
Union v. NLRB, a case of “first impression” is a case in
which one party successfully urged the NLRB to change its
rule while a case of “second impression” is any subsequent
case brought before the NLRB on the same issue. 466 F.2d
380, 383–84, 387 (D.C. Cir. 1972). A new rule is more
likely to be applied in a case of “first impression,” but less
likely in a pending case of “second impression.” Id.
The new deferral standard qualifies this case as a case of
“first impression.” The Board established a new standard to
replace the Spielberg/Olin deferral standard that had been in
existence for decades. Thus, this factor weighs in favor of
retroactively applying the new standard, at least to the
present case, as prospective application would “deny the
benefits of a change in the law to the very parties whose
efforts were largely responsible for bringing it about.”
Garfias-Rodriguez, 702 F.3d at 520 (citing Retail Union,
466 F.2d at 390).
10 BENELI V. NLRB
However, as acknowledged at oral argument by amicus
curiae Association for Union Democracy, the deferral
standard was changed on the recommendation of the NLRB
General Counsel, not Beneli. Beneli never advocated for the
change. Therefore, Beneli’s “efforts were [not] largely
responsible for bringing it about.” Garfias-Rodriguez,
702 F.3d at 520. Given the facts of this case, this factor is
entitled to lesser weight.
2. The new rule represents an abrupt
departure from well-established practice
The Spielberg/Olin deferral standard was based on
NLRB decisions that served as controlling law for decades—
see Spielberg, 112 N.L.R.B. 1080 (decided June 8, 1955),
and Olin, 268 N.L.R.B. 573 (decided January 19, 1984). The
new standard shifts the burden of proof for challenging the
arbitration award to the party advocating deferral to the
arbitral award and is less deferential to the arbitrator’s
decision. The more deferential Spielberg/Olin standard
controlled for almost 60 years, and employers and unions
relied upon it during that time period. Courts of appeals
throughout the country, including this one, repeatedly
upheld that standard. Thus, the new standard represents an
abrupt departure from well-established practice.
Even more, the shift in burden of proof reinforces the
significance of this factor. See Oil, Chem. & Atomic
Workers Int’l, 842 F.2d at 1145 (“The Indianapolis decision
shifted the . . . burden of proof, 180 degrees. . . . Thus, the
Union would bear the burden of proving the clause did not
waive sympathy strikes, while, before, the employer needed
to prove such waiver was intended. This burden is
significant, as the Union might have continued to bargain for
the express exclusion of sympathy strikes, had it known it
would be required to prove intent.”). And altering decades
BENELI V. NLRB 11
of precedent by formulating a new, more lenient test for
deference similarly warrants prospective application given
that deference is the primary question before the ALJ and the
Board. See Levitz Furniture, 333 N.L.R.B. at 729 (applying
new, “significantly more lenient” standard prospectively
when the previous standard “was the law for nearly half a
century”); cf. John Deklewa & Sons, 282 N.L.R.B. 1375,
1389 (1987) (acknowledging that “new law [that] represents
a sharp departure from past precedent” should be applied
prospectively); Retail Union, 466 F.2d at 391 (“The standard
. . . was well established and long accepted by the Board. . . .
[T]he Board had confronted the problem before, had
established an explicit standard of conduct, and [retroactive
application of the new standard would] punish conformity to
that standard under a new standard subsequently adopted.”).
Thus, this factor strongly favors prospective application.
3. B&W relied on the Spielberg/Olin
standard
The Spielberg/Olin standard was in place when B&W
and the Union entered into the CBA in 1996, the parties
amended the CBA’s grievance procedure in 2004, the
Subcommittee heard Beneli’s grievance in 2009, and the
ALJ issued his decision in this matter in 2012. At each of
those steps, B&W would have relied upon the
Spielberg/Olin standard in formulating its decisions with
regard to negotiating the CBA with the Union, determining
whether to oppose the Union before the Subcommittee, and
developing and presenting its case to the Subcommittee.
Presumably, B&W would have more explicitly argued and
requested a decision on the unfair labor practice issue had it
been operating under the new standard. In order to meet the
Board’s new deferral requirement that the arbitrator must
“identify the issue and generally explain why he or she finds
12 BENELI V. NLRB
that the facts presented either do or do not support the unfair
labor practice allegation—or was prevented from doing so
by the party opposing deferral,” B&W would have changed
its approach before the Subcommittee. However, because
B&W was operating under the Spielberg/Olin standard that
had been in place for nearly 60 years, it had no reason to
ensure that the Subcommittee decision met these specific
identification and explanation requirements.1 Moreover, no
party objected to that standard nor proffered the standard
ultimately adopted by the Board. It was only after receiving
the ALJ’s adverse determination that any party in the present
case found fault with the Spielberg/Olin standard. These
reliances and similar equitable considerations support the
prospective application of the new standard.
4. Retroactive application would severely
burden B&W
The Subcommittee hearing and decision occurred in
2009, over seven years ago. It cannot be questioned that
beginning a new arbitration (from October 2009) or
relitigating the original NLRB complaint (from August
2011) would be exceedingly difficult and burdensome given
the passage of time, the closure of B&W’s worksite, faded
memories, and the likely dispersal of percipient witnesses.
Such a heavy burden on B&W favors prospective
application. See Retail Union, 466 F.2d at 392 (“Unless the
burden of imposing the new standard is de minimis, or the
newly discovered statutory design compels its retroactive
application, the principles which underlie the very notion of
an ordered society, in which authoritatively established rules
1 The Union also relied on, and proceeded in accordance with, the
CBA’s grievance procedure that was negotiated under Spielberg/Olin
when the Union prosecuted Beneli’s grievance.
BENELI V. NLRB 13
of conduct may fairly be relied upon, must preclude its
retroactive effect . . .”).
5. The balance of statutory interests favors
prospective application
Congress has established that labor arbitration agreed
upon by a union and an employer is “the desirable method
for settlement of grievance disputes arising over the
application or interpretation of an existing collectivebargaining
agreement.” 29 U.S.C. § 173(d). In fact, the
NLRA is “‘primarily designed to promote industrial peace
and stability by encouraging the practice and procedure of
collective bargaining.’” Carey v. Westinghouse Elec. Corp.,
375 U.S. 261, 271 (1964) (quoting Int’l Harvester Co.,
138 N.L.R.B. 923, 925–26 (1962)).
One of the Board’s primary functions is to foster stability
in labor relations, to encourage good-faith negotiation, and
to give effect to the parties’ agreements. See, e.g., Colgate-
Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (“To
achieve stability of labor relations was the primary objective
of Congress in enacting the National Labor Relations Act.”).
Arbitration plays a central role in achieving this goal. United
Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 578 (1960) (“[A]rbitration is the substitute for
industrial strife.”). As the Board noted below, this stability
is undermined when the Board adopts policies that detract
from final and binding arbitration procedures to which
employers and unions have previously agreed.
Because the Subcommittee’s decision did not include the
explicit findings required under the new standard, retroactive
application would necessitate new analysis by the
Subcommittee and an ALJ. Such a requirement would
undermine the binding arbitration to which the Union,
14 BENELI V. NLRB
Beneli, and B&W agreed and would impair the “stability of
labor relations [that] was the primary objective of Congress
in enacting the National Labor Relations Act.” Colgate-
Palmolive-Peet, 338 U.S. at 362. Therefore, the primary
purpose of the NLRA favors prospective application.
C. Substantive Review under Spielberg/Olin
The Board is afforded broad discretion in its
determination whether to defer to an arbitration panel’s
decision. The Board did not abuse its discretion when it
deferred to the Subcommittee decision under the
Spielberg/Olin standard.
In her appeal, Beneli challenges the Board’s deferral
decision only under the fourth prong of the Spielberg/Olin
standard, i.e., that the arbitration award is “clearly
repugnant” to the Act. Spielberg, 112 N.L.R.B. at 1082;
Olin, 268 N.L.R.B. at 574. An arbitrator’s decision is
“clearly repugnant” to the NLRA if the decision is “palpably
wrong, i.e., unless the arbitrator’s decision is not susceptible
to an interpretation consistent with the Act.” Olin,
268 N.L.R.B. at 574 (internal quotation marks and footnote
omitted). Thus, “[i]f the reasoning behind an award is
susceptible of two interpretations, one permissible and one
impermissible, it is simply not true that the award is ‘clearly
repugnant’ to the Act.” Douglas Aircraft Co. v. NLRB,
609 F.2d 353, 354–55 (9th Cir. 1979).
Beneli was cited for multiple safety violations prior to
her termination, including two safety violations the day of
her termination. Additionally, Beneli used profanity toward
her superiors when she was presented with a three-day
suspension for safety violations. The Union presented
testimony to the Subcommittee that included evidence
concerning Beneli’s union activities. B&W presented
BENELI V. NLRB 15
evidence that it was Beneli’s safety violations and use of
profanity, not her union activities, that served as the
motivation for her termination. Finding B&W’s evidence
credible, the Subcommittee determined that Beneli’s
profanity and insubordinate conduct were the impetus for
Beneli’s termination and upheld her discharge. Thus, the
arbitration decision that Beneli was discharged for cause was
susceptible to an interpretation consistent with the Act. See
id. Therefore, the Board did not abuse its discretion in
deferring to the Subcommittee decision.

* * *

W. FLETCHER, Circuit Judge, concurring in the result:
I concur in the result. However, I respectfully dissent
from the majority’s use of the factors articulated in
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th
Cir. 1982) (relying on Retail, Wholesale and Department
Store Union v. NLRB, 466 F.2d 380, 390–93 (D.C. Cir.
1972)), to review a decision of the National Labor Relations
Board to apply only prospectively a new rule declared in an
adjudicative proceeding.
Prior to its decision in this case, the Board reviewed
arbitral decisions under a highly deferential standard.
During the administrative appeal in this case, the Board
changed its standard so that it now reviews arbitral decisions
less deferentially. However, the Board declined to apply its
new standard to the case before it. Appellant, who lost the
arbitration, and who lost before the Board when it applied its
highly deferential standard, asks us to hold that the Board
erred in refusing to apply its new standard to her case.
Citing Oil, Chemical & Atomic Workers Int’l Local 1-
547 v. NLRB, 842 F.2d 1141, 1145 n.2 (9th Cir. 1988), the
majority reviews de novo the Board’s decision to apply its
new standard only prospectively. In Oil, Chemical, we used
the factors articulated in Montgomery Ward in reviewing the
Board’s decision to apply its new rule retroactively. Id. at
1145. Consistent with Oil, Chemical, we have applied the
Montgomery Ward factors to review agency decisions to
apply retroactively new rules developed in agency
adjudication. See, e.g., Garfias-Rodriguez v. Holder,
702 F.3d 504, 520–23 (9th Cir. 2012) (en banc). The
majority applies these factors in its review today.
However, we have never applied the Montgomery Ward
factors to review an agency’s decision to apply only
BENELI V. NLRB 17
prospectively a new rule developed in adjudication.
Retroactive application of a new rule in an adjudicative
proceeding raises obvious concerns of fairness, which we
explicitly invoked in Oil, Chemical:
[I]t is inappropriate to apply retroactively
the new . . . standard to interpret the
collective bargaining agreement in this case,
since the new placement of the presumption
[under the new standard] could not have been
anticipated by the parties and thus could not
have been their intent.
Id. at 1144. Prospective application of a new rule developed
in adjudication does not raise these concerns. If a rule is
new, the parties could not have relied on it when they
engaged in the conduct that later became the subject of the
adjudicative proceeding.
Prospective-only application of a new rule declared in
agency adjudication raises different concerns. The
Administrative Procedure Act allows an agency to declare
interpretive rules in adjudication, but requires notice-andcomment
procedure for the promulgation of legislative rules.
An agency does not have the authority to declare
prospective-only legislative rules through adjudication, for
such rules avoid the required notice-and-comment
rulemaking procedure. See NLRB v. Wyman-Gordon,
394 U.S. 759 (1969) (holding invalid a legislative rule
developed in agency adjudication). I would not analyze the
prospective-only application of the NLRB’s new rule under
the Montgomery Ward framework, which addresses
concerns of fairness arising out of retroactive application. I
would, instead, address the prospective-only application of
the new rule under the Wyman-Gordon framework, which
18 BENELI V. NLRB
addresses concerns of informed and deliberate agency
rulemaking.

Outcome: Although Beneli’s case was one of first impression
before the Board, the other four factors of the retroactivity
test substantially outweigh that one factor. The new deferral
standard represents an abrupt departure from the more
deferential Spielberg/Olin standard that had been followed
in labor disputes for almost 60 years. The reliance interests
of the parties combined with the primary purpose of the
NLRA strongly favor prospective application of the new
standard. Retroactive application of the newly-devised
standard would result in “work[ing] hardship upon [B&W]
altogether out of proportion to the public ends to be
accomplished.” NLRB v. Guy F. Atkinson, 195 F.2d 141,
149 (9th Cir. 1952). Therefore, the new standard should be
prospectively applied. Finally, because the Subcommittee
decision could be interpreted in a manner that is not clearly
repugnant to the NLRA, the Board did not abuse its
discretion in deferring to the arbitral decision.
Each party shall bear its own costs of this appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments: