United States Court of Appeals for the Sixth Circuit · 2019-07-02
29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)
Case and law context
Role: applied; posture: petition for review and cross-application for enforcement of NLRB order; affirmed in part as to § 8(a)(5) unilateral implementation and reversed in part as to subcontracting; result: mixed; claim:
Uncertainty
Element refusal-to-bargain: basis: [law] vs [no-evidence]: the holding is that the decision was not a mandatory bargaining subject (a legal characterisation), though it rests partly on the court's own reading of the record against the Board's labor-cost finding.
Misfit
None recorded
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 17
| Case | Covered employer | Covered employee and applicable retained status | Section 7 protected rights | Interference, restraint or coercion | Noncoercive expression under §8(c) | Narrow insignia-restriction justification |
|---|---|---|---|---|---|---|
| Firstenergy Generation, LLC v. Nat'l Labor Relations Bd. — 929 F.3d 321 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 7–12 of 17
| Case | Domination, interference or support of a labor organization | Working-hours conference proviso | Conditional building-and-construction agreement allowance | Employment discrimination | Union-related discriminatory motivation | Same action absent unlawful motive |
|---|---|---|---|---|---|---|
| Firstenergy Generation, LLC v. Nat'l Labor Relations Bd. — 929 F.3d 321 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 13–17 of 17
| Case | Conditional union-security proviso | Filed charges or given testimony | Discharge or other discrimination for Board participation | Employees collective-bargaining representative | Alternative breaches of applicable collective-bargaining duties |
|---|---|---|---|---|---|
| Firstenergy Generation, LLC v. Nat'l Labor Relations Bd. — 929 F.3d 321 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| Firstenergy Generation, LLC v. Nat'l Labor Relations Bd. — 929 F.3d 321 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — not · law (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Alternative breaches of applicable collective-bargaining duties | not Counted merits instance applied / merits basis: law; party: FirstEnergy Generation, LLC; count: § 8(a)(5) subcontracting outage work; subject: party=FirstEnergy Generation, LLC; count=§ 8(a)(5) subcontracting outage work Enforcement denied: balancing under Fibreboard / First National Maintenance / Wehr, the subcontracting was a business-management decision driven by a non-labor-cost reason, hence outside the duty to bargain. The court treats the Board's error as one of legal method (inflexible application of Fibreboard), but it also rejects a Board finding on labor costs as contrary to the record. Derivative ruling not given its own block: because there was no duty to bargain over the subcontracting, the employer had no duty to furnish the requested subcontractor cost information, and that part of the order is not enforced either. | one-off subcontracting of a nine-yearly turbine outage that the fully employed unit workforce could not complete within the 56-day window; not a mandatory subject of bargaining | But it is equally well established that a business management decision may not be subject to mandatory bargaining, even if it has a direct impact on employment, if the conduct of the business outweighs the benefit to labor management relations.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [29219:29463] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.Historically, the bargaining unit employees at Bruce Mansfield have performed all the open/clean/close work during outages.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [10302:10425] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.The Union was not involved in any of these discussions.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [11448:11503] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.The Company had 56 days to complete the M116 Project or face fines and penalties.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [10879:10960] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.The Company presented evidence that bargaining unit employees performed a whopping 16,000 hours of overtime while GE completed the M116 Project.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [33193:33337] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.Furthermore, contrary to the Board's finding, the record reflects that the subcontracting work cost the Company an additional $3 million to have GE perform the task.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [33493:33658] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.Thus, the Board erred in holding that the general rule of Fibreboard controlled in this situation and that the Company violated the Act by not bargaining over the subcontracting of the open/clean/close work.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [35497:35704] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27. |
| Firstenergy Generation, LLC v. Nat'l Labor Relations Bd. — 929 F.3d 321 (2019) · United States Court of Appeals for the Sixth Circuit · 2019 — satisfied · proved (29usc158: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Alternative breaches of applicable collective-bargaining duties | satisfied Counted merits instance applied / merits basis: proved; party: FirstEnergy Generation, LLC; count: § 8(a)(5) post-impasse unilateral change; subject: party=FirstEnergy Generation, LLC; count=§ 8(a)(5) post-impasse unilateral change Sixth Circuit upholds (substantial evidence) the Board's finding that the employer violated § 8(a)(5) by implementing, after impasse, the elimination of retiree health benefits without the wage increases and other benefits it had consistently offered in exchange (Plainville). The wage-parity explanation was weighed and rejected as the exclusive purpose. | after impasse employer implements elimination of retiree health benefits but not the wage increases it had offered as the quid pro quo | Thus, selectively implementing proposals that are "inextricably linked" with unimplemented proposals violates the Act.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [17916:18034] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.Cookson himself linked the GWI increase and equity adjustment as a bundle, in return for the Company's desired proposal of ending in-the-box benefits as of 10/31/15.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [23757:23922] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.Cookson underscored this continuing link at the August 20, 2015 meeting when, in response to Marshman's question how they could "get around [the disagreement over eliminating retiree benefits]?", Cookson said, "We have offered other things-like an initial 8.5% wage increase."Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [23943:24219] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.The Summary did not implement wage increases (GWI and equity adjustment) or shift differential proposals.Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [9633:9738] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27."[t]he Union wanted to bring wages at the Bruce Mansfield facility closer to those at the Sammis facility."Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [25768:25875] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.We therefore affirm the Board's finding that "the strong record evidence ... establishe[d] that the [Company's] proffered wage increases, shift differentials, equity adjustments, and HSA or 401(k) contributions were 'inextricably linked' to the elimination of 'in-the-box' retiree health benefits."Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [27486:27784] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27.For the foregoing reasons, we (1) AFFIRM the Board's application to enforce its findings that the Company violated Section 8(a)(5) and (1) when, after impasse, it selectively implemented certain pre-impasse bargaining proposals that were inextricably linked to other proposals not imposed;Source: docroot/ir/caselaw/f3d_929.jsonl#/f3d/929/0321-01; Unicode character offsets [36483:36772] (end exclusive); SHA-256 3624009ace70312f175eeda3bc7e07292206920299284bbf73e8408e5d9ccf27. |