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 searchfor-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-forwork 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 crossapplied 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.
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• Deferral is likewise appropriate where there is a prearbitration 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,” “selfcontradictory,” 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 searchfor-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-forwork 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 searchfor-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. SevenUp 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 searchfor-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.