NOT RECOMMENDED FOR PUBLICATION

File Name: 06a0442n.06

Filed: June 27, 2006

No. 03-2623

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NEOPRENE CRAFTSMEN UNION LOCAL 788,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

DUPONT DOW ELASTOMERS, L.L.C.,

Intervenor.

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PETITION FOR REVIEW OF AN

ORDER OF THE NATIONAL

LABOR RELATIONS BOARD

Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

SILER, Circuit Judge. Petitioner Neoprene Craftsmen Union (the “Union”) petitions for

review of an order of the National Labor Relations Board (the “Board”) denying the Union’s request

for review of a compliance determination issued by the Board’s Regional Director and affirmed by

the Board’s General Counsel. For the following reasons, the petition is DENIED.

 BACKGROUND

This case arises out of a compliance proceeding enforcing the Board’s prior determination

that Dupont Dow Elastomers (“DDE”) had committed unfair labor practices in violation of the

National Labor Relations Act (“NLRA”). See Dupont Dow Elastomers, 332 NLRB 1071, 1071-73

(2000). The unfair labor practices claim arose out of a merger between Dupont and Dow Chemical
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Neoprene Craftsmen v. N.L.R.B.

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Company that created a joint venture known as DDE. DDE, among other things, was to take over

production of neoprene at the Dupont facility in Louisville. While DDE decided to extend offers

of employment to almost all of the employees at the Louisville plant, it refused to recognize or

bargain with the Union, which represented all of the workers at Dupont’s Louisville neoprene

production facility. The Union promptly filed suit alleging that DDE, as an alter ego of Dupont,

or alternatively, as a perfectly clear successor, was committing unfair labor practices. Ultimately,

the Board found DDE to be a perfectly clear successor of Dupont and held that it had engaged in

unfair labor practices. Id. at 1075-76. As a remedy, the Board ordered DDE to: (1) cease and desist

from its refusal to recognize and bargain with the Union; (2) “rescind the changes in employment

terms made on April 1, 1996”; and (3) “make whole all unit employees for any loss of wages and

other benefits suffered.” Id. at 1076. We affirmed the Board’s decision on appeal. See Dupont Dow

Elastomers, Inc. v. N.L.R.B., 296 F.3d 495 (6th Cir. 2002). 

The case was then sent to a compliance proceeding before the Board’s Regional Director in

order to more specifically enforce the prior Board order. During this proceeding, the Union argued

that its members were entitled to certain backpay and other monetary awards because of several

unilateral changes DDE made to the terms of employment. DDE, on the other hand, contended that

these alleged unilateral changes were unlitigated unfair labor practice claims that the Union had

failed to assert in the original Board proceeding. Finding that much of the conduct alleged by the

Union during the compliance proceedings had not been litigated in front of the Board in the prior

decision, the Regional Director determined that a cease and desist order was the appropriate remedy

and denied the Union’s request for monetary relief. The Regional Director found that the “only
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unilateral change in established terms and conditions of employment” proven during the prior

proceeding was the addition of a success sharing program and therefore no backpay or other

monetary award was in order given that this change did not result in any loss of pay or benefits. The

Union appealed this decision to both the Board’s General Counsel and the Board and was denied

in both instances. The Union now petitions this court for review of the Board’s decision, arguing

that the prior order in fact dealt with unilateral changes other than success sharing and therefore the

Board abused its discretion in issuing solely a cease and desist order as a remedy. 

STANDARD OF REVIEW

We have repeatedly stated that the “Board’s remedial authority is a ‘broad discretionary one,

subject to limited judicial review.’” Taylor Warehouse Corp. v. N.L.R.B., 98 F.3d 892, 903 (6th Cir.

1996) (citation omitted). Therefore, 

[o]ur review is circumscribed by the principle that a remedial order of the Board will

not be disturbed unless the order is a patent attempt to achieve ends other than those

which can fairly be said to effectuate the policies of the NLRA. The deference

necessarily accorded to remedial orders stems from the Board’s primary

responsibility and broad discretion to devise remedies for NLRA violations.

Adair Standish Corp. v. N.L.R.B., 912 F.2d 854, 864 (6th Cir. 1990) (internal quotations, alterations,

and citations omitted). Furthermore, courts have “long recognized the Board’s normal policy of

modifying its general [remedial orders] in subsequent compliance proceedings as a means of

tailoring the remedy to suit the individual circumstances of each discriminatory charge.” Sure-Tan,

Inc. v. N.L.R.B., 467 U.S. 883, 902 (1984) (citations omitted).

DISCUSSION
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The Board does mention the loss of bidding and bumping rights (a unilateral change alleged

by the Union) at the outset of its opinion; nevertheless, it is not revisited and plays no role in the

ultimate decision. See Dupont Dow Elastomers, 332 NLRB at 1072. The Board also notes several

unilateral changes instituted by DDE at a second facility. 332 NLRB at 1072-73; see also Dupont

Dow Elastomers, 296 F.3d at 499. Because this appeal concerns only the Louisville facility, these

noted changes are immaterial to its resolution.

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Looking initially at the prior Board order, that decision repeatedly references the fact that

success sharing was the only change made to employment terms at the Louisville plant.1 See Dupont

Dow Elastomers, 332 NLRB at 1074. Likewise, our decision affirming the judgment of the Board,

while mentioning the addition of the success sharing program repeatedly, fails to discuss any of the

other unilateral changes that the Union claims require a monetary remedy. See Dupont Dow

Elastomers, Inc., 296 F.3d at 501-02.

Nonetheless, the Union argues that: (1) although success sharing was the only announced

unilateral change made by DDE, the evidence introduced in the proceedings below unmistakably

shows that DDE also instituted numerous other unilateral changes that were unannounced; (2) it was

not required to litigate the remedy at the unfair labor practices hearing; and (3) it was not required

to enumerate the exact relief requested in its complaint and, in any event, the complaint did set out

monetary losses such as discontinued overtime. 

As to the first and third arguments, the Union correctly points out that it introduced an

assortment of evidence at the unfair labor practices hearing concerning a number of other unilateral

changes by DDE and also specified in its complaint specific losses resulting from those alleged

changes. However, as detailed above, the Board barely mentions these unilateral changes in its

decision and, in fact, repeatedly emphasizes that DDE “announced no new terms and conditions of
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employment other than the success sharing bonus plan.” Dupont Dow Elastomers, 332 NLRB at

1074. Despite the Board’s inattention to these other alleged unilateral changes, the Union chose not

to contest those omissions in the subsequent proceedings before this court. In fact, the Union opted

not to appeal the initial decision by the Board. See Dupont Dow Elastomers, 296 F.3d at 495. 

The Union responds with its other primary argument: that it was not required to litigate the

remedy during the unfair labor practices hearing. While the Union correctly notes that the issue of

remedy is often appropriately resolved during compliance proceedings, see Sure-Tan, Inc., 467 U.S.

at 900-01, its argument misses the mark. Despite the validity of bifurcated proceedings in which

the unfair labor practice allegation and remedy are separately litigated, “the Board’s established

policy does not permit subsequent unfair labor practices to be litigated during the compliance stage

of the proceedings.” Flambeau Airmold Corp., 337 NLRB 1025, 1025 (2002). Therefore, all

specific unfair labor practices claims for which remedial relief is sought must be litigated on the

merits during the initial Board proceeding. 

In the end, the Board did not abuse its discretion in ruling that the unilateral changes made

by DDE for which the Union seeks monetary relief were neither litigated fully in the original Board

proceeding nor encompassed within the scope of the prior order. As detailed above, the prior order

almost completely omits mention of any unilateral changes imposed by DDE, with the exception of

success sharing. Moreover, in portions of the prior order, the Board states specifically that DDE

neither announced nor implemented any changes other than success sharing at the Louisville plant

prior to beginning operations. Dupont Dow Elastomers, 332 NLRB at 1074. Given that the prior

Board order paid, at best, minimal attention to these issues, the Board’s interpretation of the previous
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order as not covering the various unlawful unilateral changes asserted by the Union is supported by

the record. Lastly, this conclusion neither implies that the unilateral changes the Union asserts did

not occur nor that these changes did not constitute unfair labor practices. We are simply stating that,

irrespective of the merit of those allegations, the Board did not abuse its discretion when deciding

that those claims had not been previously litigated.

Turning to the validity of the Board’s remedial order itself, recognizing our deferential

standard of review, the Board’s decision to issue only a cease and desist order was well within its

discretion. Under the Board’s reading of the prior order, the only unilateral change established with

respect to the Louisville plant was the addition of a success sharing program. Since the Union does

not argue that the success sharing resulted in any loss of pay or benefits, there is no basis upon

which it may claim either backpay or other monetary award. Furthermore, the Union identifies no

policy of the NLRA with which this order conflicts. Accordingly, the remedial order was not an

abuse of discretion. 

 The petition is DENIED.