American Medical Response Mid-Atlantic, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jun 29, 2021

05-CA-221233 (N.L.R.B. Jun. 29, 2021)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AMERICAN MEDICAL RESPONSE
MID-ATLANTIC, INC.
and Case 05-CA-221233
MOSIAH O. GRAYTON
ORDER GRANTING MOTION AND REMANDING1
On July 17, 2020, the Board issued a Decision and Order in this proceeding,
which is reported at 369 NLRB No. 125 (2020). The Board found that the Respondent
violated Section 8(a)(1) by suspending employee Mosiah Grayton, placing her on
unpaid administrative leave, issuing her a last-chance agreement, and discharging her
because she engaged in protected concerted activity. In so finding, the Board
concluded that Grayton’s actions did not lose the protection of the Act under Atlantic
Steel, 245 NLRB 814 (1979).
Thereafter, the Board issued its decision in General Motors, 369 NLRB No. 127
(2020), holding that the Board would no longer apply various setting-specific standards,
including Atlantic Steel, to decide whether misconduct in the course of protected activity
lost the employee the Act’s protection. Instead, the Board announced that the Wright
Line2 burden-shifting framework is the appropriate standard for loss-of-protection cases.
Id., slip op. at 9. The Board concluded that it would apply the Wright Line standard
1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
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“retroactively to all pending cases in which the Board would have determined, under
one of its setting-specific standards, whether abusive conduct in connection with
Section 7 activity had lost an employee or employees the Act’s protection.” Id., slip op.
at 10-11.
On August 21, 2020, the Respondent timely filed a motion for reconsideration of
the Board’s decision reported at 369 NLRB No. 125. The Respondent’s motion
acknowledged that the decision issued before General Motors, but nevertheless argued
that reconsideration was warranted so that the Board could analyze the case under
Wright Line. On November 24, 2020, the Board denied the Respondent’s motion for
reconsideration on the grounds that the Respondent had failed to identify any material
error in the underlying decision or demonstrate “extraordinary circumstances”
warranting reconsideration.3
On December 8, 2020, the Respondent filed the instant motion for clarification
under Section 102.49 of the Board’s Rules and Regulations.4 In the motion, the
Respondent asserts that the Board’s denial of its motion for reconsideration asking the
Board to apply General Motors to this case did not meet the requirements of the
Administrative Procedure Act (APA). Essentially, the Respondent argues that the
Board’s decision to deny the motion is “arbitrary and capricious” under the APA
because it is inconsistent with the Board’s treatment of at least one case applying
3 Because the Board denied the motion for reconsideration, it also denied the
Respondent’s related motion for leave to file an amended answer.
4 Section 102.49 of the Board’s Rules and Regulations and Sec. 10(d) of the Act
provide that the Board may modify its order at any time before the record in the case is
filed in court. See, e.g., Raven Government Services, 336 NLRB 991, 991 (2001);
Dorsey Trailers, Inc., 322 NLRB 181, 181 (1996).
3
Atlantic Steel that was pending before a circuit court when General Motors issued and
in which the Board sought a remand from the court to apply the Wright Line standard.5
Subsequently, on March 2, 2021, the Respondent filed a notice of supplemental
authority pursuant to Reliant Energy, 339 NLRB 66 (2003), to direct the Board’s
attention to the recent decision in Leggett & Platt, Inc. v. NLRB, 988 F.3d 487 (D.C. Cir.
2021). There, a Board decision finding an unlawful withdrawal of recognition was
pending before the court when the Board issued Johnson Controls, Inc., 368 NLRB No.
20 (2019), which applied a new legal standard “to all pending cases in whatever
stage[.]” On request from the Board, the court remanded the case to the Board to
determine the retroactive impact, if any, of Johnson Controls.
On remand, the Board concluded, based largely on institutional and equitable
considerations, that it would not apply Johnson Controls to the case. Leggett & Platt,
Inc., 368 NLRB No. 132, slip op. at 2-3 (2019). On review, however, the court found the
Board’s reasons for not applying Johnson Controls retroactively to be unavailing. As
relevant here, the court determined that, by expressly recognizing the practice of
applying newly-announced legal standards “to all pending cases in whatever stage[,]”
the Board “painted itself into a corner [that] it [could] escape only by demonstrating
some manifest injustice.” The court concluded that the Board's proffered reasons for
declining to apply Johnson Controls retroactively in Leggett & Platt failed to meet that
standard. Leggett & Platt, Inc. v. NLRB, supra, 988 F.3d at 495.
5 The Respondent relies on a letter from the Board to the court in Cadillac of Naperville,
Inc. v. NLRB, D.C. Cir. Nos. 19-1150, 19-1167, where, after General Motors was
decided, the Board requested remand of an issue decided under the Atlantic Steel
framework so the Board could apply the Wright Line standard in the first instance.
4
Under the unique circumstances of this case, we have reassessed our decision
to deny the Respondent’s motion for reconsideration. As already explained, in General
Motors the Board announced that it would apply the Wright Line framework to “all
pending cases in which the Board would have determined, under one of its setting-
specific standards, whether abusive conduct in connection with Section 7 activity had
lost an employee or employees the Act’s protection.” 369 NLRB No. 127, slip op. at 10-
11. It is undisputed that the Board first decided this case prior to the issuance of
General Motors. However, when the Respondent timely filed its motion for
reconsideration, General Motors was controlling Board law. In these circumstances, we
believe the Board’s retroactivity analysis in General Motors, viewed in light of the court’s
decision in Leggett & Platt, requires us now to apply General Motors and the Wright
Line framework to the issues presented in this case.
As a result, we have decided to grant the Respondent’s motion for clarification,
vacate the Board’s decision reported at 369 NLRB No. 125 (2020) and the subsequent
November 24, 2020 Order Denying Motions, and remand the case to the administrative
law judge for further consideration in light of General Motors, to include permitting the
parties to file supplemental briefs to the judge. Further, upon the request of a party, the
judge may reopen the record to obtain evidence relevant to deciding the issues
presented in this case.
ORDER
IT IS ORDERED that the Board’s decision reported at 369 NLRB No. 125 and
unpublished Order in this proceeding dated November 24, 2020 are vacated.
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IT IS FURTHER ORDERED that this proceeding is remanded to Administrative
Law Judge Arthur J. Amchan for appropriate action as set forth above.
IT IS FURTHER ORDERED that the judge shall prepare a supplemental decision
setting forth credibility resolutions, findings of fact, conclusions of law, and a
recommended Order. Copies of the supplemental decision shall be served on all
parties, after which the provisions of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
Dated, Washington D.C., June 29, 2021.
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Marvin E. Kaplan, Member

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William J. Emanuel, Member
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John F. Ring, Member