On May 15th, 2017 the 9th Circuit Court of Appeals heard oral arguments from counsel for plaintiff Kim Beneli (an Operating Engineer and steward from Local 428), AUD Director Michael Goldberg, defendant NLRB, and the company that fired Beneli, Babcock Wilcox Construction. Beneli is asking for judicial review of the NLRB’s decision not to apply its new standard as to when to hear an Unfair Labor Practice charge (ULP) or when to defer to a joint panel or arbitrator. The Board had refused to apply a newly minted standard to Beneli, and ended up refusing to hear her ULP, based on the old standard. For background see UDR 210, Page 8 ”AUD files Amicus Brief Supporting Dissident Rights” and UDR 208 Page 3,“Local 428 Operating Engineer Keeps Fighting.” Beneli’s case had prompted the NLRB review, a review which resulted in a new standard with much stricter criteria applied before the NLRB could defer to a panel or arbitrator. Oral arguments before the court, which lasted about 15 minutes, can be viewed through the court’s website https://www.ca9.uscourts.gov/media/ and type “Beneli” as the case name. Or watch the arguments from a link here.
In the arguments, AUD Director and attorney Goldberg draws from the AUD amicus brief. Goldberg and Beneli’s attorney, Myron Scott, both argue that, as Beneli’s case was the very case that prompted the recent change in the deferral standard, the NLRB erred in not applying the new standard to her case as it is “a case of first impression,” in legal parlance. During the arguments, NLRB’s counsel never disputes that it was Beneli’s vigilance in the face of roadblock after roadblock that brought the illegitimacy of the old standard to the attention of the Board. In AUD’s amicus brief, Goldberg had argued that the NLRB erred because the usual practice of the Board is to apply a new standard retroactively, and in any case should at least apply it to a case of first impression. But NLRB counsel claimed that it was the policy of the Board to only apply newly-minted standards either retroactively or prospectively to all cases. In other words, the standard applies to either every case since the beginning of time or applies only from whence it is decided upon. The new standard derived from the Beneli case is considered prospective, therefore it cannot apply to the case itself, thus avoiding “carving out” a certain exception, while leaving other Beneli-esq cases from the past stranded on the shores of time.
Babcock’s counsel argues that Beneli’s case should be dismissed because she has already had “…three bites of the apple” (the arbitrator, the NLRB Regional Office, and the Board). Of course, if you accept the new standard by which NLRB judges such cases, one could argue Beneli has not received one bite of the apple, having never been subject to the new, improved standard. Counsel for Babcock, while praising the work of the NLRB, very prudently avoids any mention of the new standard vis-a-vis the old one qua legitimacy either way.
The panel presiding over the 9th Circuit Court peppered Scott and Goldberg with many questions (as it was they who were asking the Court to intervene).We await the Court’s decision.