NLRB v. Pan American Grain

United States Court of Appeals
For the First Circuit

No. 05-1274

NATIONAL LABOR RELATIONS BOARD,

Petitioner/Cross-Respondent,

v.

PAN AMERICAN GRAIN CO., INC. and
PAN AMERICAN GRAIN MANUFACTURING CO., INC.,

Respondent/Cross-Petitioner.

ON APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR
REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.

Ruperto J. Robles and Rafael J. Lopez on brief for
petitioner/cross-respondent.
Arthur F. Rosenfeld, Acting General Counsel, John E. Higgins,
Jr., Deputy General Counsel, Margery E. Lieber, Acting Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Meredith L. Jason and Christopher W. Young on brief for
respondent/cross-petitioner.

December 22, 2005
 BOUDIN, Chief Judge. We have before us an application by

the National Labor Relations Board ("the Board" or "NLRB") for

enforcement of the order it issued against a grain processing

company, Pan American.1 Pan American cross-petitions to set aside

portions of the Board's order.

Pan American is a Puerto Rican company that manufactures

animal feed and processes rice for human consumption. Congresso de

Uniones Industriales de Puerto Rico ("the Union") has been the

collective-bargaining representative of Pan American's production

and maintenance employees for many years, but the last collective-

bargaining agreement between the Union and Pan American expired in

2000 for two Pan American facilities (the Amelia and Corujo

facilities) and 2002 for the other (the Arroz Rico facility).

From 1996 to 2002, Pan American undertook a long-term

project designed to modernize and automate some of its facilities;

it initiated this project to help offset the cost of complying with

an Environmental Protection Agency consent decree. These upgrades

caused the company's staffing needs gradually to decline, and Pan

1
Pan American is two corporate entities, Pan American Grain
Co., Inc. and Pan American Grain Mfg. Co., Inc., whose brief states
that they are "affiliated business enterprises with common
officers, directors, management and supervision, formulating and
administering a common policy affecting operations."

-2-
American laid off one or two employees each year during the

modernization.

In January 2002, employees at the Amelia and Corujo

facilities went on strike. The strike caused a decline in sales.

The following month, the company president met with two managers

and the group decided that, because of the decline in sales and the

increased efficiency resulting from the modernization, fifteen

employees should be permanently laid off. On February 27, 2002,

Pan American told fifteen of the striking employees that their

positions had been permanently eliminated. Pan American was later

charged with committing various unfair labor practices in violation

of the National Labor Relations Act ("the Act" or "NLRA"), 29

U.S.C. §§ 151 et seq. (2000).

In the proceedings that followed, the NLRB found that Pan

American had engaged in numerous unfair labor practices, but the

only such finding challenged on petition to this court was that Pan

American had violated section 8(a)(5) and (1) of the Act, 29 U.S.C.

§ 158(a)(5), (1), by failing to give the Union notice and an

opportunity to bargain as to the layoff decision and its effects

before laying off these fifteen employees.2 To remedy this

2
As Pan American did not contest the other findings by the
Board, the Board is entitled to summary enforcement of those
portions of its order related to these findings. See E.C. Waste,
Inc. v. NLRB, 359 F.3d 36, 41 (1st Cir. 2004).

-3-
violation, the Board ordered Pan American to reinstate the fifteen

employees and compensate them with back pay.

Pan American challenges the Board's finding as to the

section 8(a)(5) and (1) violation and the remedy imposed in

connection with this violation. It argues first that it was not

required to bargain with the dismissed employees regarding the

decision to dismiss them, conceding that it was required to bargain

regarding the effects of the layoff decision. Second, Pan American

asserts that in light of its limited bargaining duty, the remedy of

reinstatement and full back pay was improper, and under Board

precedent in Transmarine Navigation Corp., 170 N.L.R.B. 389 (1968),

only limited back pay could be required.

The Board asserts that Pan American is precluded from

making its first argument on this petition because it did not

present it to the Board in the proceedings below. As for Pan

American's second argument, the Board urges that we should dispose

of it by finding that the facts of this case do not warrant the

limited remedy Pan American seeks. We conclude that Pan American's

arguments are interrelated, were presented to the Board, and cannot

be resolved without further explanation by the Board.

To understand both the waiver argument and the merits of

the case requires a brief explanation of the background law. Under

section 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5), an employer's

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"refus[al] to bargain collectively with the representatives of his

employees" constitutes an "unfair labor practice"; section 8(d) of

the Act, id. § 158(d), specifies that the duty "to bargain

collectively" includes the obligation to "confer in good faith with

respect to wages, hours, and other terms and conditions of

employment." Absent contrary provisions in a collective bargaining

agreement, there are thus some decisions as to which a unionized

employer must bargain with the union (e.g., wages and hours);

others as to which it normally need not, "such as choice of

advertising and promotion, product type and design, and financing

arrangements," which "have only an indirect and attenuated impact

on the employment relationship," First Nat'l Maint. Corp. v. NLRB,

452 U.S. 666, 676-77 (1981); and yet others entailing obligations

that fall somewhere in between.

The present case may or may not fall in this "in between"

category. In certain situations, a decision to order layoffs may

be the prerogative of management but an obligation may still exist

to bargain with the union as to "effects" of the layoffs; in other

words, management may have to bargain about whether and to what

extent to provide severance to the laid-off employees even though

it may not have to discuss whether to make the layoffs. Both the

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courts (e.g., Providence Hospital)3 and the Board (notably in

Transmarine)4 have endorsed such a qualified duty in certain

circumstances.

Before the Board, Pan American argued that it did not

have to bargain with the Union at all so no relief was proper; but

in the alternative it argued that at most its bargaining obligation

was limited to the "effects" of the layoffs and therefore back pay

for a limited period would be the most that should be awarded. The

latter argument depends upon two elements: that only effects

bargaining was required in this case, and that where only effects

bargaining is required, the limited back pay remedy prescribed in

Transmarine is appropriate for a breach of the bargaining duty

(because reinstatement would defeat the layoff prerogative).

Pan American made this alternative two-part argument both

in its exceptions to the findings of the administrative law judge

3
See Providence Hosp. v. NLRB, 93 F.3d 1012, 1018 (1st Cir.
1996) ("[U]nions generally enjoy the right to bargain over the
effects of decisions which are not themselves mandatory subjects of
collective bargaining."); NLRB v. New England Newspapers, Inc., 856
F.2d 409, 413 (1st Cir. 1988) ("Although the employer is not
obligated to bargain regarding the decision to sell its business,
the effects of that sale are . . . a mandatory subject of
bargaining . . . .").
4
Transmarine, 170 N.L.R.B. at 390 (requiring employer to
bargain over effects of shutdown, and imposing "a limited backpay
requirement"); see also Melody Toyota, 325 N.L.R.B. 846, 846 (1998)
(noting that the ALJ's order "provides, inter alia, for the Board's
standard backpay remedy in effects bargaining cases as modeled
after the remedy set forth in Transmarine Navigation Corp.").

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("ALJ") and in its request for rehearing before the Board. In its

exceptions, for example, Pan American sought to qualify its

bargaining obligation, focusing on the difference between a layoff

decision for "economic reasons" and a layoff decision resulting

from a successful modernization program. Pan American then

concluded its argument against the ALJ's remedy by stating:

[W]e contend that inasmuch as the record does
show that the layoffs were an effect of an
employer's decision, based primarily on
operational reasons as well as staffing needs,
the determination was related to the scope and
direction of business and accordingly the
proper remedy would be that of a limited back
pay. See Transmarine Navigation Corp., 170
NLRB 389 (1968).

A petitioner is barred from making in court arguments not

presented to the Board. NLRB v. Saint-Gobain Abrasives, Inc., 426

F.3d 455 (1st Cir. 2005), explained that under section 10(e) of the

Act, 29 U.S.C. § 160(e), the reviewing court has jurisdiction to

decide an issue on a petition to set aside an NLRB order only if an

objection made below, "fairly read, apprises the Board that the

objector intended to pursue the issue later presented to the

court." Saint-Gobain, 426 F.3d at 459 (citing Marshall Field & Co.

v. NLRB, 318 U.S. 253, 255 (1943) (per curiam)).

However, we cannot agree with the Board's brief that Pan

American failed to make its argument to the Board. The "scope and

direction of business" language and the attempted distinction

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between "economic" and "modernization" reasons for discharge bear

directly on the extent of the employer's duty to bargain. Indeed,

the scope-and-direction phrase resembles language in Justice

Stewart's oft-cited concurrence in Fibreboard Paper Prods. Corp. v.

NLRB, 379 U.S. 203, 223 (1964) (Stewart, J., concurring), dealing

with just such line-drawing as to the extent of the duty to

bargain.

Furthermore, Transmarine is the common citation for the

view that a limited back pay remedy is the proper answer where the

employer breached only a duty to bargain about effects. E.g.,

Melody Toyota, 325 N.L.R.B. 846, 846 (1998); see also NLRB v.

Emsing's Supermarket, Inc., 872 F.2d 1279, 1289-91 (7th Cir. 1989).

To rely on Transmarine, as Pan American did, for the view that "the

proper remedy would be that of a limited back pay" makes sense only

if the predicate is the employer's claim that its duty to bargain

was limited (i.e., because the layoffs were assertedly a management

prerogative). The two elements are parts of an embracing claim

that there was only a limited duty warranting only a limited

remedy.

We agree that Pan American could have done a better job

at the Board level in clarifying its position. In part, Pan

American invited confusion by arguing (permissibly--but perhaps not

with perfect lucidity) that it had no duty to bargain at all but,

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if it did, it was a limited duty justifying only the Transmarine

remedy. Yet contributing to the confusion is the fact that the

Board has not made clear where the full duty to bargain leaves off

and the limited "effects" duty supercedes it. Anyway, enough was

said to alert the Board to the employer objection that only a

limited duty and the Transmarine remedy applied in this case.

No answer to the objection is provided in the Board's

decision. In rejecting a claim of retaliatory firings under

section 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3), (1), the

ALJ had explicitly credited Pan American's claim that the layoff of

the fifteen employees was motivated (at least in part) by the

modernization and automation project dating from 1996. In

summarizing his factual findings on this question, the ALJ stated:

The evidence substantiating [Pan American's]
position that an ongoing modernization and
automation project had reduced staffing needs
was detailed, plausible, and uncontroverted;
it outweighs the evidence casting doubt on the
veracity of [Pan American's] explanation.
[Pan American] has shown that it more likely
than not would have decided to implement its
February 2002 layoff because its staffing
needs decreased, even absent the employees'
protected activities.

The ALJ also found that another possible motivation for the layoffs

was a "dip in sales."

Yet when the ALJ discussed the failure to bargain

charges, he simply said that "layoff decisions are a mandatory

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subject of bargaining," failure to bargain violates the Act, and

"the traditional and appropriate Board remedy for an unlawful

unilateral layoff based on legitimate economic concerns" includes

reinstatement and full back pay. He did not so much as mention the

issue of the possible motivation of the layoffs as pertinent to

whether full reinstatement or only the limited back pay remedy

should be adopted.

Pan American responded, as described and quoted above, by

arguing to the Board that Pan American's rationale for the layoffs-

-accepted by the ALJ himself–warranted at most only the Transmarine

remedy of limited back pay. The Board, faced with Pan American's

objection, explained the difference between the full and limited

back pay remedies and then continued with two sentences that

explain very little:

Here, we have found that [Pan American's]
decision to lay off employees was a mandatory
subject of bargaining, and that [Pan American]
violated Section 8(a)(5) and (1) by failing to
satisfy its obligation to bargain both over
the decision and its effects. Accordingly, we
find that the full backpay and reinstatement
remedy is appropriate.

In substance the Board treats a breached obligation to

bargain over the decision as well as its effects as warranting the

"full" (as opposed to the Transmarine) remedy. What is missing is

any explanation why, in light of the ALJ's own factual findings,

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Pan American's "decision to lay off employees was a mandatory

subject of [full scale] bargaining" rather than bargaining solely

about effects. Yet some explanation is needed precisely because

where the line should be drawn is far from clear.

Justice Stewart's concurrence in Fibreboard eschewed

mandatory bargaining for decisions that "lie at the core of

entrepreneurial control," such as "[d]ecisions concerning the

commitment of investment capital and the basic scope of the

enterprise." Fibreboard, 379 U.S. at 223 (Stewart, J.,

concurring). It was followed by First Nat'l, a case involving a

partial shutdown of an employer's business, which offered three

separate categories of managerial decisions and a balancing test,

noting that "other types of management decisions"--including

"automation"--"are to be considered on their particular facts."

First Nat'l, 452 U.S. at 667, 676-79, 686 n.22.

We do not know whether the NLRB now views layoff

decisions prompted by modernization to be mandatory subjects of

bargaining, resolving the issue seemingly left open in First Nat'l,

and, if so, why, or whether it decided this case on its "particular

facts," and, if so, what those facts were. Possibly, the Board

attributed importance to the fact that the layoffs owed something

to the loss of business due to the strike but, if so, this too is

-11-
unexplained, nor do we know how multiple motives for layoffs should

be analyzed.

The issue appears to be one of considerable importance.

To say that an employer must bargain about whether to make layoffs

caused by modernization does not seem far from saying, in

substance, that it must bargain about whether to modernize.

Perhaps there is some reason to distinguish between the two, but it

is easy to see how the two steps are linked in practice. Often

enough, an employer who cannot recoup costs of modernizing by

reducing employment will have little reason to invest.

In all events, we do not understand the Board's rationale

for classifying this case as one where the employer had (in the

Board's words) an "obligation to bargain both over the decision

[the layoffs] and its effects." The result may or may not be

sound, but until we understand its basis, we cannot effectively

review it. See NLRB v. Auciello Iron Works, Inc., 980 F.2d 804,

812-13 (1st Cir. 1992). And if there is an obvious explanation, it

has not been supplied by the Board's brief on appeal.

The application of the Board for enforcement of its order

is granted in part, as to paragraphs (1)(a), (b), (d), (e) (except

as it applies to the employees laid off on February 27, 2002), (f),

and (g), and paragraphs (2)(a), (b), (e) (except as it applies to

the employees laid off on February 27, 2002), (f) (except as it

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applies to the employees laid off on February 27, 2002), (g), (h),

(i) (except for paragraphs in the notice pledging to bargain with

the Union as to the February 27, 2002, layoffs, and to reinstate

and make whole the employees laid off on that day), and (j).

As to paragraphs (1)(c) and (e) (insofar as it applies to

the employees laid off on February 27, 2002), and paragraphs

(2)(c), (d), (e) (insofar as it applies to the employees laid off

on February 27, 2002), (f) (insofar as it applies to the employees

laid off on February 27, 2002), and those portions of (2)(i)

requiring the posted notice to include a pledge to bargain with the

Union as to the February 27, 2002, layoffs, and to reinstate and

make whole the employees laid off on that day, the order is vacated

and the case remanded to the Board for further proceedings

consistent with this opinion. Each side to bear its own costs on

appeal.

It is so ordered.

Dissent follows.

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 STAHL, Senior Circuit Judge, dissenting. I do not

agree with the majority that Pan American's objections before the

Board were sufficient to apprise the Board that the company would

later argue, on appeal, that it had no duty to bargain about the

layoffs in the first place. I would hold that Pan American

waived the bargainability issue by not raising it below, and that

Section 10(e) of the NLRA precludes our entertaining the question

whether the February 2002 decision to lay off fifteen striking

employees was a mandatory subject of bargaining. I therefore

respectfully dissent.

We very recently confirmed that the "statutory mandate"

set out in Section 10(e) "is clear: if a particular objection has

not been raised before the Board, a reviewing court, in the

absence of extraordinary circumstances, is without jurisdiction

to consider the issue in a subsequent enforcement proceeding."

NLRB v. Saint-Gobain Abrasives, Inc., 426 F.3d 455, 459 (1st Cir.

2005). When it is not immediately apparent whether the objection

a party made below is the same as the issue it now seeks to raise

on appeal, the critical inquiry "is whether the objection, fairly

read, apprises the Board that the objector intended to pursue the

issue later presented to the court." Id. (citing Marshall Field

& Co. v. NLRB, 318 U.S. 253, 255 (1943) (per curiam)). In the

present case, Pan American argues on appeal that it had no duty

-14-
to bargain about the layoffs of fifteen employees in February

2002, but it did not make this objection below in so many words.

In cases such as this one, "where a party asserts that

it has objected to the Board, but the objection is not

unmistakable," our review "must be guided by the purposes of

section 10(e) and necessarily will be highly fact specific."

Local 900, Int'l Union of Elec., Radio & Mach. Workers (IUE) v.

NLRB, 727 F.2d 1184, 1193 (D.C. Cir. 1984). The purposes served

by Section 10(e) are twofold. First, the section "has a notice

function that ensures that the Board has the opportunity to

resolve all issues properly within its jurisdiction." Id. at

1191. Second, the section "insures against repetitive appeals to

the courts" by requiring aggrieved parties to present all

objections to the Board in the first instance. Id.

Here, Pan American presented two primary objections to

the Board.5 First, Pan American contended that the ALJ erred in

finding an unfair labor practice, because the company had, in

fact, given proper notice to the Union and showed its willingness

to bargain, and it was the Union's recalcitrance, rather than any

misbehavior on Pan American's part, that prevented bargaining

5
The company also objected to a particular factual finding the
ALJ made: that certain former strikers made an offer to return to
work. This point is not at issue on appeal.

-15-
from taking place. This objection, far from intimating that the

company had no duty to bargain, assumes that there was such a

duty. Second, Pan American objected that the ALJ should not have

recommended a remedy of reinstatement and full back pay for the

fifteen terminated employees. I simply cannot agree with the

majority when it states, "Before the Board, Pan American argued

that it did not have to bargain with the Union at all so no

relief was proper, but in the alternative it argued that at most

its bargaining obligation was limited to the 'effects' of the

layoffs." Slip Op. at 6. This statement not only

mischaracterizes Pan American's arguments before the Board6 but

assumes as plain fact what is actually a fervently contested

issue in this case.

The majority finds that Pan American's second

objection, its challenge to the remedy, was sufficient to apprise

6
In its first exception, Pan American stated, "Not only did
Respondent give proper notice of the future layoffs to the Union,
but the latter failed to timely bargain over said issue, thus
waiving its right to do so." In its second exception, the company
stated, "[I]nasmuch as the record does show that the layoffs were
[the result] of an employer's decision, based primarily on
operational reasons as well as staffing needs, the determination
was related to the scope and direction of business and accordingly
the proper remedy would be that of a limited back pay." At best,
this second exception could be interpreted as raising the
bargainability issue in a roundabout manner, and that is the
argument the majority makes. But it is simply not correct to
imply, as the majority does, that Pan American raised this
objection directly and explicitly, for it did not.

-16-
the Board that the company would later argue that there was no

duty to bargain about the layoffs in the first place. I

disagree. As the majority recognizes, it is undoubtedly possible

to infer a connection between the question of what kind of remedy

is appropriate after an employer's failure to engage in

statutorily required bargaining and the question of the extent of

the employer's original duty to bargain. The connection arises

from the fact that when an employer violates the Act by

terminating employees without engaging in mandatory bargaining,

the Board's customary remedy is reinstatement and back pay for

the terminated employees. See Saint-Gobain, 426 F.3d at 461. In

contrast, when an employer is not required to bargain about

terminating an employee, but must bargain only about the effects

of that termination (such as severance packages), the Board

generally imposes a more limited remedy, consisting of back pay

dating only from the date of the Board's order, without

reinstatement. See Transmarine Navigation Corp., 170 N.L.R.B.

389, 390 (1968). See also Bridon Cordage, Inc., 329 N.L.R.B.

258, 259 n. 11 (1999) (explaining distinction).

Thus, the argument goes that a person versed in the

tenets of labor law could infer that, because Pan American sought

a limited back pay remedy, the company believed such a remedy was

appropriate because it had no duty to bargain about its

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underlying decision to terminate the employees. I believe,

however, that this court should not have to infer the possible

legal arguments on which a party's complaints before the Board

might be based. For one thing, the Board will be better able to

administer its work if parties are required to make explicit to

the Board the reasons for their objections. This is because,

without such a "clear statement rule," the disposition of a

particular case will depend on the depths to which a particular

appellate panel is willing to dig in order to uncover a plausible

connection between the language used in an objection before the

Board and a theory on which the court might disturb the Board's

order. What is more, to allow parties to raise imprecise

objections in the hopes of later striking gold with the appeals

court "would be to set the Board up for one ambush after

another," Quazite v. NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996),

with the ambushing party's rate of success varying with the level

of labor law expertise held by the circuit court panel to which

the appeal is assigned.7

7
Of course, a party need not use an impossibly precise
formulation of words. For example, in IUE, the court found that
the union had adequately raised the question of whether a remedy
applied retroactively, even though the union's objections did not
mention the word "retroactive." See 727 F.2d at 1193.
Nevertheless, the court's benchmark remained whether the objection
provided sufficient notice to the Board as to the contested issue.
The court found that "in light of the union's objection to the

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 In this case, it is hardly certain that Pan American

challenged the ALJ's recommended remedy of reinstatement and back

pay out of the conviction that the company had no duty to bargain

over the underlying management decision (although that is one

possible interpretation). Another interpretation, at least

equally plausible, is that Pan American thought the order of

reinstatement was improper because it no longer had the need for

fifteen additional employees. In fact, Pan American's notice of

exceptions to the Board confirms that this was precisely the

company's position:

[A] full back pay and reinstatement remedy is
not proper in this case inasmuch as it has
been proven that Respondent's operations does
not harbor the need for the 15 positions that
were eliminated as per the modernization and
automation of the plant, which resulted in
the employees' layoffs.

Just as a general objection to "the remedies set forth in the

[ALJ's] decision" does not suffice to raise a later appeal on the

grounds that the remedy was unduly punitive, see Saint-Gobain,

remedy [and the context thereof]. . . it is inconceivable that the
Board did not understand that the union objected on retroactivity
grounds and that the union would raise the issue on appeal." Id.
at 1193 (emphasis added). In contrast, in this case, it is far
from inconceivable that the Board could have failed to discern from
Pan American's exceptions that the company intended to raise the
bargaining issue on appeal. Rather, it is quite possible that Pan
American did not, in fact, have any such intention at the time of
its objections before the Board.

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426 F.3d at 459,8 Pan American's objection to the remedy imposed

in this case, which could be interpreted in various ways, should

not suffice to preserve its current argument on appeal that the

remedy was inappropriate because the company had no duty to

bargain.

I note that this is not a case "[w]here a party

explicitly excepts to a remedy, and offers some explanation for

its objection in its brief" such that we might hold "that there

is sufficient notice to the Board to satisfy section 10(e)."

Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 144 (D.C. Cir. 1999). To

the contrary, in its brief replying to the NLRB General Counsel's

answer to its objections, Pan American merely reiterated its

argument that the ALJ's remedy was unduly burdensome, stating,

"[T]he record stands to the fact that the operations at [the

animal feed production plant] currently do not need 15 additional

employees in order to operate. Therefore, an order to reinstate

the 15 laid off employees . . . is . . . an undue burden on this

party's operations." This is further evidence that Pan American

was not even attempting to raise the bargainability issue before

the Board.9

8
As we noted in Saint-Gobain, "[t]here is no shortage of other
cases to the same effect." See id. at 460 (collecting cases).
9
Moreover, the Board's opinion below is entirely consistent
with the reasonable view that Pan American's objections were

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 Our review might be different if resolution of the

duty-to-bargain question were straightforward. But here, the

question is complicated and difficult to resolve, and the Board

would have been justified in concluding, as it evidently did,

that a party intending to raise the issue would have provided the

Board with developed argumentation in support of its position.

As the Supreme Court has said, an employer generally cannot take

unilateral action regarding mandatory subjects of bargaining, but

must first bargain over them with the union. NLRB v. Katz, 369

U.S. 736, 738-39 (1962). Mandatory bargaining subjects include

"terms and conditions of employment." 29 U.S.C. § 158(d). Thus,

limited to (a) an assertion that the company met its duty to
bargain and that it was the Union who refused to cooperate, and (b)
a complaint that the company should not have to reinstate workers
whose labor Pan American felt it no longer needed. The Board's
Decision and Order, in addition to adopting the ALJ's
recommendations, contained two holdings. First, the Board rejected
Pan American's contention that it complied with the Act by
providing the Union an opportunity to bargain. Second, the Board
held that, given that Pan American's decision to lay off employees
was a mandatory subject of bargaining, the remedy of full back pay
and reinstatement was appropriate, rather than the limited remedy
Pan American had requested. Although the Board's failure to
discuss an issue does not necessarily indicate that a party has not
adequately objected, see IUE, 727 F.2d at 1191, the fact that the
Board did not even mention a dispute about whether the layoffs were
bargainable supports my conclusion that the issue, which is a
complicated one, was not raised. In fact, Pan American's imprecise
objection "may well account for the Board's failure to consider
this question in its decision and to make findings with respect to
it," Marshall Field, 318 U.S. at 255, which the majority now
instructs the Board to do on remand.

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an employer cannot unilaterally change employees' working hours

or pay rate, for example, without first bargaining with the

union. Employer decisions such as layoffs, relocations of jobs,

and plant closings, in contrast, are sometimes mandatory subjects

of bargaining and sometimes not, depending on the reasons for the

decision and whether the issues raised by the decision are

amenable to resolution through the bargaining process. See First

Nat'l Maint. Corp. v. NLRB, 452, U.S. 666, 678 (1981). The exact

location of the line separating these two categories of employer

decisions is indistinct. Compare, e.g., United Food & Commercial

Workers Int'l Union, Local 150-A v. NLRB, 1 F.3d 24, 31-32, 35

(D.C. Cir. 1993) (endorsing three-part test for exempting certain

"entrepreneurial control" decisions from duty to bargain) with

Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 842-43 (4th Cir.

2000) (holding that as long as employer decision requires capital

expenditure, decision is outside duty to bargain).

In short, the issue of mandatory bargaining is not as

inextricably tied to the question of remedy as the majority

believes. If Pan American wished to challenge the ALJ's finding

that it was required to bargain about the layoffs, it should have

said so clearly. The Board — and this Court — should not be

required to connect the dots without aid from the parties.

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 I would grant enforcement of the Board's order in its

entirety.

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