Judge Veronica Rossman, nominated by President Biden to the Tenth Circuit court of appeals, wrote a decision upholding a  ruling by the National Labor Relations Board (NLRB) finding that a corporation violated workers’ rights by making profit-sharing payments only to non-union employees and underpaying contributions to a pension fund. The ruling, which was unanimous except on a small factual issue, sent the case back to the NLRB concerning the remedy.  The February 2024 decision was in Coreslab Structures Inc. v NLRB.

 

What is the background of this case?                        

Coreslab is a corporation that “produces bridge components and other structural materials.” For about fifteen years, it had recognized a local AFL-CIO chapter as the bargaining representative of its production and maintenance employees.

As part of its 2005 agreement with employees, Coreslab made payments to a pension fund for all hours worked by employees, including those not represented by the union. But starting in 2011, Coreslab only made pension  contributions for hours worked by union members, and made profit-sharing payments to non-union employees instead without telling the union or its members. When an audit in 2019-20 revealed that Coreslab had underpaid pension contributions by $120,000, the facts came out. A number of the unionized employees decided they would prefer to get profit-sharing payments and withdraw from the union, and Coreslab sought to withdraw its recognition of the union.

The union went to the NLRB for relief. The NLRB decided that Coreslab violated the law and committed unfair labor practices, including its pension fund underpayments and differential treatment of union and non-union employees. Coreslab petitioned the Tenth Circuit for review.

 

How Did Judge Rossman and the Tenth Circuit Rule and Why Is It Important?

Judge Rossman wrote a decision upholding the NLRB’s findings against Coreslab. The ruling was unanimous, except that one judge wrote a partial dissent suggesting that the union should have taken steps earlier to check on Coreslab.

Judge Rossman explained that the facts, relevant precedent, and federal law made clear that Coreslab violated the law by failing to pay required pension contributions and setting up a profit-sharing system for non-union employees. Although employees may decide to withdraw from a union, she went on, the withdrawl here was clearly ‘tainted” by Coreslab’s “unfair labor practices” concerning the pension and profit-sharing plans. The court did, however, remand the case to the NLRB because of a concern that it may have gone too far in its remedy by ordering Corelsab to make back payments to the pension plan “without offset” and to retain the profit-sharing plan for all employees.

Judge Rossman’s decision was obviously important to get justice for Coreslab’s workers and to enforce federal labor law provisions against the corporation. It also sets an important precedent on improper employer efforts to undermine unions, particularly in the Tenth  Circuit including Oklahoma, Colorado, Kansas, New Mexico, Utah, and Wyoming.  The decision is also a reminder of the importance of promptly confirming fair-minded nominees like Judge Rossman to our federal courts.