text:
    Daniel P. SOEHNLEN; Bill Reeves; Superior Dairy, Inc., Plaintiffs-Appellants, v. FLEET OWNERS INSURANCE FUND; Robert Kavalec; Charlie Alferio; Victor Collova, Defendants-Appellees.
    No. 16-3124
    United States Court of Appeals, Sixth Circuit.
    Argued: October 18, 2016
    Decided and Filed: December 21, 2016
    Rehearing En Banc Denied January 25, 2017

      ARGUED: Keith L. Pryatel, KASTNER WESTMAN & WILKINS, LLC, Akron, Ohio, for Appellants. Eric G. Serrón, STEPTOE & JOHNSON LLP, Washington, D.C., for Appellees. ON BRIEF: Keith L. Pryatel, Kenneth M. Haneline, KASTNER WESTMAN & WILKINS, LLC, Akron, Ohio, for Appellants. Eric G. Serrón, Paul J. Ondrasik, Jr., Osvaldo Vazquez, STEPTOE & JOHNSON LLP, Washington, D.C., Lance B. Johnson, LANCE B. JOHNSON LLP, Cleveland, Ohio, for Appellees.
    Before: KEITH, BATCHELDER, and CLAY, Circuit Judges.
   OPINION

CLAY, Circuit Judge.

Plaintiffs Daniel Soehnlen, Bill Reeves, and Superior Dairy, Inc. filed -suit alleging that Defendants Fleet Owners Insurance Fund, Robert Kavalec, Charlie Alferio and Victor Collova, breached a range of obligations under the Employee Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq. (1974), the Patient Protection and Affordable Care Act of 2010 (“ACA”), 26 U.S.C. § 5000A (Pub. L. No. 111-148, as modified by the subsequently enacted Health Care and Education Reconciliation Act, Pub. L. No. 111-152 (2010)), and § 302 of the Labor Management Relations Act (“Taft-Hartley Act”), 29 U.S.C. § 186 (1988). Plaintiffs also brought breach of contract claims. The district court dismissed Plaintiffs’ complaint for failure to state a claim and for lack of standing. For the reasons that follow, we AFFIRM the district court’s judgment.

BACKGROUND

Factual Background

Plaintiff Superior Dairy, Inc. (“Superior Dairy”) is an Ohio Corporation that engages in the manufacture and processing of milk-based products. Plaintiff Daniel P. Soehnlen is President and Chief Executive Officer of Superior Dairy. Plaintiff Bill Reeves is an hourly employee of Superior Dairy, who also serves as a union steward on behalf of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, General Trucker Drivers and Helpers, Local Union No. 92. As: the parties concede, Defendant Fleet Owners Insurance Fund (“Fleet Owners” or the “Plan”) is a multi-employer “welfare benefit plan” within the meaning of ERISA, 29 U.S.C. § 1001, and a “group health plan” within meaning of the ACA, and therefore is covered by both ERISA and the ACA. Defendants, Robert Kavalec, Charlie Alferio, and Victor Collova are each represented to be either current or former-trustees for the Plan, responsible for overseeing its operation.

In order to provide medical coverage to its employees, Superior Dairy contracted with Fleet Owners and memorialized the terms of their agreement by signing the participation agreement (the “Participation Agreement”) on April 14, 2014. The Participation Agreement incorporated by reference the Amended and Restated Agreement and Declaration of Trust signed,in 2002 (“Trust Agreement”). Plaintiffs allege in their amended complaint that prior to entering into the Participation Agreement, they received certain assurances from Fleet Owners and individual trustees 'of the Plan, that the Plan would comply in all respects with federal law, including ERISA and the ACA.

According to Plaintiffs, notwithstanding the ACA’s statutory requirement mandating that all group health plans eliminate per-participant and per-beneficiary pecuniary caps for both annual and lifetime benefits, the Plan maintains such restrictions. Consequently, Superior Dairy purchased supplemental health insurance benefits to fully cover its employees. Defendants do not, at this time, dispute the existence of benefit caps within the plan, but instead argue that the Plan is exempt from such requirements because it is a “grandfathered” plan.

Procedural History

Plaintiffs filed their complaint against Defendants alleging violations of the ACA, ERISA, Taft-Hartley Act, and various provisions of the Trust Agreement and Participation Agreement that govern the Plan. The action was brought both on behalf of individual named Plaintiffs, Soehnlen and Reeves, and the company Superior Dairy, and on behalf of a class of similarly situated employees. The district court dismissed all seven counts alleged in Plaintiffs’ complaint. Plaintiffs appeal every one of the district court’s conclusions; we therefore consider each argument below.

DISCUSSION

Standard of Review

This Court reviews de novo both a district court’s decision to dismiss the complaint for lack of subject matter jurisdiction and to dismiss for failure to state a claim. See Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 579 (6th Cir. 2014); In re Carter, 553 F.3d 979, 984 (6th Cir. 2009) (“Where a district court rules on a 12(b)(1) motion to dismiss that attacks the claim of jurisdiction on its face, this Court reviews the decision de novo”) To avoid dismissal under Rule 12(b)(6), a complaint must provide sufficient facts to state a claim that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). And where a plaintiffs Article III standing is at issue, the plaintiff must allege facts sufficient to establish the requisite individualized harm. See Keener v. Nat’l Nurses Org. Comm., 615 Fed.Appx. 246, 251 (6th Cir. 2015).

Analysis

I. ERISA Claims

1. Count I and II: Monetary and Injunctive Relief under 29 U.S.C. § 1132 (a)(1)(B)

Plaintiffs allege that by failing to comply with the ACA provisions enjoining annual and life-time limitations on benefits, Defendants violated their ERISA rights. Consequently, Plaintiffs seek monetary and injunctive relief under 29 U.S.C. § 1132(a)(1)(B) of ERISA, which states that a civil action may be brought in federal court “by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” The district court dismissed the first two claims of Plaintiffs’ complaint for lack of standing. Arguing that they have sufficiently pleaded-an invasion of their eongressionally defined rights, Plaintiffs ask us to reverse the district court. We decline to do so.

As has been reaffirmed countless times, there are two components to any given standing inquiry: constitutional and statutory. The Supreme Court has recently clarified, however, that what has been called “statutory standing” in fact is not a standing issue, but simply a question of whether the particular plaintiff “has a cause of action under the statute.” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014)). Defendants do not oppose, and we assume without considering, that Plaintiffs have a valid cause of action under ERISA in order to bring their § 1132(a)(1)(B) claim. But, as has been repeatedly proclaimed by the Supreme Court, even if a plaintiff has a cause of action arising under a given statute, “federal courts ... have only the power that is authorized by Article III” and, therefore, we must analyze standing under Article III. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). With respect to claims arising under ERISA, plaintiffs are not absolved from showing that the elements of Article III are met. Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 606-07 (6th Cir. 2007) (citing Cent. States Se. & Sw. Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2nd Cir. 2005)).

“Article III limits the judicial power of the United States ... and ‘Article III standing ... enforces the Constitution’s case-or-controversy requirement.’ ” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004)). Consequently, it must be determined whether Plaintiffs have “ ‘such a personal stake in the outcome of the controversy’ as to warrant [their] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on [their] behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Plaintiffs bear the burden of establishing standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy Article Ill’s standing requirements, a plaintiff must show: “(1) [he] has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Loren, 505 F.3d at 606-07 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).

We. .scrutinize the “injury-in-fact” element of standing in order to determine not just whether Plaintiffs have sufficiently pleaded a statutory injury, but a constitutional one as well. As the Supreme Court recently affirmed in Spokeo, Inc. v. Robins, an injury-in-fact contains the two distinct elements of particularization and concreteness. — U.S. -, 136 S.Ct. 1540, 1548-50, 194 L.Ed.2d 635 (2016). For an injury to be particularized, “it must affect the plaintiff in a personal and individual way.” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (standing requires that the plaintiff “personally has suffered some actual or threatened injury”). While “particularization is necessary to establish injury in fact[,] ... it is not sufficient.” Spokeo, 136 S.Ct. at 1548. A plaintiff must also show that he suffered a concrete injury, defined as a “de facto” injury, meaning that the injury “must actually exist.” Id.

Pointing specifically to Spokeo, Plaintiffs contend that the Supreme Court has radically altered the landscape for pleading injury-in-fact. Consequently, they believe that by merely alleging a violation of ERISA rights, they satisfy their obligation under Article III. We disagree on both points. While we recognize that the Supreme Court acknowledged that non-tangible injuries, including violations of statutory rights, may satisfy the constitutional showing of an injury-in-fact, we also take the Court at its word when it cautions that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. Therefore, even if we assume the injury is sufficiently particularized, Plaintiffs must still show that the deprivation of a right created by statute is accompanied by “some concrete interest that is affected by the deprivation.” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). A “concrete” intangible injury based on a statutory violation must constitute a “risk of real harm” to the plaintiff. Id.

Plaintiffs argue, in extreme generality, that certain members of their class suffer from conditions that have previously required medical expenses in excess of the benefit caps imposed by the Plan. They also claim that some of their employees will choose to delay important medical procedures in order to avoid exceeding the cap. We again reiterate, Plaintiffs are not absolved of their individual obligation to satisfy the injury element of Article III just because they allege class claims. We previously made clear that potential class representatives must demonstrate “individual standing vis-a-vis the defendant; [they] cannot acquire such standing merely by virtue of bringing a class action.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998). Individual Plaintiffs never show precisely what concrete harm they suffer as a result of Defendants’ violations of their ERISA rights. By merely arguing, as Plaintiffs do, that the pecuniary limitations imposed by the Plan exist, without anything further, Plaintiffs cannot hope to satisfy the concreteness prong of the injury-in-fact requirement of Article III. See Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 529-31 (5th Cir. 2016) (explaining that Kendall v. Emps. Ret. Plan of Avon Prods,, 561 F.3d 112, 120 (2d Cir. 2009) rejected the argument that defendants’ violation of their statutory duties under ERISA is in and of itself an injury in fact to the plaintiff).

To the extent-that Plaintiffs claim they personally suffer a constitutional injury by remitting money towards a non-compliant plan, they cannot state a claim. This Court has already determined that under § 1132(a)(1)(B), the mere fact that a plaintiff pays funds into a non-compliant plan, if an injury at all, is “neither concrete nor particularized, and is instead, arguably conjectural and hypothetical” and therefore does not satisfy injury-in-fact. Loren, 505 F.3d at 608. Accordingly, we dismiss Plaintiffs’ first two claims for lack of subject matter jurisdiction.

.2. Count III: Monetary and Injunc-tive Relief under § 1132(a)(1)(B) and § 1132(a)(3)

In Count III of their complaint, Plaintiffs, without introducing any additional facts, allege that Defendants have refused to provide benefits and coverage mandated by the ACA and ERISA. They seek to enjoin future violations and obtain appropriate monetary,- declaratory, and equitable relief to redress the violations under § 1132(a)(1)(B) and § 1132(a)(3). In relevant part, § 1132(a)(3) reads:

a civil action may be brought ... by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.

As the Supreme Court explained in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) § 1132(a)(3) is a “catch-all” provision that “act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Id. at 512, 116- S.Ct. 1065. Nonetheless, Plaintiffs’ arguments once again run counter to the mandate of Article III.

First, as a threshold matter, when bringing a suit under § 1132(a)(3) for monetary relief, plaintiffs must establish injury-in-fact. See Loren, 505 F.3d at 609; see also Perelman v. Perelman, 793 F.3d 368, 373 (3d Cir. 2015) (“claims demanding a monetary equitable remedy ... require the plaintiff to allege an individualized financial harm traceable to the defendant’s alleged ERISA violations”); Cent. States, 433 F.3d at 200 (“obtaining restitution or disgorgement under ERISA requires that a plaintiff satisfy the strictures of constitutional standing by demonstrat[ing] individual loss”); Harley v. Minn. Mining and Mfg. Co., 284 F.3d 901, 906-07 (8th Cir. 2002) (holding no constitutional standing existed because the “loss. did not cause actual injury to plaintiffs’ interests in the plan”). Consequently, to the extent Plaintiffs’ claim under § 1132(a)(3) seeks monetary relief, it must be dismissed because, as previously discussed, Plaintiffs did not demonstrate individual harm.

However, with respect to their request for injunctive relief, Plaintiffs contend, relying upon Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450 (3d Cir. 2003), subsequently cited by this Court in Loren, 505 F.3d at 609-10, that a plaintiff need not establish “actual harm” under § 1132(a)(3). We again disagree. To the extent we have allowed cases to go forward without compelling plaintiffs to show individualized injury, the cases were advanced under a different theory of liability than alleged by Plaintiffs. The plaintiffs in both Horvath and Loren argued that de-féndants breached their fiduciary duties under the ERISA plan. A plaintiff who brings suit under § 1132(a)(2) for breach of fiduciary duty does so in order to “seek recovery on behalf of the plan,” Loren, 505 F.3d at 608; see also Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 140, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) (holding that a participant’s fiduciary action brought pursuant to § 1132(a)(2) must seek remedies that provide a “benefit [to] the plan as a whole”); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 593 (8th Cir. 2009) (“It is well settled, moreover, that suit under § 1132(a)(2) is brought in' a representative capacity on behalf of the plan as a whole and that remedies under § 1109 protect the entire plan.”). Any recovery does not accrue to the plaintiff, but the plan itself.

Plaintiffs pair their request for injunc-tive relief with allegations of á breach of § 1132(a)(1)(B), a statute requiring a court to make individualized determinations of benefits. Although we have noted that there is a distinction between an individual claim for benefits under § 1132(a)(1)(B) and a claim brought under § 1132(a)(3) to compel a defendant to alter the manner in which it administers all the claims under the plan, see Hill v. Blue Cross and Blue Shield of Mich., 409 F.3d 710 (6th Cir. 2005), we have never held that such a claim can proceed without the individual plaintiffs’ showing a constitutional injury. And we decline to do so now, finding that Plaintiffs cannot escape their obligation to show a constitutional injury.

3. Count IY: Breach of Fiduciary Duty

Count IV of Plaintiffs’ complaint alleges that Defendant trustees Kavalec, Collova and Alferio have each breached their fiduciary obligations to the Plan, subjecting it to over $15,000,000 in taxes and penalties. In turn, they request appropriate monetary, injunctive, and equitable relief pursuant to 29 U.S.C. § 1132(a)(2); 29 U.S.C. § 1132(a)(3); and 29 U.S.C. § 1109(a). We reject their claim for monetary relief, because as previously discussed, individual plaintiffs bringing an action for monetary relief, even one brought derivatively on behalf of a plan, must personally satisfy the requirements of Article III. See Loren, 505 F.3d at 609.

Nonetheless, Plaintiffs press their claim for injunctive relief, arguing they need not show individual injury to obtain injunctive relief for a breach of fiduciary duty, relying again upon Horvath and Loren, In Loren, we considered a similar argument pursuant to § 1132(a)(2) and § 1132(a)(3), and recognized that while the plaintiffs’ arguments under § 1132(a)(2) were “too speculative to establish constitutional standing,” Loren, 505 F.3d at 609, plaintiffs’ action requesting injunctive relief may proceed under § 1132(a)(3) “to ERISA’s disclosure and fiduciary duty requirements without a showing of individual harm.” Id. (citing Cent. States, 433 F.3d at 199 and Horvath, 333 F.3d at 450). We concluded that “[pjlaintiffs need not demonstrate individualized injury to proceed with their claims for injunctive relief under § 1132(a)(3); they may allege only violation of the fiduciary duty owed to them as a participant in and beneficiary of their respective ERISA plans.” Id.

We now recognize that some ambiguity may have been engendered by this decision and take this opportunity to provide clarification. There is no doubt that ERISA imposes on plan fiduciaries a duty to act in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of ERISA. 29 U.S.C. § 1104(a)(1)(D). However, it is not- sufficient merely to state, as Plaintiffs do, that the plan is deficient without showing which specific fiduciary duty or specific right owed to them was infringed. See Kendall, 561 F.3d at 120 (narrowing the broad language of Horvath and noting plaintiffs “did have to show that they were generally harmed by the deprivation of a specific right.”) (emphasis added). Plaintiffs argument again suffers from the same lack of concreteness with respect to injury as previously explained. We recognize that misconduct by the administrators of a benefit plan can create an injury if “it creates or enhances a risk of default by the entire plan.” LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248, 255, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008). But Plaintiffs make no showing of actual or imminent injury to the Plan itself. Plaintiffs concede this point by pleading that the actions of the fiduciaries expose the Plan to prospective liability in the amount of $15,000,000. To the extent that Plaintiffs argue that the risk of an enforcement action is itself sufficient to constitute an injury, we find in the absence of any evidence that penalties have been levied, paid, or even contemplated that “these risk-based theories of standing [are] unpersuasive, not least because they rest on a highly speculative foundation lacking any discernible limiting principle.” David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013).-We therefore affirm the district court’s finding that Plaintiffs’ lack standing to bring this claim.

4. Count V: Breach of § 1149

In Count V of their complaint, Plaintiffs argue pursuant to 29 U.S.C. § 1149 that Defendants Robert Kavalec, Victor Collo-va, and Charlie Alferio made false statements and false representations of fact, knowing these representations to be false in connection with the advertising, marketing or sale to Superior Dairy. Allegedly, Defendants made certain promises to Plaintiffs that the Plan would comply in all respects with ERISA and- welfare benefit laws; such assurances were instrumental to Superior Dairy’s contracting with Fleet Owners to have the Plan provide medical benefits.

Interpreting § 1149 presents this Court with an issue of first impression. Neither litigant points to a single case construing § 1149 or produces concrete authority regarding whether § 1149 provides Plaintiffs -with a cause of action. But, even if we assume, which we now do without deciding, that it does, we must still dismiss for failure to state a claim upon which relief- can be granted. Section §■ 1149 provides in relevant part:

No person, in connection with a plan or other arrangement that is [a] multiple employer welfare arrangement -described in section 1002(40) of this title, shall make a false statement or false representation of fact, knowing it to be false, in connection with the marketing or sale of such plan or arrangement, to any employee, any member of an employee organization, any beneficiary, any employer, any employee organization, the Secretary, or any State, or the representative or agent of any such person, State, or the Secretary, concerning.... (2) The benefits provided by such plan or arrangement.

29 U.S.C. § 1149 (emphasis added).

In instances where we have been faced with similar statutory language, we have found that a heightened pleading standard, as expressed under Fed. R. Civ. P. 9(b), should be applied to a plaintiffs allegations. See, e.g., U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504-05 (6th Cir. 2008) (finding that a qui tarn action under the False Claims Act should be pled under Rule 9(b) because it imposes liability on a person who “knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government.”) (emphasis added).

Dismissal of a complaint for failure to comply with Rule 9(b) is reviewed as a dismissal for failure to state a claim. SNAPP, Inc., 532 F.3d at 502. A complaint may be dismissed if it contains “no specific information about the filing of the claims themselves—nothing, that is, to alert the defendants ‘to the precise misconduct with which they are charged and [to] protect[ ] defendants against spurious charges of immoral and fraudulent behavior.’ ” Sanderson v. HCA-The Healthcare Company, 447 F.3d 873, 877 (6th Cir. 2006) (quoting United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)). To insure that a defendant has sufficient notice, a plaintiff must “allege the time, place and content of the alleged misrepresentation; the fraudulent intent of the defendants; and the injury resulting from the fraud.” United States ex rel Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 502 (6th Cir. 2007).

Plaintiffs allege a violation under § 1149, which requires a showing of a false statement or false representation of fact; knowledge that the statement was false; and a connection with the marketing or sale of an ERISA plan. Under Rule 9(b), a plaintiff must plead each element of a fraud action with the requisite particularity in order to state a claim upon which relief can be granted. See Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 404 (6th Cir. 2012). Plaintiffs failed to do so in the instant case.

In their complaint, Plaintiffs do nothing more than restate the relevant section of § 1149 by claiming that the individual trustees made false statements and false representations of fact, knowing these representations to be false in connection with the advertising, marketing or sale to Superior Dairy during the course of their negotiations. The only specificity included in Plaintiffs’ complaint refers to Defendants’ promise that the Plan would comply in all respects with ERISA and welfare benefit laws, including without limitation the ACA. No further reference is made to false statements in Plaintiffs’ amended complaint. At no point do Plaintiffs identify specific statements from particular trustees at specific times which constitute the purportedly false promises and assurances Plaintiffs now claim they relied upon.

Although the application of Rule 9(b) does not require formulaic compliance, we have made clear that in order to plead fraud with particularity, a plaintiff must allege among other things “the time, place, and content of the alleged misrepresentation.” Bledsoe, 501 F.3d at 504. The rule’s purpose is to alert defendants “as to the particulars of their alleged misconduct” so that they may respond. Chesbrough v. VPA, P.C., 655 F.3d 461, 466 (6th Cir. 2011) (citing Bledsoe, 501 F.3d at 503). The heightened pleading standards are designed to prevent “fishing expeditions,” protect defendants’ reputation from allegations of fraud, and to narrow potentially wide-ranging discovery to relevant matters. Id. Plaintiffs’ one sentence allegation does nothing to alleviate the concerns underscored by Rule 9(b) and we, therefore, dismiss this claim and turn to Plaintiffs’ non-ERISA claims.

II. Plaintiffs’ Additional Claims

1. Count VI: The Taft-Hartley Act

Plaintiffs allege that Defendants have breached § 186 (a-e) of the Taft-Hartley Act because the Plan fails to identify a neutral third party that will break deadlocks amongst the parties in the event of a benefit dispute. The district court dismissed, finding that the Supreme Court decision, Local Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 113 S.Ct. 2252, 124 L.Ed.2d 522 (1993), foreclosed this action. We agree, and affirm the dismissal. ...

In Demisay, the Supreme Court held that § 186(e), the jurisdictional component of the Taft-Hartley statute allowing a plaintiff to bring injunctive relief to enforce violations, did not extend to claims “requiring the trust funds to be administered in the manner described in § [186(c)(5) ].” Demisay, 508 U.S. at 588, 113 S.Ct. 2252. Plaintiffs’ claim rests entirely upon such a challenge and their complaint restates, essentially word for word language derived from § 186(c)(5). The Supreme Court was quite clear that “[t]he trustees’ failure to comply with [§ 186(c) ] may be a breach of their contractual or fiduciary obligations and may subject them to suit for such breach; but it is no violation of § [186].” Id. at 588-89, 113 S.Ct. 2252.

Relying upon Lipton v. Consumers Union of U.S., Inc., 37 F.Supp.2d 241, 245 (S.D.N.Y. 1999), Plaintiffs advance an alternative reading of Demisay that distinguishes between instances in which a plaintiff seeks recovery of money already contributed to the fund and the situation at hand where Plaintiffs wish to enjoin future monthly payments to the Plan. We reject such a tortured reading of Lipton and by extension Demisay. In Lipton, the plaintiffs argued that by limiting the trustee’s power to invest in any equity security not intended to. benefit the union, the fund violated the Taft-Hartley Act. See id. at 242. The court agreed, finding that such a challenge proceeded not under § 186(c) but under § 186(a) because it questioned the initial purpose for which the fund was established. The district court noted that a § 186(c) violation, while itself not cognizable,. could be used as evidence to show a violation under either § 186(a) or (b).

In explaining Demisay, the district court made two important observations. Plaintiffs rest their conclusion entirely upon the first: the timing of when money is paid out is important. But, Lipton also states quite clearly that:

The [Supreme] Court drew also a second distinction, between establishment of a trust for a particular purpose and operation in compliance with that purpose. The exception in Section [186(c)(5) ], the Court said, “relates, not to the purpose for which the trust fund is in fact used (an unrestricted fund that happens to be used for the sole and exclusive benefit of the employees does . not qualify); but rather to the purpose for which the trust fund is established and for which the payments are held in trust.”

Id. at 245 (quoting Demisay, 508 U.S. at 588, 113 S.Ct. 2252).

Lipton concluded that to state a claim under Taft-Hartley, the suit must challenge the “purposes for which this fund was established” rather than the mechanisms by which the fund operates. Id. at 246. It again reaffirmed that courts do not have “jurisdiction over administration of a fund or operation in compliance with the purposes of § [186(c)(5) ].” Courts, however, do “have jurisdiction ... over questions of the purpose for which a fund is established.” Id. at 245.

Along with our sister circuits, we have endorsed a similar reading of the Taft-Hartley Act that seeks to distinguish the purpose behind the plan’s founding and the manner by which the plan now operates. See Myers v. Bricklayers & Masons Local 22 Pension Plan, 629 Fed.Appx. 681, 685 (6th Cir. 2015) (“[B]ecause [plaintiff] alleges no bribery, extortion, or misuse of union funds, 29 U.S.C. § 186 offers no relief.”); Schneider v. Local 103 I.B.E.W. Health Plan, 442 F.3d 1, 2 (1st Cir. 2006) (recognizing the distinction between how contributions “are used” and the purpose for which the fund was “established,” but rejecting the challenge because the complaint failed to plead this); DeVito v. Hempstead China Shop, Inc., 38 F.3d 651, 654 (2d Cir. 1994) (“[Plaintiff] does not contest that the [Plan] was properly established under § 302(c)(5), but contends that it subsequently operated in a manner inconsistent with § 302(c)(5). Demisay precludes this argument.”) Therefore, the only manner by which a violation of § 186(c)(5) is relevant is if a plaintiff alleges that the plan was established for a purpose contravening law. Plaintiffs make no such allegations of fraudulent purpose. Accordingly, we cannot countenance Plaintiffs’ argument after Demisay.

2. Counts VII and VIII: Breach of Contract

Finally, Plaintiffs bring breach of contract claims. Prior to considering the merits of such state law claims, a court of appeals “must determine its own jurisdiction and is bound to do so in every instance.” Packard v. Farmers Ins. Co. of Columbus Inc., 423 Fed.Appx. 580, 583 (6th Cir. 2011) (quoting Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)). Courts may exercise supplemental jurisdiction over any state law claim that “form[s] part of the same case or controversy” as matters arising under original jurisdiction, 28 U.S.C. § 1367(a). “Claims form part of the same case or controversy when they derive from a common nucleus of operative facts.” Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004). This requirement is met when state and federal law claims arise from the same contract, dispute, or transaction. See, e.g., Carnegie— Mellon Univ. v. Cohill, 484 U.S. 343, 350-51, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Capital Park Ltd. Dividend Hous. Ass’n v. Jackson, 202 Fed.Appx. 873, 877 (6th Cir. 2006). Because Plaintiffs’ complaint raised federal and state law claims that stemmed from the same transaction—the breach of underlying ERISA obligations—it is proper for us to exercise supplemental jurisdiction over their claims. Plaintiffs allege that Defendants have breached, and continue to breach, both the Participation Agreement and the Trust Agreement by not complying with the ACA and ERISA. These claims are preempted by ERISA.

ERISA has one express preemption provision. It applies equally to all ERISA benefit plans, preempting all state law claims that “relate to any employee benefit plan.” 29 U.S.C. § 1144(a). The Supreme Court has noted that “the policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants ... were free to obtain remedies under state law that Congress rejected in ERISA.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Accordingly, “any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore preempted.” Aetna Health Inc. v. Davila, 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004); see also Loffredo v. Daimler AG, 500 Fed.Appx. 491, 495 (6th Cir. 2012) (citing to Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 698 (6th Cir. 2005) for the holding that ERISA preempts state laws that “provide alternative enforcement mechanisms.”) ERISA specifically provides for remedies for breaches of contract and fiduciary duties. Consequently, any state law claim that grants relief for these breaches “ ‘duplicate[s], supplements], or supplant[s] the ERISA civil remedies.’ ” Girl Scouts, 770 F.3d at 419 (quoting Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir. 1999)).

Plaintiffs argue that the breadth of ERISA’s preemption provision is limited and that federal courts have repeatedly held that common law breach of contract claims are not preempted under ERISA where the advocate of those claims is neither a “participant” nor “beneficiary” under the statute. They claim that because Superior Dairy cannot bring an action under ERISA, but remains a party to the Trust Agreement and Participation Agreement, its contract action cannot be preempted. However, Plaintiffs’ argument is unpersuasive.

The Supreme Court has been clear that federal courts must look to the “objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). The purpose of ERISA preemption is to avoid conflicting federal and state regulation and to create a nationally uniform administration of employee benefit plans. Thus, ERISA preempts state laws that (1) “mandate employee benefit structures or their administration”; (2) provide “alternate enforcement mechanisms”;, or (3) “bind employers or plan administrators to particular choices or preclude uniform administrative practice, thereby functioning as a regulation of an ERISA plan itself.” Penny/Ohlmann/Nieman, Inc. 399 F.3d at 698 (quoting Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1468 (4th Cir. 1996)). This has resulted, in limited scenarios, in courts concluding that breach of contract claims were not preempted by ERISA.

However, in each such case, the conduct at issue did not actually relate to the ERISA plan in question. See, e.g., Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 453 (6th Cir. 2003) (finding that a breach-of-contract claim was not preempted where the conduct at issue was unrelated to the benefits plan but was related to an employment contract); Smith v. Provident Bank, 170 F.3d 609, 617 (6th Cir. 1999) (only where “an ERISA plan’s relationship with another entity is not governed by ERISA, it is subject to state law”); Gerosa v. Savasta & Co., 329 F.3d 317, 330 (2d Cir. 2003) (concluding that ERISA does not preempt plan’s state law claim against an actuary which resulted in severe underfunding of the ERISA plan); Ariz. State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 724 (9th Cir. 1997) (concluding that a plan could bring a state law claim for breach of custodial agreement against a bank as non-fiduciary service provider); Coyne & Delany Co., 98 F.3d at 1466, 1472 (holding that state malpractice claims against insurer for negligently failing to obtain replacement insurance plan was not preempted); Airparts Co. v. Custom Benefit Servs., 28 F.3d 1062, 1066 (10th Cir. 1994) (concluding that trustee’s common law suit against outside financial consultant is not preempted).

In contrast, Plaintiffs’ contract claims present a mere duplication of their ERISA arguments. In' order to adjudicate the breach of contract claim, we would inevitably be evaluating whether or not any provision of ERISA was violated. It is impossible, therefore, to conclude that Plaintiffs’ breach of contract action is in any way distinguishable from their ERISA claims. Put another way, there is no way for us to resolve Plaintiffs’ contract claims without doubly reviewing them ERISA claims. Engaging in such analysis would be duplica-tive and thus we find the state law claims preempted.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

      . With respect to Plaintiffs’ assertion that Plaintiff Superior Dairy suffered an injury by having to purchase supplemental insurance, claims by an employer are not cognizable under § 1132(a)(1)(B). See Girl Scouts of Middle Tennessee, Inc. v. Girl Scouts of the U.S.A., 770 F.3d 414, 418 (6th Cir. 2014) ("As an employer in a multiple-employer plan, GSMT concedes that it has no valid cause of action under ERISA”); see also Whitworth Brothers Storage Co. v. Central States, Southeast and Southwest Areas Pension Fund, 794 F.2d 221, 225-27 (6th Cir. 1986) (explaining that the principal civil enforcement provision of ERISA did not grant jurisdiction to employers, .aside from some causes of action under multiemployer plans).

      . It should be pointed out that we would just as likely dismiss Plaintiffs’ argument on the merits as well. In CIGNA Corp. v. Amara, the Supreme Court made clear that § 1132(a)(1)(B) does not afford a court any “authority to reform [a] plan as written.” 563 U.S. 421, 438, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). "The statutory language speaks of enforcing the terms of the plan, not of changing them,” Id. at 436, 131 S.Ct. 1866. By arguing that the terms of the Plan do not comply with the law, Plaintiffs tacitly concede that the relief they seek exists outside the scope of their plan. And an action attempting to re-write the terms of a plan is unavailable under § 1132(a)(1)(B). See Pender v. Bank of Am. Corp., 788 F.3d 354, 361-62 (4th Cir. 2015) (holding that a cause of’ action could not be advanced under § 1132(a)(1)(B) when the plaintiffs sought to enforce the plan "not as written, but as it should properly be enforced under ERISA.”).

      . In- the alternative, this claim may be dismissed on ripeness grounds because it is "anchored in future events that may not occur as anticipated, or at all.” Nat’l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997).

      . The District Court dismissed the action, finding that § 1149 was a criminal-only enforcement provision, thereby falling within the exclusive purview of the Attorney General and affording no individual cause of action.

      .R-When the standard of review is de novo and involves only applications of legal conclusions to the undisputed facts in the record, we may affirm on any grounds supported by the record even if different from the reasons of the district court. Angel v. Ky., 314 F.3d 262, 264 (6th Cir. 2002) (citing Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002)).

      . To escape this conclusion the district court recast Plaintiffs’ arguments as challenges to either ERISA or the ACA and 'found that Plaintiffs failed to exhaust their administrative remedies. Both parties brief the issue to great length. However, we decline to recast Plaintiffs' argument, instead taking them at their word, as expressed by their briefing, and do not address the matter of exhaustion.


source: Caselaw Access Project

author: JULIA SMITH GIBBONS, Circuit Judge. STRANCH, Circuit Judge,

license: Public Domain

text:
    INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Petitioner (15-2305), International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700, Petitioner/Cross-Respondent (15-2305/2478), v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner (15-2305/2478).
    Nos. 15-2305/2478
    United States Court of Appeals, Sixth Circuit.
    Argued: September 28, 2016
    Decided and Filed: December 21, 2016

      ARGUED: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700. Jared D. Cantor, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respóñdent/Cross-Petitioner. ON BRIEF: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700. Jared D. Cantor, Usha Dheenan, Linda Dreeben', NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

      Before: GILMAN, GIBBONS, and S.TRANCH; Circuit Judges.
   GIBBONS, J., delivered the opinion of the court in which GILMAN and STRANCH, JJ., joined. STRANCH, J. (pg.- 605), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700 (Local 1700) was charged with violating its duty of fair representation in processing the grievance of Aretha Powell, a Local 1700 member, who was terminated from her position as an automotive plant janitor after threatening a fellow employee. The charge stemmed from the allegations that Margaret Faircloth, Powell’s union steward, had submitted a false statement against Powell and was subsequently involved in Powell’s grievance process. After an Administrative Law Judge dismissed the charge, the National Labor Relations Board (the Board) reversed, finding that Local 1700 had violated its duty of fair representation to Powell by acting arbitrarily or in bad faith. The Board emphasized that it was relying on three facts, taken together, to support its finding: (1) Faircloth had submitted a statement against Powell that was partly false; (2) Faircloth had represented Powell in the first stage of the grievance process without disclosing the fact that she had submitted a statement; and (3) Powell was unaware of Faircloth’s statement throughout the' grievance process. Because we conclude that the Board’s finding regarding the falsity of Faircloth’s statement is not supported by substantial evidence, and that there is an insufficient basis to find that Local 1700 breached its duty of fair representation, we.grant the petition for review, deny the cross-application for enforcement, and vacate the portion of the Board’s decision addressing the breach of the duty of fair representation. ,

I.

A.

Caravan Knight Facilities Management, LLC (Caravan Knight) performs janitorial services for Chrysler Automotive at its Sterling Heights Assembly Plant (the Plant). International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the International Union), through its Local 1700 affiliate (Local 1700, collectively, the Union) represents Caravan Knight janitors who work at the Plant. Caravan Knight and the Union were parties to a collective bargaining agreement (CBA) that ran from December 1, 2009 to November 30, 2012.

Aretha Powell, the charging party, was hired by Caravan Knight as a janitor on September 2, 2008. At the same toe, she joined the bargaining unit represented by Local 1700. Powell’s employment at Caravan Knight was not without incident. In early May 2012, Powell told a group' of employees that she wanted to fight Fair-cloth and then offered to pay one hundred dollars to anyone else who would also fight Faircloth. Powell later apologized to Fair-cloth when she found out that Faircloth had learned of her statements. On May 10, Powell was issued a disciplinary warning for walking away from a mandatory pre-shift meeting and not being able to answer questions about what was discussed. Later in the day on May 1Ó, Powell got into a fight at the Plant with Dishan Longmire, her ex-boyfriend and a fellow Caravan Knight employee. The fight was likely related to Longmire’s involvement with a third employee, Balinda Tanner.

The next day, prior to the start of her shift, Powell threatened Tanner while they were in the cage area. Powell told Tanner, “I see I’mma have to tear into your motherfucking ass.” Tanner Hr’g Tr., JA 938. Tanner immediately reported the comments to Faircloth and LeVaughn Davis, Local 1700’s union chairperson for- the Plant. Tanner and Faircloth then submitted statements to Shaun Walle, Caravan Knight’s site manager, indicating they were present when the threat occurred. Faircloth later testified that she reported the May 10 incident with Tanner because she believed Powell’s behavior was escalating. Walle proceeded to investigate the allegations by interviewing several employees, among them, Nathaniel Hudson, a janitor working on the day of the incident. On May 12, Powell met with Walle, Faircloth, and Davis to submit her statement about the incident with Tanner. During that meeting, Walle suspended Powell pending an investigation. Caravan Knight terminated Powell four days later on May 16.

As an elected union steward for Local 1700, Faircloth’s duties included processing grievances for terminated employees. Under the CBA, grievances were processed in a series of steps. First, the employee or a representative submitted a written grievance to her immediate supervisor that was signed by a union committee person (Step 1). If the grievance was not resolved at'Step 1, Caravan Knight and Local 1700 representatives would meet to attempt to resolve the dispute (Step 2). If the grievance could not be resolved in this meeting, representatives from Caravan Knight, the International Union, and Local 1700 would, meet to attempt to resolve the grievance (Step 3). If this was unsuccessful, either party could take the matter’to binding arbitration (Step 4).

On May 18, Faircloth submitted a grievance on Powell’s behalf to satisfy Step 1. She met with Walle to submit the grievance but did not offer any arguments on Powell’s behalf. Caravan Knight denied the grievance at Step 1. Local 1700 then proceeded to Step 2 of the grievance procedure, with Davis now representing the Union and Powell. Davis and Caravan Knight negotiated a settlement that would allow Powell to. return to work without back pay. In exchange, Powell would be required to complete an anger-management course, drop all pending claims before the Board, and sign a ninety-day last-chance agreement. These terms were consistent with a recent settlement agreement in a grievance based on similar facts. Davis testified that a settlement was proposed within 48 hours of the grievance moving to Step 2.

Davis informed Powell of the proposed settlement on May 23. Powell rejected it. The Union and Caravan Knight, nevertheless settled the grievance under the agreed-upon terms. Powell received a letter confirming the disposition of her grievance on July 26.

Between May 16 and August 14, Powell filed a series' of charges against Caravan Knight, the International Union, and Local 1700, alleging violations of Sections 8(a)(1), (a)(3), (b)(1)(A), and (b)(2) of the National Labor Relations Act (NLRA). After charges were filed, Caravan Knight interviewed employees, asking about their interactions with Board investigators. Powell testified that she did not learn of Fair-cloth’s statement about the May 11 incident until the Board informed her of it in early June.

B.

On August 21, the Board’s Regional Director consolidated Powell’s charges and issued a single complaint against all three parties. This consolidated complaint alleged that Caravan Knight violated Sections 8(a)(1) and (a)(3) of the National Labor Relations Act (NLRA) by imposing onerous working conditions on Powell, changing her job duties, disciplining her, suspending her, and discharging her because she engaged in protected activity. The complaint also alleged that Caravan Knight violated Section 8(a)(1) of the NLRA by coercively interrogating employees about their communications with a Board investigator. The complaint alleged that the Union’s refusal to proceed to arbitration on Powell’s grievance was arbitrary, discriminatory, or bad-faith conduct constituting a breach of the union’s duty of fair representation to Powell, in violation of Section 8(b)(1)(A) of the NLRA. The complaint further alleged that Local 1700 caused. Caravan Knight to discriminate against and discharge Powell because of her protected activity, in violation of Section 8(b)(2).'

An Administrative Law Judge (ALJ) held a hearing on these allegations. On April 3, 2013, the ALJ issued, a Decision and Order dismissing the complaint in its entirety. With respect to Caravan Knight, the ALJ found an insufficient causal connection between Powell’s protected activity and the disciplinary action. The ALJ also found that a totality of the circumstances established that Caravan Knight’s subsequent interviews with employees were not unlawfully coercive. The ALJ dismissed all charges against the International Union because the legal distinction between the International Union and Local 1700 precluded any derivative duties on the International Union and there was no indication that International Union officials were involved in Powell’s grievance process,

In considering the claims against Local 1700, the ALJ found it undisputed that there was a strained relationship between Powell and the three local union officials— Davis, Faircloth, and Tanner—all of whom were involved in her grievance process. The ALJ, however, recognized that these Local 1700 officials still filed a grievance on Powell’s behalf and negotiated a settlement for Powell’s reinstatement consistent with a recent settlement for another employee in a similar situation. The ALJ found that the Board’s Acting General Counsel failed to show that Tanner and Faircloth acted as union agents when submitting witness statements against Powell. For these reasons, the ALJ concluded that there was , no arbitrary or bad faith conduct on the part of Local 1700, and thus no violation of its duty of fair representation under Section 8(b)(1)(A). As to the Section 8(b)(2) charge that Local 1700 caused Caravan Knight to discharge Powell, the ALJ found no evidence that Tanner and Fair-cloth did anything other than perform their required duties as Caravan Knight employees by submitting the statements that led to Powell’s discipline and termination.

The Board’s Acting General Counsel filed thirteen exceptions to the ALJ’s decision on May 31, 2013. Caravan Knight filed two cross-exceptions on June 14, 2013. A three-member panel of the Board issued a Decision and Order on August 27, 2015, affirming in part and reversing in part the ALJ’s decision. The Board adopted all of the ALJ’s witness-credibility determinations, finding no “clear preponderance” of evidence on which to reverse such findings. JA 1151 n.2. The Board reversed the ALJ on two issues. First, it found that Caravan Knight violated Section 8(a)(1) by coercively interrogating an employee about her statements to a Board agent. Second, the Board found Local 1700 liable under Section 8(b)(1)(A) for violating its duty of fair representation to Powell. Although the Board determined that Local 1700 acted within its discretion to refuse to pursue Powell’s grievance past Step 2, it held that Local 1700 breached its duty of fair representation to Powell on the basis of three facts “consider[ed] cumulatively” that established bad faith or arbitrary conduct:

(i) Union Steward Faircloth submitted a statement against Powell that was, in part, false; (ii) Faircloth represented Powell in step 1 of the grievance procedure without disclosing that she had submitted a statement against Powell; and (iii) throughout the processing of her discharge grievance, Powell remained unaware that Faircloth had submitted a statement regarding the matters at issue in Powell’s grievance.

JA 1151, 1155. The Board reasoned that Powell might have pursued a different course of action had she known of Fair-cloth’s statement. The Board was careful to note that this case presented “unique circumstances” because of the “absence of any disclosure to Powell” and that its liability finding was “narrowly circumscribe[d].” JA 1156.

The Union petitioned this court for review of the Board’s decision and order as to a single issue: whether Local 1700 was liable under Section 8(b)(1)(A) for breaching its duty of fair representation. The Board filed a cross-application for enforcement of its decision and order against Local 1700.

II.

We review the Board’s factual determinations and its applications of law to fact under the substantial-evidence standard. NLRB v. Galicks, Inc., 671 F.3d 602, 607 (6th Cir. 2012). We uphold the Board’s decisions if there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Int'l Union, United Auto., Aerospace & Agric. Workers of Am. v. NLRB, 514 F.3d 574, 581 (6th Cir. 2008) (internal citations omitted). The Board’s determinations of law are reviewed de novo. Id. at 580.

In reviewing the Board’s fact-finding, we “respect the judgment of the agency empowered to apply the law to ‘varying fact patterns.’ ” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) (quoting Bayside Enters., Inc. v. NLRB, 429 U.S. 298, 304, 97 S.Ct. 576, 50 L.Ed.2d 494 (1977)). We “defer to the Board’s reasonable inferences and credibility determinations, ‘even if we would conclude differently under de novo review.’ ” Galicks, 671 F.3d at 607 (quoting FiveCAP, Inc. v. NLRB, 294 F.3d 768, 776 (6th Cir. 2002)). “The Board’s choice between two equally plausible and reasonable inferences from the facts cannot be overturned on appellate review, even though a contrary decision may have been reached through de novo review of the case.” Exum v. NLRB, 546 F.3d 719, 724 (6th Cir. 2008).

The Board is “free to find facts and draw inferences different from those of the ALJ.” Jolliff v. NLRB, 513 F.3d 600, 607 (6th Cir. 2008). But it cannot “ignore relevant evidence that detracts from its findings,” GGNSC Springfield LLC v. NLRB, 721 F.3d 403, 407 (6th Cir. 2013). The ALJ’s findings “are part of the record we must review” and therefore are considered “to the extent that they reduce the weight of the evidence supporting the Board’s conclusion,” Int’l Union, United Auto., Aerospace & Agric. Workers, 514 F.3d at 581 (citing W.F. Bolin Co. v. NLRB, 70 F.3d 863, 879 (6th Cir. 1995)).

III.

As a preliminary matter, the Board argues that two issues raised by the Union are jurisdictionally barred because they were not properly presented to the Board. The first is whether the Board’s opinion imposes too great a duty to act on the Union given the established standard for the duty of fair representation (Issue 1). The second is whether the failure to disclose Faircloth’s statement is immaterial because the Union cannot breach its duty of fair representation when it had no obligation to pursue an unmeritorious grievance in the first place (Issue 2). The Board alleges that these issues were not “specifically assert[ed] before the Board” in the Union’s Answer to the Acting General Counsel’s Exceptions, or in a subsequent motion for reconsideration. CA6 R. 30, at 23. The Union objects to the Board’s assertion, suggesting that it relies on a “hypertechnical and legally unsound” interpretation of the jurisdictional bar under 29 U.S.C. § 160(e), and that the Board was “adequately apprised” of the issues because they were “sufficiently presented” and “necessarily considered” by the Board. CA6 R. 34, at 15, 19. Because we can resolve the case on appeal without reaching Issue 2, we consider only whether Issue 1, the Union’s challenge to the scope of the duty imposed by the Board, is jurisdic-tionally barred.

We lack jurisdiction to hear any “objection that has not been urged before the Board, its member, agent, or agency” unless “the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e); Temp-Masters, Inc. v. NLRB, 460 F.3d 684, 690 (6th Cir. 2006); NLRB v. U.S. Postal Serv., 833 F.2d 1195, 1201-02 (6th Cir. 1987) (“Our jurisdiction is conferred by ... 29 U.S.C, § 160(e).”). We have recognized, however, that “[t]he specificity required for a claim to escape the ban imposed by [§ 160(e) ] is that which will ‘apprise the Board of an intention to bring up the question.’ A general objection combined with special circumstances may be sufficient to constitute notice.” NLRB v. Watson-Rummell Elec. Co., 815 F.2d 29, 31 (6th Cir. 1987) (internal citation omitted) (quoting May Dep’t Stores v. NLRB, 326 U.S. 376, 386 n.5, 66 S.Ct. 203, 90 L.Ed. 145 (1945)). An objection was “urged before the board” if it was raised with sufficient specificity in briefing prior to the Board’s decision, or in a subsequent motion for reconsideration. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66,102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) (finding an issue barred because it was “not raised during the proceedings before the Board” or “in a petition for reconsideration or rehearing”); Temp-Masters, 460 F.3d at 690; U.S. Postal Serv., 833 F.2d at 1202 (recognizing that briefing on exceptions beforé the Board would be sufficient to preserve an issue).

The Union filed an Answering Brief in response to the Acting General Counsel’s exceptions to the ÁLJ’s decision. It does not appear that the Union filed any subsequent briefing before the Board or a motion to reconsider the Board’s decision. A review of the record clearly indicates that the Union sufficiently . presented arguments about the increased scope of the duty of fair representation similar to those it now raises. In its brief, the Union discussed its duty to “serve the interests of all members” and “avoid arbitrary conduct” as required by Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). JA 1117. It raised an argument that the Board should leave some discretion to the Union in pursuing grievances and that not every grievance would be handled with the “maximum skill and adeptness,” nor must “a grievant’s case be advocated in a perfect manner.” JA 1117-18. The Union asserted that “[m]ere negligence, poor judgment or ineptitude in grievance handling are insufficient to establish a breach of the duty of fair representation.” JA 1118. The Union now makes an almost identical argument: “[T]he Board’s theory in this ease imposes a duty on Unions to act as professional legal ethicists, a duty incompatible with and contrary to established duty of representation law.” CA6 R. 21, at 38. Because the Union’s prior briefing was sufficient to apprise the Board of the issue it now raises on appeal, we find that Issue ■ 1 was properly preserved for consideration here.

IV.

Before determining whether the Union breached its duty of fair representation to Powell, we address whether there is substantial evidence in the record to support the factual findings relied on by the Board. See Galicks, 671 F.3d at 607. Substantial evidence exists if a “reasonable mind might accept [the evidence] as adequate to support a conclusion.” Int’l Union, United Auto., Aerospace & Agric. Workers of Am., 514 F.3d at 580.

A.

There is no question that Fair-cloth submitted a statement against Powell with respect to the May 11 incident in the cage area. The parties, however, dispute the Board’s finding that Faircloth’s statement was “partly false.” See JA 1155. The underlying factual issue is whether Fair-cloth witnessed the incident between Powell and Tanner. Both the ALJ and the Board determined that Faircloth had not witnessed the incident. After reviewing both the Board’s analysis and the administrative record, we conclude that this finding lacks substantial evidence.

Initially, the ALJ determined that “Faircloth was not present in the room at the time [of the threat].” JA 966. The Board agreed, stating:

In her witness statement, Faircloth asserted that she had witnessed the threat. Consistent with the judge’s credibility determinations, which we have adopted, that was not the case. Instead, Faircloth learned of the threat when Tanner reported it to Faircloth immediately following the incident.

JA 1153. The ALJ credited the following testimony of Nathaniel Hudson, a Caravan Knight employee, in making this determination:

Q. Who is your steward?
A. Margaret [Faircloth]
Q. ... Prior to the meeting that morning - well, the time you were there, did you see Faircloth in the area?
A. I saw her on my way out.
Q. She was entering as you were leaving?
A. Yes.

Hudson Hr’g Tr., JA 669-70. The ALJ also credited testimony from LeVaughn Davis confirming that Hudson was in fact present at the meeting:

Q. On May 11, 2012, did you attend the daily meeting?
A. Yes, I did.
Q. Do you recall who was there?
A. There was Aretha, Balinda, Ms. Jackie, Debbie, Larry, Eddie, Patrice, Dishan, Amer, myself, Nathaniel, Shantell, and Keenan.

Davis Hr’g Tr., JA 890-91 (emphasis added). Although not mentioned by the ALJ or the Board, Hudson continued his testimony with respect to the incident and Faircloth’s presence on cross-examination:

Q. ... [I]s it fair to say that once you left the cage area, you don’t know what occurred in the cage area?
A. No.
Q. Am I correct?
A. Yes, you’re correct.
Q. All right. And as you were walking out the cage area, you passed Ms. Faircloth, who was entering the cage area?
A. Yes.
Q. Did you pass her like in the hallway or in the doorway?
A. Doorway. It’s a big open space, you know.
Q. Okay.
A.—that open up because sometimes we bring supplies in. She was walking in as I was walking out.
Q. All right. Was she already in the cage area?
A. She was just—
Q. At the time?
A.—she was just at the entrance.

Hudson Hr’g Tr., JA 679-80. Hudson also testified that shortly after he left, there was a “commotion” in the cage area, and he saw Powell leave “upset about something.” JA 680.

The Union argues that we need not discredit Hudson to find a lack of substantial evidence because “Hudson’s testimony is not inconsistent with Faircloth’s presence in the area where the threat occurred.” CA6 R. 21, at 20. We agree. Hudson’s testimony supports two inferences: first, that Hudson was not present for Powell’s threat because he had left the cage area just before it occurred, and second, that Faircloth had entered the cage area just prior to a commotion that left Powell upset, activity that could have been Powell’s exchange with Tanner. There is nothing in Hudson’s testimony, however, to support the Board’s inference that Faircloth was not present at the time of the threat. Furthermore, his testimony does not contradict Tanner’s testimony that Faircloth was present during the May 11 incident. Tanner was credited by the ALJ in other parts of the initial decision, but ignored by the Board in considering Faircloth’s presence.

Although the record before us does not conclusively establish Faircloth’s presence at the time of the threat, we are not faced with a case involving “two equally plausible and reasonable inferences from the facts.” Exum, 546 F.3d at 724. The Board’s inference as to Faircloth not being present was unreasonable. Such a conclusion is not supportable in a reasonable mind. See Int’l Union, United Auto., Aerospace & Agric. Workers of Am., 514 F.3d at 580. The record further indicates that the Board ignored relevant evidence—Tanner’s testimony—that detracted from its findings. See GGNSC Springfield, 721 F.3d at 407. The only reasonable inference from the record before the Board was that Faircloth was in the area shortly before the incident between Powell and Tanner occurred. This directly contradicts the Board’s finding that Faircloth was not present, which was the basis for finding that her statement was partly false. As such, the Board’s finding about Faircloth’s statement is not supported by substantial evidence.

B.

Although the Board erred in finding that Faircloth’s statement was partly false, our review of the record confirms that there is substantial evidence to find that Faircloth represented Powell in Step 1 of the grievance process. In her role as a union steward, Faircloth prepared and submitted materials that initiated the grievance process after Powell was terminated. She then met with Walle to submit the grievance. Although this was the extent of her formal involvement with Powell’s grievance, we find it is sufficient to support the Board’s finding that Faircloth had “represented” Powell during Step 1 of the grievance process.

The Union, for the most part, does not dispute the facts in the record. Instead, it argues that the Board “vastly overstates” Faircloth’s role in the grievance process, something the Union describes as “ministerial.” CA6 R. 21, at 29; CA 6 R. 34, at 9. The fact that there are not significant negotiations during Step 1 and that the majority of grievances are rejected at Step 1 and proceed to Step 2 does not change'the fact that Faircloth submitted forms to start the grievance process on Powell’s behalf. In doing so, she was representing Powell’s interests and ensuring that both Powell and the Union preserved their rights under the CBA to challenge Powell’s termination. Powell’s testimony supports such a finding regarding Faircloth’s role. Powell testified that Faircloth informed her that a grievance had been initiated and that Faircloth would manage the initial steps of the grievance because Powell was not allowed on the premises. Powell also testified that she continued to stay in contact with Faircloth about the status of her grievance and alternative avenues for relief. This indicates that Powell understood Faircloth to be an important part of her grievance process and challenges the Union’s attempt to minimize Faircloth’s role. With this record, we find substantial evidence to support the Board’s finding that Faircloth represented Powell in Step 1 of the grievance process.

C.

The Union does not take direct issue with the Board’s finding that Powell was unaware that Faircloth had submitted a statement against her throughout her grievance process. The Union concedes that Davis did not mention Faircloth by name during his May 23 call with Powell, in which he shared the company’s settlement offer, and advised Powell of statements against her. The Union points out that Powell knew about the statement “at the latest on June 2, only 8 days after her last discussion with Davis about the settlement on May 25.” CA6 R. 21, at 34. But the Union does not dispute the Board’s finding that neither Faircloth, Davis, nor anyone at Local 1700 disclosed Faircloth’s statement prior to the conclusion of the grievance process. Because the Union has effectively admitted that it failed to disclose Faircloth’s statement, we uphold the Board’s finding. See Galicks, Inc., 671 F.3d at 608 (citing FiveCap, Inc., 294 F.3d at 768).

To the extent that the Board’s finding is disputed, there is substantial evidence that the Union failed to disclose Faircloth’s statement. Powell testified that she was aware that Tanner had filed a statement against her, but it was only after filing a charge with the Board that she was informed that Faircloth had filed a statement about the incident. The record supports this testimony. Powell filed her first charge with the Board on May 16. Powell did not mention Faircloth’s statement until she filed a second charge with the Board in early June, well after Davis settled the grievance with Caravan Knight. These undisputed facts provide substantial evidence for the Board’s finding that no one disclosed Faircloth’s statement to Powell, and that Powell was unaware of the Faircloth statement while her grievance was being processed.

V.

Having evaluated the Board’s factual findings, we consider whether the record provides substantial evidence to support the Board’s determination that Local 1700 breached its duty of fair representation to Powell on these facts. See Galicks, Inc., 671 F.3d at 607-08. Although we recognize our policy of deference to the Board’s determinations, see id. we conclude that the remaining factual basis of the Board’s decision—that Faircloth and Local 1700 failed to disclose Faircloth’s adverse statement to Powell while Faircloth was.representing her in grievance proceedings—is insufficient to support such a finding. Because there is no basis to find that the Union violated its duty of fair representation on either the facts of this case or any applicable precedent, we see no reason to remand the case to the Board. Instead, we vacate the portion of the Board’s decision finding that Local 1700 violated its duty of fair representation

A.

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations” as well as the right “to engage in .,. concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Under Section 8(b)(1)(A), it is an unfair labor practice for a labor organization to “restrain or coerce” employees in exercising their Section 7 rights. 29 U.S.C. § 158(b)(1)(A). Within the framework of the NLRA, the Supreme Court has found that unions have an implied duty of fair representation to their members. Driver v. U.S. Postal Serv., 328 F.3d 863, 868 (6th Cir. 2003) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)). This duty “stands ‘as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.’ ” Del-Costello, 462 U.S. at 164 n.14, 103 S.Ct. 2281 (quoting Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). It applies “in all contexts of union activity, including contract negotiation, administration, enforcement, and grievance processing.” Merritt v. Int’l Ass’n of Machinists & Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010) (citing Williams v. Molpus, 171 F.3d 360, 364-66 (6th Cir. 1999)).

“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. 903. This standard provides “three separate and distinct possible routes by which a union may be found to have breached its duty.” Driver, 328 F.3d at 869 (quoting Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 584 (6th Cir. 1994)). Because there is no allegation of discrimination here, we consider only whether Local 1700 breached its duty by acting arbitrarily or in bad faith.

B.

“A union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (internal citation and quotation marks omitted). “The “wholly irrational’ standard is described in terms of ‘extreme arbitrariness.’ ” Garrison v. Cassens Transp. Co., 334 F.3d 528, 539 (6th Cir. 2003) (quoting Black, 15 F.3d at 585). In the context of employee grievances, we have held that the duty of fair representation requires a union to undertake a “reasonable investigation to defend a member from employer discipline.” Driver, 328 F.3d at 869 (quoting Black, 15 F.3d at 585). It “does not require a union to exhaust every theoretically available procedure simply on.the demand of a union member.... However, the ignoring or the perfunctory processing of a grievance may violate the duty of fair representation.” St. Clair v. Local 515, 422 F.2d 128, 130 (6th Cir. 1969) (citing Vaca, 386 U.S. at 194, 87 S.Ct. 903). Furthermore, we have held that “[m]ere negligence on the part of. a union” is not sufficient to show arbitrary conduct, Garrison, 334 F.3d at 538 (citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990)), and we note that “when reviewing a union representative’s actions or omissions, we must never lose sight of the fact that union agents are not lawyers, and as a.general proposition, cannot be held to the same standard as that of licensed professionals,” id. at 539; see also Danton v. Brighton Hosp., 335 FedAppx. 580 (6th Cir. 2009).

The Board did not address in detail how Local 1700’s actions constituted arbitrary conduct. The decision cites no judicial or Board • precedent to support such a finding. Instead, it simply asserts that Faircloth’s representation of Powell without disclosing her adverse statement, along with the inference that such action “reasonably could have altered Powell’s approach to the processing of her grievance,” constituted arbitrary conduct sufficient to establish a breach of the duty of fair representation. JA 1155. After reviewing the record, we agree with the Union that there is not substantial evidence to find that Local 1700 acted arbitrarily with respect to Powell because Local 1700’s actions were not “wholly irrational.” Garrison, 334 F.3d at 539.

First, there was a rational basis for Local 1700 not to disclose Faircloth’s statement, It was reasonable for Local 1700 to be concerned about how Powell would respond based on her history at Caravan Knight. Prior to the May 11 incident, Powell had both indicated her desire to fight Faircloth and had an altercation with an ex-boyfriend at the plant. Faircloth testified that she gave her statement regarding Powell’s incident with Tanner only because she believed Powell’s behavior to be escalating. The Board recognized that Fair-cloth’s statement “would in all likelihood result in Powell’s discharge,” but found it acceptable for Faircloth to submit such a statement because “the union [had] a legitimate interest in reporting such threats to an employer consistent with its duty to represent all unit employees.” JA 1154. Local 1700’s interest in protecting the entire bargaining unit from the threats of a single union member makes it rational to not disclose Faircloth’s statement in an attempt to protect her from any retaliation by Powell.

Second, there was a rational explanation for Faircloth’s decision to represent Powell during Step 1 of the grievance process. Powell was unable to file a grievance herself because she was not allowed to be on the Plant’s premises. The, responsibility thus fell to Faircloth as Powell’s union steward. Although, in theory, Faircloth could have recused herself, the only evidence in the record to support such a practice was Davis’s testimony that he had, on occasion, processed grievances for employees when a union steward was unable to do so. We hesitate to find that Local 1700 breached its duty of fair representation because Faircloth did not recuse herself. Such an action starts to resemble a rule similar to an attorney’s conflict of interest—and our prior cases clearly state that “union agents are not lawyers” and “cannot be held to the same standard as that of licensed professionals.” Garrison, 334 F.3d at 539.

ÁWe also note that Faircloth’s representation of Powell at Step 1 did not adversely affect the outcome of the grievance proceedings. The record indicates that Step 1 usually consists of nothing more than a union steward filling out a bare-bones form to notify the employer of the grievance’s basic allegations. This is all Faircloth did at Step 1 in this case. And at Step 2, another union official, Davis, represented Powell and negotiated a settlement on her behalf. The Board found that this settlement was reasonable and consistent with a settlement offered to another employee in a similar case. This leaves no factual basis on which to conclude that Faircloth’s involvement at Step 1 affected the outcome of the grievance proceedings in any way.

Furthermore, the Board’s own precedent allows a union member and her union representative to have an adverse relationship without the Union breaching its duty of fair representation. Roadway Express, Inc., 355 N.L.R.B. 197, 202 (2010). At most, Faircloth’s failure to recuse herself from Powell’s grievance process at the outset was negligent. Her actions were not wholly irrational. Thus, there is not sufficient evidence to support the Board’s finding that Local 1700 breached its duty of fair representation by engaging in arbitrary conduct.

C.

A union can also breach its duty of fair representation by acting in bad faith. This occurs when “it acts with an improper intent, purpose, or motive ... encompass[ing] fraud, dishonesty, and other intentionally misleading conduct.” Merritt, 613 F.3d at 619 (quoting Spellacy v. Airline Pilots Ass’n Int’l, 156 F.3d 120, 126 (2d Cir. 1998)). In this case, there is little, if any, evidence in the record to support a finding that Local 1700 acted with improper intent. Had there been substantial evidence to- support the -claim that Faircloth gave a partly false statement, the Board might have been able to establish bad faith conduct. Faircloth’s failure to disclose her statement during her representation of Powell, however, is an insufficient basis to find that she and Local 1700 acted in bad faith. Additionally, the record indicates that Faircloth properly handled the grievance, that the grievance was resolved by Local 1700 on terms favorable to Powell, that the settlement was “reasonable and consistent” with that of an analogous incident, and that there was no evidence that Powell would have accepted the offer at Step 2 if she had had a different representative at Step 1. This is not the type of “intentionally misleading conduct” associated with a finding of bad faith. Merritt, 613 F.3d at 619. We conclude that the Board lacked substantial evidence to find a breach of the duty of fair representation on the basis that Local 1700 acted in bad faith.

VI.

For these reasons, we grant the petition for review, deny the cross-application for enforcement, and vacate the portion of the Board’s decision finding that Local 1700 violated its duty of fair representation.

CONCURRENCE

STRANCH, Circuit Judge,

concurring.

I concur with the lead opinion that there is not sufficient evidence to support the Board’s finding that Local 1700 breached its duty of fair representation, but write' separately to emphasize the unique circumstances that merit vacating the Board’s decision. In reviewing the Board’s factual determinations under the substantial evidence standard, we defer to the Board’s reasonable inferences and credibility determinations even when “we would conclude differently under de novo review.” Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 844 (6th Cir. 2003) (citing Painting Co. v. NLRB, 298 F.3d 492, 499 (6th Cir. 2002)). This considerable deference reflects the weight given to the Board’s expertise and its prerogative to choose among the conflicting testimony of witnesses. See NLRB v. Taylor Mach. Prods., Inc., 136 F.3d 507, 514 (6th Cir. 1998) (“[I]f the record supports the Board’s decision, we may not substitute our own judgment for that of the Board.”)

In the present case, the Board expressly stated that it relied on a combination of three factual findings to determine that Local 1700 violated its duty of fair representation. As explained in the lead opinion, we find that one of these conclusions—that Faircloth submitted a partially false statement—is not supported by substantial evidence in the record. Though the Board’s other two factual findings remain, they are insufficient to support its ultimate conclusion. The Board’s determination rested expressly on the cumulative effect of these three findings. Had the Board’s determinations on the three factors been independent, remand to the Board for consideration in light of our reversal on one finding would have been appropriate. On this unusual record, however, I concur with vacating the portion of the Board’s decision finding that Local 1700 violated its duty of fair representation.

      . All subsequent dates refer to 2012 unless otherwise indicated.

      . The ALJ credited Tanner’s testimony over Powell’s with respect to this incident.

      . The ALJ found Faircloth was not in the room at the time, relying on the "credible testimony" of Nathaniel Hudson, a fellow Caravan Knight employee. JA 966. The Board also found that Faircloth did not witness Powell's statement to Tanner.

      . Both the ALJ and the Board found that Faircloth’s actions constituted "representing - ‘ Powell at Step 1” of the grievance process. JA 967, 1155.

      . The ALJ found that Powell would have rejected the settlement regardless of its terms. The Board found that she may have taken a different course.

      . The Acting General Counsel did not take exception to the dismissal of the International Union, so it was never considered by the Board and is not at issue in this appeal.

      . Caravan Knight has not challenged the Board's decision.

      . The Union conceded that a third issue— whether the Board needed to find that the alleged breach more than likely affected the outcome of the grievance procedure in order to impose liability—is more properly litigated at the compliance stage of the Board's enforcement proceedings.

      . The Union vigorously argues that the Board mistakenly found that Faircloth held a "Step 1 meeting” on May 12. But the record clearly states that Powell met with Walle to submit the grievance on May 18.'

      . We recognize that we could consider the Board’s determination of the scope of the duty of fair representation as a matter of law de novo. Because the Board’s application of law to fact fails under the more deferential "substantial evidence" standard, we apply that here.