Scomas of Sausalito, LLC v. National Labor Relations Board, 2017 U.S. App. LEXIS 3975

Scomas, a restaurant, had recognized UNITE HERE! Local 2850 as exclusive bargaining representative from 2000–2013.
Employee Georgina Canche collected a decertification petition signed by 29 of 54 unit members (a majority) and filed it with the NLRB; the petition instructed Scomas to withdraw recognition if petitioners constituted 50%+ and otherwise to seek an election at 30%+.
Union organizer Lian Alan persuaded six signatories to sign revocation forms; Alan did not inform Scomas of the revocations.
Unaware of the revocations, Scomas verified signatures against payroll and withdrew recognition on October 31, 2013; the Union then filed an unfair labor practice (ULP) charge claiming it still had majority support.
The ALJ and the NLRB found Scomas violated § 8(a)(5)/(1) because the Union retained majority support after the revocations were counted; the Board ordered Scomas to recognize and bargain and imposed a bar on raising questions about the Union’s majority status for a reasonable time.
The D.C. Circuit affirmed liability but vacated the Board’s affirmative bargaining order as an abuse of discretion, remanding for a new remedy.

Issue	Plaintiff's Argument (Union)	Defendant's Argument (Scomas)	Held
Whether Scomas violated the NLRA by withdrawing recognition	Union: revocation signatures left it with majority; withdrawal therefore unlawful	Scomas: acted in good-faith reliance on a facially valid majority-signed petition; Levitz should not bar withdrawal based on post-withdrawal evidence or should be modified to require union notice	Court: Accepted Board/ALJ finding (not contested) that revocations left Union with majority at withdrawal; Scomas therefore violated the Act under Levitz standard
Whether an affirmative bargaining order (with a decertification bar) is an appropriate remedy	Union/Board: bargaining order vindicates employees’ §7 rights, removes employer’s incentive to delay, and dissipates the "taint" of the unlawful withdrawal	Scomas: order is extreme and punitive; violation was inadvertent and good-faith; a Board-supervised election (triggered at 30%) is an adequate, less intrusive remedy	Court: Vacated bargaining order as an abuse of discretion; held the Board failed to justify such an extreme remedy given Union nondisclosure, the absence of flagrant employer misconduct, and availability of election relief

NLRB v. Curtin Matheson Scientific, 494 U.S. 775 (1990) (presumption of continuing union majority status supports industrial peace)
Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996) (presumption of majority support is rebuttable outside limited exceptions)
Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000) (articulates three-factor balancing for affirmative bargaining orders)
Caterair Int'l v. NLRB, 22 F.3d 1114 (D.C. Cir. 1994) (review standards for Board remedies and caution on decertification bars)
Skyline Distribs. v. NLRB, 99 F.3d 403 (D.C. Cir. 1996) (vacating bargaining order where it unduly restrains employee free choice)
Douglas Foods Corp. v. NLRB, 251 F.3d 1056 (D.C. Cir. 2001) (Board must analyze why bargaining order fits the specific facts; extensive quotation is insufficient)
Daisy's Originals, Inc. v. NLRB, 468 F.2d 493 (5th Cir. 1972) (seriousness and flagrance of an employer's misconduct inform whether bargaining order is appropriate)
Seven-Up Bottling Co. v. NLRB, 344 U.S. 344 (1953) (Board charged with devising remedies to effectuate statutory policies)