Case Information
*1 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2012 Decided November 20, 2012
No. 11-1295 SFO G OOD -N ITE I NN , LLC, P ETITIONER v.
N ATIONAL L ABOR R ELATIONS B OARD ,
R ESPONDENT Consolidated with No. 11-1325
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Patrick W. Jordan argued the cause for petitioner. With him on the briefs was Nanette Joslyn .
MacKenzie Fillow , Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson , Associate General Counsel, Linda Dreeben , Deputy Associate General Counsel, and Usha Dheenan , Supervisory Attorney.
Before: R OGERS and G ARLAND , Circuit Judges , and R ANDOLPH , Senior Circuit Judge .
Opinion for the Court by Circuit Judge R OGERS .
R OGERS ,
Circuit Judge
: SFO Good-Nite Inn, LLC,
withdrew recognition of Unite Here! Local 2 based on anti-
union petitions that the National Labor Relations Board found
were impermissibly tainted by Good-Nite’s unlawful assistance
to the decertification effort in violation of sections 8(a)(5) and
(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),
(5). Good-Nite petitions for review on the principal ground that
the Board applied the wrong line of its precedent,
Hearst Corp.
,
Regardless of whether the Board previously forthrightly explained the distinction between these two lines of its precedent, the Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employees’ representative.” SFO Good- Nite Inn, LLC , 357 N.L.R.B. No. 16, at 4 (July 19, 2011). The Board explained that the presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union. Upon finding that Good-Nite directly assisted and advanced the decertification effort by coercively asking employees to sign the petitions and unlawfully threatening to fire an employee for opposing it, the Board applied the Hearst presumption as there was no need to make a specific causation finding under Master Slack .
We hold that the Board’s presumption is reasonable and consistent with the Act, and that the Board’s factual findings are supported by substantial evidence in the record. Accordingly, we deny the petition for review and grant the Board’s cross application for enforcement.
I.
In March 2004, Good-Nite purchased a hotel located near the San Francisco International Airport and assumed the prior owner’s obligations under a collective bargaining agreement with housekeeping and janitorial employees represented by Unite Here! Local 2 (“the Union”). At the relevant time the represented unit consisted of 24 employees. The agreement was due to expire in November 2004, but in August 2004 Good-Nite and the Union agreed that it would remain in effect during their renegotiations for a new agreement.
During a bargaining session on August 23, 2005, the Union demanded that Good-Nite discharge five new housekeepers unless they paid union dues pursuant to a union-security clause in the agreement. On August 31, Good-Nite general manager Azfal “A.C.” Chaudhry and banquet manager Naomi Grace Vargas met with two of those housekeepers, Cristina Valencia and Maria Maldonado. At the meeting, Chaudhry told Valencia and Maldonado about the outstanding dues, stated that the Union was “no good,” and asked them to consider signing a “paper” to eliminate the Union. According to Valencia, Chaudhry questioned why they wanted a union when he was willing to give them paid vacation and health insurance, benefits they were not then receiving. Two hours later, Vargas approached Valencia and told her that Chaudhry was waiting for her response. Neither Valencia nor Maldonado signed a decertification petition. Maldonado told co-worker Luz Verdin that she was afraid management would make her sign a petition or lose her job.
Also in late August, Good-Nite assistant manager Leah Aquino approached housekeeper Margarita Taloma and asked her to sign an anti-union petition. A few days later Aquino unexpectedly arrived at Taloma’s home and again asked her to sign a petition. Taloma refused. Another employee testified that there were “rumors about signatures that were being requested [by Good-Nite management] for non-unionizing.” Tr. of ALJ Hr’g, Apr. 18, 2006, at 143.
Valencia, Maldonado, and Taloma all told housekeeping inspector Consuelo Contreras, who was on the Union negotiating committee, about Good-Nite’s solicitation of their signatures. On September 6, Contreras urged another housekeeper, Xiang Tan, not to sign the petitions. Two hours later, Chaudhry and Good-Nite’s owner, Eric Yokeno, asked Contreras why she was telling employees not to sign the petitions and told her that she could be fired for doing so at work. Good-Nite did not have a work rule against solicitation.
On September 7, Chaudhry fired Valencia and Maldonado, citing a seasonal slowdown in business. This was contrary to Good-Nite’s usual practice of laying off employees subject to recall, rather than firing them. Contreras, the employee most knowledgeable about their work, had not been asked about their work performance and thought they were both good workers. Other housekeepers with less seniority who had signed a decertification petition were not fired. By September 7, a Union field representative heard that Good-Nite management had been asking employees to sign a decertification petition.
On September 14, 2005, Good-Nite withdrew recognition of the Union based on petitions signed by 13 of the 24 unit employees stating that they no longer wished to be represented by the Union. When housekeeper Luz Verdin requested vacation leave, assistant manager Aquino told her on October 4 that she would grant the request if Verdin signed an anti-union petition, which she did. Aquino then backdated Verdin’s signature to make it appear that she had signed the petition on or before Good-Nite’s withdrawal of Union recognition. On October 14, 2005, the Union filed an unfair labor practice charge with the Board. The General Counsel of the Board issued a complaint on March 1, 2006.
The administrative law judge (“ALJ”) found, after a
hearing, that Good-Nite had violated section 8(a)(1) of the Act
by soliciting employees to sign an anti-union petition with
threats or promised benefits; sections 8(a)(3) and (1) by
discharging Valencia and Maldonado to discourage union
membership and activities; and sections 8(a)(5) and (1) by
unlawfully withdrawing recognition of and refusing to bargain
with the Union. Applying the four-factor causation test of
Master Slack
, the ALJ found this unlawful conduct had tainted
the employee petitions disavowing the Union. The ALJ, in
addition to recommending reinstatement of Maldonado and
Valencia with back pay and expunging references to their
unlawful discharges from Good-Nite’s files, proposed a cease
and desist order and various affirmative actions, including that
Good-Nite bargain with the Union. In March 2008, the Board
adopted the ALJ’s factual findings and proposed order.
SFO
Good-Nite Inn, LLC
,
On July 19, 2011, a three-member Board issued a decision incorporating by reference most of the 2008 decision and explaining further why Good-Nite’s withdrawal of recognition violated sections 8(a)(5) and (1) of the Act. Agreeing with the General Counsel that Good-Nite’s conduct per se precluded its reliance on the petitions as a valid basis for withdrawing recognition of the Union, the Board ruled that “the disposition of this case is properly controlled by Hearst Corp. , holding that an employer may not withdraw recognition based on a petition that it unlawfully assisted, supported, or otherwise unlawfully encouraged, even absent specific proof of the misconduct’s effect on employee choice.” SFO Good-Nite Inn , 357 N.L.R.B. No. 16, at 1 (footnote omitted). One member dissented in part, on the ground that the presumption should be rebuttable while acknowledging that the difference was immaterial because Good-Nite “failed to show that its misconduct could not have tainted the employees’ petition.” Id . at 5 (Member Hayes, concurring in part, dissenting in part). A unanimous Board adopted the ALJ’s proposed order. Good-Nite petitions for review, and the Board cross-applies for enforcement of its Order.
II.
“[I]t is our longstanding rule that the Board is entitled to
summary enforcement of the uncontested portions of its orders.”
Carpenters & Millwrights, Local Union 2471 v. NLRB
, 481 F.3d
804, 808 (D.C. Cir. 2007) (internal quotation marks and
alterations omitted). The Board accordingly seeks summary
enforcement of its unchallenged findings that Good-Nite
violated section 8(a)(1) of the Act by soliciting employees
Taloma and Verdin to sign an anti-union petition with threats
and promised benefits, and by threatening employee Contreras
with discharge if she told other employees not to sign the
petitions. Because Good-Nite did not file exceptions to these
findings, section 10(e) of the Act jurisdictionally bars Good-Nite
from obtaining review of them. 29 U.S.C. § 160(e);
see also W
& M Props. of Conn., Inc. v. NLRB
,
The Board also seeks summary enforcement of its Order directing Good-Nite to reinstate employees Valencia and Maldonado. The Board found that Good-Nite violated sections 8(a)(3) and (1) of the Act by discharging Valencia and Maldonado because they did not sign the anti-union petitions. Good-Nite challenges as clearly erroneous the factual finding that its general manager, Chaudhry, solicited Valencia’s and Maldonado’s signatures on an anti-union petition. But it does not challenge the Board’s determination that the discharges were unlawful. Good-Nite acknowledges that other record evidence — namely Chaudhry’s possession of the signed anti-union petitions at the time of the firings — would have supported the finding that the firings were unlawful, irrespectively of the alleged solicitations. The Board is therefore entitled to summary enforcement of the reinstatement portion of its Order.
III.
Good-Nite contends that the Board erred in declining to apply its traditional Master Slack test to evaluate disaffection petitions for taint and instead adopted a new rule based on “its little cited decision in Hearst Corporation ,” Petr’s Br. at 18, under which, it asserts, the General Counsel is relieved of the burden to prove a causal nexus between the employer’s conduct and employee disaffection and instead can rely on what Good- Nite characterizes as overbroad “ per se categories” of conduct, id . Objecting that “the Board provided no reasoned explanation for departing from Master Slack , [n]or explained how its new rule will not result in arbitrary decisions with no evidentiary support,” id ., Good-Nite concludes that the new rule will impede employees’ section 7 rights and curtail employers’ free speech rights under section 8(c) of the Act. In Good-Nite’s view, had the Board properly applied its Master Slack precedent and considered all of the evidence, the Board “should have found that the unfair labor practices were isolated, mostly occurring after the Union lost majority support and were unknown to the rest of the bargaining unit.” Id . at 18–19. Good-Nite ignores the Board’s explanation and rationale for applying the Hearst presumption and the substantial evidence supporting the Board’s factual findings.
A
. The court “accord[s] a very high degree of deference to
administrative adjudications by the [Board].”
United
Steelworkers of Am., Local Union 14534 v. NLRB
,
Section 8(a)(5) of the Act provides that “[i]t shall be an
unfair labor practice for an employer . . . to refuse to bargain
collectively with the representatives of his employees.” 29
U.S.C. § 158(a)(5). There are circumstances, however, where
an employer may unilaterally withdraw recognition from a union
if it can show through objective evidence that the union has lost
majority support as, for example, by presenting a petition signed
by a majority of employees in the bargaining unit stating that
they no longer wish to be represented by the union.
See Flying
Food Grp., Inc. v. NLRB
,
In
Hearst Corp
.,
Where an employer engages in such conduct, the decertification petitions will be found to have been tainted by the employer’s unfair labor practices and the latter, consequently, will be precluded from relying on the tainted petition as a basis for questioning the union’s continued majority status and withdrawing recognition from that labor organization.
Id.
The Board reached this conclusion, despite testimony from
19 of the 56 employees in the bargaining unit that they were
unaware of the employer’s unlawful conduct, because an
employer should not be able to “enjoy the fruits of its violations
by asserting that certain of its employees did not know of its
unlawful behavior.”
Id.
at 765 & n.9. Drawing on its
experience, the Board stated that it based the presumptive
finding of taint “not . . . on a finding of actual coercive effect,
but rather on the ‘tendency of such conduct to interfere with the
free exercise of employee rights under the Act.’”
Id
. at 765
(quoting
Amason, Inc.
,
By contrast, the question in Master Slack was whether the employer’s unremedied flagrant violations from an earlier unfair labor practice case tainted the atmosphere as a matter of law, such that the employer’s reliance in withdrawing union recognition on a petition signed 8 to 9 years later by a majority of the bargaining unit employees was unlawful. 271 N.L.R.B. at 79. There were no allegations the employer directly assisted the decertification campaign through improper solicitation, threats, or other misconduct. To determine whether there was a causal relationship between the employer’s earlier unlawful conduct and the anti-union petition, the Board applied a four- factor test: “(1) [t]he length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, organizational activities, and membership in the union.” Id. at 84. The ALJ found that there was no direct evidence of a causal relationship between the employer’s unlawful conduct in 1973-74 and the 1982 anti- union petition, and that the indirect factors were insufficient to preclude the employer as a matter of law from withdrawing recognition. See id. at 85. The Board, in adopting the ALJ’s findings, noted that the unfair labor practices “occurred many years before the petition’s circulation, and that the [employer] ha[d] complied with the ordered remedies in many significant respects well before the petition’s circulation.” Id . at 78 n.1.
In applying the presumption here, the Board began by stating that “it is well settled that an employer may only withdraw recognition [of a union] if the expression of employee desire to decertify represents the free and uncoerced act of the employees concerned.” SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 1 (internal quotation marks omitted). Although both and Master Slack apply this limitation, the Board explained, they do so in two different contexts: “ Hearst applies when an employer has engaged in unfair labor practices directly related to an employee decertification effort,” such as here, whereas Master Slack applies to “ other unfair labor practices distinct from any unlawful assistance by the employer in the actual decertification petition.” Id . at 1–2 (internal quotation marks omitted). A causal nexus must be shown in the Master Slack line of cases because “there is no straight line between the employer’s unfair labor practices and the decertification campaign, and the Master Slack test must be used to draw one, if it exists.” Id. at 2. By contrast, in the Hearst line of cases, “the employer’s unfair labor practices are not merely coincident with the decertification effort; rather, they directly instigate or propel it.” Id .
The Board proceeded to elaborate on the scope and the
rationale underlying the
Hearst
presumption. First, the Board
emphasized that the presumption applies only in “the narrow
circumstance where an employer unlawfully instigates or
propels a decertification campaign, and then invokes the results
of that campaign to justify its unilateral withdrawal of
recognition from its employees’ representative.”
Id.
at 4. It then
explained that there is “little need” for a
Master Slack
-type
causation analysis in such circumstances because, as it had long
observed, the “foreseeable consequence of such misconduct —
and frequently its purpose — is . . . to contribute to the union’s
loss of majority status.”
Id
. (internal quotation marks omitted).
The Board dismissed any need for evidence that employees who
signed a petition knew of the employer’s unlawful labor
practices because the victims of such practices frequently tell
their co-workers, as occurred here, and thus “‘it may be
presumed that employees who signed the petition . . . were
aware of the [employer’s unlawful acts], and such knowledge is
likely to have influenced their decision.’”
Id
. at 4 & n.29
(quoting
Caterair Int’l
,
The Board’s articulated distinction between these two lines
of its precedent and its reasons for the
Hearst
presumption are
rational and consistent with the Act.
[1]
Good-Nite’s citation to
Board decisions applying
Master Slack
to determine whether an
employer’s involvement in a decertification campaign tainted
the resulting petitions is unavailing. Whether or not the Board
adequately distinguished between these two lines of its
precedent in the past, it now has clarified that distinction and
explained why the
Hearst
presumption applied to Good-Nite.
The Board expressly stated that “[t]o the extent prior cases may
have applied
Master Slack
to determine whether unfair labor
practices directly related to a decertification effort caused
employee disaffection, we clarify them in accordance with this
decision.”
SFO Good-Nite Inn
, 357 N.L.R.B. No. 16, at 5 n.33.
The Board may clarify its rule in this fashion so long as it
provides, as here, a rational reason and the clarification does not
conflict with the Act.
See FCC v. Fox Television Stations, Inc.
,
Good-Nite’s other objections are unavailing. In particular, Good-Nite mischaracterizes the Board’s decision when it contends that the Hearst presumption adopted by the Board is overbroad because it precludes withdrawal of union recognition “if an employer does anything with or says anything about a disaffection petition.” Petr’s Br. at 35. The Hearst presumption applies only in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign.” SFO Good-Nite Inn , 357 N.L.R.B. No. 16, at 4 (emphasis added). Similarly, Good-Nite’s contention that the Hearst presumption will impede employees’ section 7 rights overlooks the fact, noted by the Board, that employees may still petition the Board directly for a decertification election, id. at 3.
Good-Nite’s remaining arguments are unpersuasive. First,
its description of as “little cited” is not well taken.
Petr’s Br. at 18. The Board and Good-Nite itself cite Board
decisions enforced by the courts that applied the
Hearst
presumption where an employer solicited signatures or
otherwise unlawfully encouraged a union decertification
process.
See, e.g.
,
Wire Prods Mfg.
,
Second, Good-Nite attempts to distinguish those cases as
limited to circumstances where the decertification petition
would have failed “but for” the employer assistance, whereas
the presumption in its case applies if an employer merely
supports or encourages a decertification campaign. The Board
pointed out that none of the cases suggested a “but for” analysis
or made such a finding.
See
Respd’s Br. 37–38. Regardless,
whether or not those cases used a direct cause analysis does not
demonstrate the Board erred in applying the
Hearst
presumption
here. At oral argument Good-Nite maintained that the
Hearst
presumption should be limited to instances where an employer
is directly involved in the preparation and dissemination of a
decertification petition. But it offered no persuasive reason why
the rationale for such a rule would not extend to instances where
an employee created and disseminated the petition but the
employer unlawfully and coercively solicited signatures from
employees in the bargaining unit, as appears to have occurred
in
Hearst
itself,
Good-Nite objects as well to the unrebuttable nature of the presumption adopted by the Board, contending it will result in arbitrary findings without substantial evidentiary support. The Board was in agreement that unlawful employer involvement would presumptively taint an anti-union petition even without specific proof that the employer’s conduct affected employee signatures. A majority concluded the presumption should be conclusive because of the “inherent unreliability” of after-the-fact employee testimony about their reasons for rejecting a union. SFO Good-Nite Inn , 357 N.L.R.B. No. 16, at 4. One Member urged that the presumption should simply shift the burden to the employer “to present objective proof that its misconduct did not cause or further disaffection,” suggesting it is “possible, even if not likely, that subsequent evidence of disaffection by an employee majority is an accurate and reliable expression of free choice.” Id . at 5 (Member Hayes, concurring in part, dissenting in part).
The Board majority’s preferred conclusive presumption is
entitled to deference as rational and consistent with the Act.
The Supreme Court has observed that “employees are more
likely than not, many months after a card drive and in response
to questions by company counsel, to give testimony damaging
to the union, particularly where company officials have
previously threatened reprisals for union activity in violation of
[section] 8(a)(1).”
NLRB v. Gissel Packing Co.
,
B.
The Board found that Good-Nite unlawfully solicited
Valencia’s, Maldonado’s, and Taloma’s signatures on anti-
union petitions with threats or promised benefits, and threatened
to fire Contreras because she told a coworker not to sign a
petition.
SFO Good-Nite Inn
, 357 N.L.R.B. No. 16, at 2. The
Board further found that these unfair labor practices “were
obviously directly related to furthering the employees’
decertification campaign.”
Id.
at 3. The Board’s factual
findings are conclusive if supported by substantial evidence on
the record considered as a whole. 29 U.S.C. § 160(e);
Hard
Rock Holdings, LLC v. NLRB
,
Good-Nite contends that some of the unfair labor practices could not have tainted the petitions because they occurred on or after September 6, when the twelfth unit employee signed a decertification petition and the Union allegedly lost its majority support. Even assuming this is true, Good-Nite does not extend this suggestion to the evidence of its solicitations of Valencia, Maldonado, and Taloma in late August 2005. Instead Good- Nite presents a credibility challenge to the Board’s finding that Chaudhry solicited signatures from Valencia and Maldonado. This contention fails.
Valencia consistently testified that Chaudhry asked her and Maldonado at the August 31 meeting to “sign a paper for him that would de-unionize the firm.” Tr. of ALJ Hr’g, Apr. 18, 2006, at 161; see id. at 182, 189. Good-Nite suggests the “paper” was a Union membership application rather than an anti-union petition because the record does not indicate a petition existed before September 3, 2005. The petitions in the record consist of a single handwritten sentence followed by signatures on blank pages, not technical or complex documents that could not be created on short notice. Because Chaudhry easily could have created a petition if Valencia and Maldonado agreed to sign it, it is irrelevant whether a decertification petition existed at the time of the August 31 meeting.
Additionally, the ALJ credited Valencia’s testimony over
Chaudhry’s denials about what occurred at the August 31
meeting, finding Chaudhry’s testimony “unreliable,” “shifting,”
and “evasive,”
SFO Good-Nite Inn
,
C
. Finally, Good-Nite contends that parts of the Board’s
Order are moot and should not be enforced by the court. It
relies on its asserted compliance with an affirmative bargaining
order issued by the district court that was obtained by the
Board’s General Counsel following the ALJ’s decision.
See
Norelli v. SFO Good-Nite Inn
, No. 06-07335,
First, the district court’s injunction did not cover all of the
relief called for in the Board’s Order, such as making whole
Valencia and Maldonado, purging Good-Nite’s records
referring to their unlawful firings, and requiring Good-Nite to
turn over certain material to the Board for use in determining
compliance. The Board’s Order also imposes a continuing
obligation for Good-Nite to bargain with the Union while the
district court’s injunction only ordered Good-Nite to bargain for
90 days. Second, Good-Nite offers no evidence to show it has
complied in full with the Board’s Order. Moreover, the
Supreme Court has held that “‘it [is] plain from the cases that
the employer’s compliance with an order of the Board does not
render the cause moot, depriving the Board of its opportunity to
secure enforcement from an appropriate court.’”
NLRB v.
Raytheon Co.
,
Accordingly, we deny the petition for review and grant the Board’s cross-application for enforcement of its Order.
Notes
[1] The Fourth Circuit has endorsed the Board’s articulated
distinction between and
Master Slack
, albeit where the Board
consisted of only two members.
Narricot Indus. L.P. v. NLRB
, 587
F.3d 654, 664–65 (4th Cir. 2009),
abrogated on other grounds by New
Process Steel
,