National Labor Relations Board v. Lily Transportation Corp. ( 2017 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 15-2398
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner,
    v.
    LILY TRANSPORTATION CORPORATION,
    Respondent.
    APPLICATION FOR ENFORCEMENT OF AN ORDER
    OF THE NATIONAL LABOR RELATIONS BOARD
    Before
    Kayatta, Circuit Judge,
    Souter, Associate Justice,*
    and Selya, Circuit Judge.
    Jared David Cantor, Counsel, with whom Kira Dellinger Vol,
    Supervising Attorney, Richard F. Griffin, Jr., General Counsel,
    Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson,
    Associate General Counsel, and Linda Dreeben, Deputy Associate
    General Counsel, were on brief, for petitioner.
    Kay H. Hodge, with whom Alan S. Miller, Katherine D. Clark,
    and Stoneman, Chandler & Miller LLP were on brief, for
    respondent.
    March 31, 2017
    * Hon. David H. Souter, Associate Justice (Ret.) of the
    Supreme Court of the United States, sitting by designation.
    SOUTER, Associate Justice.                   The         National                Labor
    Relations Board applies for enforcement of its bargaining order
    against      Lily        Transportation       Corporation.                  We     grant        the
    application.
    I.
    Pumpernickel Express, Incorporated, carried automotive
    parts from warehouses in Mansfield, Massachusetts, to Toyota and
    Chrysler dealerships in the region.                    Pumpernickel's drivers were
    represented by the International Association of Machinists and
    Aerospace Workers, AFL-CIO, District Lodge 15, Local 447.
    In October 2013, Pumpernickel filed for bankruptcy,
    and   Lily   subsequently       obtained         the    portion       of     Pumpernickel's
    business     that    involved       distributing         parts       for    Toyota.            Lily
    hired     many      of     Pumpernickel's         former        employees,             including
    drivers,     and    began     operations      in       November      2013.             The    Union
    promptly     demanded        that    Lily   recognize           it     as        the    drivers'
    bargaining       representative,        but       Lily     refused.               Lily        later
    produced     signed       statements   it     allegedly         had    received              from   a
    majority of the drivers saying that they no longer wished to be
    represented by the Union.
    The Union filed an unfair labor practice charge with
    the National Labor Relations Board, claiming that Lily's refusal
    to bargain violated Sections 8(a)(1) and 8(a)(5) of the National
    - 2 -
    Labor Relations Act.1                  After a hearing, the Administrative Law
    Judge       found       that    in     distributing         for      Toyota,     Lily   was    a
    "successor employer" to Pumpernickel, that is, an employer who
    "makes       a    conscious       decision        to     maintain     generally      the    same
    business          and   to     hire    a   majority       of   its    employees      from     the
    predecessor," Fall River Dyeing & Finishing Corp. v. NLRB, 
    482 U.S. 27
    , 41 (1987); accord Asseo v. Centro Médico Del Turabo,
    Inc., 
    900 F.2d 445
    , 450-51 (1st Cir. 1990).                            The Judge held that
    Lily, as a successor, was required under Fall River to recognize
    and bargain with the Union, and rejected Lily's position that
    its refusal to bargain about terms of employment in the affected
    unit        was    justified          by   the     signed      employee        statements      of
    repudiation.            Rather, the Judge explained, under the "successor
    bar doctrine," as adopted by the Board in UGL-UNICCO Service
    Co., 
    357 N.L.R.B. 801
    (2011), an incumbent union is entitled to
    represent          a    successor      employer's         employees     for     a   reasonable
    period of time for bargaining before its majority status may be
    questioned.
    The Board affirmed, agreeing with the Administrative
    Law Judge that insofar as Lily was a successor employer, it was
    1
    Section 8(a)(1) makes it an unfair labor practice for an
    employer "to interfere with, restrain, or coerce employees in
    the exercise of [their organizational] rights."     29 U.S.C. §
    158(a)(1). Under Section 8(a)(5) it is an unfair labor practice
    for an employer "to refuse to bargain collectively with the
    representatives of his employees." 
    Id. § 158(a)(5).
    - 3 -
    obligated to bargain with the Union, and that UGL barred Lily
    from challenging the Union's majority status until a reasonable
    period    of    time    for    bargaining          had    elapsed.           The    Board
    accordingly     ordered    Lily       to    recognize     and     bargain     with    the
    Union.
    The Board now asks this Court to enforce its order
    over Lily's objection.            Lily submits that the Board erred in
    relying   on    UGL's   successor          bar    doctrine      and   that   we    should
    instead   substitute      only    a    rebuttable        presumption     of    majority
    union support under the rule of MV Transportation, 
    337 N.L.R.B. 770
    (2002), of the kind the Board adopted and enforced prior to
    its rejection in UGL.         Lily also says that it has rebutted that
    presumption with its documentary evidence that a majority of the
    affected drivers no longer support the Union.
    II.
    Lily's objection to the successor bar implicates some
    doctrinal history.         The National Labor Relations Act provides
    neither   bar    nor    presumption         to     address      the   unstable      labor
    climate that can develop in successor employment, a silence the
    Board has seen as leaving a statutory gap needing to be filled.
    In 1999, it adopted a successor bar partially resembling its
    present iteration, in St. Elizabeth Manor, Inc., 
    329 N.L.R.B. 341
      (1999).     There,      the     Board       held   that    "once   a    successor
    employer's obligation to recognize an incumbent union attaches
    - 4 -
    [under Fall River], the union is entitled to a reasonable period
    of   time     for    bargaining          without   challenge         to   its     majority
    status."       
    Id. at 341.
          The    Board    recognized       that     it   was
    overruling     its     previous         decision   of    some        twenty-four    years
    earlier in Southern Moldings, Inc., 
    219 N.L.R.B. 119
    (1975),
    which   had     held        that   at     the   beginning       of    a   successorship
    situation a union generally enjoys only a rebuttable presumption
    of continuing majority membership support.                      St. Elizabeth 
    Manor, 329 N.L.R.B. at 341
    .
    Just three years later, though, in MV Transportation,
    
    337 N.L.R.B. 770
    , the Board overturned St. Elizabeth Manor in
    favor of the rebuttable presumption.                     The Board declared that
    the presumption represented the appropriate balance between the
    two "fundamental purposes" of the National Labor Relations Act,
    that is, "employee freedom of choice and the maintenance of
    stability in bargaining relationships."                      
    Id. at 772-73.
          In some
    circumstances,         it     said,      the    successor      bar     could      preclude
    employees from making a choice of representation "for as long as
    several years," 
    id. at 773,
    and as an example it cited the
    possible combination of the successor bar and a bar running for
    three   years       from     the     execution     of    a    collective        bargaining
    agreement, 
    id. One Board
    member dissented, however, citing the
    dramatic      increase       in    the    number    of       corporate    mergers       and
    acquisitions        over     the   previous     twenty-five      years,     and    taking
    - 5 -
    that as a reason to argue that "the interest of stability should
    be given greater . . . weight in shaping national labor policy."
    
    Id. at 776-77
    (Member Liebman, dissenting).
    Nine years afterwards, in UGL, 
    357 N.L.R.B. 801
    , the
    Board    changed   course      again,       citing    the    figures        from    the    MV
    Transportation     dissent          along    with     current       statistics.            It
    observed that successorship situations had become increasingly
    common     owing   to     a    rising       level     of    corporate         merger      and
    acquisition activity, 
    id. at 801
    & n.4, 805 & n.17, and held
    that the bar "better achieves the overall policies of the Act,
    in   the    context      of     today's        economy,"          than    a    rebuttable
    presumption    does,     
    id. at 801
    .      The       Board    did    not,     however,
    merely reinstate the St. Elizabeth Manor bar, which it modified
    in   two    respects.          It     defined       the    previously         unspecified
    "reasonable period" of time for bargaining after the successor's
    arrival as being between six months and a year, depending on the
    circumstances.          
    Id. at 808-09.
           The    Board     also     provided      a
    special variant of the bar for successorship situations that
    involve    successorship       followed        by    execution       of   a    collective
    bargaining agreement.          It reduced that latter bar's duration to
    two years, so as to mitigate the limitation on employee choice
    (or other challenges) that could previously have resulted from
    adding the contract and successor bars together.                              
    Id. at 810.
    - 6 -
    It is the successor bar thus doubly modified that is at stake
    here.
    III.
    Lily attacks the Board's reliance on UGL's successor
    bar on two grounds: (1) that a bar to challenging the union's
    support,       as   distinguished     from    a   rebuttable   presumption,
    deserves no judicial deference under Chevron U.S.A. Inc. v. Nat.
    Res. Def. Council, Inc., 
    467 U.S. 837
    (1984), because it flatly
    violates employees' rights under Section 7 of the National Labor
    Relations Act to choose or reject union representation;2 and (2)
    that the Board's irregularity in successor cases, switching back
    and forth between rebuttable presumption and bar rules, most
    recently in the St. Elizabeth Manor, MV Transportation, and UGL
    sequence, independently disentitles the current bar rule to the
    judicial deference that an otherwise lawful administrative rule
    of decision would deserve if consistently applied.
    2   Section 7 provides that
    [e]mployees shall have the right to self-organization,
    to form, join, or assist labor organizations, to
    bargain collectively through representatives of their
    own choosing, and to engage in other concerted
    activities for the purpose of collective bargaining or
    other mutual aid or protection, and shall also have
    the right to refrain from any or all of such
    activities except to the extent that such right may be
    affected by an agreement requiring membership in a
    labor organization as a condition of employment as
    authorized [elsewhere in] this title.
    29 U.S.C. § 157.
    - 7 -
    The claim of a Section 7 violation on these facts is
    untenable.          To be sure, we can imagine bars on challenges to
    unions so patently arbitrary as to run afoul of the Section 7
    guarantee; a ten-year bar following certification, say.                                    The bar
    choice here, however, is for a newly limited period (alone or in
    tandem with the contract bar), a fact that Lily disregards on
    the    apparent       absolutist       theory     that      duration       is       not     of   the
    essence:       in   its     view,    any   bar,     no    matter     its    length,             would
    unlawfully burden Section 7 rights.                       But the assumption that a
    bar    per     se     patently       trespasses        on      Section     7        while        some
    rebuttable presumptions would not does not survive scrutiny.                                      If
    we compare a two-year bar with a two-year presumption, we may
    easily suspect that the burdens of the bar on employees' Section
    7     rights    would       be      demonstrably         the    heavier         of        the     two
    alternatives          and     require        a    comparatively            more           powerful
    justification         to    fall     within      the     zone   of   reasonable             agency
    action.      But if the comparison is between a six-month bar and a
    rebuttable presumption for the same period, the bar could turn
    out to be the lighter of the two, given the added burden of
    rebuttal       that    would     come      with   the       presumption,            which       could
    increase litigation time and expense, as against a proceeding
    free of the presumption.                Thus, Lily's argument that any bar is
    forbidden because it burdens the exercise of Section 7 rights is
    in    tension       with     its     favored      alternative        of         a    rebuttable
    - 8 -
    presumption, which does the same and could be the more onerous
    of the two depending on the time period involved.
    The     Board       is     thus       within    the     zone    of     reason       in
    rejecting     a     neat,        categorical          distinction         between       the     two
    species      of     rules.            Each     serves       the     obviously       legitimate
    objective of stability in labor and management relations during
    a period in which the entrance of new management can destroy the
    prior modus operandi among union, employer, and employees.                                     See
    Fall 
    River, 482 U.S. at 39-40
    .                         In those circumstances, for
    example, there may well be a risk that employees will, rightly
    or    wrongly,      blame       the     incumbent       union       for     the     demise       or
    departure of the old employer, or will fear that support for a
    union will jeopardize jobs with the new boss.                               See 
    id. Thus, some
    limited discouragement of an unduly hasty reexamination of
    a    prior   Section       7    choice       serves    to    provide      time     for    second
    thoughts, a subject the statute does not directly address in
    successor         cases,       but     which       falls     within       its     "underlying
    purpose."         Brooks v. NLRB, 
    348 U.S. 96
    , 103 (1954); accord NLRB
    v. Beverly Enters.-Mass., Inc., 
    174 F.3d 13
    , 32 (1st Cir. 1999).
    Since neither of the competing means to further this legitimate
    objective, then, is categorically forbidden, the only remaining
    question     in     this       case    goes    to     the    adequacy       of    the    Board's
    justification        for       deciding       to   impose     the    newly       adjusted       bar
    rule, with particular attention to Lily's claim that the Board
    - 9 -
    has undercut its entitlement to deference by blowing hot and
    cold in its choices of successor rules.
    This inconsistency challenge to UGL calls to the fore
    the Supreme Court's recent leading case on agency reversal of
    prior       interpretive    doctrine,    FCC     v.    Fox     Television      Stations,
    Inc., 
    556 U.S. 502
    (2009); see also Encino Motorcars, LLC v.
    Navarro, 
    136 S. Ct. 2117
    , 2125-26 (2016) (discussing Fox).3                           The
    Court in Fox was unanimous in its acceptance of the view, often
    expressed, that an agency is not forever bound by an earlier
    resolution of an interpretive issue, but that a change must be
    addressed       expressly,     at   least      by      the     agency's     articulate
    recognition that it is departing from its precedent.                           See 
    Fox, 556 U.S. at 514-15
    ; 
    id. at 535
    (Kennedy, J. concurring); 
    id. at 549
      (Breyer,      J.,    dissenting);     see       also    Nat'l    Ass'n    of   Home
    Builders v. EPA, 
    682 F.3d 1032
    , 1038 (D.C. Cir. 2012) (stating
    that the "core requirement that Fox makes clear an agency must
    meet when changing course" is to "'provide reasoned explanation
    for its action,' which 'would ordinarily demand that it display
    awareness that it is changing position'" (quoting 
    Fox, 556 U.S. at 515
    )).       There was disagreement between majority and dissent,
    however,       on   the    detail   necessary         to     justify   an   overruling
    decision, compare 
    Fox, 556 U.S. at 514-16
    , with 
    id. at 549
    -50
    3
    Because the authorities on which Lily rests for its
    inconsistency challenge to UGL antedate Fox, there is no need to
    discuss their holdings.
    - 10 -
    (Breyer, J., dissenting), with Justice Kennedy's view (generally
    in   the    majority)         taking    the     position       that    reversing        course
    requires         reasoned      explanation,           
    id. at 535
       (Kennedy,         J.,
    concurring).            Nonetheless, all views were in accord that an
    about-face        on     a    rule     owing     to     facts       changed      from    those
    underlying        the    prior       view   requires         that    the    new    facts      be
    addressed explicitly by reasoned explanation for the change of
    direction.        See 
    id. at 515-16
    (majority opinion); 
    id. at 535
    -36
    (Kennedy,         J,     concurring);          
    id. at 550-51
          (Breyer,         J.,
    dissenting); see also Modesto Irrigation Dist. v. Gutierrez, 
    619 F.3d 1024
    , 1034 (9th Cir. 2010) (describing Fox as holding that
    "an agency [must] provide a greater justification for changing a
    policy" when the new policy rests upon changed facts).
    This is such a case.                     Changes from the significant
    factual bases of the earlier rule were essential to the Board's
    departure from precedent in UGL, where two such developments
    received attention.
    The first concerned corporate business activity, as
    the Board in UGL emphasized the fact stressed by the dissenting
    Board      member       in    MV   Transportation:           merger       and    acquisition
    activity     was       much   increased        from    the    quieter      heyday       of   the
    presumption rule of Southern Moldings.                            
    UGL, 357 N.L.R.B. at 801
    .        In    UGL,       the   Board      majority       brought       the    supporting
    statistics up to date, and showed, in this respect, that the
    - 11 -
    volume    of    mergers     and     acquisitions       had   not       substantially
    declined since the MV Transportation majority ignored them.                        
    Id. at 805
    n.17.        The UGL Board noted that, in 1975, merger and
    acquisition      announcements       numbered      2,297,    with      transactions
    valued   at    $11.8     billion;    that   in    2000,   two    years    before     MV
    Transportation was decided, the numbers had increased to 9,566
    and $1.3 trillion; and, finally, that following a drop after
    2000, the numbers had "ris[en] again, peaking in 2007, before
    another decline, which now seems over."                   
    Id. The Board
    also
    cited    an    article    claiming    that    conditions        were    ripe   for   a
    "[b]oom" in mergers and acquisitions in 2011, the year in which
    the UGL Board was writing.           
    Id. (citing Frank
    Aquila, Conditions
    are Ripe for an M&A Boom in 2011, Bloomberg Business Week (Dec.
    22, 2010)).
    Lily tries to disparage the Board's reliance on these
    statistics by asking what they are supposed to prove.                     But we do
    not think the decision gets a failing grade for dereliction in
    spelling out the point the Board was making, since it seems
    clear enough that the corporate activity in question carries
    significant consequences under the Fall River successor rule.
    The greater the number of mergers and acquisitions, the greater
    the number of those that will produce a Fall River successor
    employer.      The greater the number of successor situations with
    unionized      employees,    the    greater      the   potential    volatility       in
    - 12 -
    union-management relationships across the national labor market.
    The   greater   the   level   of   that   instability,   the     greater    the
    likelihood of precipitate disruption in litigation challenging
    union support during the unsettled period with the new employer.
    This risk would not only affect the actual employment relations
    in the market overall owing to the quantity of successorships,
    but by the same token would also portend a heavier burden on the
    administrative    law   machinery,    including   the    Board    itself,    in
    administering the National Labor Relations Act.
    These obviously apparent consequences answer not only
    Lily's objection to the reliance on the statistics, but its
    attempt to distance this case from their threat by pointing out
    that its own successor status follows neither a merger nor an
    acquisition.     But how the fact of successor employment comes
    about is not to the point.            What does matter is simply the
    probable volume of hasty challenges to union support.                  It is
    this that makes the merger and acquisition facts relevant in
    reexamining the MV Transportation rule and in concluding that a
    bar would serve stability in labor relations better in a market
    likely to be fraught with higher numbers of upsets than in the
    world of forty years ago.4
    4We are mindful of the Supreme Court's observation in
    Encino Motorcars that a reviewing court passes on the adequacy
    of an agency's reasoning, without authority to inject new
    reasons of its 
    own. 136 S. Ct. at 2127
    (citing Motor Vehicle
    - 13 -
    The UGL Board relied on another set of changed facts
    in justifying its return to a successor bar.                 These facts are
    notable    in    that    they   were    actually   subject   to   the   Board's
    control, which the Board exercised by modifying its own rules in
    respects        not     independently     challenged    here.           The   MV
    Transportation majority justified its rejection of a bar rule by
    showing how long a period of union immunity to challenge might
    stretch out if the St. Elizabeth Manor successor bar period of a
    "reasonable" but unspecified time was combined with other bars.
    The MV Transportation Board explained in this way:
    It is possible . . . that the successor bar could
    preclude the employees' exercise of their Section 7
    rights for as long as several years.    For example, a
    successor employer could engage in bargaining with the
    incumbent union and, prior to the expiration of a
    "reasonable period of time," reach agreement with the
    union on a new collective-bargaining agreement, which
    then would serve as a bar to a representation petition
    for the duration of the contract, up to a period of 3
    years.    Moreover, the incursion on the employees'
    freedom of choice could be even more severe (up to 6
    years) if the union and the predecessor employer were
    parties to a collective-bargaining agreement that
    served to bar any employee efforts to remove or
    replace the Union prior to the successor's assumption
    of operations.
    Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983)); see also River St. Donuts, LLC v. Napolitano,
    
    558 F.3d 111
    , 115 (1st Cir. 2009) ("This Court cannot 'attempt
    to supply a reasoned basis for the action that the agency itself
    has not given.'" (quoting Citizens Awareness Network v. U.S.
    Nuclear Regulatory Comm'n, 
    59 F.3d 284
    , 291 (1st Cir. 1995))).
    We regret that the Board did not do a more extensive job
    spelling out what it meant, but because we think that the point
    of its reliance on statistical fact justification is so obvious,
    we hold the explanation merely laconic, not inadequate.
    - 14 
    - 337 N.L.R.B. at 773
    .            The Board in UGL treated this as a serious
    objection, 
    see 357 N.L.R.B. at 808
    , to which it responded by
    decreeing the following modifications of bar rules as previously
    imposed.     First, as to the successor bar, the Board tightened
    the formerly undefined "reasonable period" of time, setting it
    at a six-month minimum but no longer than a year, depending on
    circumstances.       
    Id. at 808-09.
               Second, the Board modified the
    contract bar doctrine, holding that where a first contract is
    reached between the successor employer and the incumbent union
    within the successor bar's newly specified reasonable time, and
    where there was no open period permitting the filing of a union
    challenge    petition      during       the    final   year    of   the   predecessor
    employer's bargaining relationship with the union, the contract-
    bar period would be a maximum of two years, instead of three.
    
    Id. at 810.
    Thus, in responding to the MV Transportation majority
    objection, the Board changed the consequences the earlier rules
    might   produce.           It     did    not    merely    revert      back   to    the
    interpretive regime imposed or assumed by St. Elizabeth Manor,
    but devised a new scheme to produce a shorter period of union
    protection     and     a        correspondingly        earlier      opportunity     to
    challenge    the     ensconced      union,      whether   by     employees    in   the
    - 15 -
    exercise of Section 7 rights, or by the successor or a competing
    union.
    In    sum,       we    find     that    the       Board    has   explained         its
    reason    for    changing          course     and    has       marshalled         new    factual
    support for its doctrinal move.                       It brought up to date the
    commercial reality ignored by the MV Transportation majority and
    changed    the     factual         consequences          of    the     successor         bar     by
    modifying the terms on which the bar was previously imposed.
    The   result      is    an        adequately       explained          interpretive        change
    reflecting the Board's judgment of a reasonable balance between
    the Section 7 right of employee choice and the need for some
    period of stability to give the new relationships a chance to
    settle down.
    The    need       to     strike    such       a    balance       is    not    itself
    challenged, and hardly could be.                    We see no cause to doubt that
    the Board's position taken here is within the scope of reasoned
    interpretation         and    thus     subject      to     judicial       deference           under
    
    Chevron, 467 U.S. at 842-45
    .
    IV.
    Lily       raises        three     additional             challenges         to     the
    successor bar, and we reject them.                        Lily contends that the bar
    is inconsistent with references to a presumption rule in Fall
    River and NLRB v. Burns International Security Services, Inc.,
    
    406 U.S. 272
    (1972).               But the language in those cases on which
    - 16 -
    Lily relies simply describes the legal landscape at the time.
    See Fall 
    River, 482 U.S. at 41
    & n.8; Burns, at 278-79, 279 n.3.
    Neither case holds that a rebuttable presumption, rather than a
    bar, is required in a successorship situation.                    Second, Lily
    argues that the bar is inconsistent with the Act's requirement,
    in Section 10, that the Board support its factual findings with
    "substantial evidence on the record," 29 U.S.C. § 160(e)-(f).
    The   successor    bar,   however,    is    a   legal    rule,   not   a   factual
    finding, and therefore the substantial evidence requirement is
    not on point.      Finally, Lily argues that the bar (and, in fact,
    any bar) is inconsistent with this court's holding in Big Y
    Foods,    Inc.    v.   NLRB,   
    651 F.2d 40
      (1st    Cir.   1981).      That
    argument, too, fails, as Big Y concerned the Act's requirement,
    not at issue here, that the Board determine the appropriate
    bargaining unit "in each case."             
    Id. at 45-46
    (quoting 29 U.S.C.
    § 159(b)).
    V.
    Because we see no error in the Board's adherence to
    UGL's successor bar doctrine, we need not reach Lily's arguments
    that it would prevail if that doctrine were rejected in favor of
    a rebuttable presumption of majority support for the Union.                   The
    Board's   application     for   enforcement       of    its   bargaining     order
    against Lily is granted.
    - 17 -