National Labor Relations Board v. Dover Hospitality Services, Inc. , 636 F. App'x 826 ( 2016 )

14-3838-ag (L)
NLRB v. Dover Hospitality Services
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of March, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
----------------------------------------------------------------------
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 14-3838-ag (L)
No. 14-4305-ag (C)
DOVER HOSPITALITY SERVICES, INC., AKA Dover
Caterers, Inc., AKA Dover College Services, Inc.,
Respondent.
----------------------------------------------------------------------
FOR PETITIONER: Kira Dellinger Vol, Supervisory Attorney; Jared
Cantor, Attorney; Jennifer Abruzzo, Deputy
General Counsel; John H. Ferguson, Associate
General Counsel; and Linda Dreeben, Deputy
Associate General Counsel, for Richard F.
Griffin, Jr., General Counsel, National Labor
Relations Board, Washington, D.C.
1
FOR RESPONDENT: Jeffery A. Meyer and David A. Tauster,
Kaufman Dolowich & Voluck LLP, Woodbury,
New York.
Consolidated petitions to enforce two orders of the National Labor Relations Board
dated September 30, 2014 (Chairman Pearce and Members Miscimarra and Hirozawa),
and November 5, 2014 (Chairman Pearce and Members Schiffer and Miscimarra).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petitions of the National Labor Relations Board are GRANTED.
The National Labor Relations Board (“NLRB”) petitions for enforcement of two
orders directing respondent Dover Hospitality Services, Inc. (“Dover”) to furnish Local
1102, Retail, Wholesale & Department Store Union, UFCW (“the Union”) with relevant
requested information. See Dover Hosp. Servs., 361 N.L.R.B. 60 (2014) (“Dover I”);
Dover Hosp. Servs., 361 N.L.R.B. 90 (2014) (“Dover II”).1 Dover contends that it was
not obligated to supply such information, but, in any event, had done so, thus rendering the
petitions moot.2 In considering the petition, we defer to the Board’s factual findings
where they are supported by substantial evidence, and we review mixed questions of law
1
The NLRB originally issued the relevant orders on July 12, 2012, and May 31, 2013, but
the orders were invalidated by the Supreme Court’s decision in NLRB v. Noel Canning,
134 S. Ct. 2550 (2014), before being considered anew and readopted by validly constituted
three-member panels. See Dover I, 361 N.L.R.B. 60, at *1 (citing Dover Hosp. Servs.,
358 N.L.R.B. 84 (2012)); Dover II, 361 N.L.R.B. 90, at *1 (citing Dover Hosp. Servs., 359
N.L.R.B. 126 (2013)).
2
Dover further asserts that the petitions for enforcement are frivolous within the meaning
of Fed. R. App. P. 38, and seeks reimbursement of attorneys’ fees. Because we grant the
petitions, we deny the request for attorneys’ fees.
2
and fact de novo while deferring “to the Board’s decision when there appears to be more
than one reasonable resolution and the Board has adopted one of these.” Sheridan Manor
Nursing Home, Inc. v. NLRB, 225 F.3d 248, 252 (2d Cir. 2000). We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal, which we reference only as necessary to explain our decision to grant the petitions.
1. Dover’s Obligation To Provide Information
Where an employer has asserted an “inability”—as opposed to an
unwillingness—to pay union demands, “the union is entitled to receive financial
information in order to substantiate the employer’s claims.” Stroehmann Bakeries, Inc. v.
NLRB, 95 F.3d 218, 222 (2d Cir. 1996); cf. SDBC Holdings, Inc. v. NLRB, 711 F.3d 281,
288 (2d Cir. 2013) (contrasting unwillingness to meet union’s demands with professed
inability to do so). Here, substantial evidence, in the form of “mutually corroborative”
and “unrebutted” testimony by two Union representatives and a Dover employee, supports
the NLRB’s finding that Dover asserted inability to pay rather than unwillingness. Dover
Hosp. Servs., 358 N.L.R.B. 84, at *5 (2012). Even if Dover identifies certain
discrepancies in that testimony, we will not overturn the NLRB’s factual findings when
they are “based on the ALJ’s assessment of the credibility of witnesses . . . unless they are
hopelessly incredible or they flatly contradict either the law of nature or undisputed
documentary testimony.” Kinney Drugs, Inc. v. NLRB, 74 F.3d 1419, 1427 (2d Cir.
1996) (internal quotation marks omitted). The record here permits no such conclusion.
3
Accordingly, we find that the Union’s demands for financial information were supported
by Dover’s assertions of inability to pay.3
2. Mootness
The Union requested several financial documents and information on certain “also
known as” entities. Dover does not contest that it provided only some of the requested
documents to the Board’s regional office—rather than to the Union—13 months after the
request for production. Even if these actions constituted compliance, that would not
render the petition moot. See Independent Emps. Ass’n of Neptune Meter Co. v. NLRB,
158 F.2d 448, 456 (2d Cir. 1946) (citing NLRB v. Pa. Greyhound Lines, 303 U.S. 261, 271
(1938) (“But an order of the character made by the Board, lawful when made, does not
become moot because it is obeyed or because changing circumstances indicate that the
need for it may be less than when made.”)); see also NLRB v. Plumbers Union of Nassau
Cty., Local 457, 299 F.2d 497, 501 (2d Cir. 1962); accord NLRB v. Allied Med. Transp.,
Inc., 805 F.3d 1000, 1006 (11th Cir. 2015); Armster v. U.S. Dist. Court for Cent. Dist. of
Cal, 806 F.2d 1347, 1356 (9th Cir. 1986). In fact, however, the Board has twice held that
Dover did not sufficiently comply with the Union’s request and, accordingly, issued orders
3
The NLRB contends that Dover waived its argument that it never asserted inability to pay
by failing to raise it in proceedings before the NLRB. See 29 U.S.C. § 160(e) (“No
objection that has not been urged before the Board, its member, agent, or agency, shall be
considered by the court, unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.”). Because we have not been provided
with the complete record of Dover’s briefs below by the Board, we cannot confidently
identify waiver. We do not pursue the point because we reject Dover’s argument on the
merits.
4
with which Dover has indisputably not complied. See Dover I, 361 N.L.R.B. 60; Dover
II, 361 N.L.R.B. 90. Dover’s partial and belated compliance does not, therefore, moot
these petitions.
3. Conclusion
We have considered all of Dover’s remaining arguments and conclude that they are
without merit. Accordingly, the petitions for enforcement of the NLRB’s orders are
GRANTED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
5