Wendt Corporation v. NLRB ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2021 Decided March 1, 2022
No. 20-1319
WENDT CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 20-1328
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Ginger D. Schroder argued the cause for petitioner. With
her on the briefs was Linda H. Joseph.
Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief were Ruth E. Burdick, Deputy Associate General
Counsel, David Habenstreit, Assistant General Counsel, and
Julie Brock Broido, Supervisory Attorney.
Before: PILLARD and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Wendt Corporation (“Wendt”)
petitions for review of a decision and order of the National
Labor Relations Board (“NLRB” or “Board”), finding that
Wendt engaged in unfair labor practices in violation of the
National Labor Relations Act (“NLRA” or “Act”). For the
reasons discussed below, we grant in part and deny in part the
petition for review. Likewise, we grant in part and deny in part
the cross-application for enforcement.
I.
Wendt is a company that designs and manufactures
equipment for the scrap-metal recycling industry. Shopmen’s
Local Union No. 576 (the “Union”) is the exclusive collective-
bargaining representative of 33 employees who work in the
warehouse and production shop of Wendt’s New York-based
manufacturing facility. The Union filed several charges with
the National Labor Relations Board, alleging that Wendt
committed unfair labor practices in violation of the NLRA,
citing various incidents and company actions affecting unit
employees. Between September 10-14, 2018, and November
5-7, 2018, an Administrative Law Judge (“ALJ”) held a
hearing on the Union’s charges. The ALJ found that Wendt
engaged in numerous unfair labor practices in violation of
Sections 8(a)(1), (3), and (5) of the NLRA. The Board rejected
Wendt’s exceptions and almost entirely adopted the ALJ’s
findings, save for two determinations that are not implicated by
the petition. Wendt seeks review of the Board’s determination
that it engaged in unfair labor practices in violation of Sections
8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA, 29 U.S.C. §§
158(a)(1), (3), (5). The Board submitted a cross-application for
3
enforcement. Central to this dispute are five incidents and
actions Wendt took that affected unit employees.
First, in October 2017, John Fricano, a unit employee,
loaded an item onto a forklift and moved the forklift into a paint
booth to paint it. As Fricano began to paint the item, Wendt
operations director Richard Howe approached him and asked
him whether he felt that painting with the forklift inside the
booth was safe. Howe testified that Fricano’s eyes “doubled in
size” and Fricano agreed that it was not safe. Joint Appendix
(“J.A.”) 83. Two days later, Wendt plant manager Daniel
Voigt summoned Fricano to the main office to question him
about the forklift incident. Fricano requested the presence of a
union representative during questioning, but Voigt denied the
request and represented to Fricano that it would not be
necessary because he only had to answer some questions.
When Fricano arrived in the office, Wendt’s human resources
official, Denise Williams, gave him a disciplinary document
that reflected Wendt’s description of the forklift incident. The
document included a section for Fricano to indicate agreement
or disagreement with Wendt’s statement on the incident by
checking a box, and it had a space for him to leave comments.
Fricano refused to sign the document or leave a comment, but
he checked the box indicating disagreement. Wendt then
suspended Fricano for three days without pay. Based on this
incident, the Board ruled that Wendt violated Section 8(a)(1)
of the Act by refusing a unit employee’s request for a union
representative during an investigative disciplinary interview.
Next, on February 8, 2018, while negotiations for a
collective-bargaining agreement with the Union were ongoing,
Wendt temporarily laid off 10 unit employees. Before the
layoffs, Voigt had made threatening comments toward pro-
union employees, created an impression of surveillance of pro-
union employees, and represented that employees who
4
supported the Union would be laid off. The Board held that
Wendt violated Section 8(a)(5) and (1) of the Act by
unilaterally laying off 10 unit employees in the absence of a
bargaining impasse.
Further, William Hudson, a highly skilled welder and
active union leader, was one of the 10 unit employees
temporarily laid off. He was also a member of the Union’s
bargaining team. On April 6, 2018, two months after the
layoff, Wendt recalled Hudson to work and exclusively
assigned him to “the saw,” a task generally reserved for
unspecialized workers, for over four months. Wendt assigned
all other recalled welders, as well as certain temporary
employees, to perform welding work. Wendt asserted that it
assigned Hudson to saw work because Hudson had not
operated the saw and needed experience. Additionally, Hudson
observed that other recalled employees were working overtime,
and so he also requested to work overtime. Wendt denied his
requests multiple times, but granted overtime to other welders
and at least one employee on a short-term saw work
assignment. The Board found that Wendt’s decisions to
exclusively assign Hudson to low-skilled saw work and deny
him overtime were motivated by anti-union animus, in
violation of Section 8(a)(3) and (1) of the Act.
The next issue concerns Wendt’s administration of
performance reviews and wage increases. Pursuant to its
employee handbook, Wendt provides employees with
performance reviews on an annual basis. In 2016, for example,
Wendt provided annual performance reviews and wage
increases to all employees—unit and non-unit—in the same
time frame. Following the Union’s certification for collective
bargaining purposes, Wendt evaluated non-unit employees and
gave them wage increases in November and December 2017.
In November 2017, the Union requested that Wendt provide
5
unit employees with their 2017 performance reviews based on
its understanding of Wendt’s past practice of providing
performance reviews for unit and non-unit employees alike at
roughly the same time. Wendt failed to evaluate unit
employees until April 2018, delaying unit employees’
performance evaluations and accompanying wage increases for
about six months.
During negotiations in May 2018, Wendt proposed a 3.42
percent wage increase for unit employees, retroactive to April
8, 2018, the date Wendt completed unit employees’
evaluations. The Union, however, counter-proposed a 4
percent wage increase, retroactive to October 2017, to account
for the six-month delay of reviews. Wendt told the Union that
its offer of a 3.42 percent wage increase would expire if the
Union did not accept it by June 20, 2018. The Union accepted
the offer but stated that it wanted to continue bargaining for the
increased percentage and retroactivity to October 2017.
Wendt’s chief negotiator replied, “Fair enough. You can
bargain for that.” J.A. 127. Later, when the Union renewed its
request to bargain for retroactive wage increases, Wendt
responded that the parties had already reached an agreement,
referencing the Union’s acceptance of Wendt’s offer for a 3.42
percent wage increase, retroactive to April 2018. The Union
responded that there was no final agreement regarding the
retroactive wage increases and reminded Wendt that it
specifically reserved the right to bargain for further retroactive
pay. Wendt refused to bargain with the Union. The Board
ruled that Wendt violated Section 8(a)(3) and (1) when it
delayed performance reviews, and thereby deprived unit
employees of wage increases for approximately six months,
and violated Section 8(a)(5) and (1) when it failed to afford the
Union an opportunity to bargain over providing annual
performance reviews and wage increases from about
6
November 2017 through April 2018.
Finally, Wendt posted openings for three shop supervisor
positions—one recently vacant position and two newly created
positions—and promoted three unit employees into the
positions. Wendt did not hire anyone to fill the three vacant
unit roles. Instead, the new supervisors were required to
continue doing some of the unit work from their previous roles,
and temporary employees and contractors completed the rest.
The Union requested to bargain with Wendt over the newly
created supervisor positions, but Wendt refused. The Board
held that Wendt violated Section 8(a)(5) and (1) when it
unilaterally removed unit work and transferred it to three newly
appointed shop supervisors without bargaining with the Union.
II.
The NLRA guarantees employees “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 . . . .” 29 U.S.C. § 157; Midwest Div.—MMC, LLC
v. NLRB, 867 F.3d 1288, 1293 (D.C. Cir. 2017).
On petitions for review of an NLRB order, “we must
uphold the judgment of the Board unless its findings are
unsupported by substantial evidence, or it acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1100
(D.C. Cir. 2019) (citing Spurlino Materials, LLC v. NLRB, 805
F.3d 1131, 1136 (D.C. Cir. 2015); Bally’s Park Place, Inc. v.
NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)). “Substantial
evidence ‘means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” NLRB v.
7
Ingredion Inc., 930 F.3d 509, 514 (D.C. Cir. 2019) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
We must therefore “affirm the Board’s findings unless ‘no
reasonable factfinder’ could find as it did.” Ingredion, 930
F.3d at 514 (quoting Alden Leeds, Inc. v. NLRB, 812 F.3d 159,
165 (D.C. Cir. 2016)).
We will take each of Wendt’s challenges in turn, starting
with its argument that the Board’s finding of a Section 8(a)(1)
violation in connection to the forklift incident involving
Fricano was not supported by substantial evidence.
A.
Wendt first challenges the Board’s finding that it violated
Section 8(a)(1) when it denied employee John Fricano a right
to a union representative during a disciplinary interview. In
National Labor Relations Board v. J. Weingarten, Inc., 420
U.S. 251 (1975), the Supreme Court held that an employee has
a right to union representation in an investigative interview
when the employee reasonably believes the interview may
result in discipline. Id. at 256–62. We discussed the
Weingarten rule’s elements and application in Circus Circus
Casinos, Inc. v. National Labor Relations Board:
To prove a Weingarten allegation, the general
counsel must show (1) the employee made a
valid request for a union representative to be
present during an investigatory interview; (2)
the employee reasonably believed the interview
might result in disciplinary action; and (3) the
employer compelled the employee to attend the
interview without union representation.
961 F.3d 469, 477 (D.C. Cir. 2020) (citations omitted).
8
As indicated, Wendt called in unit employee John Fricano
for questioning on the forklift incident, denied his request to be
accompanied by a union representative during the interview,
and then suspended him for three days without pay.
Substantial evidence supports the Board’s finding that
Wendt violated Section 8(a)(1). First, when Wendt plant
manager Voigt approached Fricano and told him to come to the
office to answer questions about the forklift incident, he denied
Fricano’s valid request for a union representative to be present
during the interview. Voigt even told Fricano he did not need
a representative because Voigt and the human resources
official, Williams, just wanted to ask Fricano a few questions
about the incident. Next, the record reflects that Fricano
reasonably believed that the interview might result in
discipline. For example, consider Wendt operations director
Howe’s testimony about the moment he approached Fricano as
he was about to paint the item while the forklift was in the
painting booth. When Howe “asked [Fricano] if he felt that
[what he was doing] was safe,” Fricano’s “eyes doubled in size
as he glared at [Howe] and immediately began to accuse other
people of telling him to do it.” J.A. 550–51. Moreover, Voigt
called Fricano in for questioning just two days after the
incident, so Fricano had reason to believe that he might face
discipline during the meeting. The record therefore supports
the Board’s finding that Fricano had reasonable cause to
believe that the interview would result in disciplinary action
against him and that Wendt compelled him to participate
without the representation he requested. See Circus Circus
Casinos, 961 F.3d at 477.
Wendt’s argument that Fricano was not entitled to a
Weingarten representative because it had already made the
decision to discipline Fricano and only called the meeting to
9
inform him that he was being disciplined lacks merit and is
belied by the record evidence. At the time of the interview,
when Fricano entered the room, Williams handed Fricano a
notice of unpaid suspension for three days for a safety code
violation. Williams told him that he would be terminated if he
committed another violation. Williams invited Fricano to
respond to Wendt’s statement on the incident by checking a
box on the disciplinary document indicating agreement or
disagreement, signing his name, and leaving comments. Thus,
contrary to Wendt’s argument, the “sole purpose of the meeting
was [not] to deliver the warning to [Fricano].” Cf. Jackson
Hosp. Corp. v. NLRB, 647 F.3d 1137, 1142 (D.C. Cir. 2011).
Rather, as the Board acknowledged in its order, Wendt invited
Fricano to respond to its assessment of Fricano’s wrongdoing.
See Baton Rouge Water Works Co., 246 N.L.R.B. 995, 997
(1979) (noting that if an employer informs “the employee of a
disciplinary action and then seek[s] facts or evidence in support
of that action” or “attempt[s] to have the employee admit his
alleged wrongdoing or to sign a statement to that effect,” then
“the employee's right to union representation . . . attach[es]”).
We therefore sustain the Board’s ruling that Wendt violated
Section 8(a)(1) of the Act.
B.
Next, Wendt contends that substantial evidence does not
support the Board’s determination that it violated Section
8(a)(3) and (1). Wendt disputes the Board’s finding that it
assigned Hudson to low-skilled saw work and denied him
overtime because of his union activities.
Section 8(a)(3) “makes it an unfair labor practice for an
employer ‘by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
10
organization[.]’” Napleton 1050, Inc. v. NLRB, 976 F.3d 30,
34 (D.C. Cir. 2020) (quoting 29 U.S.C. § 158(a)(3)) (alteration
in original). “[A] violation of § 8(a)(3) constitutes a derivative
violation of § 8(a)(1).” Metro. Edison Co. v. NLRB, 460 U.S.
693, 698 n.4 (1983). “To prove a § 8(a)(3) violation, the Board
must first demonstrate that anti-union animus motivated the
employer to take an adverse employment action.” Fortuna
Enters., LP v. NLRB, 665 F.3d 1295, 1303 (D.C. Cir. 2011).
The Board applies the two-part Wright Line test when
evaluating claims of anti-union animus. See Tasty Baking Co.
v. NLRB, 254 F.3d 114, 125 (D.C. Cir. 2001) (citing Wright
Line, 251 N.L.R.B. 1083, 1089 (1980)).
Under the Wright Line test, the Board must “determine
whether an unlawful motive underlay an adverse action taken
by an employer.” Napleton 1050, 976 F.3d at 40. First, “the
General Counsel must make a prima facie showing sufficient
to support the inference that protected . . . conduct was a
motivating factor behind the discipline.” Fort Dearborn Co. v.
NLRB, 827 F.3d 1067, 1072 (D.C. Cir. 2016) (citation and
internal quotation marks omitted). “Relevant factors in
determining an employer’s motive include the employer’s
knowledge of the employee’s union activities, the employer’s
hostility toward the union, and the timing of the employer’s
action.” Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d
210, 218 (D.C. Cir. 2016) (citations and internal quotation
marks omitted). If the General Counsel makes a prima facie
showing, then at step two, “the burden shifts to the company to
show that it would have taken the same action in the absence
of the unlawful motive.” Tasty Baking, 254 F.3d at 126. The
employer “avoid[s] an unfair labor practice finding by showing
by a preponderance of evidence that the worker would have
[faced an adverse employment action] even if he had not been
involved with the union.” See Davis Supermarkets, Inc v.
NLRB, 2 F.3d 1162, 1167 (D.C. Cir. 1993) (citation and
11
internal quotation marks omitted). Importantly, this Court’s
review “of the Board’s conclusions as to discriminatory motive
is even more deferential” than the “substantial evidence
standard” because “most evidence of motive is circumstantial.”
Fort Dearborn Co., 827 F.3d at 1072 (citations and internal
quotation marks omitted). And “[t]he court accepts the ALJ’s
credibility determinations as adopted by the Board, unless they
are patently unsupportable.” Id. (citations and internal
quotation marks omitted).
Wendt argues that under the Wright Line test, the NLRB
General Counsel failed to establish a prima facie case of
discrimination because it did not show a causal relationship
between Hudson’s protected union activities and Wendt’s
decisions regarding Hudson’s employment. Wendt argues that
the Board’s finding of anti-union animus hinges on plant
manager Voigt’s threatening comments to pro-union
employees even though there is no record evidence of Voigt
making such comments to Hudson specifically. Moreover,
Wendt says that even if the General Counsel did establish a
prima facie case, Wendt met its burden of showing that it
would have taken the same action against Hudson absent his
protected union activity because it had a “business need” to
assign Hudson to saw work. Pet’r’s Br. 20–21.
The Board’s findings are supported by substantial
evidence. First, the Board had ample evidence to support its
conclusion that the General Counsel made a prima facie
showing that anti-union animus was a motivating factor in
Wendt’s decision to assign Hudson to the saw and deny him
overtime. The record reflects that Voigt made “repeated threats
. . . [and] expressed a general threat to all employees,”
including “threatening to target union supporters for layoff and
to get rid of ‘a lot of’ shop employees.” J.A. 106–07. Turning
to Wendt’s argument that the Board improperly considered
12
Voigt’s anti-union conduct and comments, even though he
never made anti-union comments toward Hudson, we conclude
that the Board did not err when it considered this evidence.
In Parsippany Hotel Management Co. v. NLRB, 99 F.3d
413 (D.C. Cir. 1996), we addressed an employer’s argument
that a general manager’s anti-union speech is not evidence of
anti-union animus. Id. at 423. The Court rejected this
argument and explained that “[a] company’s open hostility
toward Union activity,” including a manager’s anti-union
speech, is “clearly sufficient to establish anti-union animus on
the part of that company.” Id. (citation and internal quotation
marks omitted). The Court also rejected the employer’s
assertion that the manager’s speech “did not establish anti-
union animus because [the manager] was not involved in the
discharge and discipline of [the employee].” Id. Accordingly,
the Court determined that the General Counsel established a
prima facie case of anti-union animus under the Wright Line
test. Id. at 424.
Our ruling in Parsippany undermines Wendt’s assertion
that the Board’s decision to consider Voigt’s anti-union
comments was erroneous. See id. at 423–24. As the Board
reasoned, Voigt’s comments “expressed a general threat to all
employees”—including threats to lay off union supporters like
Hudson. Accordingly, it was appropriate for the Board to
consider Voigt’s anti-union animus. J.A. 68–69.
Furthermore, ample record evidence supports the Board’s
conclusion that Wendt singled Hudson out from “the other laid-
off welders by denying only him any welding work and any
overtime work opportunities, and instead making him the sole
welder assigned exclusively to the low-skill saw.” J.A. 69.
Wendt also had knowledge of Hudson’s status as a Union
leader: Hudson was on the Union negotiation committee,
13
attended almost all of the bargaining sessions, was the Union’s
observer at the election, regularly wore Union apparel at work,
and was nicknamed “The President” because he organized
most of the employees. J.A. 82 & n.16. All in all, Wendt’s
“knowledge of [Hudson’s] union activities” and Wendt’s
“hostility toward the union,” as evidenced by Voigt’s anti-
union comments, are substantial evidence that Hudson’s
protected activities were a motivating factor in Wendt’s
adverse action toward him. See Fort Dearborn Co., 827 F.3d
at 1072 (citation and internal quotation marks omitted). And
the fact that Hudson was singled out for this low-skilled work
while other welders were permitted to continue welding
negates Wendt’s defense that it would in any event have
selected Hudson for the saw work for purely business reasons,
wholly apart from its anti-union animus against him.
There is likewise no merit to Wendt’s claim that an
inference of unlawful motive is unwarranted because it
contemporaneously granted overtime to another union
supporter. “An employer’s failure to discriminate against
every union supporter does not disprove a conclusion that it
discriminated against one of them.” Handicabs, Inc., 318
N.L.R.B. 890, 897–98 (1995), enforced, 95 F.3d 681 (8th Cir.
1996). Accordingly, the Board’s finding, that Wendt violated
Section 8(a)(3) and (1) of the NLRA, is supported by
substantial evidence in the record.
C.
Next, Wendt challenges the Board’s finding that it violated
Section 8(a)(5) and (1) of the Act when it removed three
positions from the bargaining unit in connection to its
promotion of three unit employees into shop supervisor roles.
Wendt argues that the Board’s findings are not supported by
substantial evidence because the total loss of unit work
14
attributable to the three promotions amounted to less than one
full-time position. Thus, Wendt contends that it was not a
material and substantial change that triggered its obligation to
bargain with the Union. Wendt also argues that its unilateral
transfer of the work from the vacant unit positions to non-unit
employees and to shop supervisors was consistent with past
practice.
“Section 8(a)(5) provides that it is ‘an unfair labor practice
for an employer to refuse to bargain collectively with the
representatives of his employees.’” Ingredion, 930 F.3d at 513
(quoting 29 U.S.C § 158(a)(5)). “Because a refusal to bargain
necessarily interferes with bargaining, ‘an employer who
violates section 8(a)(5) also, derivatively, violates section
8(a)(1).’” Ingredion, 930 F.3d at 513 (quoting Exxon Chem.
Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004)).
Substantial evidence supports the Board’s finding that
Wendt failed to show that its unilateral removal and transfer of
unit work was consistent with an established past practice and
its holding that Wendt’s conduct violated Section 8(a)(5) and
(1) of the Act.
We have held that the “transfer of bargaining unit work to
managers and assistant managers” triggers “the employer’s
duty to bargain where the change results in the loss of
bargaining unit jobs.” See Regal Cinemas, Inc. v. NLRB, 317
F.3d 300, 307 (D.C. Cir. 2003). In Regal Cinemas, this Court
upheld the Board’s ruling that Regal’s transfer of duties of
union-represented projectionists to managers and assistant
managers, without bargaining with the unions, violated Section
8(a)(5) and (1) of the NLRA. Id. at 302–03. Even though the
duties of a projectionist are limited, as “[t]he work required of
a projectionist prior to the start of a film . . . takes
approximately five to ten minutes,” id. at 303, we rejected
15
Regal’s argument that “the assignment of the few . . . minimal
tasks [of union projectionists] to managers and assistant
managers cannot . . . be characterized as a transfer of work.”
Id. at 307 (internal quotation marks and citation omitted). Even
when minimal, where “the change results in the loss of
bargaining unit jobs,” it is a mandatory subject of bargaining.
Id. at 307.
In this case, as the Board noted, Wendt’s removal of three
unit positions and transfer of their work to non-unit employees
and to the newly appointed supervisors amounted to a loss of
“1,372 man-hours from the unit annually, which is more than
26 hours of unit work lost each week.” J.A. 72. Accordingly,
the amount of unit work lost in this case far exceeded the
amount lost in Regal Cinemas. 317 F.3d at 303–07. Thus, we
are not persuaded by Wendt’s assertion that there was not a
material and significant loss of unit work as a result of its
unilateral removal and transfer of unit work. Pet’r’s Br. 43–44.
The Board’s findings were supported by substantial evidence.
Turning next to Wendt’s past practice argument, Wendt
argues that the Board’s decision was not supported by
substantial evidence because Wendt established a past practice
of having supervisors perform unit work. Wendt obfuscates
the grounds on which the Board rested its finding of an NLRA
violation. As the Board noted, “[t]he issue is not whether
[Wendt] may continue a past practice of supervisors
performing some unit work, but whether [Wendt], when it
promoted the three shop employees to supervisory positions,
effectively removed their work from the unit entirely and did
not replace it.” J.A. 72. In any event, Wendt did not present
any evidence that it had a past practice of unilaterally removing
unit positions, let alone a past practice of doing what it did here:
unilaterally eliminating and transferring unit work. In sum, we
16
sustain the Board’s rejection of Wendt’s past practice argument
because it is supported by substantial evidence.
D.
Next, Wendt challenges the Board’s holding that it
violated the Act by delaying wage increases and performance
reviews and refusing to bargain with the Union over retroactive
wage increases. Wendt contends that the Board’s ruling is
erroneous, in part because it conflicts with another recent
NLRB ruling, and also because it is unsupported by substantial
evidence. The Board ruled that Wendt violated Section 8(a)(3)
and (1) by failing to provide annual performance reviews and
accompanying wage increases to bargaining unit employees,
thereby depriving them of wage increases for approximately
six months, and violated Section 8(a)(5) and (1) by failing to
afford the Union an opportunity to bargain.
Substantial evidence in the record supports the Board’s
findings that Wendt violated the Act when it delayed unit
employees’ performance reviews and wage increases and
refused to bargain with the Union. The record reflects that
Wendt told the Union both that it could accept the offer of a
3.42 percent wage increase that applied retroactively to April
2018 before it expired and that it could continue bargaining for
a 4 percent wage increase, retroactive to October 2017. Wendt
then reneged on its word and refused to bargain.
Wendt also argued that the Board failed to apply the
“contract coverage” standard to determine whether it was
obligated to bargain with the Union on a matter covered by an
agreement between itself and the Union, pursuant to the
Board’s ruling in MV Transportation, Inc., 368 N.L.R.B. No.
66 (Sept. 10, 2019). The Board decided MV Transportation
several months before it issued the ruling underlying this
17
petition. But Wendt never raised the “contract coverage”
argument before the Board. Consequently, this challenge is
forfeited and we lack jurisdiction to consider it. Pet’r’s Br. 37;
Spectrum Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341,
348 (D.C. Cir. 2011).
E.
Finally, Wendt argued before the Board that its unilateral
temporary layoff of 10 unit employees in February 2018 was
consistent with past practice.
In its opening brief, Wendt contends that it has historically
implemented layoffs during economic slowdowns, including in
2001, 2002, 2003, 2009, and 2015, when it laid off employees
“based on decreases in customer orders and/or a decrease in
available work.” Pet’r’s Br. 9–10. The Board concluded that
Wendt failed to meet its burden of establishing the past practice
affirmative defense.
The Board noted that Wendt had previously implemented
temporary layoffs in 2001 and 2009 but held that Wendt’s “use
of temporary layoffs twice in 17 years falls well short of
establishing a regular and consistent practice sufficient to
privilege unilateral action.” J.A. 70. The Board also noted that
Wendt’s 2009 layoff affected both non-unit and unit employees
in equal numbers, whereas the 2018 layoff at issue here only
affected unit employees. Accordingly, the Board ruled that
Wendt did not consistently and regularly implement temporary
layoffs affecting unit employees and thus unit employees could
not expect or recognize the contested action as a continuation
of past practice.
Wendt argues that the Board inexplicably focused on the
number of layoffs Wendt has implemented, rather than
Wendt’s practice of laying off employees during economic
18
slowdowns. In doing so, Wendt says, the Board strayed from
its past precedent. See Raytheon Network Centric Sys., 365
N.L.R.B. No. 161, at *21 (Dec. 15, 2017) (“an employer’s past
practice constitutes a term and condition of employment that
permits the employer to take actions unilaterally that do not
materially vary in kind or degree from what has been
customary in the past”); Mike-Sell’s Potato Chip Co., 368
N.L.R.B. No. 145, at *6 (Dec. 16, 2019) (“To establish the
existence of a past practice, it is enough to show that frequent,
recurrent, and similar actions have been taken . . . .”) (emphasis
omitted).
We do not believe the Board adequately addressed
Wendt’s past practice argument. If the Board had considered
all five of the past layoffs that Wendt says comprise its past
practice, then the Board may have had grounds to conclude that
Wendt lacked a past practice of layoffs that occurred with
sufficient regularity and frequency to privilege Wendt to act
unilaterally. But the Board considered only a subset of the
layoffs Wendt identified without adequately explaining the
materiality of its distinctions between those considered and
those excluded. Because our review is limited to the grounds
on which the Board ruled, see Temple Univ. Hosp., Inc. v.
NLRB, 929 F.3d 729, 734 (D.C. Cir. 2019), we remand for the
Board to complete its explanation of its distinctions or to
consider each of the identified layoffs as materially similar in
its assessment of whether Wendt’s claimed past practice
“occurred with such regularity and frequency that employees
could reasonably expect the practice to reoccur on a consistent
basis.” Mike-Sell’s Potato Chip Co., 368 N.L.R.B. No. 145, at
*4 (Dec. 16, 2019).
19
III.
Wendt also challenges the Board’s imposition of remedies
that it contends “compel the outcome of the bargaining
process.” Pet’r’s Br. 3. We defer to the Board’s remedial
determinations, subject to appropriate challenges in the
compliance phase. RAV Truck & Trailer Repairs, Inc. v.
NLRB, 997 F.3d 314, 329 (D.C. Cir. 2021).
IV.
Consistent with the foregoing discussion, the petition for
review is granted in part and denied in part. The Board’s cross-
application for enforcement is likewise granted in part and
denied in part. We remand the case for further consideration
of whether Wendt’s temporary layoff of unit employees in
February 2018 was privileged by past practice. We summarily
enforce the unchallenged portions of the Board’s order. Allied
Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 765 (D.C. Cir.
2012).
Also, the Board inadvertently included two dismissed
allegations in adopting the ALJ’s Section 8(a)(1) violations.
Wendt did not challenge those errors, but the Board has
requested that in enforcing the Board’s order, we correct those
parts of the order and notice. Resp.’s Br. 12 n.2. Pursuant to
the Board’s request, we modify the order to exclude references
to the two dismissed allegations and direct the Board to submit
to the Court a proposed judgment conforming to this opinion.
29 U.S.C. § 160(e); FED. R. APP. P. 19.
So ordered.