Oberthur Technologies of America Corp. v. National Labor Relations Board , 865 F.3d 719 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2017 Decided August 4, 2017
No. 16-1265
OBERTHUR TECHNOLOGIES OF AMERICA CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
GRAPHIC COMMUNICATIONS CONFERENCE, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, LOCAL 14M,
INTERVENOR
Consolidated with 16-1330, 16-1331
On Petition for Review,
Cross-Application for Enforcement of an Order
of the National Labor Relations Board, and Application for
Enforcement of a Second Order
Kevin C. McCormick argued the cause for petitioner. With
him on the briefs was Thomas C. Mugavero.
Michael R. Hickson, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Richard F. Griffin, General Counsel, John H. Ferguson,
2
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, Jennifer Abruzzo, Deputy General Counsel,
and Robert J. Englehart, Supervisory Attorney.
Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Oberthur Technologies of America
seeks review of orders and a certification decision issued by the
National Labor Relations Board. Following a representation
election, the Board certified International Brotherhood of
Teamsters, Local 14M as the collective bargaining
representative of a group of Oberthur employees. The Board
also found that the company violated the National Labor
Relations Act before the election by restricting employee speech
and freezing employee wage benefits. In its petition for review,
Oberthur challenges the Board’s findings of pre-election unfair
labor practices and raises objections to the representation
election. For the reasons set forth below, we deny Oberthur’s
petition for review and grant the Board’s applications for
enforcement.
I
Oberthur manufactures credit cards, debit cards,
governmental identification cards, and related products at its
facility in Exton, Pennsylvania. In the spring of 2012,
Teamsters’ Local 14M commenced an organizing campaign at
the Exton plant. During the campaign, the company banned all
union-related speech on the plant floor and put a freeze on two
longstanding employee wage benefit programs. The union
subsequently filed unfair labor practice charges against the
company.
3
On July 30, 2012, the union filed a petition with the Board
seeking a representation election. In early August, the parties
reached a Stipulated Election Agreement. The Agreement
provided for a secret-ballot election and defined the relevant
bargaining unit as covering “[a]ll full-time employees” working
in fifteen specified departments at the Exton plant. Stipulated
Election Agreement (Aug. 8, 2012) (J.A. 91). Under the
Agreement, the parties waived their rights to a hearing, agreed
that the Board’s regional director, who approved the agreement,
would supervise the election, and agreed that all post-election
procedures would conform with the Board’s rules and
regulations.
The election took place on September 7, 2012. Oberthur
declined to challenge any ballots or otherwise contest the
validity of the representation election. As relevant here,
however, the union challenged the ballots cast by two engineers
-- John DiTore and Birendra Sahijwana -- on the ground that
they qualified as “professional employees” under National
Labor Relations Act (NLRA) § 9(b), 29 U.S.C. § 159(b), and
were thus excluded from the unit. The two ballots were
impounded in accordance with Board regulations. See 29 C.F.R.
§ 102.69(a). The final tally of the non-impounded ballots
showed that the union prevailed by a narrow, two-vote margin
of victory: 108 votes in favor to 106 votes against. Tally of
Ballots (Sept. 7, 2012) (J.A. 94). The parties do not dispute that
the two ballot challenges at issue in this petition for review
could be determinative of the result of the representation
election.1
1
The union actually made a total of three timely ballot
challenges, the third being a challenge to the ballot cast by Scott
Hillman. See Notice of Hearing on Challenged Ballots and Objections
to Election (Oct. 24, 2012) (J.A. 99). Although the Administrative
Law Judge sustained the union’s challenges to DiTore and Sahijwana,
4
In October 2012, the Regional Director consolidated the
unfair labor practice charges together with the challenges to the
representation election for a hearing before an Administrative
Law Judge (ALJ). The ALJ found that the company violated
Sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1),
(3), by restricting union-related speech and by announcing and
ultimately enacting a freeze on employee wage benefits. The
ALJ also recommended sustaining the union’s challenges to the
ballots cast by DiTore and Sahijwana upon finding that both
engineers qualified as “professional employees” under NLRA
§ 9(b), 29 U.S.C. § 159(b). Oberthur filed timely exceptions to
the ALJ’s pre-election unfair labor practice findings and to his
decision to sustain the union’s challenges to the ballots cast by
DiTore and Sahijwana. In addition, in its exceptions to the
ALJ’s decision, the company raised a new objection for the first
time: that even if DiTore and Sahijwana were professional
employees, the election should still be set aside on procedural
grounds.
The Board issued its opinion on August 27, 2015. With
respect to the pre-election unfair labor practice charges, the
Board adopted the ALJ’s findings that the company violated the
NLRA by restricting union-related speech and freezing
employee wage benefits. Oberthur, 362 N.L.R.B. No. 198, at 1
(Aug. 27, 2015) (2015 Board Order). It directed Oberthur to
rescind its restriction on union-related speech and make its
employees whole for any losses stemming from the freeze on
he recommended that the Board overrule the union’s challenge to
Hillman. Oberthur Technologies of Am. Corp., 362 N.L.R.B. No. 198,
at 13 (Feb. 20, 2013) (ALJ Op.). The Board concluded that Hillman’s
ballot “is not determinative and will not be opened or counted.” Id. at
2 & n.6 (Aug. 27, 2015) (2015 Board Order). In light of our
resolution of the challenges to the other two ballots, we reach the same
conclusion.
5
wage benefits. Id. at 3-4. With respect to the representation
election, the Board adopted the ALJ’s recommendation to
sustain the union’s challenges to the ballots cast by DiTore and
Sahijwana. Id. at 2-3. It further rejected as untimely and
procedurally improper Oberthur’s alternative challenge to the
validity of the election, id. at 3, and certified the union as the
exclusive collective-bargaining representative for the stipulated
unit of Oberthur employees, id. at 4.
Following certification, Oberthur refused to bargain with
the union. An employer may, as Oberthur did here, “challenge
a certification decision indirectly by refusing to bargain with the
union and then raising its election objection in the ensuing unfair
labor practice proceedings.” Canadian Am. Oil Co. v. NLRB, 82
F.3d 469, 471 n.1 (D.C. Cir. 1996); see 29 U.S.C. § 160(f). On
July 27, 2016, the Board found that Oberthur’s refusal to bargain
violated NLRA § 8(a)(1) and (5), 29 U.S.C. § 158(a)(1) and (5).
Oberthur Technologies of Am. Corp., 364 N.L.R.B. No. 59, at
2-3 (July 27, 2016) (2016 Board Order). Oberthur now seeks
review of both the 2015 and 2016 Board Orders. The NLRB
applies for enforcement of both.
II
We first address Oberthur’s objection to the Board’s
findings that it violated the NLRA by restricting employee
speech and freezing two longstanding employee wage benefit
programs in the lead-up to the September 2012 representation
election. 362 N.L.R.B. No. 198, at 1 & 1 nn.4-5 (2015 Board
Order).2 This Court “must uphold the judgment of the Board
2
The Board also found that the company separately violated
NLRA § 8(a)(1) by telling employees that the two wage benefit
programs were on hold until after the election. Oberthur, 362
N.L.R.B. No. 198, at 1 (2015 Board Order). Oberthur argues only
6
unless, upon reviewing the record as a whole, we conclude that
the Board’s findings are not supported by substantial evidence,
or that the Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Spurlino Materials,
LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015) (quotation
marks omitted); see 29 U.S.C. § 160(f) (providing that the
Board’s findings of fact are “conclusive” if “supported by
substantial evidence on the record considered as a whole”).
A
Section 8(a)(1) makes it unlawful for an employer to
“interfere with, restrain, or coerce employees” in the exercise of
their rights under NLRA § 7, 29 U.S.C. § 157. 29 U.S.C.
§ 158(a)(1). Section 7’s guarantees “‘necessarily encompass[]’
employees’ rights to communicate with one another and with
third parties about collective action and organizing a union.”
Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 545 (D.C. Cir.
2016) (quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 491
(1978)). Accordingly, if “considering the totality of the
circumstances,” an employer’s statement “has a reasonable
tendency to coerce or to interfere with” an employee’s Section
7 right to communicate about the union, the statement violates
Section 8(a)(1). Tasty Baking Co. v. NLRB, 254 F.3d 114, 124
(D.C. Cir. 2001) (citing Avecor, Inc. v. NLRB, 931 F.2d 924, 931
(D.C. Cir. 1991)).
that, “[t]o the extent that” the pre-election freeze “did not violate the
Act, . . . the mere act of telling employees about a (lawful) policy
cannot itself be a violation.” Oberthur Reply Br. 24. Because we find
that the pre-election freeze did violate the Act, and because Oberthur
does not challenge the separate § 8(a)(1) violation under those
circumstances, the Board is entitled to summary enforcement with
respect to that violation. See generally Allied Mech. Servs. v. NLRB,
668 F.3d 758, 765 (D.C. Cir. 2012).
7
It is well established that an employer’s warning directing
employees to “cease Union-related discussions only” constitutes
a Section 8(a)(1) violation. ITT Industries, Inc. v. NLRB, 251
F.3d 995, 1006 (D.C. Cir. 2001). And while non-solicitation
rules designed to advance legitimate business interests in
employee discipline and productivity are permissible, “[a]n
employer violates the Act when employees are forbidden to
discuss unionization, but are free to discuss other subjects
unrelated to work.” Oberthur, 362 N.L.R.B. No. 198, at 1 & n.4
(2015 Board Order) (quoting Jensen Enterprises, Inc., 399
N.L.R.B. 877, 878 (2003)).3
Oberthur contests the Board’s finding that it violated
Section 8(a)(1) by imposing a “discriminatory restriction on
union-related speech.” 362 N.L.R.B. No. 198, at 1 & n.4 (citing
Jensen Enterprises, Inc., 339 N.L.R.B. at 878). We are
unpersuaded. The Board adopted the ALJ’s findings on this
issue, which pointed to statements by shift supervisor Frank
Belcher, who told employees “that discussions about the union
or organizing had to take place in common areas, not work
areas.” Belcher Aff. (J.A. 1171); see Belcher Testimony (J.A.
559). The ALJ found and Oberthur concedes that the company
did not impose similar restrictions on discussions about non-
union subjects. See 362 N.L.R.B. No. 198, at 10 & n.7 (ALJ
Op.); Oral Arg. Recording at 6:57. Indeed, Belcher testified that
3
Cf. Our Way, Inc., 268 N.L.R.B. 394, 394 (1983) (stating that
there would be no violation if the employer barred “solicitation for
any cause, or distribution of literature of any kind, during working
time”); F.P. Adams Co., Inc., 166 N.L.R.B. 967, 967 (1967) (finding
no violation when the employer said that “talk about the Dodgers or
the Angels, whichever your favorite baseball team may be, or about
anything else” non-work-related is permitted only “before or after
work, during meal periods and during rest periods” (emphasis
omitted)).
8
discussions of all other topics -- from“[w]eddings [and]
funerals” to “football, basketball, [and] vacations” -- were
permitted in work areas. Belcher Testimony (J.A. 562). Nor did
the company meet its burden of establishing “a legitimate and
substantial business justification for the rule, outweighing the
adverse effect on the interests of employees.” Banner Health
System v. NLRB, 851 F.3d 35, 41 (D.C. Cir. 2017) (internal
quotation marks omitted).
Oberthur further contests the Section 8(a)(1) violation on
the ground that “there was no evidence that organizing activity
was in any way limited by Belcher’s conduct, or that any
employees were disciplined.” Oberthur Br. 30-31. We have
held, however, that the “‘mere maintenance of a rule likely to
chill section 7 activity, whether explicitly or through reasonable
interpretation, can amount to an unfair labor practice even
absent evidence of enforcement of the rule by the employer.’”
Banner Health System, 851 F.3d at 40-41 (quoting Quicken
Loans, 830 F.3d at 546). “[C]onsidering the totality of the
circumstances,” there is substantial evidence to support the
Board’s conclusion that Oberthur’s statement “ha[d] a
reasonable tendency to coerce or to interfere with” its
employees’ Section 7 right to communicate about the union,
thereby violating Section 8(a)(1). Tasty Baking Co., 254 F.3d
at 124.
B
We turn next to the Board’s finding that Oberthur violated
Section 8(a)(1) and (3) by implementing a freeze on two
longstanding employee wage benefit programs in advance of the
representation election. 362 N.L.R.B. No. 198, at 1 & n.5 (2015
Board Order). The company challenges both the Board’s unfair
labor practice finding and its make-whole remedy.
9
We begin with the company’s challenge to the Board’s
unfair labor practice finding. “As a general rule, while a union
representation proceeding is pending, an employer must decide
whether to grant benefits ‘precisely as it would if the union were
not on the scene.’” Federated Logistics & Operations v. NLRB,
400 F.3d 920, 927 (D.C. Cir. 2005) (quoting Perdue Farms, Inc.
Cookin’ Good Division v. NLRB, 144 F.3d 830, 836 (D.C. Cir.
1998)). “It follows that an employer may not withhold a wage
increase that would have been granted but for a union organizing
campaign.” Id.
In this case, substantial evidence supports the Board’s
finding that Oberthur violated Section 8(a)(1) and (3) by
freezing wage benefits it had granted to its employees through
two separate wage benefit programs. The company concedes
that under the status quo, it maintained two wage benefit
programs: (1) the “Spot Bonuses” program, which rewarded
discrete examples of exceptional service with “spot bonuses”
ranging between $50 and $150; and (2) the “Wage Increase”
program, which rewarded employees for taking on more
challenging positions within the company by increasing their
base salary over the course of eighteen months to two years.
Oberthur, 362 N.L.R.B. No. 198, at 11-12 (ALJ Op.). Oberthur
further concedes that it froze the benefits “because of the Union
organizing campaign.” Oberthur Br. 32.
Oberthur acknowledges that its decision to put all spot
bonuses and wage increases “on hold” was “memorialized” in
an email sent to managers and supervisors by Diane Ware,
Oberthur’s Human Resources Manager, two days after the union
filed its election petition with the Board. Oberthur Reply Br. 22,
25. In the message, Ware instructed Oberthur’s managers and
supervisors that all wage increases and spot bonuses were on
hold, and then gave the following instruction:
10
If one of your employees is waiting for an increase -
please use the following phrase, “During this period,
we have to keep the status quo on all issues related to
wages, transfers, and promotions.” PLEASE NOTE:
We cannot say things like, ‘it’s because of the union,’
or ‘your promotion will be processed once we vote the
union down.’ These phrases, although very likely true,
will be viewed as a promise and we need to make sure
that doesn’t happen. Hopefully, with the phrase,
‘during this period,’ employees will realize that it may
be linked to unions, but we cannot draw that conclusion
for them.
Email from Diane Ware (Aug. 1, 2012) (J.A. 1168) (emphases
added).
Oberthur attempts to justify the freeze on the ground that
the “discretionary” nature of its wage benefit programs made a
freeze necessary. See Oberthur Br. 33-34. But while Oberthur
may have exercised discretion over the initial granting of the
benefits, substantial evidence supports the NLRB’s finding that
Oberthur had already approved bonuses and scheduled wage
increases for several employees prior to the freeze. See 362
N.L.R.B. No. 198, at 11-12 & nn.9-10 (ALJ Op.); id. at 3 & n.14
(2015 Board Order). Moreover, the NLRB’s remedy applied
only to an employee “whose approved bonus or scheduled wage
increase was delayed because of the Respondent’s policy to
freeze such benefits during the pendency of the election.” Id. at
14 (ALJ Op.); see id. at 1 n.5 (2015 Board Order) (“A traditional
backpay remedy, with interest, is appropriate for those
employees who would have received spot bonuses but for the
Respondent’s unlawful conduct.”).
The NLRB has recognized an exception to the principle that
employers must maintain the status quo regarding wage benefits
11
during organizing campaigns. Under this exception, an
employer may postpone an expected wage or benefits increase
so long as it makes clear to employees that: (1) “the sole
purpose” of the postponement “is to avoid the appearance of
influencing the election’s outcome”; and (2) “the employees
w[ill] receive their . . . increases after the election regardless of
the outcome.” Wal-Mart Stores, Inc., 349 N.L.R.B. 1007, 1012-
13 (2007) (internal quotation marks omitted); see Grass Valley
Grocery Outlet, 332 N.L.R.B. 1449, 1451 (2000); Uarco, Inc.,
169 N.L.R.B. 1153, 1154 (1968). In this case, substantial
evidence supports the Board’s conclusion that Oberthur failed
to satisfy those requirements. The record shows that Oberthur
did not communicate to its employees that the sole purpose of
the freeze was to avoid the appearance of influence and that the
benefits would be reinstated no matter the outcome of the
election. To the contrary, Ware’s email indicates that the
company hoped to leave employees with the impression that the
freeze was “linked to unions” and that their promotions would
be processed “once we vote the union down.” Ware Email, J.A.
1168.
Oberthur’s challenge to the Board’s remedy is also without
merit. Our review is especially deferential in this context, in
light of the Board’s “broad discretionary power . . . to fashion
remedies that effectuate the policies of the Act” under NLRA
§ 10(c), 29 U.S.C. § 160(c). Petrochem Insulation, Inc. v.
NLRB, 240 F.3d 26, 34 (D.C. Cir. 2001). The Board held that
“[a] traditional backpay remedy, with interest, is appropriate for
those employees who would have received spot bonuses but for
the Respondent’s unlawful conduct.” Oberthur, 362 N.L.R.B.
No. 198, at 1 n.5 (2015 Board Order). Although Oberthur
complains that the Board’s 2015 order “offers no methodology
whatsoever,” Oberthur Br. 36, the order made clear that “the
identification of employees unlawfully denied spot bonuses and
the determination of the amount they should receive, including
12
interest” will be determined at the compliance stage, 362
N.L.R.B. No. 198, at 1 n.5. And this Court has consistently
declined to consider challenges to remedial orders when the
Board has “reserve[d] the issue for later consideration.”
Scepter, Inc. v. NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006); see
E.I. Du Pont de Nemours & Co. v. NLRB, 489 F.3d 1310, 1317
(D.C. Cir. 2007). There is no reason to depart from that practice
here.
III
This brings us to Oberthur’s objections to the Board’s
disposition of the representation case. The parties’ stipulated
election agreement defined the bargaining unit as covering “[a]ll
full-time employees” working in fifteen specified departments
at the Exton plant. Stipulated Election Agreement (Aug. 8,
2012) (J.A. 91). When a representation election involves such
a stipulated agreement, “the Board’s function is to ascertain and
enforce the parties’ intent, provided that it is not contrary to any
statutory provision or established Board policy.” Halsted
Commc’ns, 347 N.L.R.B. 225, 225 (2006) (citing Caesar’s
Tahoe, 337 N.L.R.B. 1096, 1097 (2002)).
As relevant here, NLRA § 9(b)(1) bars the Board from
certifying any bargaining unit that includes both “professional”
employees -- as defined by NLRA § 2(12), 29 U.S.C. § 152(12)
-- and non-professional employees unless “a majority of such
professional employees vote for inclusion in such unit.” 29
U.S.C. § 159(b). To comport with this requirement when a
mixed unit is contemplated, the Board’s policy has long been to
utilize special ballots that ask professional employees both
whether they wish to be included in a unit with non-
professionals and whether they wish to be represented by the
union. This is known as a “Sonotone election.” San Miguel
13
Hosp. Corp. v. NLRB, 697 F.3d 1181, 1183 & n.2 (D.C. Cir.
2012); see Sonotone Corp., 90 N.L.R.B. 1236, 1240-42 (1950).
In this case, the Agreement did not specify the job titles of
covered employees. Instead, it simply stated that employees
working in fifteen of Oberthur’s departments were “[i]ncluded”
in the unit and that “[a]ll other employees, temporary and
seasonal employees, confidential employees, guards and
supervisors as defined in the Act” were “[e]xcluded.” Stipulated
Election Agreement (Aug. 8, 2012) (J.A. 91). As the ALJ noted,
although the Agreement neither expressly included nor
expressly excluded “professional employees,” 362 N.L.R.B. No.
198, at 9, it specifically set forth “non-Sonotone” language to be
used on all ballots:
“The question on the ballot will be ‘Do you wish to be
represented for purposes of collective bargaining by
GRAPHIC COMMUNICATIONS CONFERENCE
INTERNATIONAL BR OTHERHOOD OF
TEAMSTERS LOCAL 14-M?’ The choices on the
ballot will be ‘Yes’ or ‘No.’”
Stipulated Election Agreement (Aug. 8, 2012) (J.A. 92).
Because “the stipulation on its face [was] neither contrary
to Board policy nor violative of Section 9(b)(1) of the Act,” the
Board’s role was to enforce the intent of the parties. Hollywood
Med. Ctr., 275 N.L.R.B. 307, 308 (1985); see Sunrise, a Cmty.
for the Retarded, Inc., 282 N.L.R.B. 252, 252 (1986); Valley
View Hospital, 252 N.L.R.B. 1146, 1147 (1980). In light of the
stipulated ballot language and the parties’ implied agreement
(given the background rule of § 9(b)) that the bargaining unit
would include only non-professional employees, the Regional
Director administered a conventional, non-Sonotone election on
September 7, 2012.
14
The company raised no timely objections whatsoever to that
decision or to any other aspect of the election. The union, by
contrast, did raise timely objections to the ballots cast by John
DiTore and Birendra Sahijwana -- both engineers in the
company’s Quality Control department -- on the ground that
they were ineligible to vote in the representation election. The
Board agreed that both DiTore and Sahijwana could not vote in
the election because they qualified as “professional employees”
under 29 U.S.C. § 152(12), and that therefore their ballots
should not be counted. 362 N.L.R.B. No. 198, at 2 (2015 Board
Order); id. at 9-10 (ALJ Op.). It explained that, although both
employees worked in the company’s Quality Control
department, which was listed as an “[i]ncluded” department
under the Agreement, Stipulated Election Agreement (Aug. 8,
2012) (J.A. 91), their status as professional employees precluded
their inclusion in the unit because the parties had provided for a
conventional, non-Sonotone election to form a unit of only non-
professional employees.
In its petition for review, Oberthur raises two objections to
the representation election: (i) that the Board erred in concluding
that DiTore and Sahijwana were “professional employees”
under NLRA §§ 2(12) and 9(b); and (ii) that even if they were
professional employees, the representation election was invalid
because DiTore and Sahijwana were denied their rights to a
Sonotone election under Section 9(b)(1).
A
We begin with Oberthur’s timely objection to the Board’s
finding that DiTore and Sahijwana were “professional
employees” within the meaning of Sections 2(12) and 9(b). 362
N.L.R.B. No. 198, at 2 (2015 Board Order). The Board adopted
the ALJ’s findings, which the ALJ reached by applying the four
factors set forth in Section 2(12)(a) to the specific work that
15
DiTore and Sahijwana performed for the company. 362
N.L.R.B. No. 198, at 9-10 (ALJ Op.). The Board is entitled to
deference in the application of such factors. See generally
Evergreen Am. Corp. v. NLRB, 362 F.3d 827, 837-838 (D.C.
Cir. 2004); Seattle Opera v. NLRB, 292 F.3d 757, 761 (D.C. Cir.
2002).
In relevant part, Section 2(12)(a) defines “professional
employee” as:
any employee engaged in work (i) predominantly
intellectual and varied in character as opposed to
routine mental, manual, mechanical, or physical work;
(ii) involving the consistent exercise of discretion and
judgment in its performance; (iii) of such a character
that the output produced or the result accomplished
cannot be standardized in relation to a given period of
time; (iv) requiring knowledge of an advanced type in
a field of science or learning customarily acquired by
a prolonged course of specialized intellectual
instruction and study in an institution of higher
learning . . . as distinguished from a general academic
education or from an apprenticeship or from training in
the performance of routine mental, manual, or physical
processes.
29 U.S.C. § 152(12)(a). In applying these factors to the
engineers’ work, the ALJ began by explaining that DiTore was
a “Lean Engineer,” which is “a subspecialty in engineering” that
draws on “science, engineering, and applied mathematics” to
advance the goal of “mak[ing] the manufacturing process itself
more efficient.” 362 N.L.R.B. No. 198, at 9 (ALJ Op.).
Sahijwana, the ALJ noted, was a “quality engineer,” who was
responsible for ensuring “that the [company’s] products once
16
manufactured” were “without defects” and “m[e]t appropriate
standards.” Id.
The company contends that the Board and ALJ erred by
“applying a one-size-fits-all approach” to its determination that
DiTore and Sahijwana were professionals. Oberthur Br. 18. We
disagree. The ALJ specifically addressed distinct features of the
work each engineer performed and made the following findings.
First, neither engineer performed “routine or standardized”
work, since they had to make “independent use of the skills and
advanced knowledge” they “acquired through their engineering
education and work histories.” 362 N.L.R.B. No. 198, at 9-10;
see 29 U.S.C. § 152(12)(a)(i), (iii), (iv). They also had to
exercise “discretion” and “judgment” in their daily work, 29
U.S.C. § 152(12)(a)(ii), and their performance could not be
evaluated in a “standardized” fashion, id. at (iii). Their
supervisor, the ALJ noted, also held an engineering degree and
his “background in engineering enable[d] him to understand
what DiTore and Sahijwana [were] doing.” 362 N.L.R.B. No.
198, at 9. Although other employees in the Quality Control
department were “paid on an hourly basis,” id., DiTore and
Sahijwana were salaried employees. Finally, unlike the other
employees in the Quality Control department who “ha[d] high
school degrees” only, id., the work DiTore and Sahijwana
performed required “advanced” knowledge, 29 U.S.C.
§ 152(12)(a)(iv). DiTore held a bachelor’s degree in mechanical
engineering and masters degrees in business administration and
operations management, 362 N.L.R.B. No. 198, at 9; “John
DiTore LinkedIn,” (J.A. 941), while Sahijwana earned a
bachelor’s degree in engineering and masters degrees in
business and engineering, 362 N.L.R.B. No. 198, at 9.
Oberthur maintains that the Board placed unwarranted
reliance on the case of Westinghouse Electric Corp., 163
N.L.R.B. No. 96 (1967), which Oberthur thinks is
17
distinguishable from its own situation. But substantial record
evidence shows that, like the steam engineers who the Board
found were professionals in Westinghouse, DiTore and
Sahijwana performed work that (i) drew upon “specialized
technical or professional knowledge,” and (ii) required them to
lead “cooperative efforts”; and that both were (iii) “salaried,”
and (iv) “ha[d] academic degrees.” Westinghouse, 163 N.L.R.B.
No. 96, at 2-3 (1967). Accordingly, because the Board’s finding
that DiTore and Sahijwana qualified as professional employees
is supported by substantial evidence, and is “rational and in
accord with past precedent,” we uphold it. NBCUniversal
Media v. NLRB, 815 F.3d 821, 829 (D.C. Cir. 2016) (internal
quotation marks omitted).4
B
Oberthur maintains that, even if the Board did not err in
finding that DiTore and Sahijwana were “professional
employees,” the election certification was nonetheless invalid
because the two engineers were never issued Sonotone ballots.
Ordinarily, we would review the Board’s certification decision
for abuse of discretion. See 800 River Rd. Operating Co., LLC
v. NLRB, 846 F.3d 378, 386 (D.C. Cir. 2017). In this case,
however, “[w]hatever the merits of [Oberthur’s] contention, [it]
did not timely raise it before the Board.” Sundor Brands, Inc. v.
NLRB, 168 F.3d 515, 520 (D.C. Cir. 1999). Under the Board’s
rules, any objection to “the conduct of the election or to conduct
affecting the results of the election” must be made within seven
4
We also reject the company’s post-election challenge to the
ballot cast by another employee, Khalid Husain. That claim is barred
because Husain’s ballot was cast and commingled with the other
ballots before Oberthur raised any objection. See NLRB v. A.J. Tower
Co., 329 U.S. 324, 331-33 (1946); Schoolman Transp. Sys., Inc. v.
NLRB, 112 F.3d 519, 521 (D.C. Cir. 1997).
18
days after the Board’s tally of the ballots. 29 C.F.R.
§ 102.69(a). As we have said, “[t]he Board’s seven-day
deadline reflects its long-standing policy favoring finality in
election results in order to further industrial peace.” Manhattan
Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006)
(citing A.J. Tower Co., 329 U.S. at 331-32).
The first time Oberthur raised its Sonotone argument was in
its exceptions to the decision of the ALJ, more than six months
after the deadline for making objections had passed. That is far
too late. See Tekweld Solutions, Inc., 361 N.L.R.B. No. 18, at 1
(2014). “Because the Company neither raised its objection in a
timely fashion nor alleged special circumstances that could
excuse its tardiness, the Board properly declined to consider it.”
Sundor, 168 F.3d at 520.
IV
Finally, we address the Board’s finding that the company
violated Sections 8(a)(1) and (5) by refusing to bargain with the
union and denying its information requests following
certification. Oberthur, 364 N.L.R.B. No. 59, at 2-3 (2016
Board Order). Oberthur does not deny that it did these things.
Accordingly, because we have held that “the certification was
valid, it follows apodictically that the [company’s] refusal to
bargain [and provide the requested information] violated
Sections 8(a)(1) and (5) of the Act.” San Miguel Hosp. Corp.,
697 F.3d at 1184. We therefore grant the Board’s cross-
application to enforce its 2016 order directing the company to
bargain in good faith and furnish the requested information.
19
V
For the foregoing reasons, we deny Oberthur’s petition for
review and grant the Board’s applications for enforcement.
So ordered.