SFO Good-Nite Inn, LLC v. National Labor Relations Board , 700 F.3d 1 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2012 Decided November 20, 2012
No. 11-1295
SFO GOOD-NITE INN, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with No. 11-1325
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Patrick W. Jordan argued the cause for petitioner. With
him on the briefs was Nanette Joslyn.
MacKenzie Fillow, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Usha
Dheenan, Supervisory Attorney.
Before: ROGERS and GARLAND, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: SFO Good-Nite Inn, LLC,
withdrew recognition of Unite Here! Local 2 based on anti-
union petitions that the National Labor Relations Board found
were impermissibly tainted by Good-Nite’s unlawful assistance
to the decertification effort in violation of sections 8(a)(5) and
(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),
(5). Good-Nite petitions for review on the principal ground that
the Board applied the wrong line of its precedent, Hearst Corp.,
281 N.L.R.B. 764 (1986), and expanded the conduct covered by
it, unreasonably departing from its settled causality precedent in
Master Slack Corp., 271 N.L.R.B. 78 (1984).
Regardless of whether the Board previously forthrightly
explained the distinction between these two lines of its
precedent, the Board has now articulated a clear line for
applying the Hearst presumption of taint in “the narrow
circumstance where an employer unlawfully instigates or
propels a decertification campaign, and then invokes the results
of that campaign to justify its unilateral withdrawal of
recognition from its employees’ representative.” SFO Good-
Nite Inn, LLC, 357 N.L.R.B. No. 16, at 4 (July 19, 2011). The
Board explained that the Hearst presumption applies where the
employer is directly involved in advancing a decertification
petition, whereas the Master Slack test applies where the
employer committed unfair labor practices unrelated to the
petition that may have contributed to the erosion of support for
the union. Upon finding that Good-Nite directly assisted and
advanced the decertification effort by coercively asking
employees to sign the petitions and unlawfully threatening to
fire an employee for opposing it, the Board applied the Hearst
presumption as there was no need to make a specific causation
finding under Master Slack.
3
We hold that the Board’s Hearst presumption is reasonable
and consistent with the Act, and that the Board’s factual findings
are supported by substantial evidence in the record.
Accordingly, we deny the petition for review and grant the
Board’s cross application for enforcement.
I.
In March 2004, Good-Nite purchased a hotel located near
the San Francisco International Airport and assumed the prior
owner’s obligations under a collective bargaining agreement
with housekeeping and janitorial employees represented by
Unite Here! Local 2 (“the Union”). At the relevant time the
represented unit consisted of 24 employees. The agreement was
due to expire in November 2004, but in August 2004 Good-Nite
and the Union agreed that it would remain in effect during their
renegotiations for a new agreement.
During a bargaining session on August 23, 2005, the Union
demanded that Good-Nite discharge five new housekeepers
unless they paid union dues pursuant to a union-security clause
in the agreement. On August 31, Good-Nite general manager
Azfal “A.C.” Chaudhry and banquet manager Naomi Grace
Vargas met with two of those housekeepers, Cristina Valencia
and Maria Maldonado. At the meeting, Chaudhry told Valencia
and Maldonado about the outstanding dues, stated that the Union
was “no good,” and asked them to consider signing a “paper” to
eliminate the Union. According to Valencia, Chaudhry
questioned why they wanted a union when he was willing to
give them paid vacation and health insurance, benefits they were
not then receiving. Two hours later, Vargas approached
Valencia and told her that Chaudhry was waiting for her
response. Neither Valencia nor Maldonado signed a
decertification petition. Maldonado told co-worker Luz Verdin
4
that she was afraid management would make her sign a petition
or lose her job.
Also in late August, Good-Nite assistant manager Leah
Aquino approached housekeeper Margarita Taloma and asked
her to sign an anti-union petition. A few days later Aquino
unexpectedly arrived at Taloma’s home and again asked her to
sign a petition. Taloma refused. Another employee testified
that there were “rumors about signatures that were being
requested [by Good-Nite management] for non-unionizing.” Tr.
of ALJ Hr’g, Apr. 18, 2006, at 143.
Valencia, Maldonado, and Taloma all told housekeeping
inspector Consuelo Contreras, who was on the Union
negotiating committee, about Good-Nite’s solicitation of their
signatures. On September 6, Contreras urged another
housekeeper, Xiang Tan, not to sign the petitions. Two hours
later, Chaudhry and Good-Nite’s owner, Eric Yokeno, asked
Contreras why she was telling employees not to sign the
petitions and told her that she could be fired for doing so at
work. Good-Nite did not have a work rule against solicitation.
On September 7, Chaudhry fired Valencia and Maldonado,
citing a seasonal slowdown in business. This was contrary to
Good-Nite’s usual practice of laying off employees subject to
recall, rather than firing them. Contreras, the employee most
knowledgeable about their work, had not been asked about their
work performance and thought they were both good workers.
Other housekeepers with less seniority who had signed a
decertification petition were not fired. By September 7, a Union
field representative heard that Good-Nite management had been
asking employees to sign a decertification petition.
On September 14, 2005, Good-Nite withdrew recognition
of the Union based on petitions signed by 13 of the 24 unit
5
employees stating that they no longer wished to be represented
by the Union. When housekeeper Luz Verdin requested
vacation leave, assistant manager Aquino told her on October 4
that she would grant the request if Verdin signed an anti-union
petition, which she did. Aquino then backdated Verdin’s
signature to make it appear that she had signed the petition on or
before Good-Nite’s withdrawal of Union recognition. On
October 14, 2005, the Union filed an unfair labor practice charge
with the Board. The General Counsel of the Board issued a
complaint on March 1, 2006.
The administrative law judge (“ALJ”) found, after a
hearing, that Good-Nite had violated section 8(a)(1) of the Act
by soliciting employees to sign an anti-union petition with
threats or promised benefits; sections 8(a)(3) and (1) by
discharging Valencia and Maldonado to discourage union
membership and activities; and sections 8(a)(5) and (1) by
unlawfully withdrawing recognition of and refusing to bargain
with the Union. Applying the four-factor causation test of
Master Slack, the ALJ found this unlawful conduct had tainted
the employee petitions disavowing the Union. The ALJ, in
addition to recommending reinstatement of Maldonado and
Valencia with back pay and expunging references to their
unlawful discharges from Good-Nite’s files, proposed a cease
and desist order and various affirmative actions, including that
Good-Nite bargain with the Union. In March 2008, the Board
adopted the ALJ’s factual findings and proposed order. SFO
Good-Nite Inn, LLC, 352 N.L.R.B. 268 (2008). Because the
Board’s decision was rendered by a non-quorum of only two
members, this court vacated the decision in view of New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010); Laurel
Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469,
476 (D.C. Cir. 2009), and remanded the case for further
proceedings. SFO Good-Nite Inn, LLC v NLRB, No. 08-1148
(D.C. Cir. Sept. 20, 2010).
6
On July 19, 2011, a three-member Board issued a decision
incorporating by reference most of the 2008 decision and
explaining further why Good-Nite’s withdrawal of recognition
violated sections 8(a)(5) and (1) of the Act. Agreeing with the
General Counsel that Good-Nite’s conduct per se precluded its
reliance on the petitions as a valid basis for withdrawing
recognition of the Union, the Board ruled that “the disposition
of this case is properly controlled by Hearst Corp., holding that
an employer may not withdraw recognition based on a petition
that it unlawfully assisted, supported, or otherwise unlawfully
encouraged, even absent specific proof of the misconduct’s
effect on employee choice.” SFO Good-Nite Inn, 357 N.L.R.B.
No. 16, at 1 (footnote omitted). One member dissented in part,
on the ground that the Hearst presumption should be rebuttable
while acknowledging that the difference was immaterial because
Good-Nite “failed to show that its misconduct could not have
tainted the employees’ petition.” Id. at 5 (Member Hayes,
concurring in part, dissenting in part). A unanimous Board
adopted the ALJ’s proposed order. Good-Nite petitions for
review, and the Board cross-applies for enforcement of its
Order.
II.
“[I]t is our longstanding rule that the Board is entitled to
summary enforcement of the uncontested portions of its orders.”
Carpenters & Millwrights, Local Union 2471 v. NLRB, 481 F.3d
804, 808 (D.C. Cir. 2007) (internal quotation marks and
alterations omitted). The Board accordingly seeks summary
enforcement of its unchallenged findings that Good-Nite
violated section 8(a)(1) of the Act by soliciting employees
Taloma and Verdin to sign an anti-union petition with threats
and promised benefits, and by threatening employee Contreras
with discharge if she told other employees not to sign the
petitions. Because Good-Nite did not file exceptions to these
7
findings, section 10(e) of the Act jurisdictionally bars Good-Nite
from obtaining review of them. 29 U.S.C. § 160(e); see also W
& M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C.
Cir. 2008). The Board is therefore entitled to summary
enforcement of these findings.
The Board also seeks summary enforcement of its Order
directing Good-Nite to reinstate employees Valencia and
Maldonado. The Board found that Good-Nite violated sections
8(a)(3) and (1) of the Act by discharging Valencia and
Maldonado because they did not sign the anti-union petitions.
Good-Nite challenges as clearly erroneous the factual finding
that its general manager, Chaudhry, solicited Valencia’s and
Maldonado’s signatures on an anti-union petition. But it does
not challenge the Board’s determination that the discharges were
unlawful. Good-Nite acknowledges that other record evidence
— namely Chaudhry’s possession of the signed anti-union
petitions at the time of the firings — would have supported the
finding that the firings were unlawful, irrespectively of the
alleged solicitations. The Board is therefore entitled to summary
enforcement of the reinstatement portion of its Order.
III.
Good-Nite contends that the Board erred in declining to
apply its traditional Master Slack test to evaluate disaffection
petitions for taint and instead adopted a new rule based on “its
little cited decision in Hearst Corporation,” Petr’s Br. at 18,
under which, it asserts, the General Counsel is relieved of the
burden to prove a causal nexus between the employer’s conduct
and employee disaffection and instead can rely on what Good-
Nite characterizes as overbroad “per se categories” of conduct,
id. Objecting that “the Board provided no reasoned explanation
for departing from Master Slack, [n]or explained how its new
rule will not result in arbitrary decisions with no evidentiary
8
support,” id., Good-Nite concludes that the new rule will impede
employees’ section 7 rights and curtail employers’ free speech
rights under section 8(c) of the Act. In Good-Nite’s view, had
the Board properly applied its Master Slack precedent and
considered all of the evidence, the Board “should have found
that the unfair labor practices were isolated, mostly occurring
after the Union lost majority support and were unknown to the
rest of the bargaining unit.” Id. at 18–19. Good-Nite ignores
the Board’s explanation and rationale for applying the Hearst
presumption and the substantial evidence supporting the Board’s
factual findings.
A. The court “accord[s] a very high degree of deference to
administrative adjudications by the [Board].” United
Steelworkers of Am., Local Union 14534 v. NLRB, 983 F.2d 240,
244 (D.C. Cir. 1993). “The Board, of course, is given
considerable authority to interpret the provisions of the [Act].
If the Board adopts a rule that is rational and consistent with the
Act, then the rule is entitled to deference from the courts.” Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42
(1987) (citation omitted). Such deference is appropriate here.
Section 8(a)(5) of the Act provides that “[i]t shall be an
unfair labor practice for an employer . . . to refuse to bargain
collectively with the representatives of his employees.” 29
U.S.C. § 158(a)(5). There are circumstances, however, where
an employer may unilaterally withdraw recognition from a union
if it can show through objective evidence that the union has lost
majority support as, for example, by presenting a petition signed
by a majority of employees in the bargaining unit stating that
they no longer wish to be represented by the union. See Flying
Food Grp., Inc. v. NLRB, 471 F.3d 178, 182 (D.C. Cir. 2006)
(discussing Levitz Furniture Co., 333 N.L.R.B. 717 (2001)).
This privilege is not absolute.
9
In Hearst Corp., 281 N.L.R.B. at 764, the Board found that
the employer had unlawfully solicited employee signatures on
union decertification petitions. For example, the employer had
interrogated employees about their union sympathies, told them
their continued representation by the union prevented their
receiving better benefits, promised increased benefits and
improved working conditions if they withdrew support for the
union, and suggested they sign anti-union petitions and persuade
their coworkers to withdraw their support for the union. See id.
The unfair labor practices had occurred prior to and
simultaneously with circulation of the petitions by employees.
Although decertification petitions signed by a majority of the
bargaining unit employees will generally be sufficient objective
evidence to provide a reasonable basis for withdrawing
recognition, the Board observed that it was “well settled” that an
employer’s doubt about a union’s continuing majority status at
the time it withdrew recognition “may not be raised in the
context of any employer activities aimed at causing employee
disaffection with the union.” Id. The Board concluded:
Where an employer engages in such conduct, the
decertification petitions will be found to have been
tainted by the employer’s unfair labor practices and the
latter, consequently, will be precluded from relying on
the tainted petition as a basis for questioning the
union’s continued majority status and withdrawing
recognition from that labor organization.
Id. The Board reached this conclusion, despite testimony from
19 of the 56 employees in the bargaining unit that they were
unaware of the employer’s unlawful conduct, because an
employer should not be able to “enjoy the fruits of its violations
by asserting that certain of its employees did not know of its
unlawful behavior.” Id. at 765 & n.9. Drawing on its
experience, the Board stated that it based the presumptive
10
finding of taint “not . . . on a finding of actual coercive effect,
but rather on the ‘tendency of such conduct to interfere with the
free exercise of employee rights under the Act.’” Id. at 765
(quoting Amason, Inc., 269 N.L.R.B. 750, 750 n.2 (1984)).
By contrast, the question in Master Slack was whether the
employer’s unremedied flagrant violations from an earlier unfair
labor practice case tainted the atmosphere as a matter of law,
such that the employer’s reliance in withdrawing union
recognition on a petition signed 8 to 9 years later by a majority
of the bargaining unit employees was unlawful. 271 N.L.R.B.
at 79. There were no allegations the employer directly assisted
the decertification campaign through improper solicitation,
threats, or other misconduct. To determine whether there was
a causal relationship between the employer’s earlier unlawful
conduct and the anti-union petition, the Board applied a four-
factor test: “(1) [t]he length of time between the unfair labor
practices and the withdrawal of recognition; (2) the nature of the
illegal acts, including the possibility of their detrimental or
lasting effect on employees; (3) any possible tendency to cause
employee disaffection from the union; and (4) the effect of the
unlawful conduct on employee morale, organizational activities,
and membership in the union.” Id. at 84. The ALJ found that
there was no direct evidence of a causal relationship between the
employer’s unlawful conduct in 1973-74 and the 1982 anti-
union petition, and that the indirect factors were insufficient to
preclude the employer as a matter of law from withdrawing
recognition. See id. at 85. The Board, in adopting the ALJ’s
findings, noted that the unfair labor practices “occurred many
years before the petition’s circulation, and that the [employer]
ha[d] complied with the ordered remedies in many significant
respects well before the petition’s circulation.” Id. at 78 n.1.
In applying the Hearst presumption here, the Board began
by stating that “it is well settled that an employer may only
11
withdraw recognition [of a union] if the expression of employee
desire to decertify represents the free and uncoerced act of the
employees concerned.” SFO Good-Nite Inn, 357 N.L.R.B. No.
16, at 1 (internal quotation marks omitted). Although both
Hearst and Master Slack apply this limitation, the Board
explained, they do so in two different contexts: “Hearst applies
when an employer has engaged in unfair labor practices directly
related to an employee decertification effort,” such as here,
whereas Master Slack applies to “other unfair labor practices
distinct from any unlawful assistance by the employer in the
actual decertification petition.” Id. at 1–2 (internal quotation
marks omitted). A causal nexus must be shown in the Master
Slack line of cases because “there is no straight line between the
employer’s unfair labor practices and the decertification
campaign, and the Master Slack test must be used to draw one,
if it exists.” Id. at 2. By contrast, in the Hearst line of cases,
“the employer’s unfair labor practices are not merely coincident
with the decertification effort; rather, they directly instigate or
propel it.” Id.
The Board proceeded to elaborate on the scope and the
rationale underlying the Hearst presumption. First, the Board
emphasized that the presumption applies only in “the narrow
circumstance where an employer unlawfully instigates or
propels a decertification campaign, and then invokes the results
of that campaign to justify its unilateral withdrawal of
recognition from its employees’ representative.” Id. at 4. It then
explained that there is “little need” for a Master Slack-type
causation analysis in such circumstances because, as it had long
observed, the “foreseeable consequence of such misconduct —
and frequently its purpose — is . . . to contribute to the union’s
loss of majority status.” Id. (internal quotation marks omitted).
The Board dismissed any need for evidence that employees who
signed a petition knew of the employer’s unlawful labor
practices because the victims of such practices frequently tell
12
their co-workers, as occurred here, and thus “‘it may be
presumed that employees who signed the petition . . . were
aware of the [employer’s unlawful acts], and such knowledge is
likely to have influenced their decision.’” Id. at 4 & n.29
(quoting Caterair Int’l, 309 N.L.R.B. 869, 880 (1992)). Finally,
the Board explained as a matter of policy that its conclusive
presumption “provides a strong incentive to employers to steer
clear of potentially unlawful conduct.” Id. at 4.
The Board’s articulated distinction between these two lines
of its precedent and its reasons for the Hearst presumption are
rational and consistent with the Act.1 Good-Nite’s citation to
Board decisions applying Master Slack to determine whether an
employer’s involvement in a decertification campaign tainted
the resulting petitions is unavailing. Whether or not the Board
adequately distinguished between these two lines of its
precedent in the past, it now has clarified that distinction and
explained why the Hearst presumption applied to Good-Nite.
The Board expressly stated that “[t]o the extent prior cases may
have applied Master Slack to determine whether unfair labor
practices directly related to a decertification effort caused
employee disaffection, we clarify them in accordance with this
decision.” SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 5 n.33.
The Board may clarify its rule in this fashion so long as it
provides, as here, a rational reason and the clarification does not
conflict with the Act. See FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 514–15 (2009). Good-Nite misapprehends the
nature of our review when it objects that the Board has not
explained why the Hearst presumption is “necessary” or a
1
The Fourth Circuit has endorsed the Board’s articulated
distinction between Hearst and Master Slack, albeit where the Board
consisted of only two members. Narricot Indus. L.P. v. NLRB, 587
F.3d 654, 664–65 (4th Cir. 2009), abrogated on other grounds by New
Process Steel, 130 S. Ct. 2635.
13
“better tool” than the causation test of Master Slack. Petr’s Br.
at 39, 41. The Board “need not demonstrate to a court’s
satisfaction that the reasons for [one] policy are better than the
reasons for [another]; it suffices that the . . . policy is
permissible under the statute [and] that there are good reasons
for it.” Fox Television, 556 U.S. at 515.
Good-Nite’s other objections are unavailing. In particular,
Good-Nite mischaracterizes the Board’s decision when it
contends that the Hearst presumption adopted by the Board is
overbroad because it precludes withdrawal of union recognition
“if an employer does anything with or says anything about a
disaffection petition.” Petr’s Br. at 35. The Hearst presumption
applies only in “the narrow circumstance where an employer
unlawfully instigates or propels a decertification campaign.”
SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 4 (emphasis
added). Similarly, Good-Nite’s contention that the Hearst
presumption will impede employees’ section 7 rights overlooks
the fact, noted by the Board, that employees may still petition
the Board directly for a decertification election, id. at 3.
Good-Nite’s remaining arguments are unpersuasive. First,
its description of Hearst as “little cited” is not well taken.
Petr’s Br. at 18. The Board and Good-Nite itself cite Board
decisions enforced by the courts that applied the Hearst
presumption where an employer solicited signatures or
otherwise unlawfully encouraged a union decertification
process. See, e.g., Wire Prods Mfg., 326 N.L.R.B. 625 (1998),
enforced mem. sub. nom. NLRB v. R.T. Blankenship & Assocs.,
Inc., 210 F.3d 375 (7th Cir. 2000); V & S ProGalv, Inc., 323
N.L.R.B. 801 (1997), enforced, 168 F.3d 270 (6th Cir. 1999);
Am. Linen Supply Co., 297 N.L.R.B. 137 (1989), enforced, 945
F.2d 1428 (8th Cir. 1991).
14
Second, Good-Nite attempts to distinguish those cases as
limited to circumstances where the decertification petition
would have failed “but for” the employer assistance, whereas
the presumption in its case applies if an employer merely
supports or encourages a decertification campaign. The Board
pointed out that none of the cases suggested a “but for” analysis
or made such a finding. See Respd’s Br. 37–38. Regardless,
whether or not those cases used a direct cause analysis does not
demonstrate the Board erred in applying the Hearst presumption
here. At oral argument Good-Nite maintained that the Hearst
presumption should be limited to instances where an employer
is directly involved in the preparation and dissemination of a
decertification petition. But it offered no persuasive reason why
the rationale for such a rule would not extend to instances where
an employee created and disseminated the petition but the
employer unlawfully and coercively solicited signatures from
employees in the bargaining unit, as appears to have occurred
in Hearst itself, 281 N.L.R.B. at 764.
Good-Nite objects as well to the unrebuttable nature of the
Hearst presumption adopted by the Board, contending it will
result in arbitrary findings without substantial evidentiary
support. The Board was in agreement that unlawful employer
involvement would presumptively taint an anti-union petition
even without specific proof that the employer’s conduct affected
employee signatures. A majority concluded the presumption
should be conclusive because of the “inherent unreliability” of
after-the-fact employee testimony about their reasons for
rejecting a union. SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at
4. One Member urged that the presumption should simply shift
the burden to the employer “to present objective proof that its
misconduct did not cause or further disaffection,” suggesting it
is “possible, even if not likely, that subsequent evidence of
disaffection by an employee majority is an accurate and reliable
15
expression of free choice.” Id. at 5 (Member Hayes, concurring
in part, dissenting in part).
The Board majority’s preferred conclusive presumption is
entitled to deference as rational and consistent with the Act.
The Supreme Court has observed that “employees are more
likely than not, many months after a card drive and in response
to questions by company counsel, to give testimony damaging
to the union, particularly where company officials have
previously threatened reprisals for union activity in violation of
[section] 8(a)(1).” NLRB v. Gissel Packing Co., 395 U.S. 575,
608 (1969). Notably, the Supreme Court has endorsed a
conclusive presumption adopted by the Board in the context of
union recognition. See Auciello Iron Works, Inc. v. NLRB, 517
U.S. 781, 785–87 (1996).
B. The Board found that Good-Nite unlawfully solicited
Valencia’s, Maldonado’s, and Taloma’s signatures on anti-
union petitions with threats or promised benefits, and threatened
to fire Contreras because she told a coworker not to sign a
petition. SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 2. The
Board further found that these unfair labor practices “were
obviously directly related to furthering the employees’
decertification campaign.” Id. at 3. The Board’s factual
findings are conclusive if supported by substantial evidence on
the record considered as a whole. 29 U.S.C. § 160(e); Hard
Rock Holdings, LLC v. NLRB, 672 F.3d 1117, 1121 (D.C. Cir.
2012). The court will not reverse the Board’s adoption of the
ALJ’s credibility determination unless it is “hopelessly
incredible, self-contradictory, or patently unsupportable.” Hard
Rock Holdings, 672 F.3d at 1121 (internal quotation marks
omitted).
Good-Nite contends that some of the unfair labor practices
could not have tainted the petitions because they occurred on or
16
after September 6, when the twelfth unit employee signed a
decertification petition and the Union allegedly lost its majority
support. Even assuming this is true, Good-Nite does not extend
this suggestion to the evidence of its solicitations of Valencia,
Maldonado, and Taloma in late August 2005. Instead Good-
Nite presents a credibility challenge to the Board’s finding that
Chaudhry solicited signatures from Valencia and Maldonado.
This contention fails.
Valencia consistently testified that Chaudhry asked her and
Maldonado at the August 31 meeting to “sign a paper for him
that would de-unionize the firm.” Tr. of ALJ Hr’g, Apr. 18,
2006, at 161; see id. at 182, 189. Good-Nite suggests the
“paper” was a Union membership application rather than an
anti-union petition because the record does not indicate a
petition existed before September 3, 2005. The petitions in the
record consist of a single handwritten sentence followed by
signatures on blank pages, not technical or complex documents
that could not be created on short notice. Because Chaudhry
easily could have created a petition if Valencia and Maldonado
agreed to sign it, it is irrelevant whether a decertification
petition existed at the time of the August 31 meeting.
Additionally, the ALJ credited Valencia’s testimony over
Chaudhry’s denials about what occurred at the August 31
meeting, finding Chaudhry’s testimony “unreliable,” “shifting,”
and “evasive,” SFO Good-Nite Inn, 352 N.L.R.B. at 274 n.5,
and the Board adopted the ALJ’s credibility determinations in
finding that Chaudhry unlawfully solicited their signatures.
Although Valencia’s testimony was occasionally unclear — and
with respect to her subsequent encounter with Vargas
potentially inconsistent with her October 2005 affidavit —
Good-Nite points to nothing from which the court could
conclude this is one of the “most extraordinary circumstances”
where a credibility determination should be overturned. U-Haul
17
Co. of Nev. v. NLRB, 490 F.3d 957, 962 (D.C. Cir. 2007)
(internal quotation marks omitted).
C. Finally, Good-Nite contends that parts of the Board’s
Order are moot and should not be enforced by the court. It
relies on its asserted compliance with an affirmative bargaining
order issued by the district court that was obtained by the
Board’s General Counsel following the ALJ’s decision. See
Norelli v. SFO Good-Nite Inn, No. 06-07335, 2007 WL 662477,
at *16–17 (N.D. Cal. Mar. 1, 2007); 29 U.S.C. § 160(j).
Because it complied with the relief ordered by the district court
and that relief was equivalent in material respects to the relief
prescribed in the Board’s Order, Good-Nite maintains any claim
for further enforcement is moot. This contention fails for
several reasons.
First, the district court’s injunction did not cover all of the
relief called for in the Board’s Order, such as making whole
Valencia and Maldonado, purging Good-Nite’s records
referring to their unlawful firings, and requiring Good-Nite to
turn over certain material to the Board for use in determining
compliance. The Board’s Order also imposes a continuing
obligation for Good-Nite to bargain with the Union while the
district court’s injunction only ordered Good-Nite to bargain for
90 days. Second, Good-Nite offers no evidence to show it has
complied in full with the Board’s Order. Moreover, the
Supreme Court has held that “‘it [is] plain from the cases that
the employer’s compliance with an order of the Board does not
render the cause moot, depriving the Board of its opportunity to
secure enforcement from an appropriate court.’” NLRB v.
Raytheon Co., 398 U.S. 25, 27 (1970) (quoting NLRB v. Mexia
Textile Mills, 339 U.S. 563, 567 (1950)). Conceding this point,
Good-Nite requests that the court exercise its equitable powers
not to enforce the Order’s requirements that Good-Nite reinstate
Valencia and Maldonado and post for 60 days a signed notice
18
regarding its violations of the Act and commitment not to repeat
them. See NLRB v. Maywood Plant of Grede Plastics, 628 F.2d
1, 7 (D.C. Cir. 1980). Other than its bald assertion of
compliance Good-Nite offers no explanation why this court
should exercise its discretionary powers to deny enforcement of
the Board’s Order, and we decline to do so.
Accordingly, we deny the petition for review and grant the
Board’s cross-application for enforcement of its Order.