Bentonite Performance Minerals, LLC v. National Labor Relations Board , 456 F. App'x 2 ( 2012 )

JUDGMENT

PER CURIAM.

This petition for review and cross-application for enforcement were considered on the record, briefs, and oral arguments of the parties. Although the issues present no need for a published opinion, they have been accorded full consideration by the Court. See Fed. RApp. P. 36; D.C.Cir. R. 36(d). For the reasons that follow, it is

ORDERED and ADJUDGED that the petition for review be denied and the cross-application for enforcement be granted.

On July 9, 2007, petitioner, which operates a mine in Northeast Wyoming, had 69 employees belonging to a unit of the International Chemical Workers Union. Bentonite’s management, after meeting together on that date, contacted several employees and encouraged them to circulate petitions stating that the employees no longer wished to be represented by the union. According to Ben-tonite, a majority of the members of the bargaining unit signed such petitions, and Bentonite withdrew recognition of the union. The Regional Director of the National Labor Relations Board issued a complaint, and an administrative law judge characterized Bentonite’s efforts to bring about decertification as a “campaign” and concluded that the “campaign and all its features violated Section 8(a)(1)” of the National Labor Relations Act, which provides that employer actions that “interfere with, restrain, or coerce employees in the exercise of the rights” under the Act are unfair labor practices. 29 U.S.C. § 158(a)(1). The NLRB affirmed the judge’s findings and conclusions, concluding that Bentonite had “violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, failing to furnish the Union with information requested on July 19 and 23, 2007, and unilaterally changing wages and other terms and conditions of employment” and had “violated Section 8(a)(1) by discouraging employees from attending a union meeting.” BENTONITE PERFORMANCE MINERALS, 353 N.L.R.B. No. 75, at 1 (Dec. 31, 2008); BENTON-ITE PERFORMANCE MINERALS, 355 N.L.R.B. No. 104 (Aug. 23, 2010). We must uphold an order of the Board unless it rests upon a finding not supported by “substantial evidence,” 29 U.S.C. § 160(f), or the Board failed to apply the proper legal standard or departed from precedent without providing a reasoned justification. Mail Contractors of America v. NLRB, 514 F.3d 27, 31 (D.C.Cir. 2008). We find the Board’s order to be supported by substantial evidence and affirm the order in its entirety.

The Board has multiple times ruled that employer solicitation of employee signatures on a decertification petition will “taint” the petition and render it invalid. See, e.g., Caterair Int'l v. NLRB, 22 F.3d 1114 (D.C.Cir.1994). While merely “ministerial aid” by an employer will not taint the petition, Bridgestone/Firestone, Inc., 335 N.L.R.B. 941 (2001), this is not such a case. Bentonite argues that it did not solicit employees, insisting that it was only “responding to employee-initiated questions.” Petitioner Br. 58. The administrative law judge’s finding to the contrary is more than supported by substantial evidence. Bentonite also argues that enough unsolicited employees signed the petition to nevertheless constitute a majority, id. at 25, and that the Board violated its own precedent in not applying Master Slack Corp., 271 N.L.R.B. 78 (1984), which articulated a four-part test to determine whether a “causal relationship” exists between an unfair labor practice and an employer’s withdrawal of recognition. Id. at 84. But the Board, though it has been far from forthright in explaining this distinction, has applied Master Slack to cases where unfair labor practices not directly related to the decertification process are claimed to have caused the vote in favor of decerti-fication. In cases of employer involvement in the decertification process itself, rising to the level of an unfair labor practice, the Board has traditionally not used the Master Slack “causal relationship” test, but rather has used a test in which it does not require any standard showing of causation between the unfair labor practices and the anti-union vote. See Hearst Corp., 281 N.L.R.B. 764 (1986), enforced mem. 837 F.2d 1088 (5th Cir.1988). Bentonite does not directly challenge Hearst or its sequels. Accordingly, we conclude not only that the Board did not depart from its precedent by failing to use the Master Slack test, but also that in the posture of this case the absence of a showing of a causal relationship between Bentonite’s activities and the anti-union petition majority is not a ground for setting aside the Board’s order.

Bentonite also challenges the imposition of an affirmative bargaining order. The NLRB not only ruled that Bentonite’s withdrawal of recognition was unlawful; it also imposed an affirmative order requiring Bentonite to bargain with the union. In neither its exceptions to the order of the administrative law judge nor in its brief before the Board did Bentonite raise this issue, and accordingly we lack jurisdiction to consider it under Section 10(e) of the Act. 29 U.S.C. § 160(e); see Highlands Hospital v. NLRB, 508 F.3d 28, 32-33 (D.C.Cir.2007).

Pursuant to Rule 36 of this Court, this disposition will not be published. The clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.