AdvancePierre Foods, Inc. v. NLRB ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2020 Decided July 24, 2020
No. 18-1219
ADVANCEPIERRE FOODS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL
75,
INTERVENOR
Consolidated with 18-1246
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Aaron D. Lindstrom argued the cause for petitioner. With
him on the briefs was Amy J. Zdravecky.
Michael R. Hickson, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Elizabeth A. Heaney, Supervisory Attorney, Peter B.
Robb, General Counsel, Meredith Jason, Acting Deputy
2
Associate General Counsel, and David Habenstreit, Assistant
General Counsel.
Before: HENDERSON, WILKINS and KATSAS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: When
employees of AdvancePierre Foods, Inc.’s (AdvancePierre or
Company) Cincinnati, Ohio, food processing plant first sought
to organize, the Company botched its response. The National
Labor Relations Board (NLRB or Board) found that
AdvancePierre committed seventeen unfair labor practices
(ULPs) over a five-month span as the United Food and
Commercial Workers Union, Local 75 (Union) conducted an
organizing campaign. Among its remedies, the Board ordered
that a Company employee read aloud to employees a notice of
the Company’s violations. Only one ULP—whether
AdvancePierre unlawfully encouraged its employees to
withdraw their union authorization cards—and the “read-
aloud” remedy are before us. We deny AdvancePierre’s
petition on both fronts.
A. Background
Because the Board’s remedy implicates the panoply of
AdvancePierre’s misdeeds, we begin with a factual recap. In
March 2015, employees in AdvancePierre’s Cincinnati plant—
in which it manufactures processed foods for restaurant chains
and retail businesses and for sale in convenience stores—
contacted the Union to discuss organizing approximately six
hundred hourly employees. AdvancePierre was aware of the
unionization effort by May 11, at which point Union literature
and authorization cards were being widely distributed. The
3
Company’s opposition began with a critical mistake when, on
May 13, Employee Relations Manager Mandy
Ramirez (Ramirez) posted an outdated company policy on the
plant’s bulletin board. Instead of posting the then-current
policy of January 1, 2012, Ramirez posted a 2001 policy. The
2001 policy—which AdvancePierre concedes was “unlawfully
overbroad”—prohibited any on-the-job union solicitation or
distribution of union literature. Pet’r’s Br. 9. Consistent with
the outdated 2001 policy, a sign was posted above the plant’s
main employee entrance stating: “AdvancePierre Foods has a
non-solicitation and non-distribution policy.” J.A. 626. The
policy and sign were both mistakenly in effect for nearly a
month before management informed employees of its mistake.1
Not only did AdvancePierre post an outdated, overbroad
policy—the Company enforced it. On June 8, AdvancePierre
conducted a search of boxes affixed to employee clipboards,
confiscated union authorization cards attached to employee
Ronnie Fox’s clipboard and issued Fox a verbal warning for
violating the 2001 policy. The following day, acting on a tip
that Union literature was being distributed in the plant’s
breakroom, Ramirez reviewed surveillance camera footage that
showed employee Carmen Cotto distributing papers to
employees, including Sonja Guzman. Pursuant to the 2001 no-
solicitation, no-distribution policy, Cotto and Guzman both
received verbal warnings. Cotto’s was later rescinded when
AdvancePierre realized it had enforced the wrong policy.
Next, on June 16, Ramirez was informed that Guzman and
another employee—who Ramirez believed to be Diana
Concepcion—had appeared on a Spanish radio station talk
show two days earlier. Ramirez then accessed the radio
1
The parties dispute whether AdvancePierre posted the sign,
compare Resp’t’s Br. 6, with Pet’r’s Br. 9, but there is no
disagreement that the sign was in fact displayed.
4
station’s Facebook page, where she noted that a link to the
interview had been “liked” by a “Yazzmin Trujuillo.” Not
recognizing the name, Ramirez suspected Trujillo was, in fact,
Concepcion. Ramirez decided to dig further and checked
Concepcion’s benefit file, which listed a beneficiary named
“Trujillo” living at Concepcion’s address. Based on this
discovery, “Ramirez believed that there was a strong
possibility that Concepcion was not who she said she was but
was really someone named Yazzmin Trujillo.” Pet’r’s Br. 14.
On June 17, Ramirez gave Concepcion a June 29 deadline by
which to provide documentation of her identity. J.A. 646. In
response, Concepcion submitted to Ramirez her Puerto Rican
birth certificate, which the Company rejected because it was
dated before July 10, 2010.2 J.A. 648. AdvancePierre then
informed Concepcion how she could obtain a new birth
certificate, offered to pay for expedited shipping and extended
the June 29 deadline to July 17. J.A. 648. When Concepcion
did not reply by July 17, AdvancePierre suspended her
indefinitely.3 J.A. 719.
AdvancePierre also issued an “attendance point” to
employee Jessenia Maldonado after she missed work to
participate in a one-day strike.4 When Maldonado called to
2
AdvancePierre informed Concepcion that “[u]nfortunately, on
July 10, 2010, Puerto Rico declared that all birth certificates issued
prior to that date would be invalid since they had been used in the
past to illegally obtain U.S. passports, Social Security benefits, and
other federal services.” J.A. 648.
3
The Board does not seek enforcement of its order as it relates
to Concepcion. Resp’t’s Br. 22, 26 n.6.
4
AdvancePierre’s policy permits employees to accumulate up
to ten “occurrence points” in a rolling twelve-month period for
“unexpected emergencies.” J.A. 730. Failure to meet attendance
standards can lead to progressive discipline up to and including
5
report her absence, she read from a Union-prepared script that
stated: “I am not reporting to work today to protest the
Company’s unfair labor practices. I will unconditionally return
to work on my next scheduled shift.” J.A. 652. AdvancePierre
concedes that Maldonado should not have received an
attendance point but claims its error was an oversight, as none
of the other striking employees received one. See Pet’r’s
Br. 16.
Before the 2015 Union organization drive, AdvancePierre
lacked a written procedure to solicit or answer employee
grievances, electing instead to maintain a suggestion box. In
July 2015, Cincinnati Plant Manager Petra Sterwerf
implemented a “new communication tool,” J.A. 96, called
Communicating Answers Tracking System (CATS) that she
had previously used elsewhere, J.A. 97. Despite a self-imposed
48-hour deadline to respond to CATS submissions,
AdvancePierre management refused to answer dozens of pro-
Union CATS forms that were submitted in the weeks
immediately after CATS was implemented.
The Company’s final uncontested ULP occurred on
August 27 when, in the context of announcing a new pay
structure, it erroneously informed employees that “information
about [employee] pay is considered personal and confidential
and should not be shared with other associates.” J.A. 680; see
Parexel Int’l, LLC, 356 N.L.R.B. 516, 518 (2011) (“[O]ur
precedents provide that restrictions on wage discussions are
violations of [29 U.S.C. § 158(a)(1)]”).
The only AdvancePierre ULP now before us happened
between mid-May and mid-June 2015, when management
notified employees how to withdraw a signed Union
termination. Following the parties’ briefs, we use “attendance point”
instead of “occurrence point.”
6
authorization card. During several meetings, the Company
distributed flyers containing step-by-step instructions,
J.A. 624, and pre-printed letters that employees could send the
Union to “revoke and rescind” their Union authorization cards,
J.A. 625.5 The flyer included this disclaimer: “Please
understand that other than giving you this information,
AdvancePierre Foods is not permitted by law to assist you in
any other way in getting your card returned.” J.A. 624.
According to the Union, the combined effect of the meeting
and flyers was to unlawfully solicit employees to withdraw
their cards.
An Administrative Law Judge (ALJ) determined that
AdvancePierre committed sixteen ULPs, in violation of section
8(a)(1) and (3) of the National Labor Relations Act (Act),
29 U.S.C. § 158(a)(1), (3). J.A. 101. But the ALJ concluded
that AdvancePierre did not unlawfully solicit employees to
withdraw their Union authorization cards because “[t]here was
no attempt to require employees to inform management
(indirectly or directly) whether they availed themselves of the
opportunity” to withdraw the cards. J.A. 52. That is, the ALJ
saw the Company’s flyer as information—not a solicitation—
and rejected the ULP charge because “[i]t has long been
accepted by the Board that an employer’s provision to
employees of information on how to revoke their authorization
cards is, without more, not unlawful assistance or solicitation.”
Id. (citing, inter alia, R.L. White Co., 262 N.L.R.B. 575, 576
n.5 (1982)). The ALJ also denied the General Counsel’s
request for a notice-reading remedy because AdvancePierre’s
5
The flyer identified three steps: “1. Use the attached form to
request in writing that you want your card back and are withdrawing
your membership in the union. 2. Make a copy of the form and mail
the original to the union address on the form. 3. Go to the union
representative you gave the union authorization card to, and tell them
that you want your card back.” J.A. 624.
7
violations, although “by definition serious,” did not rise to the
level at which “traditional remedies are insufficient to redress
the[ir] effects.” J.A. 103. Both sides filed exceptions with the
Board.
On review, the Board reversed the ALJ as to the
solicitation ULP, finding that “contemporaneous serious
[ULPs]—all related to the card-signing process and the
organizing effort to select the Union as the employees’
collective-bargaining representative—created an atmosphere
where employees would tend to feel peril if they refrained from
revoking their support for the Union.” AdvancePierre Foods,
Inc., 366 N.L.R.B. No. 133, at *4 (July 19, 2018). The Board
also imposed the notice-reading remedy to “dissipate as much
as possible any lingering effects of [AdvancePierre’s] unfair
labor practices, and . . . allow the employees to fully perceive
that [AdvancePierre] and its managers are bound by the
requirements of the Act.” Id. at *5 (citation and quotation
marks omitted). Significantly, AdvancePierre did not seek
reconsideration.
B. Analysis
AdvancePierre asks us to deny enforcement of the
solicitation ULP and the notice-reading remedy. The Board
seeks to enforce its order, including summary enforcement of
the uncontested portions. Resp’t’s Br. 2, 26. The Board had
jurisdiction under 29 U.S.C. § 160(a). Our jurisdiction is under
29 U.S.C. § 160(e) and (f).
Our review of the solicitation ULP is “narrow and highly
deferential.” Inova Health Sys. v. NLRB, 795 F.3d 68, 73 (D.C.
Cir. 2015) (citation and quotation marks omitted). We will
uphold the Board’s decision unless 1) its “factual findings are
not supported by substantial evidence;” 2) it “acted arbitrarily;”
or 3) it “otherwise erred in applying established law to the facts
8
of the case.” Hawaiian Dredging Constr. Co. v. NLRB,
857 F.3d 877, 881 (D.C. Cir. 2017) (citation omitted). “The
Board’s discretion in fashioning remedies under the Act is
extremely broad and subject to very limited judicial review.”
Fallbrook Hosp. Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir.
2015) (quoting St. Francis Fed’n of Nurses & Health Prof’ls v.
NLRB, 729 F.2d 844, 848 (D.C. Cir. 1984)).
Of critical importance to this case, section 10(e) of the Act
limits our jurisdiction to matters first presented to the Board
unless extraordinary circumstances excuse such failure. See
29 U.S.C. § 160(e) (“No objection that has not been urged
before the Board . . . shall be considered by the court, unless
the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”); see also, e.g.,
Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 550 (D.C.
Cir. 2016) (“Section 10(e) is a ‘jurisdictional bar,’ in the face
of which we are ‘powerless, in the absence of extraordinary
circumstances, to consider arguments not made to the Board.’”
(quoting W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341,
1345 (D.C. Cir. 2008))). AdvancePierre’s petition squarely
collides with section 10(e)’s jurisdictional barrier and we are
therefore without authority to consider all but a small portion
the Company’s argument.
We turn first to the Board’s finding that AdvancePierre
unlawfully solicited its employees to withdraw their Union
authorization cards. Before us, AdvancePierre draws a sharp
line between the flyer’s unobjectionable content and the
environment in which it was distributed, i.e., the Company’s
aggressive but misguided enforcement of its outdated no-
solicitation, no-distribution policy. It argues that, because
section 8(c) of the Act protects an employer’s broad authority
to express itself “if such expression contains no threat of
reprisal or force or promise of benefit,” 29 U.S.C. § 158(c), we
9
should not enforce the solicitation ULP as “the Board has failed
to identify any statement, from the meetings or the flyer, that
‘contains’ any coercive element,” Pet’r’s Br. 54–55. In other
words, the Company acknowledges that “the Board can—and
did—punish the conduct that it views as creating a perilous
atmosphere,” id. at 55, but objects to the Board “double
counting” that conduct and thereby “punishing protected
speech as a method to impose a second punishment on other
conduct,” id. at 56. Regardless of its merit, we cannot consider
this argument because it was not preserved under section 10(e).
In In re Mohawk Industries, 334 N.L.R.B. 1170 (2001),
the Board made clear that an employer’s otherwise protected
speech can constitute unlawful coercion if it occurs within a
perilous atmosphere created by contemporaneous ULPs:
As a general rule, an employer may not solicit
employees to revoke their authorization
cards. An employer may, however, advise
employees that they may revoke their
authorization cards, so long as the employer
neither offers assistance in doing so or seeks to
monitor whether employees do so nor otherwise
creates an atmosphere wherein employees
would tend to feel peril in refraining from
revoking. Thus, an employer may not offer
assistance to employees in revoking
authorization cards in the context of other
contemporaneous ULPs.
Id. at 1171 (emphasis added) (alteration and citations omitted).
At no point did the Company challenge Mohawk before the
10
Board.6 Indeed, the Board majority, dissenting Member
Emanuel and the ALJ all applied Mohawk but they reached
different conclusions about whether AdvancePierre’s conduct
created a “perilous atmosphere.” Compare AdvancePierre,
366 N.L.R.B. No. 133, at *3–4, with id. at *4 n.9, and J.A. 52–
53. Because AdvancePierre’s frontal attack on Board precedent
was never made to the Board and extraordinary circumstances
do not excuse its failure, we cannot reach this argument.7 See
Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir.
2016) (“In assessing forfeiture under section 10(e) of the Act,
‘the critical question’ is ‘whether the Board received adequate
notice of the basis for the objection.’” (quoting Alwin Mfg. Co.
v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999))).
Setting aside the direct challenge to Mohawk, all that
remains of AdvancePierre’s challenge to the solicitation ULP
is whether the Board’s application of Mohawk was arbitrary
and capricious. See J.A. 573. Seizing on Member Emanuel’s
dissent, the Company argues that, under Board precedent,
AdvancePierre’s conduct was not “egregious” enough to create
a “perilous atmosphere,” Pet’r’s Br. 58, and that “the Board had
no support for its finding that AdvancePierre’s conduct created
6
AdvancePierre’s Answering Brief to the Board made passing
reference to the Company’s right under section 8(c) to “present
employees with an accurate and nonthreatening description” of how
to revoke Union authorization cards. J.A. 572. But this did not put
the Board on notice of a forthcoming challenge to Mohawk’s
foundational premise, especially considering the Company’s support
of the ALJ’s decision applying Mohawk in its favor. J.A. 573.
7
AdvancePierre also contends that the Board’s “approach of
condemning neutral speech because of other conduct is . . .
inconsistent with basic First Amendment principles.” Pet’r’s Br. 56
(citing Schneider v. New Jersey, 308 U.S. 147 (1939)).
AdvancePierre did not raise this argument with the Board so we may
not consider it either.
11
an atmosphere of peril so as to find that its provision of
information regarding the union card revocation process was
unlawful,” id. at 59. We reject this argument because the
Board’s factual findings are supported by substantial
evidence—i.e., AdvancePierre’s many ULPs—and the Board
did not act arbitrarily in applying its precedent. See Hawaiian
Dredging Constr. Co., 857 F.3d at 881; see also ABM Onsite
Servs.—West, Inc. v. NLRB, 849 F.3d 1137, 1142 (D.C. Cir.
2017) (“[A]n agency’s unexplained departure from precedent
is arbitrary and capricious . . . .”).
We next turn to AdvancePierre’s challenge to the Board’s
notice-reading remedy. The Company faces an uphill climb
because “the Board was acting at the ‘zenith’ of its discretion”
when it “fashion[ed] an appropriate remedy to address the
substantial unfair labor practices in this case.” Fallbrook Hosp.
Corp., 785 F.3d at 738 (quoting Niagara Mohawk Power Corp.
v. Fed. Power Comm’n, 379 F.2d 153, 159 (D.C. Cir. 1967)).
Making the hill even steeper, AdvancePierre’s argument is
again limited by its failure to preserve the issue, primarily due
to its failure to move for reconsideration before the Board.
Before us, AdvancePierre argues that a notice-reading is
an “extraordinary” remedy, Pet’r’s Br. 34, and that the Board’s
decision to impose it was arbitrary and capricious because it
did not first explain why traditional remedies were insufficient,
see id. (“A key factor the Board is required to consider when
deciding to impose an extraordinary remedy is whether
traditional remedies would be sufficient . . . .”). Citing
HTH Corp. v. NLRB, 823 F.3d 668, 674 (D.C. Cir. 2016),
AdvancePierre argues that “extraordinary remedies cannot be
12
granted unless traditional remedies are insufficient.” Pet’r’s Br.
36.8
Regarding preservation, the key distinction between this
case and HTH is that, in HTH, the ALJ (not the Board) first
imposed a notice-reading remedy, after which the company
filed an exception to it. HTH, 823 F.3d at 672. In HTH,
therefore, the Board heard argument against the notice-reading
remedy but, here, the Board imposed the notice-reading
remedy after the ALJ declined to do so. Although
AdvancePierre argued to the Board that a notice reading was
inappropriate, see J.A. 578–80, it did not argue that a notice-
reading could not be imposed unless the sufficiency of
traditional remedies was first considered and, because
AdvancePierre did not move for reconsideration, the Board
never heard this argument. Nor was the Company’s omission
based on extraordinary circumstances and, accordingly, we
lack jurisdiction to evaluate this portion of the Board’s
reasoning.9 See Flying Food Grp., Inc. v. NLRB, 471 F.3d 178,
185 (D.C. Cir. 2006) (“Where . . . a petitioner objects to a
finding on an issue first raised in the decision of the Board
rather than of the ALJ, the petitioner must file a petition for
reconsideration with the Board to permit it to correct the error
(if there was one).”).
8
The Company also relies on our decision in Avecor, Inc. v.
NLRB, 931 F.2d 924 (D.C. Cir. 1991), in which we required a
“comprehensive accounting” to support the Board’s imposition of an
affirmative bargaining order without considering “alternative
remedies,” id. at 938. HTH is more apposite because there we
addressed a notice-reading remedy.
9
Nor has AdvancePierre argued that the First Amendment
requires heightened scrutiny of notice-reading remedies.
Accordingly, we do not consider that argument.
13
Whether the Board abused its discretion when it ordered a
notice-reading remedy is properly before us but easily
resolved.10 Notwithstanding that it can be “difficult to provide
bright-line limits on the remedies that the Board can utilize,”
United Food & Commercial Workers Int’l Union v. NLRB,
852 F.2d 1344, 1349 (D.C. Cir. 1988), we have no trouble
concluding that the Board did not abuse its “extremely broad”
discretion, Fallbrook Hosp. Corp., 785 F.3d at 738 (citation
omitted), when it determined that AdvancePierre’s seventeen
ULPs were “sufficiently serious and widespread” to warrant a
notice-reading.11 AdvancePierre Foods, 366 N.L.R.B. No. 133,
at *1 n.2.
For the foregoing reasons, we deny AdvancePierre’s
petition and grant the Board’s cross-application for
enforcement of those portions of its order that are before us.
We summarily enforce the unchallenged portions of the
Board’s order. See Allied Mech. Servs., Inc. v. NLRB, 668 F.3d
758, 765 (D.C. Cir. 2012).
So ordered.
10
In its Answering Brief to the Board, AdvancePierre argued
that a notice-reading was “not [a]ppropriate.” J.A. 578.
11
AdvancePierre also argued that a notice-reading was
unwarranted because the “official in question [Ramirez] was
AdvancePierre’s employee-relations manager, not its president or
similarly high ranking official.” Pet’r’s Br. 46. Once again, we lack
jurisdiction to consider this argument because it was not presented to
the Board. See Flying Food Grp., 471 F.3d at 185.