Wyman Gordon Pennsylvania, LLC v. NLRB ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-1263 September Term, 2020
FILED ON: NOVEMBER 13, 2020
WYMAN GORDON PENNSYLVANIA, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC,
INTERVENOR
Consolidated with 20-1020
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Before: HENDERSON, MILLETT, and PILLARD, Circuit Judges.
JUDGMENT
This petition for review and this cross-petition for summary enforcement were considered on
the record from the National Labor Relations Board and on the briefs and oral argument of the
parties. We have accorded the issues full consideration and determined that they do not warrant a
published opinion. See D.C. CIR. R. 36(d). It is
ORDERED AND ADJUDGED that the petition for review be dismissed in part and denied
in part, and that the cross-petition for summary enforcement be granted.
I
Wyman Gordon Pennsylvania, LLC challenges the National Labor Relations Board’s
decision finding multiple unfair labor practices arising out of the company’s (i) failure to negotiate
2
prior to delaying an annual wage increase, (ii) refusal to provide information to the union that was
pertinent to the bargaining unit and bargaining subjects, and (iii) improper withdrawal of
recognition from the union. The Board’s resolution of each of those issues was consistent with
the law and supported by substantial evidence. Settled precedent forecloses Wyman Gordon’s
separate challenge to the remedial imposition of an affirmative-bargaining order.
A
Section 7 of the National Labor Relations Act protects the rights of employees “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. To enforce those
rights, Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7.]” Id.
§ 158(a)(1). Section 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain
collectively with the representatives of [the] employees[.]” Id. § 158(a)(5). A violation of
Section 8(a)(5) is also a derivative violation of Section 8(a)(1). Enterprise Leasing Co. of Fla. v.
NLRB, 831 F.3d 534, 546 (D.C. Cir. 2016).
B
Wyman Gordon Pennsylvania, LLC manufactures components for aircraft engines. On
April 14, 2015, the National Labor Relations Board certified the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Union, AFL–CIO–CLC
(“Union”) as the exclusive collective bargaining representative of all full-time and regular part-
time production and maintenance employees at Wyman Gordon’s facility in Plains, Pennsylvania.
Disputes and breakdowns in the collective bargaining process between Wyman Gordon and the
Union soon arose, five of which are relevant here.
First, Wyman Gordon had a longstanding practice of giving employees in the bargaining
unit an annual wage increase every August 1st. But in August 2016, while Wyman Gordon and
the Union were negotiating their first collective bargaining agreement, the company postponed its
traditional August 1st wage increase. Wyman Gordon did not give the Union any advance notice
of the postponement, nor did Wyman Gordon negotiate the wage increase or the decision to table
it. Instead, Wyman Gordon simply informed the Union on August 12, 2016, that it still intended
to provide a wage increase retroactive to August 1, 2016, but it had not yet determined when to do
so or what the amount would be. In January 2017—and only after withdrawing recognition from
the Union—Wyman Gordon finally provided the employees a retroactive wage increase of fifteen
cents per hour.
Second, during the fourteen months of negotiations over a collective bargaining agreement,
the Union requested information from Wyman Gordon that the Union believed pertained to matters
subject to the bargaining process. Specifically, on August 12, 2016, the Union requested the date
and amount of any quarterly bonuses that bargaining-unit employees had received over the past
three years, as well as any written policies about the bonuses and information about how those
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bonuses were calculated. Separately, on August 31, 2016, while bargaining over employee
benefits, the Union requested health insurance plan documents and written communications
announcing or describing changes to health insurance plans between January 1, 2013, and
December 31, 2014. Six days later, the Union requested “[t]he current prices for the five items
produced by the facility that realize the greatest revenue[,]” “[a]ll changes to the prices of the items
[that realize the greatest revenue] between January 1, 2014, and [September 6, 2016,]” and “[t]he
labor cost at the facility as a percentage of the price of each of the items [that realize the greatest
revenue] as of January 1 of 2016, 2015, and 2014.” J.A. 1418. The latter request was in response
to a claim by Robert Grimaldi, the company’s lead negotiator, that Wyman Gordon would not
increase wages for 2016 because it did not want its customers to be faced with a 15% increase in
prices.
Third, prior to the Union’s election, Wyman Gordon had an established practice of
providing light-duty work for employees who had suffered work-related injuries and were on
workers’ compensation. After the Union arrived, Wyman Gordon abruptly ceased providing such
light-duty work for five of the unit employees.
Fourth, Wyman Gordon’s employee handbook included a confidentiality requirement that
forbade Wyman Gordon’s employees from exchanging addresses or telephone numbers.
Finally, on November 23, 2016, a lawyer from the National Right to Work Legal Defense
Foundation presented Wyman Gordon with what was described to be a petition to decertify the
Union signed by 23 of the 43 employees in the bargaining unit. The document consisted of five
unnumbered pages. J.A. 587–591. The first and last pages contained signature lines with
(collectively) nine signatures, as well as a statement that the “undersigned employees of Wyman
Gordon[] do not want to be represented by [the Union.]” J.A. 587, 591. The middle three pages
of the petition, though, contained only signature lines, lacking that same decertification language
or any other explanation of what the document being signed was. J.A. 588–590. Fourteen
signatures were on those middle three pages. Six days later, in reliance on that petition, Wyman
Gordon unilaterally withdrew recognition from the Union.
C
After a five-day hearing, an administrative law judge (“ALJ”) found that Wyman Gordon
had committed several unfair labor practices. As relevant here, the ALJ found that Wyman Gordon
had violated Section 8(a)(1) of the Act by maintaining an unlawful confidentiality statement. The
ALJ also ruled that Wyman Gordon had violated Sections 8(a)(5) and (1) of the Act by (i) failing
to negotiate the annual wage increase for 2016 in advance of its suspension on August 1st,
(ii) failing to provide the Union with relevant requested information, (iii) unlawfully discontinuing
light-duty work for employees receiving workers’ compensation without notifying or bargaining
with the Union, and (iv) unlawfully withdrawing recognition from the Union. Among other
remedies, the ALJ issued an affirmative-bargaining order that obligated Wyman Gordon to
negotiate with the Union for at least six months.
The National Labor Relations Board largely affirmed. The Board first determined that no
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party had excepted to the finding that Wyman Gordon had unlawfully failed to negotiate the annual
wage increase prior to the unilateral suspension on August 1st. The Board also decided that
Wyman Gordon had not properly contested the finding that it had failed to provide the Union with
requested health care information, describing Wyman Gordon’s exceptions as “bare” and
“unsupported.” Wyman Gordon Pa., LLC, 368 N.L.R.B. No. 150 at 1 n.1 (2019). The Board
otherwise affirmed the ALJ’s rulings at issue here. The Board then amended the remedial order
to require Wyman Gordon to affirmatively bargain with the Union for an unspecified period of
time.
Wyman Gordon petitioned for review, and the Board cross-applied for enforcement.
II
A
We have jurisdiction to review properly preserved challenges to the Board’s decision under
29 U.S.C. § 160(e) and (f). We will uphold the Board’s decision if it is not arbitrary, capricious,
or grounded in legal error, and if substantial evidence supports the Board’s factual findings.
Advanced Life Systems Inc. v. NLRB, 898 F.3d 38, 43 (D.C. Cir. 2018); see 29 U.S.C. § 160(e).
This court will not disturb a remedy imposed by the Board unless it is a “patent attempt to achieve
ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Elec.
& Power Co. v. NLRB, 319 U.S. 533, 540 (1943).
B
Wyman Gordon did not raise before the Board any challenge to the ALJ’s findings and
conclusions regarding (i) the company’s failure to bargain before terminating light-duty work for
those employees on workers’ compensation, and (ii) the unlawfulness of its employee
confidentiality requirement in the employee handbook. See Wyman Gordon Pa., 368 N.L.R.B.
No. 150 at 1 n.1. Nor did Wyman Gordon mention those two issues in its opening brief in this
court, raising them instead for the first time in its reply brief. Compare Wyman Gordon Opening
Br. at 3–4, 19–53, with Wyman Gordon Final Reply Br. at 3–4. Wyman Gordon similarly failed
to object before the Board to the finding that it committed an unfair labor practice by not providing
the health care benefits information requested by the Union on August 31, 2016.
When an objection has not been properly urged before the Board, we lack jurisdiction to
consider it. 29 U.S.C. § 160(e); accord Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
665–666 (1982). To properly present and preserve a claim, a party’s exception to an ALJ finding
must fairly put “the Board on notice of the specific grounds for its objections.” Nova Se. Univ. v.
NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015). Here, Wyman Gordon made no exceptions at all to
the unfair labor practice findings related to the termination of light work or the improper employee
confidentiality requirement. As to the Union’s request for health care information, Wyman
Gordon’s exceptions were the very definition of conclusory—excepting only to the ALJ’s findings
without a word of explanation as to why those findings were supposedly incorrect. Simply saying
“I object,” without explaining why, is not sufficient to fairly present and preserve an issue before
5
the Board. Parties cannot expect the Board to make the arguments for them. Cf. Davis v. Pension
Benefit Guar. Corp., 734 F.3d 1161, 1166–1167 (D.C. Cir. 2013) (“It is not enough merely to
mention a possible argument in the most skeletal way, leaving the court to do counsel’s work,
create the ossature for the argument, and put flesh on its bones.”) (quoting Consolidated Edison
Co. of N.Y., Inc. v. FERC, 510 F.3d 333, 340 (D.C. Cir. 2007); formatting modified). 1
For those reasons, the Board is entitled to summary enforcement of the portions of its order
finding unfair labor practices based on the confidentiality requirement in Wyman Gordon’s
employee handbook, the termination without bargaining of the light-duty work offered to
employees on workers’ compensation, and Wyman Gordon’s failure to respond to the Union’s
August 31st request for health care benefits information.
III
The Board’s conclusions that Wyman Gordon violated Sections 8(a)(5) and (1) of the Act
by (i) not negotiating before postponing the August 1st wage increase, (ii) failing to provide the
quarterly-bonus and product-pricing information requested by the Union on August 12th and
September 6th, respectively, and (iii) unilaterally withdrawing recognition from the Union, are
each reasoned, consistent with precedent, and supported by substantial evidence.
A
Wyman Gordon violated Sections 8(a)(5) and (1) of the Act when it failed to bargain with
the Union before postponing the annual August 1st wage increase. It is quite debatable whether
Wyman Gordon adequately preserved this issue. A party excepting to an ALJ’s findings must
provide “authorities and argument in support of the exceptions,” 29 C.F.R. § 102.46(a)(1)(i)(D),
and the Board is authorized to “disregard[]” any exception that “fails to comply” with this
requirement. Id. § 102.46(a)(1)(ii); see Nova Se. Univ., 807 F.3d at 313. Wyman Gordon’s
exception objected only “[t]o the judge’s finding that ‘employees had not granted [sic] a wage
increase on August 1, as in past years without bargaining with the Union about the increase.’” J.A.
482. The “argument” in its accompanying brief seemingly undermined the exception by
acknowledging that Wyman Gordon first gave notice of its intent to bargain after, not before, the
August 1st suspension. See J.A. 505.
To the extent that Wyman Gordon might have preserved the point by arguing that late
notice suffices for a wage increase as long as the employer intends to provide it retroactively, see
J.A. 505, that argument lacks merit. During the negotiation of a collective bargaining agreement,
an employer generally may not unilaterally discontinue its existing employment practices unless
1
Nor do we allow parties to raise arguments for the first time in reply briefs. Dodge of Naperville,
Inc. v. NLRB, 796 F.3d 31, 41 (D.C. Cir. 2015) (“[W]e do not consider arguments raised for the first time
on reply[.]”); Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) (“We require petitioners
and appellants to raise all of their arguments in the opening brief to prevent ‘sandbagging’ of appellees and
respondents and to provide opposing counsel the chance to respond.”).
6
the employer and the union have first bargained to impasse. See Daily News of L.A. v. NLRB, 73
F.3d 406, 412 (D.C. Cir. 1996) (“Because the disputed [annual merit-based wage-increase]
program was a mandatory subject of bargaining, the employer could not terminate the pay plan
without first bargaining to impasse with the Union.”); Stone Container Corp., 313 N.L.R.B. 336,
336 (1993). But when, as here, a discrete, recurring event is scheduled to occur during negotiations
for a first collective bargaining agreement, all that Board precedent requires is that the employer
“announce in advance that it plans to make changes as to that event.” TXU Elec. Co., 343 N.L.R.B.
1404, 1407 (2004) (emphasis added). Importantly, that notice must come far enough in advance
to afford the union a reasonable “opportunity to bargain as to those matters[.]” Id. After that, “the
employer can carry out the changes[.]” Id.
Wyman Gordon failed to clear even that low bar. The ALJ found that Wyman Gordon
failed to raise the matter of the upcoming annual wage increase with the Union at all prior to its
suspension, let alone provide sufficient notice to the Union to permit negotiations over either the
wage increase or its postponement. [J.A. 23]. The proof comes straight from Wyman Gordon’s
mouth: It stated twice in its briefing before this court that it first began negotiations over the wage
increase on August 12, 2016, instead of reasonably in advance of the August 1st suspension.
Wyman Gordon’s Opening Br. at 9, 24.
Wyman Gordon argues that because it bargained with the Union after August 12, 2016,
and because the employees eventually received a retroactive fifteen-cent wage increase in January
2017, the Board erred in finding that it violated the Act. Wyman Gordon’s starting premise—that
the retroactive payment made the employees whole, and so no harm, no foul—is dubious. For
example, there was no evidence that Wyman Gordon paid interest on the delayed wages. See
Transcript of Oral Argument at 10:4–11. The argument also completely misses the point. The
ALJ distinctly found that the company had violated the Act because, having chosen not to pay the
wage as it had before, Wyman Gordon failed to provide the Union any advance notice that it would
suspend the established wage increase. See Wyman Gordon Pa., 368 N.L.R.B. No. 150 at 23.
Delayed payment does not cure the notice violation.
Wyman Gordon’s separate argument that the timing of its notification to the Union about
the wage increase was not before the Board is also meritless. The Union’s consolidated complaint
specifically alleged that Wyman Gordon failed to grant the wage increase “without prior notice to
the Union[.]” S.A. 15.
B
Under Section 8(a)(5) of the Act, an employer has a duty to bargain collectively with the
employees’ chosen representative. Teachers College, Columbia Univ. v. NLRB, 902 F.3d 296, 301
(D.C. Cir. 2018). Under long-settled law, that obligation includes a duty “to supply a union with
requested information that will enable [the union] to negotiate effectively and to perform properly
its other duties as a bargaining representative.” Id. (quoting Oil, Chem. & Atomic Workers Local
Union No. 6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983); formatting modified).
That requirement extends only to information that is relevant to the negotiation process and
7
that will enable the Union to carry out its statutory duties and responsibilities. Oil, Chem. & Atomic
Workers, 711 F.2d at 359. Information relating to the bargaining unit employees’ wages, hours,
and conditions of employment is presumptively relevant. Teachers College, 902 F.3d at 302. To
rebut the presumption, an employer must make an affirmative showing that the requested
information either lacks relevance or cannot, in good faith, be provided by the employer. Prime
Healthcare Services—Encino LLC v. NLRB, 890 F.3d 286, 295 (D.C. Cir. 2018); Hondo, Inc., 311
N.L.R.B. 424, 425 (1993).
On the other hand, information that is “not ordinarily pertinent to collective bargaining” is
presumptively not relevant, and the union bears the burden of proving otherwise. Oil, Chem. &
Atomic Workers, 711 F.2d at 359 (quoting Press Democrat Publ’g Co. v. NLRB, 629 F.2d 1320,
1324 (9th Cir. 1980)).
The Union’s August 12th request for information about the formula for calculating
employees’ quarterly cash bonuses was plainly relevant. Bonuses, like wages, fall within the
category of presumptively relevant information. United States Info. Servs., Inc. &
Communications Workers, AFL-CIO, 341 N.L.R.B. 988, 988, 992–993 (2004) (affirming ALJ’s
finding that bonuses are presumptively relevant because of their similarity to wages); see NLRB v.
Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1343 (5th Cir. 1980) (holding that a regular
Christmas bonus was a “term[] and condition[] of employment” because it was a routinized
benefit).
Wyman Gordon argues that, because the quarterly cash bonuses involved some non-unit
employees, the information was not presumptively relevant. Even assuming that argument makes
legal sense, the Union sufficiently explained the information’s relevance: The information was
needed to understand how quarterly cash bonuses were calculated to ensure informed bargaining
over future bonuses and the protection of employees’ rights. See J.A. 1277 (letter from Union to
Wyman Gordon requesting quarterly cash bonus information to better understand Wyman
Gordon’s compensation practices); J.A. 1397 (email from Union to Wyman Gordon stressing need
for quarterly cash bonus formula, because “the description contained in the handbook is not
adequate for us to understand the * * * precise nature of the input data”).
The Union’s separate request for five categories of information bearing on the company’s
internal pricing of its top revenue-generating products was also proper. That request arose from
the statement by Wyman Gordon’s chief negotiator during collective bargaining that the company
could not support a wage increase because “no customer would understand a 15% price
increase[.]” Wyman Gordon Pa., 368 N.L.R.B. No. 150 at 7.
While such product-pricing information is not presumptively relevant, the Board
reasonably concluded that the Union had met its burden of demonstrating relevance. As the Board
has long held, “an employer’s duty to bargain includes a general duty to provide information
needed by the bargaining representative to assess claims made by the employer relevant to contract
negotiations.” Caldwell Mfg. Co., 346 N.L.R.B. 1159, 1159 (2006); see KLB Indus., Inc. v. NLRB,
700 F.3d 551, 559 (D.C. Cir. 2012) (holding that “a union * * * does not have to accept the
employer’s bald assertions or generalized figures at face value”) (quoting E.I. Du Pont de Nemours
8
& Co. v. NLRB, 489 F.3d 1310, 1316 (D.C. Cir. 2007); formatting modified). Requests for
information bearing on claims made by the employer during bargaining are relevant if they target
“the accuracy of [an employer’s] specific claims” and allow the union “to respond appropriately
with counterproposals.” Arlington Metals Corp., 368 N.L.R.B. No. 74 at 4 (2019) (citation
omitted); see KLB Indus., Inc., 700 F.3d at 557 (holding that a union’s information request was
valid when it was tailored to the employer’s specific and repeated statements about its lack of
competitiveness).
Because Wyman Gordon specifically connected a raise for employees with a corresponding
increase in customer prices, the Union’s request for information that would concretely demonstrate
the nature of any connection between wages and prices was directly relevant both to the bargaining
process and to the ability of the Union to tailor its proposals to the company’s concerns.
Wyman Gordon counters that the Board’s decisions do not require an employer to open its
books to a union just because of a claimed concern about remaining competitive. But the Board
made no such sweeping ruling. The Board did not hold that Wyman Gordon needed to throw open
all of its books to the Union, and it made no finding that Wyman Gordon had asserted an inability
to pay and remain competitive. See Wyman Gordon Pa., 368 N.L.R.B. No. 150 at 7 (“[T]he
General Counsel does not allege, and the judge did not find” that Wyman Gordon claimed an
inability to pay.). Instead, the Board held that the targeted information the Union sought was
relevant to the company’s specific claim that a wage increase would cause a 15% price increase
for customers. Because the Union’s information request was tailored to Wyman Gordon’s
proffered justification for resisting a wage increase, the information was relevant to the
negotiations.
C
Under Section 8(a)(5) of the Act, an employer must recognize and bargain with the labor
organization that its employees have properly chosen. Pacific Coast Supply, LLC v. NLRB, 801
F.3d 321, 325 (D.C. Cir. 2015). Once a union is recognized, it enjoys a continuing presumption
of majority support by employees. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996).
Yet when, as here, the union has been the collective bargaining representative of the employees
for over a year, that presumption can be rebutted by an employer. Id. The burden, though, is on
the employer to establish a loss of majority employee support before withdrawing recognition of
a union. Pacific Coast Supply, 801 F.3d at 326 (“[A]n employer may not ‘withdraw recognition
unless it can prove that an incumbent union has, in fact, lost majority support.’”) (quoting Levitz
Furniture Co. of the Pac., 333 N.L.R.B. 717, 723 (2001)).
The “‘preferred method’” for an employer to determine if a union has lost the support of
the employees it represents is to request that the Board conduct a Representation Management
election, “in which employees cast confidential votes for or against the union.” Pacific Coast
Supply, 801 F.3d at 326 (quoting Levitz, 333 N.L.R.B. at 727); see also 29 U.S.C. § 159(e)(1). To
obtain such an election, the employer need demonstrate only “‘a reasonable good-faith uncertainty’
as to the union’s continuing majority status.” Pacific Coast Supply, 801 F.3d at 326 (quoting
Levitz, 333 N.L.R.B. at 723).
9
Alternatively, an employer can choose a more risky route and, “at its peril,” unilaterally
withdraw recognition if presented with evidence of an asserted loss of majority support. Levitz,
333 N.L.R.B. at 725; accord Pacific Coast Supply, 801 F.3d at 326. If the union disputes the
ground for withdrawal, the employer must prove by a preponderance of the evidence “that the
union had, in fact, lost majority support at the time [it] withdrew recognition.” Levitz, 333
N.L.R.B. at 725. Because the loss of majority support must exist at the time the employer withdrew
support, an employer may rely only on evidence that it had at that critical time. See Pacific Coast
Supply, 801 F.3d at 333–334. Failure by the employer to meet its burden of proof renders the
withdrawal of recognition an unlawful labor practice in violation of Sections 8(a)(5) and (1) of the
Act.
In this case, Wyman Gordon relied solely on the petition presented to it by the National
Right to Work Legal Defense Foundation on November 23, 2016, as its reason for withdrawing
recognition. And the Board’s conclusion that the Foundation’s petition did not pass evidentiary
muster was supported by substantial evidence. Only nine employee signatures appeared on the
first and last pages of the petition, which included language identifying the document as a union
decertification petition. Fourteen of the employee signatures were strewn in a haphazard manner
across three pages that were just a collection of lines without any information explaining what the
document was. The Board reasonably determined that this disjointed collection of signatures did
not constitute objective evidence of the employees’ actual intent to withdraw from the Union.
Wyman Gordon argues that there was other evidence in the record to corroborate the loss
of majority support. But that evidence is off-limits because Wyman Gordon was not aware of it
at the time of its decision to withdraw recognition. It is at best a post hoc rationale. When deciding
whether an employer’s withdrawal of recognition was lawful, the Board cannot consider evidence
that the employer learned of only after the fact. See Highlands Hosp. Corp. v. NLRB, 508 F.3d 28,
32 (D.C. Cir. 2007) (refusing to credit testimony because the employer “had no knowledge of that
corroborating evidence on the day it withdrew recognition”); see also Pacific Coast Supply, 801
F.3d at 333–334. Here, the Board found as a matter of fact that Wyman Gordon relied only on the
petition, and so the Board properly refused to consider other testimony.
Wyman Gordon’s remaining arguments are on even shakier ground. First, Wyman Gordon
contests the ALJ’s credibility findings, which the Board sustained. Yet only the most
extraordinary showing would allow this court to upset credibility findings made by the ALJ and
affirmed by the Board. Inova Health System v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (“[W]e
accept all credibility determinations made by the ALJ and adopted by the Board unless those
determinations are ‘patently insupportable.’”) (quoting Traction Wholesale Center Co. v. NLRB,
216 F.3d 92, 99 (D.C. Cir. 2000)). Wyman Gordon’s arguments do not come close to that mark.
Second, Wyman Gordon argues that the ALJ “conveniently” ignored the testimony of Tim
Brink, an Area Manager at the Wyman Gordon facility, who stated that he recognized all the
signatures on the petition for withdrawal as belonging to unit employees. That argument is off-
base. The Board never ruled that the signatures on the petition were forged. It instead held only
that there was no objective evidence that a majority of the signatories knew that what they were
signing was a decertification petition. Tim Brink’s testimony had nothing to say about that.
10
Lastly, Wyman Gordon argues that it relied not only on the petition, but also on “the context
within which the petition was received,” pointing out that the Union was elected as the employees’
bargaining representative by only one vote. Wyman Gordon Opening Br. 46. But the Union
enjoyed a legal presumption of majority status, regardless of the margin of votes by which it was
elected. See Auciello Iron Works, 517 U.S. at 786.
IV
Finally, Wyman Gordon challenges the Board’s imposition of an affirmative-bargaining
order. We can overturn the remedy imposed by the Board only if Wyman Gordon shows that the
remedy “is a patent attempt to achieve ends other than those which can fairly be said to effectuate
the policies of the Act.” Virginia Elec. & Power, 319 U.S. at 540.
Because an affirmative-bargaining order takes the “extreme” step of requiring an employer
to bargain with a union without challenging its majority support, the Board must balance three
factors before imposing such an order. Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738
(D.C. Cir. 2000). Those factors are: “(1) the employees’ [Section] 7 rights; (2) whether other
purposes of the Act override the rights of employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id.
In this case, the Board adequately considered and balanced those factors. First, an
affirmative-bargaining order would vindicate the employees’ Section 7 rights because it would
finally provide the Union a fair environment in which to negotiate for an initial collective
bargaining agreement. The employees at all times had “the right * * * to bargain collectively
through representatives of their own choosing.” 29 U.S.C. § 157. Wyman Gordon’s employees
chose the Union as their representative, and the bargaining order enables the Union to negotiate
with Wyman Gordon as the employees intended.
Second, no other purpose of the Act outweighs that substantial interest in this case.
Affirmative-bargaining orders last only for a “reasonable period of time,” Wyman Gordon Pa.,
368 N.L.R.B. No. 150 at 11, which generally does not exceed one year. See Sullivan Indus. v.
NLRB, 957 F.2d 890, 903 n.5 (D.C. Cir. 1992) (“The decertification bar would last for a
‘reasonable period’—at least six months, perhaps as much as one year—during which time the
employer and the union would presumably bargain.”). Such a reasonable period of time is
necessary to allow the Union to reestablish its relationship with workers and to attempt to negotiate
a collective bargaining agreement unburdened by the unfair labor practices committed by Wyman
Gordon. The Board added that, rather than undermine employees’ statutory rights, its affirmative-
bargaining order would serve the Act’s purpose of promoting industrial peace by decreasing
Wyman Gordon’s incentive “to delay bargaining in the hope of discouraging support for the
Union.” Wyman Gordon Pa., 368 N.L.R.B. No. 150 at 11.
Third, an alternative remedy would not be sufficient to remediate Wyman Gordon’s many
violations of the Act. Given that four years have gone by since the employees elected the Union
as their collective bargaining representative with Wyman Gordon, Transcript of Oral Argument at
11:22–12:8, the Board sensibly determined that the Union needs the opportunity “to reestablish its
11
representative status with the unit employees,” and so an alternative remedy—like another Union
election or a simple cease-and-desist order—would be “inadequate,” Wyman Gordon Pa., 368
N.L.R.B. No. 150 at 11; see Veritas Health Servs., Inc. v. NLRB, 895 F.3d 69, 87, 89 (D.C. Cir.
2018) (sustaining affirmative-bargaining order to remedy an unlawful withdrawal of recognition).
Wyman Gordon argues that the Board should allow a decertification election. But if that
is what the company wanted, it could have asked for such an election from the Board when first
presented with the petition, rather than unilaterally withdrawing recognition based on such an
unreliable document. Perhaps Wyman Gordon now has buyer’s remorse for the path it chose. But
the Board was under no obligation to relieve it of the consequences of its voluntary choice to
proceed “at its peril,” Levitz, 333 N.L.R.B. at 725. Indeed, doing so would turn the disfavored
practice of unilateral withdrawal of recognition into a cost-free option for employers.
In sum, the Board reasonably concluded that all three factors weigh in favor of imposing
an affirmative-bargaining order on this record.
V
For all of those reasons, we dismiss the portion of Wyman Gordon’s petition for review
disputing the Board’s finding that the company’s failure to respond to the Union’s August 31st
request for health care information was an unfair labor practice; we deny the petition in all other
respects; and we grant the Board’s cross-application for enforcement in full.
The Clerk is directed to withhold issuance of the mandate until seven days after
resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P.
41(b); D.C. Cir. R. 41(b).
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk