Longmont United Hospital v. NLRB ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2023 Decided June 13, 2023
No. 22-1262
LONGMONT UNITED HOSPITAL,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
NATIONAL NURSES ORGANIZING COMMITTEE/NATIONAL
NURSES UNITED,
INTERVENOR
Consolidated with 22-1285
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
Patrick R. Scully argued the cause for petitioner. With him
on the briefs were Heather F. Vickles and John T. Melcon.
Mark Kaltenbach, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
2
were Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr,
Deputy General Counsel, Ruth E. Burdick, Deputy Associate
General Counsel, David Habenstreit, Assistant General
Counsel, and Usha Dheenan, Supervisory Attorney.
Before: HENDERSON, KATSAS and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Longmont
United Hospital (Longmont) petitions for review of the
decision of the National Labor Relations Board (NLRB or
Board), concluding that Longmont violated the National Labor
Relations Act, 29 U.S.C. § 158(a)(1) and (5), by refusing to
bargain with the National Nurses Organizing
Committee/National Nurses United, AFL-CIO (Union).
Longmont does not dispute that it refused to bargain with the
Union. Instead, it challenges the representation election
whereby a group of registered nurses at Longmont elected the
Union as its exclusive collective bargaining representative.
Because Longmont’s objections lack merit, we deny its petition
for review and grant the Board’s cross-application for
enforcement.
I.
In 2021, the Union petitioned the NLRB to represent a
group of registered nurses at Longmont and the Board
conducted an election by mail. As the Board collected and
tallied the mail-in ballots, Longmont and the Union both
challenged several of them, including Longmont’s challenge to
a ballot cast by Mysti Schalamon, a registered nurse at the
facility. Longmont claims that Schalamon’s ballot should not
be counted because she failed to “sign” the outer envelope in
accordance with the Board’s requirements for an election by
mail. See NAT’L LAB. RELS. BD., CASEHANDLING MANUAL,
3
PART TWO: REPRESENTATION PROCEEDINGS § 11336.5(c)
(2020) (ballots void when “returned in envelopes with no
signatures or with names printed rather than signed”).
Longmont also timely objected to the election, arguing that
the Union engaged in ballot solicitation and that, as a result, the
Board should set aside the election. In its offer of proof,
Longmont submitted a screenshot of a text message allegedly
sent to voting employees, with an image of a signed ballot
envelope attached. Longmont asserts that the message gave
employees the false impression that the Union was authorized
to collect and inspect ballots. The text message came from an
unspecified sender but context suggests that its sender was
Kristine Kloster—another registered nurse at Longmont—
because her signature appeared on the ballot envelope pictured
in the attached image. Longmont sought a hearing to solicit
Kloster’s testimony about the communications she received
from the Union and to confirm the Union’s role in the alleged
ballot solicitation scheme.
By order, the Board’s Regional Director overruled
Longmont’s ballot solicitation objection and rejected its
request for a hearing. In that order, the Regional Director also
ruled on some but not all of the parties’ outstanding challenges
to individual ballots and ordered a revised tally. But after the
revised tally, enough challenged ballots remained to affect the
outcome of the election. Accordingly, the Regional Director
ordered a hearing to determine whether the remaining ballots—
including Schalamon’s—should be counted.
At the hearing, each party presented evidence and
Schalamon testified. Longmont submitted an exhibit with
dozens of past signature samples from Schalamon’s
employment records—signatures resembling, in Schalamon’s
words, “a little bit of an M with a little squiggly at the end”—
4
and contrasted those signatures with the marking on her ballot
envelope, which contains her first initial and last name.
Hearing Tr. 111:7–8 (J.A. 85). The Union submitted its own
exhibit with photocopies of Schalamon’s driver’s license and
social security card, two documents with markings similar to
the marking on her ballot envelope. Schalamon identified the
marking on her driver’s license as her signature but explained
that her social security card contains only her printed name.
Schalamon also testified that her ballot envelope shows her
signature and acknowledged that she uses the shorthand
signature style that appears on her employment records when
she is “in a hurry.” Id.
The Hearing Officer recommended rejecting Longmont’s
challenge to Schalamon’s ballot. He found Schalamon’s
testimony credible and concluded that she signed—and did not
print—her name on the ballot envelope. The Board’s Regional
Director agreed and affirmed the Hearing Officer’s
determinations. Longmont requested review of the Regional
Director’s decision, which the Board denied. See 29 C.F.R.
§ 102.67(g) (denial of request for review “shall constitute an
affirmance of the Regional Director’s action”). Schalamon’s
ballot ultimately provided the deciding vote in the election: the
final election tally yielded 94 votes in favor of representation
and 93 votes against. The Board then certified the Union’s
victory.
To obtain judicial review of the representation proceeding,
Longmont refused to bargain with the Union and the Regional
Director commenced this enforcement proceeding, charging
Longmont with unfair labor practices in violation of
sections 8(a)(1) and (5) of the National Labor Relations Act,
29 U.S.C. § 158(a)(1), (5). Thereafter, the Board’s General
Counsel moved to transfer the proceeding from an
administrative law judge to the Board and for summary
5
judgment. See 29 C.F.R. §§ 102.24(a), 102.50. In her motion,
the General Counsel asked the Board to order a make-whole
remedy whereby Longmont would compensate the Union for
its lost opportunity to bargain during the pendency of the
enforcement proceeding. The General Counsel also asked the
Board to overrule its longstanding precedent that forecloses the
compensatory remedy she sought. See Ex-Cell-O Corp.,
185 N.L.R.B. 107, 108–10 (1970) (holding that the Board lacks
statutory authority to order compensatory remedies in refusal
to bargain cases).
The Board granted the transfer of the enforcement
proceeding and the General Counsel’s summary judgment
motion. The Board declined to reconsider representation issues
already decided by the Regional Director, determined that
Longmont unlawfully refused to bargain and, as a remedy,
ordered Longmont to bargain with the Union. See Longmont
United Hosp., 371 N.L.R.B. No. 162, 2022 WL 5148275, at
*1–3 (Sept. 30, 2022). But the Board expressly reserved
decision on the General Counsel’s request for a compensatory
remedy, instead severing that issue for future consideration. Id.
at *3. Longmont timely petitioned for review and the Board
cross-applied for enforcement.
II.
We have jurisdiction to review the petition and cross-
application under 29 U.S.C. § 160(e) and (f). Although we do
not review the election certification directly, see, e.g., Alois
Box Co. v. NLRB, 216 F.3d 69, 76 (D.C. Cir. 2000), we may
consider representation issues during our review of the Board’s
final order granting summary judgment in the enforcement
proceeding, see 29 U.S.C. § 159(d); Nat’l Hot Rod Ass’n v.
NLRB, 988 F.3d 506, 508 (D.C. Cir. 2021). That the Board
severed a remedial issue for future consideration does not
6
affect our jurisdiction to consider Longmont’s petition for
review and adjudicate issues that the Board has resolved. See
Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir.
2012).
“We will uphold the Board’s decisions if they are not
arbitrary, capricious, or grounded in legal error, and if
substantial evidence supports the Board’s factual findings.”
RadNet Mgmt., Inc. v. NLRB, 992 F.3d 1114, 1119 (D.C. Cir.
2021); see 29 U.S.C. § 160(f). On representation and election
issues, “we accord the Board an especially wide degree of
discretion,” 800 River Rd. Operating Co. v. NLRB, 846 F.3d
378, 385–86 (D.C. Cir. 2017) (quoting Randell Warehouse of
Ariz., Inc. v. NLRB, 252 F.3d 445, 447–48 (D.C. Cir. 2001)),
and ask “whether the Board has followed appropriate and fair
procedures” and “reached a rational conclusion in addressing
any objections to the election,” PruittHealth-Virginia Park,
LLC v. NLRB, 888 F.3d 1285, 1292 (D.C. Cir. 2018) (quoting
Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 58 (D.C. Cir.
2016)). We review the Board’s grant of summary judgment in
the enforcement proceeding for abuse of discretion. See
RadNet, 992 F.3d at 1128; Alois Box, 216 F.3d at 78.
III.
Longmont presses three objections to the underlying
Board proceedings. Two challenge the Regional Director’s
rulings in the representation proceeding and the third is to the
Board’s summary judgment grant in the enforcement
proceeding.
A.
First, Longmont claims that the Board abused its discretion
in counting Schalamon’s ballot. Longmont concedes that
Schalamon is eligible to vote and did in fact cast the ballot in
7
question; instead, it argues that Schalamon failed to “sign” her
ballot envelope and therefore her ballot is void. We disagree.
In an election by mail, voting employees must sign the
outer return envelope when they mail their completed ballot.
Each ballot envelope instructs voters to “Sign Your Name
Across the Flap. DO NOT PRINT.” See Hearing Tr. Emp. Ex.
5 (J.A. 163). Ballots “returned in envelopes with no signatures
or with names printed rather than signed” are void. NAT’L LAB.
RELS. BD. CASEHANDLING MANUAL, PART TWO:
REPRESENTATION PROCEEDINGS § 11336.5(c). The challenger
has the burden of establishing that a ballot is void. See
Sweetener Supply Corp., 349 N.L.R.B. 1122, 1122 (2007).
The Board’s Regional Director overruled Longmont’s
challenge and concluded that Schalamon signed her name on
the ballot envelope. She also determined that Schalamon did
not merely print her name on the ballot envelope and found any
inconsistency with past signature samples immaterial in the
absence of any question as to the voter’s identity. The Regional
Director relied in part on Schalamon’s testimony that she
signed the disputed ballot envelope and that she used a
different, shorthand signature style when she was “in a hurry.”
Hearing Tr. 111:7–8 (J.A. 85). At the outset, Longmont
contends that the Regional Director erred in considering
Schalamon’s post-election testimony because such “post hoc
testimony” is categorically barred by Board precedent,1 see
1
The Board claims that we lack jurisdiction to consider
Longmont’s challenge to Schalamon’s post-election testimony
because Longmont failed to raise that challenge in its request for
Board review of the Regional Director’s decision. See 29 U.S.C.
§ 160(e) (“No objection that has not been urged before the Board . . .
shall be considered by the court” absent “extraordinary
circumstances”). We disagree because, in its request for Board
review, Longmont disputed the Regional Director’s reliance on
8
Appellant’s Br. 23–26, and because her testimony was not
credible. Neither contention is persuasive.
The Regional Director did not depart from precedent when
she considered Schalamon’s post-election testimony. See
Titanium Metals Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir.
2004) (NLRB order “will . . . be set aside when it departs from
established precedent without reasoned justification”).
Longmont cites a variety of authorities for the proposition that
the Board does not consider “postelection statements regarding
the intent of voters” in deciding whether to “set[] aside
elections or chang[e] the results of secret ballots.” E.g., Dayton
Malleable Iron Co., 123 N.L.R.B. 1707, 1709 (1959).
Longmont equates Schalamon’s testimony that she signed her
ballot to the post-election statements of voter intent at issue in
the cited authorities. But Schalamon did not testify as to her
intent and none of Longmont’s proffered authorities involves
the Board’s signature requirement.2 Because Board precedent
“‘after-the-fact’ evidence” like Schalamon’s testimony. See Request
for Review 12 (J.A. 345). Longmont’s request for review is therefore
“adequate to put the Board on notice that the issue might be pursued
on appeal.” See United Food & Com. Workers Union, Local 400 v.
NLRB, 989 F.3d 1034, 1037 (D.C. Cir. 2021) (quoting Consol.
Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981)).
2
See NLRB v. Gissel Packing Co., 395 U.S. 575, 606–08 (1969)
(testimony regarding whether employee believed he was voting in an
election or merely to authorize an election); Local 153, Int’l Ladies’
Garment Workers’ Union v. NLRB, 443 F.2d 667, 668 (D.C. Cir.
1970) (testimony about why employee voted the way he did);
Molded Acoustical Prods., Inc., 815 F.2d 934, 940 (3d Cir. 1987)
(same); In re Pea Ridge Iron Ore Co., 335 N.L.R.B. 161, 161 (2001)
(testimony about why employees chose not to vote); Dayton,
123 N.L.R.B. at 1709 (same); In re Semi-Steel Casting Co.,
66 NLRB 713, 714–15 (1946) (testimony about what employee
intended to vote for because ballot markings were ambiguous);
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does not reach Schalamon’s testimony, we cannot conclude
that the Regional Director acted arbitrarily or capriciously in
considering it.
Nor has Longmont shown a basis to disturb the Hearing
Officer’s credibility findings. “[A] hearing officer’s
‘credibility determinations may not be overturned absent the
most extraordinary circumstances.’” E.N. Bisso & Son, Inc. v.
NLRB, 84 F.3d 1443, 1444–45 (D.C. Cir. 1996) (quoting
Amalgamated Clothing & Textile Workers Union v. NLRB,
736 F.2d 1559, 1563 (D.C. Cir. 1984)). Longmont contends
that the “incongruent signature exemplars” render
Schalamon’s testimony incredible, as does her awareness at the
time she testified that the election’s outcome rested on her
ballot. Appellant’s Br. 23. Her testimony, however, is
consistent with the past exemplars, which were shown to her
only after she gave her testimony on that point. And
Longmont’s generic observation about the circumstances in
which the testimony arose “is at best specious” and thus
unpersuasive. PruittHealth-Virginia Park, 888 F.3d at 1295(quoting E.N. Bisso & Son, 84 F.3d at 1445).3
Having concluded that Schalamon’s testimony is credible
and was properly considered by the Board, we believe that the
Board did not abuse its discretion in overruling Longmont’s
challenge to Schalamon’s ballot. Substantial evidence supports
Providence Health & Servs., 369 N.L.R.B. No. 78, 2020 WL
2476668, at *1 (2020) (same).
3
Longmont also attacks Schalamon’s credibility based on her
testimony about the marking on her social security card. See Reply
Br. 9. Longmont failed to raise that argument in its opening brief and
thus the argument is forfeited. See Abdullah v. Obama, 753 F.3d 193,
199–200 (D.C. Cir. 2014); Nat. Res. Def. Council v. EPA, 25 F.3d
1063, 1071 n.4 (D.C. Cir. 1994).
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the Board’s finding that Schalamon did not print her name on
her ballot envelope: Schalamon credibly testified that the
marking is her signature and the marking’s cursive lettering
contrasts with record samples of her printed name. Longmont
claims that the marking on the ballot envelope cannot satisfy
the Board’s signature requirement if it does not match other
signature samples in the record but it cites no precedent
suggesting that is the case—particularly where, as here, there
is no dispute as to the voter’s identity. See Coll. Bound
Dorchester, Inc., N.L.R.B. Case No. 01-RC-261667, 2021 WL
2657318, at *1 (June 25, 2021) (purpose of signature
requirement is to ensure that ballots “can be identified as cast
by an eligible employee”).
B.
Longmont also claims that the Board abused its discretion
in overruling its ballot solicitation objection without an
evidentiary hearing. But parties objecting to an NLRB election
“do not have an automatic ‘right to a post-election hearing.’”
Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 58 (D.C. Cir.
2016) (quoting Amalgamated Clothing Workers of Am. v.
NLRB, 424 F.2d 818, 828 (D.C. Cir. 1970)). To secure a
hearing, the objecting party must file a written “offer of proof”
that “identif[ies] each witness the party would call to testify”
and “summariz[es] each witness’s testimony.” 29 C.F.R.
§ 102.66(c); see also id. § 102.69(a)(8). The Board grants a
hearing if the offer of proof supplies “evidence” that
“constitute[s] grounds for setting aside the election” once
introduced and credited at a hearing. Id. § 102.69(c)(1)(i); see
also 800 River Rd. Op. Co., 846 F.3d at 387–88. Ballot
solicitation warrants setting aside an election only if a
determinative number of voters is affected. See Pro. Transp.,
Inc., 370 N.L.R.B. No. 132, 2021 WL 2658293, at *5 (June 9,
2021). A party engages in ballot solicitation if he makes a
11
statement to a voting employee that “could be reasonably
interpreted as an offer to collect and mail [the employee’s]
ballot.” Id. at *6.
As evidence of ballot solicitation, Longmont submitted a
copy of a text message with an attached picture of a ballot
envelope signed by Kristine Kloster—another registered nurse
at Longmont and the message’s likely sender. The message
explained that voters must sign “across the flap in order to be
counted” and asked the recipient to respond to Kloster with a
photo of the ballot before “drop[ping] it in the mail just to
verify.” Am. Offer of Proof, Ex. A (J.A. 45). The message also
stated that “[w]e already have someone reordering a ballot due
to [the voter’s failure to sign his ballot] but we want to make
sure all of our votes count.” Id.The message cannot reasonably be interpreted as “an offer
to collect and mail” a ballot, Pro. Transp., 2021 WL 2658293,
at *6; indeed, it instructs employees to “drop [their ballots] in
the mail,” Am. Offer of Proof, Ex. A (J.A. 45); see Pro.
Transp., 2021 WL 2658293, at *6 n.22 (“offering to assist
[employees] with understanding the election instructions” is
not ballot solicitation). Although Longmont claims that the
message gave employees the false impression that the Union
assisted in conducting the election, Longmont supplied no
evidence connecting Kristine Kloster with the Union, only
“[n]ebulous and declaratory assertions,” Sitka Sound Seafoods,
Inc. v. NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000) (alteration
in original) (quoting Amalgamated Clothing Workers, 424 F.2d
at 828), that Kloster contacted “other voters . . . in connection
with the Union’s solicitation of ballots.” Am. Offer of Proof 2
(J.A. 42).
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C.
Finally, Longmont objects to the Board’s summary
judgment grant in the enforcement proceeding. See 29 C.F.R.
§ 102.24(b) (Board may grant summary judgment in “the
absence of a genuine issue” for hearing); Alois Box, 216 F.3d
at 78 (whether to grant summary judgment “lies in the Board’s
discretion”). Longmont’s objection is meritless.
Although the Board’s General Counsel asked for a
compensatory, make-whole remedy that is foreclosed by Board
precedent, see Ex-Cell-O Corp., 185 N.L.R.B. at 110, the
Board granted summary judgment with limited relief: it
ordered Longmont to recognize the Union as the registered
nurses’ collective bargaining representative, to cease and desist
in its refusal to bargain and to begin bargaining with the Union.
The Board did not rule on the General Counsel’s request for a
compensatory remedy; instead, it severed that issue for later
consideration, as it has done in other cases raising the same
issue. Longmont United Hosp., 2022 WL 5148275, at *3; see
also, e.g., Siren Retail Corp., 372 N.L.R.B. No. 10, 2022 WL
17401641, at *3 (Nov. 30, 2022); Arrmaz Prods., Inc.,
372 N.L.R.B. No. 12, 2022 WL 17820769, at *3 (Dec. 6,
2022).
Longmont did not (and does not) dispute that it refused to
bargain with the Union. The Board’s summary judgment grant
thus involved only one disputed issue: whether the Union was
properly certified as the nurses’ collective bargaining
representative. See NCR Corp. v. NLRB, 840 F.3d 838, 841
(D.C. Cir. 2016) (if employer “admit[s] it refused to bargain
with the union” and “the union was properly certified,” the
Board’s refusal to bargain finding “is supported by substantial
evidence” (quoting NLRB v. Pinkerton’s, Inc., 621 F.2d 1332,
1325 (6th Cir. 1980))). The Board, however, correctly declined
13
to relitigate issues in the enforcement proceeding that had been
decided in the representation proceeding. See 29 C.F.R.
§ 102.67(g) (denial of request for review in representation
proceeding “preclude[s]” relitigation of representation issues
“in any related subsequent unfair labor practice proceeding”);
RadNet, 992 F.3d at 1128 (recognizing the Board’s
“‘well[]settled’ rule that, ‘in the absence of newly discovered
or previously unavailable evidence, the Board will not
relitigate in a subsequent refusal-to-bargain proceeding matters
which have been disposed of in a prior related representation
case’” (quoting Pepsi-Cola Buffalo Bottling Co., 171 N.L.R.B.
157, 158 (1968) (alteration in original))). In the absence of
other disputed issues, the Board did not abuse its discretion in
granting summary judgment.
Longmont resists that conclusion, asserting that the
General Counsel’s request for a compensatory remedy
introduced “disputed allegations about the future”—
specifically, whether Longmont intended to continue its refusal
to bargain until a federal court reviewed the disputed
representation issues, presumably affecting the measure of any
compensatory damages awarded. See Appellant’s Br. 30–31
(emphasis in original). But the Board did not adjudicate the
General Counsel’s request for compensatory relief and, as a
result, any challenge to the fact or measure of compensatory
damages is premature.
For the foregoing reasons, we deny Longmont’s petition
for review and grant the Board’s cross-application for
enforcement.
So ordered.