National Labor Relations Board v. San Luis Trucking, Inc.

FILED
NOT FOR PUBLICATION MAY 01 2012
MOLLY C. DWYER, CL
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE A
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 10-73624
BOARD,
NLRB No. 28-CA-20387
Petitioner,
v.
SAN LUIS TRUCKING, INC.; MEMORANDUM*
FACTOR SALES, INC.;
SERVICIOS ESPECIALIAZADOS DEL
COLORADO, S.A. DE C.V.,
Respondents.
On Application for Enforcement of an
Order of the National Labor Relations Board
Argued and Submitted February 15, 2012
San Francisco, California
Before: ALARCÓN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.**
* The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Marvin J. Garbis, Senior United States District Judge for the
District of Maryland, sitting by designation.
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The National Labor Relations Board (the Board” or “NLRB”) petitions for
enforcement of the Board’s decision and order in this case. We have jurisdiction
pursuant to 29 U.S.C. § 160(e), and for the reasons stated herein, grant the NLRB’s
application for enforcement of its order.
Factor contends that the ALJ erred as a matter of law in finding that the
decision to close SLT without first bargaining with the Union was a violation of
the National Labor Relations Act (the “Act”) because there is no duty to bargain
over a decision that involves going out of business entirely. Factor also contends
that the ALJ erred as a matter of law in imposing a restoration remedy on one
member of a single employer where there is neither an alter ego nor single
bargaining unit status with the other member.
We uphold NLRB decisions if the law was correctly applied and the findings
are supported by substantial evidence. NLRB. v. Int’l Bhd. of Elec. Workers,
Local 48, 345 F.3d 1049, 1053 (9th Cir. 2003) (citing NLRB v. Unbelievable, Inc.,
71 F.3d 1434, 1438 (9th Cir. 1995)). Substantial evidence supported the Board’s
finding that Factor, SLT, and SEC were a single employer for purposes of the Act.
As a single employer with SLT, Factor was responsible for bargaining with the
Union over business decisions impacting SLT’s employees, and it may be held
responsible to redress unfair labor violations. See RBE Elecs. of S.D., Inc., 320
NLRB 80, 80-81, 1995 WL 788575 (1995); see also Penntech Papers, Inc. v.
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NLRB, 706 F.2d 18 (1st Cir. 1983) (finding parent corporation, as a single
employer with its subsidiary, liable for its subsidiary’s violation of the Act by
failing to bargain in good faith regarding its closure).
Further, substantial evidence supported the Board’s finding that both
Factor’s movement of the transport business from SLT and SLT’s closing were
because of, and in response to, protected union activities, and that Factor did not
establish that the actions would have been taken in the absence of those protected
activities. See Textile Workers Union of Am. v. Darlington Mfg. Co., 380 U.S.
263, 268-69, 274-75 (1965)(“[A] partial closing is an unfair labor practice under §
8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plants
of the single employer and if the employer may reasonably have foreseen that such
closing would likely have that effect.”).
Finally, the Board’s chosen means of remedying an unfair labor practice is
overturned only for an abuse of discretion. Sever v. NLRB, 231 F.3d 1156, 1165
(9th Cir. 2000). Doubts about the scope of a remedy should be resolved against the
perpetrator of the unfair labor practice. Id. The Court will affirm a NLRB
remedial order unless “the order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies of the Act.” East Bay
Auto. Council v. NLRB, 483 F.3d 628, 632 (9th Cir. 2007) (quoting Fibreboard
Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964)). The Board did not abuse
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its discretion in devising a remedy intended to restore the status quo ante. See Sw.
Forest Indus., Inc. v. NLRB, 841 F.2d 270, 274 (9th Cir. 1988). Accordingly, the
Board’s remedy is presumptively valid. Of course, the remedy is subject to
modification during the compliance stage of proceedings if Factor can demonstrate
that it would be unduly burdensome to reinstate SLT and restore the business that
was transferred to a third party. The Board’s Order specifically makes an
allowance for such a showing. San Luis Trucking, Inc. v. United Food &
Commercial Workers Union, Local 99, 352 NLRB 211, 211 n.5 (2008).
In sum, we hold that the Board correctly applied the law, and that substantial
evidence on the record as a whole supports its findings of fact. Therefore, we
GRANT the Board’s application for enforcement of its order.
PETITION GRANTED; ORDER ENFORCED.
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