Pacific Coast Supply, LLC v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2014 Decided September 18, 2015
No. 14-1047
PACIFIC COAST SUPPLY, LLC, DOING BUSINESS AS ANDERSON
LUMBER COMPANY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1081
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Stephen Thomas Davenport Jr. argued the cause and filed
the briefs for petitioner.
Valerie L. Collins, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, and Elizabeth Heaney, Supervisory
Attorney.
2
Before: GARLAND, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Anderson Lumber Company1
petitions for review of a determination by the National Labor
Relations Board that Anderson unlawfully withdrew recognition
from a union. For the reasons set forth below, we deny the
company’s petition for review and grant the Board’s
cross-application for enforcement.
I
Anderson Lumber is a lumber supply company located in
North Highlands, California. Since the late 1960s, it has
recognized and bargained with Chauffeurs, Teamsters, and
Helpers Local 150, International Brotherhood of Teamsters.
The union represents a fifteen-employee bargaining unit that
includes material handlers and drivers.
After the parties’ most recent collective bargaining
agreement expired on February 28, 2012, the two sides began
bargaining for a successor agreement. On July 20, ten days
before a second scheduled bargaining session, Anderson
Lumber’s labor consultant contacted the union’s business agent
and advised him that the company thought the union lacked
majority support among the employees. Thereafter, Anderson
Lumber unilaterally withdrew its recognition from the union. It
is undisputed that, in so doing, the company relied solely on
1
The petitioner is incorporated under the name Pacific Coast
Supply, LLC and does business as Anderson Lumber Company. The
parties refer to the petitioner as the latter. To avoid confusion, we do
so as well.
3
one- or two-sentence, handwritten statements from eight of the
fifteen members of the unit. The statements were written in
English. Five of the eight later testified that they spoke or wrote
only a little English; some had the assistance of a coworker who
drafted the statements in English and translated them into
Spanish. Pacific Coast Supply, LLC, 360 NLRB No. 67, at 4 n.6
(Mar. 24, 2014).
The union filed an unfair labor practice charge, and an
Administrative Law Judge (ALJ) subsequently concluded that
the company had violated sections 8(a)(5) and (1) of the
National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(5)
& (1), by unlawfully withdrawing recognition from the union.
As the ALJ explained, the seminal decision of the National
Labor Relations Board (NLRB) in Levitz Furniture Co., 333
N.L.R.B. 717 (2001), bars an employer from withdrawing
recognition from an incumbent union unless it can show, by a
preponderance of the evidence, that at the time of the
withdrawal the union had in fact lost the support of a majority
of the unit employees. Pacific Coast, 360 NLRB No. 67, at 5;
see Levitz, 333 N.L.R.B. at 725. Because the employer relied
exclusively on the written statements of eight of the fifteen unit
employees, the ALJ held that it bore the burden of proving that
each of the eight statements showed that the employee in
question no longer supported union representation. Pacific
Coast, 360 NLRB No. 67, at 5.
Focusing on the statements of just four of the employees,
the ALJ found that they did not show, by a preponderance, “that
those employees no longer wish to be represented by the
Union,” but only that they no longer wanted to be members of
the union. Id. at 3, 6 (emphasis added). The four statements
were as follows:
4
1. I resign from [the Union]. Miguel Hernandez.
2. I Mark A. Rocha do not wish to be a Union
member.
3. I Sandeep Singh employee of Anderson Lumber
wish to get out of the Union.
4. Chris if it is all possible I Donald Davis would like
to exit the union. This is due to the union not doing
any services for the cost that they are charging.
J.A. 43-44, 46, 48. Because the employer had to prove that all
eight employees did not support union representation, the ALJ’s
findings regarding these four were (more than) sufficient to
warrant the finding of an unfair labor practice. She therefore
concluded that it was unnecessary to determine the meaning of
the remaining four statements.
Anderson Lumber filed exceptions with the Board. The
Board held “that [Anderson] violated [the NLRA] by
withdrawing recognition from the Union . . . because the
statements submitted by employees Davis, Hernandez, Rocha,
and Singh did not show that they no longer wanted the Union to
represent them for the purposes of collective bargaining.”
Pacific Coast, 360 NLRB No. 67, at 1 n.1. NLRB Member
Johnson concurred in the determination that Anderson violated
the Act, but did so in reliance on the statements of only two of
the employees, Hernandez and Rocha, which “explicitly refer
only to union membership and, therefore, under extant Board
law are insufficient to support the conclusion that they did not
want to be represented by the Union.” Id. Finally, having found
that Anderson Lumber committed an unfair labor practice, the
Board imposed a remedial order that, inter alia, requires
Anderson Lumber to recognize and bargain with the union.
5
Anderson now petitions for review, arguing that its
withdrawal of recognition was lawful under Levitz. The Board
cross-applies for enforcement of its order.
II
Section 8(a)(5) of the Act requires an employer to recognize
and bargain with the labor organization chosen by a majority of
its employees.2 Under longstanding Board precedent, when a
union is recognized as the collective-bargaining representative
of a unit of employees, that union is entitled to a presumption
that it enjoys the support of a majority of the represented
employees. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781,
785-87 (1996). The presumption of majority status is
irrebuttable during the term of a collective-bargaining
agreement, up to three years. Thereafter, the presumption
becomes rebuttable. Id. at 786; McDonald Partners, Inc. v.
NLRB, 331 F.3d 1002, 1004 (D.C. Cir. 2003).
One option available to an employer that questions an
incumbent union’s majority status is to ask the Board to conduct
a Representation Management (RM) election, in which
employees cast confidential votes for or against the union. 29
U.S.C. § 159(c)(1); see Allentown Mack Sales & Serv., Inc. v.
2
Section 8(a)(5) makes it an unfair labor practice for an employer
“to refuse to bargain collectively with the representatives of his
employees.” 29 U.S.C. § 158(a)(5). Section 8(a)(1) 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 of the
Act],” 29 U.S.C. § 158(a)(1), which include the right to “bargain
collectively through representatives of their own choosing,” 29 U.S.C.
§ 157. An employer that violates Section 8(a)(5) also derivatively
violates Section 8(a)(1). See Exxon Chem. Co. v. NLRB, 386 F.3d
1160, 1164 (D.C. Cir. 2004).
6
NLRB, 522 U.S. 359, 363-64 (1998). To obtain an RM election,
an employer need only demonstrate “reasonable good-faith
uncertainty” as to the union’s continuing majority status. Levitz,
333 N.L.R.B. at 723 (emphasis omitted). The NLRB has
“emphasize[d] that Board-conducted elections are the preferred
method of testing employees’ support for unions.” Id. at 727;
see id. at 723.
Alternatively, an employer may do what the petitioner did
here: withdraw recognition unilaterally. Prior to the Board’s
2001 decision in Levitz, NLRB precedent permitted an employer
to unilaterally withdraw recognition from an incumbent union
based on “good-faith doubt” about the union’s majority status,
see id. at 717 (citing Celanese Corp., 95 N.L.R.B. 664 (1951)),
which the Supreme Court interpreted to permit the employer to
withdraw recognition when it had a “genuine, reasonable
uncertainty” regarding the union’s majority status, Allentown
Mack, 522 U.S. at 367; see Levitz, 333 N.L.R.B. at 717. After
Levitz, “doubt” or “uncertainty” is no longer enough. Now, an
employer may not “withdraw recognition unless it can prove
that an incumbent union has, in fact, lost majority support.”
Levitz, 333 N.L.R.B. at 723. As the Board elaborated:
We emphasize that an employer with objective
evidence that the union has lost majority support . . .
withdraws recognition at its peril. If the union contests
the withdrawal of recognition in an unfair labor
practice proceeding, the employer will have to prove
by a preponderance of the evidence that the union had,
in fact, lost majority support at the time the employer
withdrew recognition.
Id. at 725; see Highlands Hosp. Corp. v. NLRB, 508 F.3d 28, 31-
32 (D.C. Cir. 2007); Flying Food Grp., Inc. v. NLRB, 471 F.3d
178, 182 (D.C. Cir. 2006). This standard, the Board said, serves
7
the NLRA’s core policies of “promoting stable collective
bargaining and employee free choice.” Levitz, 333 N.L.R.B. at
723; see id. at 727; see also Highlands Hosp., 508 F.3d at 31.
The standard applied by this court, however, is different.
We review Board orders under the substantial evidence
standard. 29 U.S.C. § 160(e); see Monmouth Care Ctr. v.
NLRB, 672 F.3d 1085, 1089 (D.C. Cir. 2012). “[W]e will
reverse for lack of substantial evidence only when the record is
so compelling that no reasonable factfinder could fail to find to
the contrary.” Highlands Hosp., 508 F.3d at 31 (internal
quotation marks omitted). Or, as the Supreme Court has put it,
we must affirm the Board as long as, “on th[e] record it would
have been possible for a reasonable jury to reach the Board’s
conclusion.” Allentown Mack, 522 U.S. at 366-67.
III
Anderson Lumber levels three arguments against the
Board’s determination that it unlawfully withdrew recognition
from the union. We consider those arguments below.
A
Anderson’s principal argument is that the NLRB erred in
finding that four of the employee statements did not show those
employees opposed continued union representation.
The Board has long maintained a distinction between an
employee’s desire to be represented by a union, and his or her
desire to be a member of a union. Whether a union has
“majority support turns on whether most unit employees wish to
have union representation, not on whether most unit employees
are members of a particular union.” Trans-Lux Midwest Corp.,
8
335 N.L.R.B. 230, 232 (2001).3 Only the desire of a majority not
to have union representation warrants withdrawal of recognition.
See R.J.B. Knits, Inc., 309 N.L.R.B. 201, 206 (1992). Accordingly,
the Board has long held that, for employee statements to support
the showing an employer must make to warrant withdrawal,
such statements “must convey an intent not to be represented by
the union as distinguished from a desire not to become members
for any of a number of reasons or an inability or unwillingness
to pay dues.” Grand Lodge of Ohio, 233 N.L.R.B. 143, 144
(1977).4 Invoking that line of authority, the ALJ in this case
3
See NLRB v. Wallkill Valley Gen. Hosp., 866 F.2d 632, 637 (3d
Cir. 1989) (noting that the Board has “observed that there is a clear
distinction between union membership and majority support for
collective bargaining representatives”); Retired Pers. Pharmacy v.
NLRB, 519 F.2d 486, 491 (2d Cir. 1975) (explaining that the “issue to
be decided was not how many employees belonged to the union or
paid dues but rather whether a majority desired union representation
for purposes of collective bargaining”); Crete Cold Storage, LLC, 354
N.L.R.B. 1000, 1000 n.2 (2009) (“[T]he Board’s determination of
‘majority support’ turns on whether a majority of unit employees wish
to be represented by a particular union, not on whether a majority
choose to become members of that union or choose to authorize the
checkoff of union dues.”); Colonna’s Shipyard, 293 N.L.R.B. 136, 140
(1989) (“[I]t is . . . well settled that resignation from or failure to
acquire union membership does not support an inference of rejection
of union representation.”); see also NLRB v. Carmichael Constr. Co.,
728 F.2d 1137, 1140 (8th Cir. 1984).
4
See Premium Foods, Inc. v. NLRB, 709 F.2d 623, 631 (9th Cir.
1983) (holding that employees’ requests for withdrawal cards, even if
such requests indicated that the employees no longer wished to be
members of the union, did “not necessarily indicate that [they] no
longer wish to be represented by it”); Retired Pers. Pharmacy, 519
F.2d at 490 (“[A] disinclination to join the union does not imply
opposition to the union as bargaining representative.”); R.J.B. Knits,
309 N.L.R.B. at 206 (“Here, the statements made by the employees
9
noted that “[t]he Board has held for over 40 years that ‘there is
no necessary correlation between membership and the number
of union supporters since no one could know how many
employees who favor union bargaining do not become or remain
members thereof.’” Pacific Coast, 360 NLRB No. 67, at 6 n.9
(quoting Terrell Mach. Co., 173 N.L.R.B. 1480, 1481 (1969),
enf’d, 427 F.2d 1088 (4th Cir. 1970)); accord DaNite Holdings,
Ltd., 356 NLRB No. 124, at 6 (Mar. 31, 2011).
1. Applying this well-settled law, the Board concluded that
Anderson Lumber failed to meet its burden of proving that, at
the time it withdrew recognition, a majority of the fifteen unit
employees had rejected union representation. More specifically,
the Board found that four of the eight employee statements upon
which Anderson relied “did not show that [those employees] no
longer wanted the Union to represent them for the purposes of
collective bargaining.” Pacific Coast, 360 NLRB No. 67, at 1
n.1. Rather, the Board affirmed the ALJ’s finding that the
statements showed only that those employees did not want to be
union members. See id. at 1.
Anderson Lumber “does not dispute that the Davis, Singh,
Rocha, and Hernandez letters are ambiguous” with respect to
whether their authors wanted the union to continue to represent
establish only that they did not wish to become union members and/or
to pay union dues. . . . [S]uch assertions do not establish that the
employees are not interested in being represented by the Union.”);
H&N Fish Int’l, No. 20-CA-30480, 2003 WL 21353898 (NLRB Div.
of Judges May 28, 2003) (concluding that the words of a petition,
stating that the employees “Want to Withdraw From the Union,” “at
best convey . . . that the [employees] wanted to withdraw their
membership from the Union rather tha[n] indicating they no longer
wished to be represented by the Union”); see also Pioneer Inn Assocs.
v. NLRB, 578 F.2d 835, 840 (9th Cir. 1978).
10
them. Anderson Br. 26. To the contrary, it insists that each
statement is “inherently ambiguous because it could mean either
that the employee does not want to pay Union dues but still
wants the Union to represent him (as the ALJ found), or that the
employee does not want to be a Union member because he does
not support the Union.” Id. at 37 (emphasis in brief). In
Anderson Lumber’s view, however, the better interpretation of
the statements is that they are statements of non-support. Id. at
38.
The problem with Anderson’s argument is that it is aimed
at the Board’s standard of review, not ours. As we have
explained, the court’s job is not to determine whether the
employer was right that the better interpretation is that the
employees wanted no representation at all. Our job is only to
determine whether the Board was at least reasonable in
concluding otherwise. See Allentown Mack, 522 U.S. at 366-67;
see also NLRB v. Seaport Printing & Ad Specialties, Inc., 192 F.
App’x 290, 290 (5th Cir. 2006) (finding substantial evidence to
support the Board’s determination of unlawful withdrawal under
Levitz noting, “[t]hat the Board may have interpreted ambiguous
facts and statements by employees differently from this court is
within its role as factfinder”). In short, we can overturn the
Board only if it was unreasonable for it to read all four of the
statements as referring to union membership rather than union
representation. We cannot make such a determination.
As the ALJ explained, each of the four statements expressly
mentioned only union membership or remaining in the union.
None mentioned continued union representation:
1. I resign from [the Union]. Miguel Hernandez.
2. I Mark A. Rocha do not wish to be a Union
member.
11
3. I Sandeep Singh . . . wish to get out of the Union.
4. I Donald Davis would like to exit the union. This is
due to the union not doing any services for the cost that
they are charging.
Pacific Coast, 360 NLRB No. 67, at 4-6. Even if one reasonable
interpretation of these statements is that the employees wanted
to end the union’s role as bargaining representative, surely
Anderson Lumber is correct that they could be read the other
way as well. See Anderson Br. 37, 40-41. And, given the
statements’ focus on membership rather than representation, it
was not unreasonable for the Board to read them that other way,
and thus to conclude that the employer did not meet its burden
of showing that the employees wanted to end representation.
Anderson raises particular interpretative arguments about
each of the four statements. With respect to Miguel Hernandez,
Anderson argues that we should read his statement more broadly
than it is written because he is “a laborer who d[oes] not read or
write English.” Id. at 40. We think this cuts the other way.
Hernandez’s lack of facility with English renders the meaning
of his English-language statement, which is itself textually
ambiguous, even more so.
With respect to Mark Rocha, Anderson maintains that his
statement, “I do not wish to be a Union member,” shows “that
he did not support the Union” because he “was a new hire who
had not yet joined the Union.” Anderson Br. 39. We do not see
why the fact that Rocha was a new hire makes a difference,
either as a matter of textual construction or of labor law. See,
e.g., Retired Pers. Pharmacy, 519 F.2d at 490 (“[D]isinclination
to join the union does not imply opposition to the union as
bargaining representative.”); R.J.B. Knits, 309 N.L.R.B. at 206
(holding that employees’ statements that, inter alia, they would
12
“rather quit than join the union” were insufficient to “establish
that the employees [were] not interested in being represented by
the Union”); Grand Lodge of Ohio, 233 N.L.R.B. at 144 (employee
expressions of antiunion sentiment “must convey an intent not
to be represented by the union as distinguished from a desire not
to become members for any of a number of reasons or an
inability or unwillingness to pay dues”).
With respect to Sandeep Singh, Anderson argues that his
statement, “I . . . wish to get out of the union,” is akin to an
employee statement in Sofco, Inc., 268 N.L.R.B. 159 (1983), which
said, “I sure hope you guys help us in getting out from under this
union.” Id. at 159 n.4. In Sofco, the Board found that statement
supported the employer’s “good-faith, reasonably grounded
doubt of the Union’s continued majority status.” Id. at 160.
Anderson Lumber’s reliance on Sofco has two flaws. First,
the Board’s finding in Sofco was based not only on the single
quoted statement, but also on statements of union opposition
made by all but one employee, including statements that the
employees wanted “to do away with the union.” Id. at 159, 164.
The Board also noted numerous anti-union posters hanging in
the workplace, including a poster counting down the days until
the end of union representation. Id. at 159. Second, and more
important, Sofco was decided during the period when “good
faith doubt” was sufficient to warrant withdrawal. After Levitz,
the test is no longer “doubt” but preponderance of the evidence
that a majority of the employees actually wanted to end union
representation. Where the most that can be said about a
statement is that one reading of it may give rise to “doubt” about
a union’s support, it is not unreasonable for the Board to read it
the other way.
Finally, with respect to Donald Davis’ statement, Anderson
focuses on the portion that reads, “this is due to the union not
13
doing any services for the cost that they are charging.”
Anderson Br. 38. The Board, however, has historically read
statements of dissatisfaction with union services or with the cost
of union dues as indicating a desire to end union membership
rather than representation. See Wagon Wheel Bowl, Inc. v.
NLRB, 47 F.3d 332, 335 (9th Cir. 1995) (noting that the Board
has “indicate[d] that ‘dissatisfaction with quality statements’ are
generally insufficient to justify any unilateral action on the part
of any employer against a union”); Briggs Plumbingware, Inc.
v. NLRB, 877 F.2d 1282, 1288 (6th Cir. 1989) (“[S]tatements of
dissatisfaction with a union are not . . . the equivalent of
withdrawal of support for the union . . . .”).
Anderson further argues that Davis’ language resembles one
of the statements in Allentown Mack Sales & Service, Inc. v.
NLRB -- an employee’s statement that “he was not being
represented for the $35 he was paying” -- which the Supreme
Court said the Board should not have “entirely ignored.” 522
U.S. at 369. The two cases are plainly different. Unlike the
employee statement in Allentown Mack, which complained
about the union’s “represent[ation],” Davis’ statement spoke
only of his desire to “exit” the union. And unlike in Allentown
Mack, in this case the Board did not “entirely ignore” Davis’
statement. It merely construed it differently than Anderson
Lumber did.
But even if these distinctions were unpersuasive,
Anderson’s invocation of Allentown Mack would still do it no
good. In Allentown Mack, the Court concluded that the
employee’s statement was “simply an expression of
dissatisfaction with the union’s performance,” which could be
interpreted in either of two ways: it could “reflect the speaker’s
desire to save his $35 and get rid of the union,” but it also
“could reflect the speaker’s desire that the union represent him
more effectively.” Id. (emphasis omitted). That, the Court said,
14
was enough to “engender an uncertainty whether the speaker
supported the union” -- which at the time was sufficient to
warrant withdrawal of recognition. Id. As we have explained,
however, after Levitz the test is no longer “uncertainty” about
union support but rather preponderance of the evidence that the
employee(s) actually wanted to end union representation. And
once again, where the most that can be said of a statement is that
it is uncertain and can be read in either of two ways, it is not
unreasonable for the Board to read that statement in either one
of those ways.
Although we have addressed each of the four employees’
statements separately, we note that, even if Anderson Lumber
could persuade us that the NLRB’s reading was unreasonable
with respect to any one statement, that would be insufficient for
Anderson to win the day. Anderson’s decision to withdraw
recognition relied on written statements of only eight of the
fifteen unit employees. Thus, to prove a lack of majority
support before the NLRB, it had to prove that each of the eight
statements showed that the employee in question rejected union
representation. And to succeed in this court, it must show that
the NLRB’s construction of each of the four statements upon
which the Board independently relied was unreasonable. In
light of the long line of Board cases distinguishing between
union membership and union representation, and our obligation
to defer to the Board’s understanding of the workplace, see
Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir.
2002), we cannot say that the Board was unreasonable in
concluding that Anderson failed to meet its Levitz burden.
2. Anderson Lumber maintains that this case is different
from others in the line of authority just referenced because
Anderson operated under a union security agreement that
required all employees to be members of the union. Anderson
notes that California is not a “right to work” state and that
15
California does not bar such union shop agreements.5 In these
circumstances, Anderson insists, when the employees said they
did not want to be members of the union, they must have been
saying that they wanted to abolish the union. Otherwise,
Anderson maintains, they were effectively firing themselves
because the union security agreement required all employees to
become dues-paying members of the union within 31 days of
being hired.
The problem with this argument is that, as the ALJ
explained, “it rests on a misapprehension of the law.” Pacific
Coast, 360 NLRB No. 67, at 6. The Supreme Court, this court,
and the Board have all held that, even with a union security
agreement in place, an employee cannot be fired simply for
refusing to be a “member” of a union.6 The only obligation that
can be imposed is that the employee pay core financial
obligations for collective bargaining, grievance adjustment, and
contract administration -- not full union dues. See cases cited
supra note 6. Indeed, the Board requires that, “before a union
seeks to obligate an employee to pay fees and dues under a
5
See Int’l Union, UAW v. Nat’l Right to Work Legal Def. &
Educ. Found., Inc., 590 F.2d 1139, 1143 n.2 (D.C. Cir. 1978)
(“Section 14(b) of the National Labor Relations Act, 29 U.S.C.
§ 164(b) . . . , permits states to enact laws prohibiting union-security
agreements that require membership in a labor union as a condition of
employment. Such laws are popularly known as ‘right to work’
laws.”).
6
See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 36-38,
43 (1998); Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 744-45
(1988); NLRB v. Gen. Motors, 373 U.S. 734, 743-44 (1963); Int’l
Union of Elec., Elec., Salaried, Machine & Furniture Workers v.
NLRB, 41 F.3d 1532, 1534-35 (D.C. Cir. 1994); Local Union 749,
Int’l Bhd. of Boilermakers v. NLRB, 466 F.2d 343, 345 (D.C. Cir.
1972); Cal. Saw & Knife Works, 320 N.L.R.B. 224, 233 (1995).
16
union-security clause, the union should inform the employee
that he has the right to be or remain a nonmember and that
nonmembers have the right [inter alia] to object to paying for
union activities not germane to the union’s duties as bargaining
agent and to obtain a reduction in fees for such activities.” Cal.
Saw & Knife Works, 320 N.L.R.B. 224, 233 (1995). Accordingly,
the only necessary consequence of an employee’s resignation
from the union is not termination of employment but rather a
reduction in the amount of money that is deducted from his or
her paycheck.
3. Contrary to Anderson’s concerns, nothing the Board did
in this case altered the Levitz rule that an employer must show,
by a preponderance of the evidence, that the union had actually
lost majority support. It did not create a “clear statement” or
“per se” rule, requiring employees to expressly state that they no
longer want the union to represent them. Instead, the Board
merely found that four of the eight employee statements upon
which Anderson Lumber relied as its sole ground for withdrawal
of recognition failed to establish by a preponderance of the
evidence that those particular employees wanted to end union
representation altogether rather than merely end their own
membership in the union. And this court holds nothing more
than that the Board was not unreasonable in making that
finding.7
7
The petitioner takes issue with the ALJ’s finding that the
statements “clearly state a desire to withdraw from membership in the
Union.” Pacific Coast, 360 NLRB No. 67, at 5. On appeal to the
NLRB, the Board merely agreed that Anderson had unlawfully
withdrawn recognition “because the statements submitted by [the four
employees] did not show that they no longer wanted the Union to
represent them for the purposes of collective bargaining.” Id. at 1 n.1.
That explanation states the ground upon which the Board affirmed the
17
B
Anderson Lumber’s second argument is that the NLRB
wrongly barred it from bolstering its position with post-
withdrawal evidence. Anderson does not dispute that, at the
time it withdrew recognition from the union, it relied solely on
the written statements of the eight employees. At the ALJ
hearing, however, it also proffered testimony from those eight
employees that their intent had been to convey a desire that the
union no longer represent them. In addition, it offered further
affidavits from three of those employees -- none of whom had
authored any of the four statements upon which the Board
ultimately relied. Those affidavits, Anderson maintains, confirm
its position that the union had in fact lost majority support at the
time it withdrew recognition.
The ALJ ruled that Anderson’s post-withdrawal evidence
was irrelevant to the question of whether the withdrawal was
unlawful. “[T]his evidence,” the ALJ said, “was acquired long
after withdrawal of recognition, was not relied on by [Anderson]
in withdrawing recognition, and is not relevant for that reason.”
Pacific Coast, 360 NLRB No. 67, at 7.8
ALJ’s decision, and to the extent Anderson sees the two rulings as
inconsistent, the Board’s decision governs.
8
“Moreover,” the ALJ said, “given the leading format of the offer
of proof question[,] . . . I would be unwilling to accord the responses
much weight even were there no objection to the questions.” Pacific
Coast, 360 NLRB No. 67, at 7. See Retired Pers. Pharmacy, 519 F.2d
at 491 (affirming an ALJ’s decision not to permit an employer to call
employees to testify about whether they supported the union as of the
withdrawal date because the employer “would clearly have been
putting pressure on them to answer favorably” and “[i]f such
questioning were allowed, management could withdraw recognition
without basis and successfully defend itself by showing a lack of
18
Anderson Lumber argues that the preclusion of post-
withdrawal evidence contradicts the text and rationale of Levitz.
It notes, for example, that Levitz said that “an employer can
defeat a post-withdrawal refusal to bargain allegation if it shows,
as a defense, the union’s actual loss of majority status.”
Anderson Br. 16 (quoting Levitz, 333 N.L.R.B. at 717); id. at 18,
23. And it stresses the Board’s statement that the burden on the
employer is to establish loss of majority support by a
preponderance of “all” the evidence. Id. at 19 (emphasis in
brief) (quoting Levitz, 333 N.L.R.B. at 725 n.49). “All” the
evidence, Anderson maintains, includes post-withdrawal
evidence. Barring such evidence, it contends, defeats Levitz’s
intention to replace the former “good faith doubt” test “with a
test which is based on whether the employer can ‘prove’ at trial
that a loss of majority support ‘actually’ occurred ‘in fact.’” Id.
at 18.
The NLRB reads the text and rationale of Levitz differently.
See Pacific Coast, 360 NLRB No. 67, at 7 (ALJ Op.) (noting
that the Board has interpreted Levitz as rejecting the “use of
after-acquired evidence regarding employee sentiment”). In
defense of its view that Levitz supports requiring evidence of
loss of majority support at the time of the withdrawal, the Board
cites the case’s statement that, under its rule, “employers will
union support which in fact resulted not from employee dissatisfaction
but rather from the withdrawal of recognition and subsequent
proceedings”); see also Int’l Union, UAW v. NLRB, 392 F.2d 801,
807-08 (D.C. Cir. 1967) (expressing skepticism of “employees
testifying under the eye of the company officials about events which
occurred almost a year before”); Stratford Visiting Nurses Ass’n, 264
N.L.R.B. 1026, 1026 (1982) (“[S]uch testimony is highly unreliable for
it requests an employee to relate several months-old uncommunicated
states of mind, knowing that the employer’s defense rests on his or her
reply.”).
19
[now] be likely to withdraw recognition only if the evidence
before them clearly indicates that unions have lost majority
support.” NLRB Br. 24 (emphasis added) (quoting Levitz, 333
N.L.R.B. at 726); id. at 23.9 The NLRB also argues that “[t]he
Company’s proffered interpretation . . . leads to the incongruous
result that an employer could withdraw recognition even where
the evidence before it does not demonstrate that a union had
actually lost majority status, in the hope that it would unearth
evidence in time for the unfair labor practice hearing.” Id. at 24.
“Such a precipitous termination or disruption of an existing
bargaining relationship,” the Board argues, “is contrary to
Levitz’s stated goal of allowing collective bargaining
relationships ‘the opportunity to succeed without continual
baseless challenges.’” Id. (quoting Levitz, 333 N.L.R.B. at 723).
Levitz alone does not resolve the question for us. After-
acquired evidence was not at issue in that case, and hence the
Board did not directly address it. Accord Oral Arg. Recording
at 19:28-40 (acknowledgment by Anderson counsel that Levitz
did not address the issue either way). There are, as quoted
above, snippets of language to support either position. And
there are, as also noted above, policy arguments on both sides.
We, however, must “give deference to [an agency’s]
interpretations of its own precedents.” Colo. Interstate Gas Co.
v. FERC, 599 F.3d 698, 703 (D.C. Cir. 2010); see Glob.
9
See also Levitz, 333 N.L.R.B. at 724 (“If a majority of the unit
employees present evidence that they no longer support their union,
their employer may lawfully withdraw recognition.” (emphasis
added)); id. at 725 (“[W]e hold that an employer may . . . unilaterally
withdraw recognition, only on a showing that the union has, in fact,
lost the support of a majority of the employees in the bargaining
unit.”); id. (“[U]nless an employer has proof that the union has
actually lost majority support, there is simply no reason for it to
withdraw recognition unilaterally.”).
20
Crossing Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir.
2001); Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998).
Likewise, policy arguments are for the Board -- not this court --
to resolve. See Allentown Mack, 522 U.S. at 364-66. And
“[c]ourts must defer to the requirements imposed by the Board
if they are rational and consistent with the Act and if the Board’s
explication is not inadequate, irrational or arbitrary.” Id. at 364
(internal quotation marks and citation omitted).
More important, however, although Levitz does not resolve
the question, the Board’s subsequent decision in Highlands
Hospital Corp. does. 347 N.L.R.B. 1404 (2006). As the ALJ in
the present case noted, in Highlands Hospital the Board declined
to “‘address the sufficiency of . . . hearing testimony regarding
employees’ bare recollections of their sentiments for or against
union representation as of [the date of withdrawal], because this
evidence was not before the [employer] when it withdrew
recognition.’” Pacific Coast, 360 NLRB No. 67, at 7 (quoting
Highlands Hosp., 347 N.L.R.B. at 1407 n.17). In Highlands
Hospital, the NLRB held that the testimony of 30 nurses, who
wanted to explain the reasons they signed a petition, was
irrelevant because the only evidence the employer relied upon
in deciding to withdraw recognition was the petition itself. See
Highlands Hosp., 347 N.L.R.B. at 1407 n.17, 1412-13. The Board
has said the same thing in other cases as well. See Flying Foods
Grp., Inc., 345 N.L.R.B. 101, 155 & n.83 (2005) (holding that
evidence that was obtained a year after the employer withdrew
recognition was irrelevant to the lawfulness of the withdrawal of
representation); Seaport Printing & Ad Specialties, 344 N.L.R.B.
354, 357 & n.8 (2005) (suggesting that an employer cannot rely
on evidence “not known by [the employer] at the time [of the
withdrawal]”).
Finally, and most important from this panel’s point of view,
our circuit’s own decision in Highlands Hospital Corp. v. NLRB
21
also resolves the question. See 508 F.3d at 32. As the ALJ in
Anderson Lumber’s case recounted, in Highlands Hospital we
affirmed the Board’s decision not to address the post-withdrawal
testimony that the employer said provided additional evidence
of loss of majority support. See Pacific Coast, 360 NLRB No.
67, at 7. “Both the Board and ALJ,” we held, “refused to credit
this testimony, and for good reason: [Highlands] had no
knowledge of that corroborating evidence on the day it withdrew
recognition.” Highlands Hosp., 508 F.3d at 32 (emphasis
added). Although Anderson Lumber insists that our circuit’s
Highlands Hospital decision was wrong, that is a challenge a
subsequent panel may not entertain. See, e.g., United States v.
Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006).10
C
Anderson Lumber argues that interpreting Levitz in the way
the Board did in this case creates an impossible dilemma for an
employer that thinks a majority of its employees do not support
the union: it cannot withdraw recognition without risking one
kind of unfair labor practice finding, yet it cannot continue to
recognize the union without risking another -- continued
10
Anderson also maintains that Highlands Hospital contradicts
the Fourth Circuit’s decision in NLRB v. B.A. Mullican Lumber &
Manufacturing Co., 535 F.3d 271 (4th Cir. 2008). That is not correct.
In Mullican Lumber, all of the evidence upon which the employer
relied in withdrawing representation was acquired prior to withdrawal,
and the court held that this evidence demonstrated (by a
preponderance) that the employees no longer supported the union. Id.
at 277-78, 281. The opinion does contain dicta to the effect that, if the
General Counsel had acquired certain kinds of post-withdrawal
evidence, that evidence would also be relevant. Id. at 282-83. But
dicta does not a circuit split make.
22
recognition of a union known to have lost majority support.11
This, however, is precisely the “no-win situation” argument that
the Board rejected in Levitz. Levitz, 333 N.L.R.B. at 726. As
Levitz recognized, raising the bar for unilateral withdrawal of
recognition does mean that an employer “withdraws recognition
at its peril.” Levitz, 333 N.L.R.B. at 725; see Flying Food Grp.,
471 F.3d at 182. But the Board intended that result, expecting
that it would create less temptation for employers to act
unilaterally. Levitz, 333 N.L.R.B. at 726. The Board explained
that the supposed “dilemma . . . is more apparent than real”
because the employer’s ability to petition for an RM election
provides it with a “safe harbor.” Id. An employer with
reasonable good-faith uncertainty regarding the union’s
continuing majority status can petition for such an election, and
the Board “would not find that the employer [committed an
unfair labor practice] by failing to withdraw recognition while
the representation proceeding was pending.” Id.
Anderson Lumber did not seek safe harbor here. Instead, it
proceeded, at its peril, to unilaterally withdraw recognition. We
conclude that the Board was not unreasonable in finding that, in
so doing, Anderson ran aground on the shoals of an unfair labor
practice.12
11
See Levitz, 333 N.L.R.B. at 720 (“Section 8(a)(5) makes it
unlawful for an employer to refuse to bargain with the representative
of a majority of his employees. Conversely, . . . the Board has held
that an employer violates Section 8(a)(2) by . . . continuing to
recognize an incumbent union that it knows has lost majority support.”
(footnotes omitted)).
12
Anderson briefly makes two arguments for why the Board’s
remedial order was inappropriate even if the company did commit an
unfair labor practice. Anderson’s first argument -- that the Board
failed to sufficiently explain why such an order was necessary -- is
beyond our jurisdiction because Anderson did not raise it with the
23
IV
For the foregoing reasons, Anderson Lumber’s petition for
review is denied, and the Board’s cross-application for
enforcement of its order is granted.
So ordered.
Board. See 29 U.S.C. § 160(e); Flying Food Grp., 471 F.3d at 185-86.
Anderson’s second argument is that, in contravention of the Fourth
Circuit’s decision in Mullican Lumber, 535 F.3d at 283, the NLRB’s
General Counsel violated his duty not to seek enforcement of an order
requiring an employer to bargain with a union that Counsel knows no
longer represents a majority of the employees. The NLRB agrees that
its Counsel should not seek enforcement under such circumstances,
but represents that Counsel did not have evidence giving him such
knowledge. NLRB Br. 37. There is certainly no evidence in this case
like there was in Mullican Lumber (decertification slips purportedly
signed by a majority of the employees), and we have no basis for
doubting the NLRB’s representation.