Novelis Corp. v. Nat'l Labor Relations Bd.

• Decision Date: 15 March 2018
• Docket Number: 16-3570 (XAP),Nos. 16-3076 (Lead),August Term 2017,s. 16-3076 (Lead)
• Citation: 885 F.3d 100
• Parties: NOVELIS CORPORATION, Petitioner-Cross-Respondent, and John Tesoriero, Michael Malone, Richard Farrands, and Andrew Duschen, Intervenors, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

885 F.3d 100

NOVELIS CORPORATION, Petitioner-Cross-Respondent,

and

John Tesoriero, Michael Malone, Richard Farrands, and Andrew Duschen, Intervenors,

v.NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner,andUnited Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor.

Nos. 16-3076 (Lead)

16-3570 (XAP)

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: August 28, 2017

Decided: March 15, 2018

Kurtis A. Powell & Robert T. Dumbacher, Hunton & Williams, LLP, Atlanta, GA; Kenneth L. Dobkin, Novelis Corporation, Atlanta, GA, for Petitioner-Cross-Respondent.

Thomas G. Eron, Bond, Schoeneck & King, PLLC, Syracuse, NY, for the Intervenors, John Tesoriero, et al.

Usha Dheenan & Kelly Isbell for Richard F. Griffin, Jr., Jennifer Abruzzo, John H. Ferguson & Linda Dreeben, National Labor Relations Board, Washington, D.C., for Respondent-Cross-Petitioner.

Richard J. Brean, Daniel M. Kovalik & Anthony P. Resnick, United Steelworkers Legal Department, Pittsburgh, PA; Brian J. LaClair & Kenneth L. Wagner, Blitman & King, LLP, Syracuse, NY for the Intervenor, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.

Before: PARKER, LYNCH, and CARNEY, Circuit Judges.

Barrington D. Parker, Circuit Judge:

Novelis Corporation petitions for review, and the National Labor Relations Board petitions for enforcement, of an NLRB decision and order requiring, among other things, Novelis Corporation to bargain with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC (the "Union"). The Board also ordered Novelis to take other remedial steps, such as to cease and desist from engaging in various unfair labor practices and to reinstate a demoted employee. We agree with the Board’s conclusion that Novelis engaged in unfair labor practices, and we grant enforcement as to most components of the Board’s order of remedial relief, except as noted below. Because we conclude that the Board did not fully take into account events occurring between the time of the unfair labor practices and its decision and order, we deny enforcement of the bargaining order.

I. BACKGROUND

Novelis operates a facility in Oswego, New York, at which it manufactures rolled aluminum products. In 2013, the plant employed approximately 800 persons, of whom approximately 600 were eligible to vote in unionization elections. In December 2013, management announced that, beginning on January 1, 2014, employees would no longer receive Sunday premium pay and that holiday and vacation days would no longer count towards overtime eligibility.

In response to the announcement, Everett Abare, a Novelis employee, met with James Ridgeway, the Union’s local president, to initiate an organizing campaign. Between mid-December 2013 and early January 2014, Abare and approximately 25 other Novelis employees conducted organizing activities and ultimately obtained signed union authorization cards from a majority of the eligible employees. On January 7, 2014, the Union requested voluntary recognition from Novelis. Two days later, management announced that it was restoring Sunday and holiday pay and distributed literature confirming that it no longer contemplated changes to employee compensation. Following this restoration of benefits, some employees who had signed authorization cards requested their return.

On January 13, 2014, Novelis declined the Union’s demand for recognition, and, in response, the Union petitioned the NLRB for a representation election. Novelis aggressively resisted the organizing efforts and, in the course of these activities, the Union contends, committed multiple unfair labor practices. On February 17 and 18, 2014, Novelis managers held three employee meetings at which President and CEO Phil Martens, Plant Manager Chris Smith, and Senior Vice-President Marco Palmieri addressed employees. Martens reminded employees that Novelis’ unionized plant in Quebec had closed while the non-unionized Oswego plant continued to expand, and Smith similarly suggested that unionization would lead to a loss of business. The election was held on February 20 and 21, 2014, and Novelis prevailed by a vote of 287 to 273.

Following the election, Abare posted a vulgar remark¹ to his online Facebook account complaining about his salary and castigating his fellow workers who had voted against unionization. In response, Novelis demoted him.

Between January and May 2014, the Union filed multiple charges with the Board. On May 6, 2014, the NLRB’s General Counsel issued a consolidated complaint alleging that, in violation of the National Labor Relations Act ("NLRA"), Novelis restored Sunday and holiday pay, interrogated and threatened employees who favored unionization, and prohibited employees from expressing support for the Union. Subsequently, the Union filed a charge alleging that Novelis demoted Abare in retaliation for his pro-Union activities, prompting the Board to file another complaint. In both complaints, the Board argued that a bargaining order was a necessary remedy.

ALJ Michael A. Rosas heard the charges over the course of 17 days between July and October 2014. After hearing testimony from numerous employees (including Abare, but not the three high-level managers who spoke at the January meetings), the ALJ largely accepted the allegations in the complaints and concluded that Novelis had committed numerous unfair labor practices. He found that Novelis violated Section 8(a)(1)² by restoring Sunday and holiday pay, removing Union literature, prohibiting employees from wearing Union paraphernalia, and coercively interrogating employees about their Union sympathies. He also found that Novelis threatened employees with wage loss, plant closure, reduction in wages, and more onerous working conditions were they to unionize. Finally, he found that Novelis violated Sections 8(a)(1) and (3)³ by demoting Abare. As relief, the ALJ recommended that the Board order Novelis to cease and desist from its unfair labor practices and to offer to reinstate Abare with back pay. The ALJ also stated his view that "traditional remedies ... would be insufficient to alleviate the impact reasonably incurred by eligible unit employees," and on that basis recommended the "extraordinary relief" of a bargaining order. A. 1740.

Contemporaneously with the ALJ hearing, the Union sought substantial temporary injunctive relief in the U.S. District Court for the Northern District of New York, pursuant to Section 10(j) of the Act.⁴

Ley v. Novelis Corp., No. 5:14-CV-775, 2014 WL 4384980 (N.D.N.Y. Sept. 4, 2014). Section 10(j) relief may be available if a court concludes that reasonable cause exists to believe that unfair labor practices have been committed and that the requested relief is "just and proper." See Mattina v. Kingsbridge Heights Rehab. & Care Ctr. , 329 Fed.Appx. 319, 321 (2d Cir. 2009). The District Court found reasonable cause to believe that Novelis had committed unfair labor practices and that equitable considerations required Novelis to reinstate Abare to his previous position. The Court also ordered Novelis to post and read its decision and order to all employees. Ley , 2014 WL 4384980, at *7-*8.

The District Court refused, however, to issue an interim bargaining order, explaining that "[w]hile there is reasonable cause to believe that ULPs were committed, the evidence of ULPs is not overwhelming, or, at least, it is subject to a wide range of interpretation. And the employees in the unit themselves—as evinced by the copious declarations and confidential witness affidavits filed herein—are obviously sharply divided over the issue of unionization." Id. at *6.

Manager Chris Smith, accompanied by a Board agent, complied with the District Court’s order when he read it in a series of employee meetings in September 2014. In addition, Novelis restored Abare to his former position, posted the order throughout the plant, and emailed and mailed it to employees.

Following the ALJ’s adverse decision, Novelis filed exceptions with the Board. Novelis moved on three occasions to reopen the record, seeking to introduce evidence of significant employee and management turnover since the occurrence of the alleged unfair labor practices, arguing that changed circumstances made the bargaining order inappropriate. Additionally, four Novelis employees moved to intervene in support of the company, arguing that the bargaining order violated their right under Section 7 to freely choose their bargaining representative.⁵

In August 2016, more than two years after the Union filed its charges, the Board adopted the ALJ’s findings and denied Novelis’ motions to supplement the record. The Board concluded that Novelis engaged in numerous violations of Section 8(a)(1) of the Act during the pre-election period. Most notably, the Board found that Novelis restored Sunday and holiday pay to discourage employee support for the Union, threatened employees if they were to vote for the Union, selectively and disparately enforced the company’s posting and distribution rules, and maintained unlawful social media and email use rules.⁶ It also found that Novelis violated Sections 8(a)(1) and (3) by its post-election demotion of Abare. The Board denied Novelis’ motion to reopen the record because "[t]he Board does not consider turnover among bargaining unit employees or management officials and the passage of time in determining whether a Gissel [bargaining] order is appropriate." A. 1700 n.17. The Board maintained that "[e]ven if we were to consider [Novelis’] evidence, it would not require a different result" because, regardless of significant employee turnover, the violations were so severe that a substantial number of unit employees would recall the events and inform new employees of what transpired,...