885 F.3d 100 (2nd Cir. 2018), 16-3076 (Lead), Novelis Corp. v. National Labor Relations Board

Docket Nº:16-3076 (Lead), 16-3570 (XAP)
Citation:885 F.3d 100
Opinion Judge:Barrington D. Parker, Circuit Judge:
Party Name:NOVELIS CORPORATION, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and John Tesoriero, Michael Malone, Richard Farrands, and Andrew Duschen, Intervenors, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, ...
Attorney: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 fo...
Judge Panel:Before: PARKER, LYNCH, and CARNEY, Circuit Judges.
Case Date:March 15, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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885 F.3d 100 (2nd Cir. 2018)

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.

Nos. 16-3076 (Lead), 16-3570 (XAP)

United States Court of Appeals, Second Circuit

March 15, 2018

Argued: August 28, 2017

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[Copyrighted Material Omitted]

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Cross-petitions for review or enforcement of an order from the NLRB. 364 N.L.R.B. No. 101 (N.L.R.B.) Chairman Pearce and Members Hirozawa and McFerran.

Petitioner-Cross-Respondent Novelis Corporation petitions for review and Respondent-Cross-Petitioner National Labor Relations Board petitions for enforcement of an N.L.R.B. decision and order (364 N.L.R.B. No. 101). The N.L.R.B. found that Novelis engaged in unfair labor practices in violation of the National Labor Relations Act in an attempt to dissuade employees from voting for the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, as their bargaining representative. The N.L.R.B. ordered Novelis to cease and desist from the unfair practices and to bargain with the union. We agree with the Board’s determination that Novelis violated Sections 8(a)(1) and 8(a)(3) of the Act, and we grant enforcement as to most components of the Board’s order of remedial relief. Because we conclude that the N.L.R.B. did not properly account for changed circumstances at Novelis between the time of the unfair labor practices and its decision and order, we deny enforcement of the bargaining order.

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, N.Y. 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.

OPINION

Barrington D. Parker, Circuit Judge:

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Novelis Corporation petitions for review, and the National Labor Relations Board petitions for enforcement, of an N.L.R.B. 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 N.L.R.B. 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

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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

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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 "...

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