Cadillac of Naperville, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 17 September 2021
• Docket Number: No. 19-1150,C/w 19-1167,19-1150
• Citation: 14 F.4th 703
• Parties: CADILLAC OF NAPERVILLE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

14 F.4th 703

CADILLAC OF NAPERVILLE, INC., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 19-1150

C/w 19-1167

United States Court of Appeals, District of Columbia Circuit.

Argued November 20, 2020

Decided September 17, 2021

Rehearing En Banc Denied November 22, 2021

Michael P. MacHarg argued the cause for petitioner. With him on the briefs was Tae Y. Kim. Alisa P. Cleek entered an appearance.

Jared D. Cantor, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ruth E. Burdick, Acting Deputy Associate General Counsel, David S. Habenstreit, Assistant General Counsel, and Julie B. Broido, Supervisory Attorney.

Before: Millett, Pillard, and Katsas, Circuit Judges.

Per Curiam:

The service mechanics at Cadillac of Naperville went on strike in August 2017. The National Labor Relations Board found that the dealership responded to the strike unlawfully by discharging one mechanic for his union activity, threatening to retaliate against several mechanics, and refusing to bargain with the mechanics’ union. The dealership challenges these rulings, as well as two procedural rulings by the administrative law judge.

At the NLRB's request, we remand the discharge issue for the Board to apply its intervening decision changing the framework under which it assesses alleged retaliation in mixed-motive cases. We reject the dealership's other challenges.

I

A

Section 7 of the National Labor Relations Act gives employees the right to unionize, to bargain collectively, and to engage in concerted action for their "mutual aid or protection." 29 U.S.C. § 157. Section 8(a) of the Act safeguards those rights by prohibiting employers from engaging in a variety of unfair labor practices. Section 8(a)(1) makes it unlawful to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by section 7. Id. § 158(a)(1). Section 8(a)(3) prohibits employment discrimination to "discourage membership" in a union. Id. § 158(a)(3). Section 8(a)(5) makes it unlawful "to refuse to bargain collectively" with a union. Id. § 158(a)(5).

B

Cadillac of Naperville, Inc. (Naperville) is an auto dealership in Naperville, Illinois. The dealership is a member of the New Car Deal Committee (NCDC), a multiemployer bargaining unit including employees in 129 dealerships in the Chicago area. The NCDC negotiates master collective-bargaining agreements with the Automobile Mechanics Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO, which represents some 2,000 mechanics employed across the dealerships.

In May 2017, the NCDC and the union began to negotiate a new collective-bargaining agreement. The union negotiators included Naperville mechanic John Bisbikis as well as union representatives Sam Cicinelli and Kenneth Thomas.

On June 29, Bisbikis approached Frank Laskaris, the owner and president of Naperville, to discuss shop-related issues. In particular, Bisbikis asked Laskaris to rescind the dealership's new policy of charging workers for part of the cost of their uniforms. Laskaris rebuffed the request and turned the conversation to the "sputtering labor negotiations." Cadillac of Naperville, Inc. , 368 N.L.R.B. No. 3, slip op. at 8 (June 12, 2019). Laskaris then "warned" Bisbikis that "things would not be the same" if the mechanics decided to strike. Id. at 17 ; see also id. at 3, 8, 19–20. On August 1, after the collective-bargaining agreement expired, mechanics at the NCDC dealerships went on strike.

On August 9, Naperville informed six of its strikers, including Bisbikis, that they had been permanently replaced. The notices stated that the strikers would be placed on a preferential hiring list, but only if they unconditionally applied to return to work. In response, the strikers escalated their demonstrations. Positioning themselves directly across the main entrance to the dealership, they blew horns, sought to engage customers, and yelled at non-striking employees. On one occasion, a striker named Patrick Towe impeded an elderly customer's test drive by walking in front of her vehicle.

On September 15, the NCDC and the union entered into a settlement that allowed many of the strikers to return to work. Two days later, the union's members ratified both the settlement and a successor collective-bargaining agreement.

On September 18, Bisbikis, Cicinelli, and Thomas met with Laskaris to discuss the strikers’ recall. Laskaris stated that he did not want Bisbikis present because Bisbikis was a ringleader of the strike and Laskaris no longer wanted to employ him. On Cicinelli's advice, Bisbikis left the room. Later that day, Bisbikis, Cicinelli, and Thomas met again with Laskaris. In that meeting, Bisbikis called Laskaris a liar, Laskaris responded that Bisbikis should "get the f*** out" of the room, and Bisbikis replied by calling Laskaris a "stupid jack off" in Greek. Naperville , 368 N.L.R.B. No. 3, at 10. As Bisbikis left the room, Laskaris said, "[E]ven if I have to take you back, now I'm firing you for insubordination." Id. Laskaris did fire Bisbikis, assertedly for insubordination.

On September 20, Laskaris spoke with Towe, the mechanic who had obstructed the test-drive. Laskaris said he hoped that employees would refrain from such conduct. He then said, "I don't want any of you here," and told Towe to look for another job because Towe would not be employed at Naperville for long. Naperville , 368 N.L.R.B. No. 3, at 12.

On September 21, Laskaris sought to restrict union access to Naperville premises. In a letter to the union, he stated that Cicinelli and Thomas were no longer welcome on the property because of their assertedly threatening conduct. And he required other union representatives to make appointments to see union members while they were at work.

On September 25, Laskaris held a staff meeting to complain about union leafletting outside the dealership even after the strike was over. He told employees that the leafleting was "taking money out of their pockets" and that if the dealership ran out of work, "all of the recalled employees would be laid off." Naperville , 368 N.L.R.B. No. 3, at 13.

On October 6, Laskaris held another staff meeting. For forty minutes, he expounded on the strike and its aftermath. At one point, Laskaris threatened to enforce company rules more strictly: "I suggest you read your little blue book that he waved in my face like a smug a**hole ... and if I follow that book your life will get harder .... There's so much stuff in that book that nobody enforces. Why? Because we don't want to be that kind of place." Naperville , 368 N.L.R.B. No. 3, at 15 (ellipses in original). At another point, Laskaris disparaged the grievance process in the collective-bargaining agreement: "Let me tell you about the grievance process.... What I'm telling you is I don't give a s*** about grievances. Grieve all you want. It doesn't matter. They can't do s***.... I don't care on what you grieve, I don't care how much you complain, they're not going to tell me what to do." Id. Laskaris's summation was even more colorful:

I can be the nicest guy in the world, you put me in a corner, I'm going to f***ing eat your face. That's who I am. I'll give you a kidney, Ronnie[,] but you f*** with me and my people, I'm going to eat your kidney out of your body and spit it at you. That's how nasty I can be. It's not in my nature to be a prick, but when I see s*** like that Pat, it's easy to be a prick to you; real easy. And they can't stop me from being a prick.

Id. at 16. One mechanic secretly made a recording of the tirade, which the NLRB later admitted into evidence.

On October 27, Laskaris spoke with Brian Higgins, a mechanic who had been permanently replaced during the strike. When Higgins expressed an interest in returning to work, Laskaris said that he did not want Higgins or any of the permanently replaced employees at the dealership and that if Higgins did return, "it would not be long before he was gone." Naperville , 368 N.L.R.B. No. 3, at 16.

C

The union filed a complaint against Naperville. After a hearing, an administrative law judge found that Naperville had committed several unfair labor practices. First, the ALJ found that Laskaris violated section 8(a)(1) of the NLRA by making threats to employees. The threats included telling Bisbikis that "things would not be the same" if the mechanics went on strike, advising Towe to look for another job, announcing that recalled employees would be laid off if work ran out, warning of stricter enforcement of company rules, describing grievances as futile, saying that he would eat an employee's kidney, and implying that Higgins would quickly be fired if he returned to work. Naperville , 368 N.L.R.B. No. 3, at 16–19. Second, the ALJ found that Naperville violated sections 8(a)(1) and 8(a)(3) by firing Bisbikis in retaliation for his union activity. Id. at 19–21. Finally, the ALJ found that Naperville violated sections 8(a)(1) and 8(a)(5) by restricting the union's access to its members. Id. at 22.

The NLRB affirmed these findings but gave different reasoning as to the firing of Bisbikis. The ALJ had assessed the firing under Wright Line, Inc. , 251 N.L.R.B. 1083 (1980). Under that decision, the agency bears the initial burden of proving that union activity was a "motivating factor" in an adverse action against an employee; if the agency meets this burden, the employer must prove that it "would have taken the same action in the absence of the unlawful motive." Novato Healthcare Ctr. v. NLRB , 916 F.3d 1095, 1101 (D.C. Cir. 2019). In contrast, the Board assessed the discharge under Atlantic Steel Co. , 245 N.L.R.B. 814 (1979). That decision identifies four factors for determining whether an employee has forfeited NLRA protection through "opprobrious conduct": "(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any...