CC1 Ltd. P'ship v. Nat'l Labor Relations Bd.

• Decision Date: 03 August 2018
• Docket Number: C/w 15-1467,No. 15-1231,15-1231
• Citation: 898 F.3d 26
• Parties: CC1 LIMITED PARTNERSHIP, doing business as Coca Cola Puerto Rico Bottlers, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

898 F.3d 26

CC1 LIMITED PARTNERSHIP, doing business as Coca Cola Puerto Rico Bottlers, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 15-1231

C/w 15-1467

United States Court of Appeals, District of Columbia Circuit.

Argued February 8, 2018

Decided August 3, 2018

Néstor M. Méndez-Gómez argued the cause for petitioner. With him on the briefs were María D. Trelles Hernández and Jason R. Aguiló Suro, San Juan, PR. Carlos Concepción entered an appearance.

Jeffrey W. Burritt, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

Before: Rogers, Griffith, and Srinivasan, Circuit Judges.

Griffith, Circuit Judge

The National Labor Relations Board ("Board") determined that CC1 Limited Partnership ("CC1") unlawfully fired several employees who had engaged in work stoppages. Although we agree with the Board that there was substantial evidence that one of the discharged employees played no part in a work stoppage, we remand to the Board for further explanation its conclusion that the later wildcat strike was protected activity. We also dismiss additional claims CC1 makes but failed to properly preserve for our review.

I

A

CC1 operates a bottling plant under the name of Coca Cola Puerto Rico Bottlers in Cayey, Puerto Rico. Its warehouse employees are represented by the Union De Tronquistas De Puerto Rico, Local 901, International Brotherhood of Teamsters (the "Union"). Until October 2008, José Adrián López was the Union's chief negotiator with CC1 and the principal representative of the employees. Employees Miguel Colón, Carlos Rivera, Francisco Marrero, Romián Serrano, and Félix Rivera were elected to participate in negotiations on the Union's behalf as shop stewards. The collective-bargaining agreement that had been in place between CC1 and the Union since 2003 expired on July 31, 2008.

During the afternoon of September 9, 2008, CC1 and López met to negotiate a new agreement. López planned to share the status of the negotiations at an 8:30 p.m. meeting in CC1's cafeteria with CC1 employees who worked the late shift. When López arrived at the plant that night, the security guard tried to block his entrance. Over the guard's protests, López entered the plant anyway and held the meeting. During the meeting, a CC1 supervisor interrupted López and told him to leave the plant. López refused, and the two argued. Eventually, the supervisor left the cafeteria to call security, and López led the group of employees to the plant's warehouse to continue the meeting. The shop stewards on site at the time encouraged other employees to abandon their workstations and follow López.

At 8:45 p.m., Colón arrived at the plant to attend the meeting in the cafeteria with López. By that time, the meeting had moved to the warehouse. By 9:00 p.m., Colón joined the meeting at the warehouse, where he found López and about ninety employees. Soon after, police called by CC1's security came, and López told the employees to return to work. All in all, the work stoppage caused by López's meeting cost the company two hours of work from the employees who attended.

On the next day, CC1 suspended Colón and the other shop stewards. According to the letter each received from the company, they were suspended for "invading private property, encouraging others to abandon their job, verbally abusing the supervisors and intentionally paralyzing the production line" the night before. App'x 369. In response, the Union called a meeting at which the CC1 employees unanimously agreed to strike unless management agreed to three demands: (1) reinstate the suspended shop stewards; (2) forgo filing any charges against the Union based on the work stoppage; and (3) return to the table to negotiate a new collective-bargaining agreement. The next day, a Union officer requested strike assistance from national headquarters.

One month later, the Union had not yet met with CC1 negotiators or planned a strike. On October 9, Colón and the other shop stewards circulated a flyer announcing a meeting on October 12 to discuss a strike. But the meeting was not authorized by the Union. Upon seeing the flyer, one Union official asked Colón not to "divide the membership." Another Union representative suggested to him that only a strike would ensure reinstatement of the shop stewards. On October 10, CC1 discharged the suspended shop stewards. Two days later at the October 12 meeting called by Colón and the other shop stewards, employees signed a petition authorizing a strike unless CC1 agreed to the Union's demands. But the Union had no part in the meeting. No Union official attended, and the Union never responded to Colón's list of employees who had signed the strike petition.

On October 14, the national headquarters approved the Union's request to provide assistance in a strike. The next day, the Union wrote CC1 to demand that negotiations resume. CC1 agreed, but the Union never replied.

On October 19, the shop stewards met at Colón's home to prepare to strike. From October 20 until October 22, more than 100 CC1 employees went on strike. Many of them used picket signs and loudspeakers to protest the company's treatment of López and the firing of the shop stewards. They also demanded that CC1 reinstate the shop stewards and negotiate a new collective-bargaining agreement.

On the first day of the strike, CC1 warned the Union that the company planned to "resort to ulterior actions against the Union and its representatives" unless the strike stopped. App'x 399. Upon receiving CC1's message, the Union explained that the strike was an illegal "wildcat" strike because it was not backed by the Union: "We want to clarify that we have not sent or authorized the presence of Officers or Union members in said stoppage; therefore, the presence there of any Union member would have been of their own accord, not official, and in violation of the statutes of the Union." App'x 403. The Union added that it would take action against the "false leaders" who were "threatening ... the welfare of the great majority of the [CC1] workers in order to promote their own ignoble interests." Id. CC1 distributed the Union's message to the striking employees, some of whom responded by abandoning the strike.

Once the strike ended, CC1 suspended or discharged eighty-six of the striking employees. At the Union's request, CC1 agreed to reinstate suspended employees who signed a so-called "last-chance agreement," which subjected them to immediate termination should they violate any of the agreement's terms.

B

CC1's response to the events surrounding the work stoppage and the strike drew multiple charges. In 2009, the Board's General Counsel issued a complaint alleging that CC1 unlawfully discharged its employees for participating in those actions. After an evidentiary hearing, an Administrative Law Judge (ALJ) determined that discharging Colón violated the NLRA because the evidence showed he had not encouraged the September 9 work stoppage as CC1 claimed. The ALJ determined that the wildcat strike was protected by the NLRA, making CC1's discharge of the striking employees unlawful. The ALJ also concluded that the last-chance agreements were unlawful.

CC1 challenged the ALJ's decision, which the Board affirmed with some exceptions. CC1 Limited Partnership , 358 N.L.R.B. 1233 (2012). As to the firing of Colón, the Board found that he had not encouraged the work stoppage and, even if he had, his actions would have been protected by the NLRA. Id. at 1234 & n.5. As to the wildcat strike, the Board agreed that it was protected activity because it supported the Union's strategy. Id. at 1235-36. To this latter point, the Board looked at the two factors set forth in Silver State Disposal Service, Inc. , 326 N.L.R.B. 84, 103 (1998) : "(1) whether the employees [attempted] to [bypass their union and] bargain directly with the employer and (2) whether the employees' position [was] inconsistent with the union's position." CC1 , 358 N.L.R.B. at 1235. The Board determined that the employees were striking as individuals on behalf of the Union, reasoning the Union never told the employees not to strike and that they did not know the Union was pursuing separate negotiations with management. Id. at 1235-36. The Board also concluded that the employees' three demands of CC1 were consistent with the Union's position. Id. In its order, the Board required CC1 to provide backpay to the discharged employees. Id. at 1238.

The Board denied CC1's motion for reconsideration. Order Denying Motion for Reconsideration, 2013 WL 298118 (N.L.R.B. Jan. 24, 2013). CC1 sought review in our court, but we held its petition in abeyance until the Supreme Court decided NLRB v. Noel Canning , ––– U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014). In Noel Canning , the Court held that the recess appointments of three members of the Board, two of whom were on the 2012 panel, were unlawful. Id. at 2557, 2578. As a result, the Board set aside the 2012 decision. Order, 2014 WL 2929759 (N.L.R.B. June 27, 2014). Meanwhile, CC1 reached settlement agreements with all of the employees involved except for four who had been discharged for striking and Colón. CC1 Limited Partnership , 362 N.L.R.B. No. 125, at 1 n.1 (June 18, 2015).

In 2015, a lawfully appointed panel of the Board reviewed de novo the ALJ's decision and "affirm[ed] the [ALJ's] rulings, findings, and conclusions ... to the extent and for the reasons stated" in the 2012 decision and order. Id. at 1. The new panel unanimously found that CC1 had unlawfully discharged Colón "by terminating [him] for his participation in the [September] walkout." Id. at 3 n.7. But the panel divided over whether the October wildcat strike was protected activity. The dissent argued that the strike was not because it "undermined the...