Flying Food Group, Inc. v. N.L.R.B.
| Citation | 471 F.3d 178 |
| Decision Date | 15 December 2006 |
| Docket Number | No. 05-1373.,No. 05-1395.,05-1373.,05-1395. |
| Parties | FLYING FOOD GROUP, INC., d/b/a Flying Food, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Harry J. Secaras argued the cause and filed the briefs for petitioner.
David A. Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Robert J. Englehart, Attorney. Steven B. Goldstein, Attorney, entered an appearance.
Before: HENDERSON, GARLAND, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Petitioner Flying Food Group, Inc.,1 withdrew recognition from an incumbent union after receiving a disaffection petition purportedly supported by a majority of employees in the bargaining unit. The National Labor Relations Board (NLRB) concluded that Flying Food failed to meet its burden of proving that the union had actually lost majority support, as required by the Board's decision in Levitz Furniture Co., 333 NLRB 717 (2001). For the reasons set forth below, we deny the company's petition for review and grant the Board's cross-petition for enforcement.
Flying Food Group is a Chicago-based provider of in-flight catering services to the airline industry. On December 17, 1999, the Hotel Employees & Restaurant Employees International Union, Local 355, AFL-CIO prevailed in a representation election for a bargaining unit that included drivers, kitchen employees, and production employees at the company's Miami facility. After overruling the company's election objections, the Board certified the union as the employees' collective-bargaining representative.
Collective bargaining began on May 24, 2000. The parties declared themselves close to arriving at an agreement on all non-economic issues on January 31, 2001. Bargaining subsequently stalled, however, due to differences over wage proposals. Then, on or about April 18, 2001, Flying Food's Human Resources Manager, Daysma Grana, found an employee disaffection petition, purportedly signed by 96 of the unit's 164 employees, that had been slipped anonymously under her locked office door. On the basis of that petition, the company declared that it was "withdrawing recognition of [the] Union as the collective bargaining representative for [the] Miami employees." Joint Appendix (J.A.) 281. Thereafter, the company refused to recognize or bargain with the union.
The union filed unfair labor practices charges against the petitioner, and, on September 28, 2001, the NLRB's General Counsel issued a complaint alleging that Flying Food had committed multiple violations of section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). These included, inter alia, threatening employees with the loss of business opportunities and with the withholding of wage increases due to their support for the union, coercively interrogating an employee about his union sympathies, and informing employees that they were receiving wage increases as a reward for decertifying the union. The complaint also charged that the company had violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) & (3), by implementing retroactive wage increases to discourage employee support for the union. The Administrative Law Judge (ALJ) and the NLRB ultimately upheld these charges, among others, and Flying Food does not contest them here. The Board is entitled to summary enforcement of the uncontested portions of its order. See Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.Cir.1997).
The General Counsel's complaint further charged that the company had violated sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (5), by withdrawing recognition from the union and thereafter refusing to recognize and bargain with it. That charge is the subject of the instant petition for review. In the proceeding before the ALJ (as in its briefs and argument in this court), the company did not dispute that it withdrew recognition from the union, but rather defended on the ground that the union had actually lost the support of a majority of its employees at the time recognition was withdrawn. To prove that proposition, the company introduced the disaffection petition and called Grana to testify concerning the circumstances of its receipt and authentication. The General Counsel vigorously cross-examined Grana, disputing whether some of the individuals listed on the petition had actually been employed on the date indicated on the petition, and whether the signatures of others were authentic.
Relying on two alternative rationales, the ALJ held that Flying Food had unlawfully withdrawn recognition from the union in violation of NLRA sections 8(a)(1) and (5). First, pursuant to the Board's decision in Levitz, the ALJ found that the company failed to satisfy its burden of showing that the union had actually lost the support of the majority of the employees in the bargaining unit at the time it withdrew recognition. Second, the ALJ found that pre-withdrawal unfair labor practices by the company had tainted the disaffection petition on which it relied in withdrawing recognition.
On appeal to the NLRB, the Board agreed that the withdrawal of recognition was unlawful, but did so only on the basis of the ALJ's first ground. The company, the Board said, "failed to show the Union's `actual loss' of majority status," as required by Levitz. Flying Foods Group, Inc., 345 NLRB No. 10, at 3 (Aug. 25, 2005). The NLRB accepted the company's representation that there were 164 employees in the bargaining unit at the time the petition was purportedly signed on April 18, and that only 82 valid signatures were required to show a loss of majority support. It noted, however, that although the petition had 96 signatures, it was undisputed that six of them should not be counted. The Board found that three more signatures were of employees who had left the company before April 18. Finally, after comparing the petition signatures of seven other employees with writing exemplars from the company's personnel records, the Board concluded that those seven were not authentic. This left at most 80 valid signatures,2 an insufficient number to satisfy the company's burden of proving the union's actual loss of majority status. See id.
Flying Food now petitions for review, and the Board cross-petitions for enforcement of its order.
In Levitz Furniture Co., 333 NLRB 717 (2001), the NLRB reversed a previous line of cases and held that "an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees." Id. at 717. Under Levitz, an employer's good-faith doubt about a union's continuing majority status is insufficient to defend against a withdrawal-of-recognition charge. Id.3 Rather, there is a "continuing presumption of an incumbent union's majority status," which may be "rebut[ted] . . . only on a showing that the union has, in fact, lost the support of a majority of the employees in the bargaining unit." Id. at 725. In a passage directly relevant to the instant case, the Board declared:
We emphasize that an employer with objective evidence that the union has lost majority support — for example, a petition signed by a majority of the employees in the bargaining unit — 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. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5).
Flying Food does not contest the validity of Levitz. Instead, it contends that the NLRB erred both procedurally and substantively in applying the Levitz standard. We address the petitioner's two procedural arguments in this Part and its substantive argument in Part III.
Flying Food's first procedural argument concerns alleged flaws in the General Counsel's complaint. The company contends that the unlawful withdrawal charge should have been dismissed because the complaint failed "to aver . . . that the Company lacked objective evidence that a majority of employees had disaffected from the Union." Petitioner's Br. 10. Flying Food further contends that the wording of the complaint misled it into believing that the only basis for the unlawful withdrawal charge was a claim that the company's pre-withdrawal unfair labor practices had tainted the disaffection petition, and not a claim that the majority of unit employees still supported the union at the time of the withdrawal.
Flying Food's argument does not fly. The General Counsel's complaint alleged that the company's withdrawal of recognition was unlawful. Compl. ¶¶ 14, 24. Although the complaint did not expressly aver that the union retained majority support, it did not have to. Under Levitz, there is a "continuing presumption of an incumbent union's majority status," and the contention that an incumbent union has lost its majority status is "an affirmative defense," which the employer "has the burden of establishing." 333 NLRB at 725. Because a "plaintiff is not required to negate an affirmative defense in his complaint," Tregenza v. Great Am. Commc'ns Co., 12 F.3d 717, 718 (7th Cir. 1993), the allegation of unlawful withdrawal was pleaded sufficiently. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, ...
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