Hard Rock Holdings, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 23 March 2012
• Docket Number: Nos. 11–1104,11–1133.,s. 11–1104
• Citation: 162 Lab.Cas. P 10464,192 L.R.R.M. (BNA) 3169,672 F.3d 1117
• Parties: HARD ROCK HOLDINGS, LLC, doing business as Hard Rock Hotel and Casino, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

162 Lab.Cas. P 10,464

192 L.R.R.M. (BNA) 3169

672 F.3d 1117

HARD ROCK HOLDINGS, LLC, doing business as Hard Rock Hotel and Casino, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 11–1104

11–1133.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 21, 2012.Decided March 23, 2012.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.James Michael Walters argued the cause for petitioner. With him on the briefs was Brian Matthew Herman.

Barbara A. Sheehy, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Ruth E. Burdick, Supervisory Attorney, and Richard A. Cohen, Senior Attorney.

Before: ROGERS, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order directing Hard Rock Holdings, LLC (“the Company”) to bargain in good faith with Professional, Clerical and Miscellaneous Employees, Local 995, (“the Union”) affiliated with the International Brotherhood of Teamsters, Local 995. The Company, in its petition for review, contests the Board's certification of the election in which the Union was named the bargaining representative of the Company's valet parking employees. In addressing the Company's objections, we clarify two points relating to stipulated bargaining units and the absence of pristine laboratory conditions during a representation election. First, the Board established the record of its analysis under the three-prong test of Associated Milk Producers, Inc. v. NLRB, 193 F.3d 539, 543 (D.C.Cir.1999), necessary to support its conclusions regarding the parties' intent with regard to the stipulated bargaining unit. Extrinsic evidence relied on by the Company fails to demonstrate error. Second, the failure of the Board Agent to provide identification badges to election observers did not result in an unfair or invalid election in the absence of evidence that the failure materially affected the result of the election, and the Company offered no such evidence. The Board therefore acted within its discretion in sustaining the Union's challenges to the eight ballots cast by dual-rated bell-desk employees and in rejecting the Company's objections alleging misconduct by the Board's Agent. The Board thus is entitled to enforcement of its findings that the Company violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (2006) (“the Act”), by refusing to bargain with the Union. See C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C.Cir.1988).

I.

The Company owns and operates a hotel and casino in Las Vegas, Nevada. In 2009, the Union sought to become the bargaining representative of the Company's parking valets. The dispute animating this appeal relates to the scope of the bargaining unit. Both parties agree that those employees working in the Company's valet-parking department are part of the unit. Their disagreement concerns whether employees who work primarily as bell-desk employees but who also work occasionally as valets—so-called “dual-rated” employees—are also members of the bargaining unit.

On September 25, 2009, the Union filed a representation petition with the Board. As opposed to proceeding to a hearing, the Company and the Union decided to stipulate certain issues, including the scope of the proposed bargaining unit. The record shows that Company and Union counsel had at least one brief conversation prior to the signing of the final stipulation agreement: counsel for the Company testified that he told counsel for the Union that the Company “did not want anybody excluded who parked cars.” Hearing Transcript, Hard Rock Holdings LLC, Case No. 28–RC–6680, at 47 (Nov. 23, 2009). The Board's Agent faxed a proposed agreement to the Company's counsel on October 7, 2009, in which the voting unit was described as including “[a]ll full-time and regular part-time [v]alet [p]arking employees.” NLRB Form, Stipulated Election Agreement, at 2. Company counsel telephoned the Agent to advise him that the Company would not agree to inclusion of the adjective “regular” and wanted all employees who ever parked cars to be part of the unit. The Agent then faxed Company counsel a revised agreement, already signed by the Union, in which the term “regular” had been eliminated. The revised description of the bargaining unit read: “All full-time and part-time Valet Parking employees.” Id. Company counsel signed the agreement and faxed it to the Agent. The agreement was approved the following day by the Board's Regional Director, and an election was scheduled for November 6, 2009.

Following the signing of the stipulation agreement, the Company submitted to the Regional Director a list of the names of those its viewed to be voting-eligible employees—the Excelsior ¹ list. The Union did not object to the list, which included the names of the eight dual-rated employees. Just prior to the election, both Company and Union counsel signed the Excelsior list at a conference held by the Agent. During the election, the Union challenged the votes of the eight dual-rated employees.

Also, just before the start of the election, the Agent realized that he did not have enough identification badges for both the Union and Company observers. Rather than provide a badge to only one observer, the Agent testified that he decided to give none of the observers a badge. Neither the Company nor the Union contests the fact that the observers were not wearing identification badges during the election. The record indicates some dispute, however, about whether the Agent himself wore a badge identifying him as a government official.

During the election, one of the voters, a dual-rated employee (“the Voter”), engaged in a verbal exchange with the Agent shortly after a Union observer challenged the Voter's voting eligibility due to his status as a dual-rated employee. The level of altercation and nature of the words exchanged are disputed. The record is clear, however, that during the conversation, the Agent told the Voter to calm down or he might risk losing his job. The Voter testified that he had not known the Agent was a Board official until the end of the incident. Upon learning that the Agent was a government official, the Voter testified that he told the agent, “[t]hat's probably why you and I got off to the wrong start.” Hearing Transcript at 110. One voter was present during this incident and another was on his way out of the polling area.

At the completion of voting, the tallied results showed seventeen votes for and nine against Union representation with eight additional votes against the Union that it had challenged. The Company and the Union filed objections with the Board. A hearing was held regarding these objections and the Union's challenges to the votes of the eight dual-rated employees. The Hearing Officer recommended that the Board sustain the Union's ballot challenges, overrule the Company's objections, approve the Union's withdrawal of its objections, and certify the Union as the bargaining representative. Hearing Officer's Report on Objections & Challenged Ballots (“Hearing Report”), Hard Rock Holdings LLC, Case No. 28–RC–6680, at 27 (Dec. 29, 2009). The Board adopted the Hearing Officer's recommendations. Decision & Certification of Representative (“Certification Decision”), Hard Rock Holdings LLC, Case No. 28–RC–6680, at 1 (Sept. 28, 2010). To preserve its ability to appeal the certification, the Company refused to bargain with the Union. See Boire v. Greyhound Corp., 376 U.S. 473, 477–78, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). A complaint was issued against the Company alleging its refusal to bargain violated the Act. On April 7, 2011, the Board issued its decision and order, granting summary judgment against the Company for violating section 8(a)(1) and (5) of the Act.

II.

The Company petitions for review of the Board's order on two grounds: first, it objects to the Board's sustaining of the Union's challenges to the eight ballots in view of the extrinsic evidence, and second, it maintains that the Agent's failure to provide observer badges impermissibly disrupted the election. In addressing these contentions, the court must determine whether the Board abused its discretion. See Serv. Corp. Int'l v. NLRB, 495 F.3d 681, 684 (D.C.Cir.2007); Schoolman Transp. Sys., Inc. v. NLRB, 112 F.3d 519, 521 (D.C.Cir.1997). Our review of the Board's determination that a stipulated election agreement is ambiguous is de novo, see Entergy Servs., Inc. v. FERC, 568 F.3d 978, 982 (D.C.Cir.2009), but the Board's factual determinations are conclusive if supported by substantial evidence on the record considered as a whole, 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). And the court will not reverse the Board's adoption of an administrative law judge's credibility determination unless it is “hopelessly incredible,” “self-contradictory,” or “patently unsupportable.” United Food & Commercial Workers Union Local 204 v. NLRB, 447 F.3d 821, 824 (D.C.Cir.2006) (quoting Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28 (D.C.Cir.1998)).

A.

In Associated Milk, the court clarified the analysis the Board must apply when faced with a stipulated bargaining unit agreement. First, the Board must determine whether or not the agreement's description of the bargaining unit is ambiguous. Associated Milk, 193 F.3d at 543. If no ambiguity exists, the Board must enforce the parties' agreement. Id. If the stipulation is ambiguous, however, the Board must apply ordinary principles of contract law in an attempt to determine the parties' intent. See id. at 543–44. At this stage, the Board may consider...