Nat'l Labor Relations Bd. v. Ingredion Inc.

• Decision Date: 19 July 2019
• Docket Number: No. 18-1155,C/w 18-1244,18-1155
• Citation: 930 F.3d 509
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner v. INGREDION INCORPORATED, d/b/a Penford Products Co., Respondent Local 100G, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

930 F.3d 509

NATIONAL LABOR RELATIONS BOARD, Petitioner

v.INGREDION INCORPORATED, d/b/a Penford Products Co., Respondent

Local 100G, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC, Intervenor

No. 18-1155

C/w 18-1244

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 2019

Decided July 19, 2019

Brian J. Paul, Indianapolis, IN, argued the cause for petitioner Ingredion Incorporated. With him on the briefs were Stuart R. Buttrick, Indianapolis, IN, Ryan J. Funk, Indianapolis, IN, Jeffrey P. Justman, Minneapolis, MN, and Kyle J. Essley, Minneapolis, MN.

Eric Weitz, Attorney, National Labor Relations Board, argued the cause for respondent National Labor Relations Board. With him on the brief were Peter B. Robb, General Counsel, David S. Habenstreit, Assistant General Counsel, and Usha Dheenan, Supervisory Attorney.

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

Rogers, Circuit Judge:

Ingredion, Inc. petitions for review of the Decision and Order of the National Labor Relations Board on the ground that five of the Board’s findings, including that Ingredion violated the National Labor Relations Act ("the Act") by dealing directly with employees and denigrating a union in the eyes of employees, are unsupported by substantial evidence. We conclude that Ingredion fails to meet its burden in this regard. We further conclude that Ingredion’s contentions that the Board violated its due process rights and improperly imposed a notice-reading remedy lack merit. Accordingly, we deny the petition and grant the Board’s cross-application for enforcement of its Order.

I.

Ingredion is a multinational corn starch manufacturing company. In March 2015, it acquired a corn processing plant in Cedar Rapids, Iowa. Approximately 165 of the plant’s employees were represented by a local division of the Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, AFL-CIO ("the Union"). Ingredion recognized the Union and assumed the existing collective bargaining agreement ("CBA"), which was scheduled to expire on August 1, 2015. On June 1, 2015, Ingredion and the Union commenced negotiations for a new CBA. The Union proposed to modify the existing CBA in several ways. Ingredion proposed to start from scratch with an entirely new CBA in both substance and form. The parties had not reached an agreement as of August 18, when Ingredion declared that they were at impasse and presented its "last, best, and final offer." After rejecting the Union’s counteroffer of September 10, Ingredion unilaterally implemented the terms of its final offer on September 14, 2015. Ten days later, the Union filed charges with the Board alleging that Ingredion had engaged in numerous unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5). The Board’s General Counsel issued a complaint against Ingredion in January 2016.

Section 8(a)(1) and Section 8(a)(5) define unfair labor practices in overlapping terms. Section 8(a)(1) provides that it is "an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of" their right to bargain collectively. Id. § 158(a)(1). Section 8(a)(5) provides that it is "an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees." Id. § 158(a)(5). Because a refusal to bargain necessarily interferes with bargaining, "an employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1)." Exxon Chem. Co. v. NLRB , 386 F.3d 1160, 1164 (D.C. Cir. 2004).

An administrative law judge determined, after conducting an evidentiary hearing, that Ingredion had committed several violations of Section 8(a). As relevant here, the ALJ found that Ingredion had violated Section 8(a)(1) by "denigrating the Union" in the eyes of employees and by "threatening employees that they would lose their jobs if they went on strike." Ingredion, Inc. , No. 18-CA-160654, slip op. at 58-59, 2016 WL 4501993 (NLRB Div. of Judges Aug. 26, 2016) (" ALJ Decision "). He further found that Ingredion had violated Section 8(a)(5) (and, derivatively, Section 8(a)(1)) by dealing with employees directly rather than through the Union, by unilaterally implementing new terms and conditions of employment without first reaching an overall impasse in bargaining, and by failing to respond in a timely manner to a Union request for information. Id. at 58.

The Board affirmed with respect to all five violations.

Ingredion, Inc. , 366 NLRB No. 74, slip op. at 1–2 & nn.1–3 (May 1, 2018) (" Decision "). It directed Ingredion to cease and desist from its violations of the Act, rescind the unilaterally implemented terms and conditions of employment, and compensate employees for losses incurred as a result of its violations. Id. at 2–3 ("Order "). In addition, the Board ordered Ingredion to have its chief negotiator, Ken Meadows, read a notice describing these remedies to assembled employees "or permit a Board agent, in the presence of Meadows and other corporate officials responsible for labor relations, to read the notice to employees." Id. at 3. One Board Member dissented from the latter portion of the Order. See Decision at 1 n.2.

II.

The Board’s factual findings are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e) ; see, e.g. , Elastic Stop Nut Div. of Harvard Indus., Inc. v. NLRB , 921 F.2d 1275, 1279 (D.C. Cir. 1990) (citing Universal Camera Corp. v. NLRB , 340 U.S. 474, 487–88, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." E.g. , Universal Camera , 340 U.S. at 477, 71 S.Ct. 456 (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); King Soopers, Inc. v. NLRB , 859 F.3d 23, 29 (D.C. Cir. 2017). The court, consequently, must affirm the Board’s findings unless "no reasonable factfinder" could find as it did. Alden Leeds, Inc. v. NLRB , 812 F.3d 159, 165 (D.C. Cir. 2016) (quoting Bally’s Park Place, Inc. v. NLRB , 646 F.3d 929, 935 (D.C. Cir. 2011) ). The court’s assessment of the Board’s decision occurs in light of Congress’s broad delegation to the Board to carry out the Act, see, e.g. , NLRB v. Curtin Matheson Sci., Inc. , 494 U.S. 775, 786, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990) ; Allied Mech. Servs., Inc. v. NLRB , 668 F.3d 758, 764–65 (D.C. Cir. 2012), and recognition that matters involving the interpretation of incidents between management and labor will often turn on the Board’s assessment of events in light of its expertise in the area of labor relations, see, e.g. , Republic Aviation Corp. v. NLRB , 324 U.S. 793, 800, 65 S.Ct. 982, 89 L.Ed. 1372 (1945) ; United Servs. Auto. Ass’n v. NLRB , 387 F.3d 908, 913 (D.C. Cir. 2004).

1. Direct dealing. The Board found that Ingredion engaged in direct dealing with employees when its chief negotiator, Ken Meadows, first visited the plant on April 6, 2015. Decision at 1 n.1. Ingredion acknowledges that Meadows spoke to at least five employees during that visit but maintains that his "impromptu conversations" with them were too "brief and general" to constitute direct dealing. See Pet’r’s Br. 38–41.

Section 9(a) of the Act obligates an employer to treat union officials as "the exclusive representatives of [its] employees." 29 U.S.C. § 159(a). The Supreme Court has held that this obligation includes "the negative duty to treat with no other." Medo Photo Supply Corp. v. NLRB , 321 U.S. 678, 683–84, 64 S.Ct. 830, 88 L.Ed. 1007 (1944) (quoting NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 44, 57 S.Ct. 615, 81 L.Ed. 893 (1937) ). It is therefore "an infringement of the Act for the employer to disregard the bargaining representative by negotiating with individual employees, whether a majority or a minority, with respect to wages, hours and working conditions." Id. at 684, 64 S.Ct. 830.

Under Board precedent, an employer violates Section 8(a)(1) and (5) of the Act if it "attempt[s] to arm itself for upcoming negotiations" by directly "soliciting the sentiment of the employees on a subject to be discussed at the bargaining table." Harris-Teeter Super Mkts., Inc. , 310 NLRB 216, 217 (1993) ; see Obie Pac., Inc. , 196 NLRB 458, 458–59 (1972). For example, the employer in Harris-Teeter exercised a contractual right to temporarily change its employees’ work schedule amid ongoing negotiations with the union and then asked the employees if they "liked the change" or had other comments about it. 310 NLRB at 216. The Board held that this solicitation of employee views on a subject of negotiation violated Section 8(a)(1) and (5) because it "usurp[ed] the [u]nion’s function." Id. at 217.

The record shows that less than two months before the start of negotiations with the Union over a new collective bargaining agreement, Meadows spent approximately 25 minutes speaking with employees about subjects that were to be addressed during the negotiations. He criticized the work schedules and health insurance benefits provided by the existing CBA and asked what the employees hoped to see in a new agreement. They expressed interest in a wage raise of 3 to 3.5 percent, an increased pension multiplier, different work schedules, more vacation days, and health insurance coverage for early retirees. Meadows told the employees that any wage increase would be "in the range of 2 to 2.5 percent," that the health insurance policy would be changed, and that the pension multiplier would not be increased because "pensions were a thing of the past and ‘would probably be going away.’ " ALJ Decision at 7, 37–38 (quoting Hr’g Tr. 61 (Apr. 18, 2016)). Employees who had worked at the plant and been represented by the Union for decades testified that they had never had a manager or supervisor approach them to discuss contract negotiations prior...