Nat'l Labor Relations Bd. v. Chipotle Servs., LLC
| Decision Date | 06 March 2017 |
| Docket Number | No. 15-3925, No. 15-3955,15-3925 |
| Citation | 849 F.3d 1161 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner Mid–South Organizing Committee, Intervenor v. CHIPOTLE SERVICES, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc., Respondent Chipotle Services, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc., Petitioner v. National Labor Relations Board, Respondent Mid–South Organizing Committee, Intervenor |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the petitioner/cross-respondent was Valerie L. Collins, of Washington, DC. The following attorney(s) appeared on the petitioner/cross-respondent's brief; Usha Dheenan of Washington, DC.
Counsel who presented argument on behalf of the respondent/cross-petitioner was Neal Frederick Perryman, of Saint Louis, MO. The following attorney(s) appeared on the brief; Louis Matthew Grossman, of Denver, CO, Tanya Milligan, of Denver, CO, Michael L. Jente, of St. Louis, Missouri.
The following attorney(s) appeared on the intervenor brief; Rochelle Skolnick, of Saint Louis, MO.
Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
Chipotle Services, LLC asks us to set aside an order of the National Labor Relations Board based on a supposed legal error Chipotle never brought to the Board's attention. We decline, and instead grant the Board's petition for enforcement.
This case arises out of Chipotle's decision to fire Patrick Leeper, a "crewmember" who worked the register at a Chipotle restaurant on the Delmar Loop in St. Louis, Missouri. Leeper was involved with a campaign by the Mid–South Organizing Committee—the charging party before the Board and intervenor here—for higher pay in the fast-food industry, and Leeper had discussed wages with some of his coworkers. The charge was that Chipotle fired Leeper for his union activities.1 See 29 U.S.C. §§ 157, 158(a)(1), (3). Not so, Chipotle said—Leeper missed a mandatory meeting and had a history of deficient performance and motivation. To sort out these conflicting accounts of Chipotle's motives, the Board followed the standard approach announced in Wright Line , 251 N.L.R.B. 1083, 1089 (1980), enforced on other grounds , 662 F.2d 899 (1st Cir. 1981). First the Board's General Counsel needed to show Leeper's protected conduct was a substantial or motivating factor in the decision to fire him, then the burden shifted to Chipotle to prove, essentially as an affirmative defense, it would have fired him anyway. See NLRB v. Transp. Mgmt. Corp. , 462 U.S. 393, 400–03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (), overruled in part on other grounds by Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Greenwich Collieries , 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). Adopting the recommendations of an administrative law judge, the Board described the General Counsel's initial burden under Wright Line as "demonstrating that: (1) the employee engaged in union activity; (2) the employer had knowledge of that union activity; and (3) the employer harbored antiunion animus."
Chipotle now insists that burden was a mistake and the General Counsel instead needed to demonstrate " ‘that but for his union activities or membership, [Leeper] would not have been discharged,’ "2 a phrase Chipotle takes from our recent opinion in Nichols Aluminum, LLC v. NLRB , 797 F.3d 548, 554 (8th Cir. 2015) (quoting Concepts & Designs, Inc. v. NLRB , 101 F.3d 1243, 1245 (8th Cir. 1996) ). But Chipotle did not raise this point before the Board, or otherwise contest the administrative law judge's application of the Wright Line standard.3 We therefore are jurisdictionally barred from considering Chipotle's argument "unless the failure or neglect to urge [it] shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e) ; see also Woelke & Romero Framing, Inc. v. NLRB , 456 U.S. 645, 666, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) ( ).
According to Chipotle, the circumstances of this case are extraordinary because it would have been futile to argue about the proper causation standard before the Board. We have never recognized futility as excusing a failure to raise an objection to the Board. See NLRB v. RELCO Locomotives, Inc. , 734 F.3d 764, 796 (8th Cir. 2013). Some of our sister circuits have, and Chipotle bases its argument on decisions from two of them.4 See HTH Corp. v. NLRB , 823 F.3d 668, 674 (D.C. Cir. 2016) ; Kitchen Fresh, Inc. v. NLRB , 716 F.2d 351, 357–58 (6th Cir. 1983).
Even if we were to follow those courts, we would not find extraordinary circumstances in this case. The D.C. Circuit holds "filing a motion for reconsideration is patently futile where the agency ha[s] previously rejected the very argument made by [the] petitioner," and in such a case "[t]he patent futility of a reconsideration motion excuses the failure to object, at least where the Board acts sua sponte." HTH , 823 F.3d at 674. The Sixth Circuit has likewise explained "[g]enerally, an objection would be futile only when the Board has unequivocally rejected a party's position by expressly refusing to follow the authority or line of authorities relied upon by that party." Kitchen Fresh , 716 F.2d at 358 n.13 (); see also Indep. Elec. Contractors of Hous., Inc. v. NLRB , 720 F.3d 543, 551–52 (5th Cir. 2013) (). We see no such unambiguous rejection here.
To start, the Board decision to which Chipotle devotes most of its attention, Dish Network, LLC , 363 N.L.R.B. No. 141 (Mar. 3, 2016), 2016 WL 850920, was issued well after the ruling in this case, so it sheds little light on whether an argument based on Nichols Aluminum would have been patently futile at the time Chipotle failed to raise it. See NLRB v. Contemporary Cars, Inc. , 667 F.3d 1364, 1369 (11th Cir. 2012) (). Further, although Chipotle repeatedly describes Dish Network as "expressly" or "explicitly disavow[ing] this Court's decision in Nichols Aluminum ," in fact the Board did not mention the case once. See Dish Network , 363 N.L.R.B. No. 141, at 1 n.1, 2016 WL 850920, at *1 n.1. True, the Board made a point of declaring that the General Counsel's "initial burden of proving that [an employee's] protected activity was a motivating factor in his discharge" does not require "mak[ing] some additional showing of particularized animus towards the employee's own protected activity or ... further demonstrat[ing] some additional, undefined ‘nexus' between the employee's protected activity and the adverse action."5 Id. The Board's repeated insistence on that point—including in decisions that do predate this case, see , e.g. , Auto Nation, Inc. , 360 N.L.R.B. 1298, 1301 n.10 (2014), enforced sub nom. AutoNation, Inc. v. NLRB , 801 F.3d 767 (7th Cir. 2015) —suggests the Board might not have been particularly receptive to a request for a stricter formulation of the causation standard. Yet there is no indication the Board had heard an argument based on Nichols Aluminum 's"but for" language before, and a prediction that such an argument was a long shot, even if well-founded, is no excuse for not making it. Cf. , e.g. , W&M Props. of Conn., Inc. v. NLRB , 514 F.3d 1341, 1346 (D.C. Cir. 2008) .
Lacking jurisdiction to consider the only objection Chipotle urges against the Board's ruling, we deny the petition for review and enforce the Board's order.
1 The Board also found Chipotle unlawfully threatened and otherwise discouraged employees at the Delmar location from discussing wages, talking with union representatives, and engaging in other protected activities. See generally 29 U.S.C. §§ 157, 158(a)(1). Because Chipotle's argument to this court focuses exclusively on Leeper's...
To continue reading
Request your trial
-
Tschiggfrie Props., Ltd. v. Nat'l Labor Relations Bd.
...read, apprises the Board that the objector intended to pursue the issue later presented to the court." Id.The Board relies on NLRB v. Chipotle Services, LLC . There, this court held that it had no jurisdiction to address the argument that the Board misapplied the General Counsel’s initial W......