Oberthur Techs. of Am. Corp. v. Nat'l Labor Relations Bd.
| Decision Date | 04 August 2017 |
| Docket Number | No. 16-1265,C/w 16-1330,16-1331,16-1265 |
| Citation | 865 F.3d 719 |
| Parties | OBERTHUR TECHNOLOGIES OF AMERICA CORPORATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Graphic Communications Conference, International Brotherhood of Teamsters, Local 14 M, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Kevin C. McCormick, Baltimore, MD argued the cause for petitioner. With him on the briefs was Thomas C. Mugavero, Falls Church, VA.
Michael R. Hickson, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jennifer Abruzzo, Deputy General Counsel, and Robert J. Englehart, Supervisory Attorney.
Before: Garland, Chief Judge, Griffith, Circuit Judge, and Edwards, Senior Circuit Judge.
Oberthur Technologies of America seeks review of orders and a certification decision issued by the National Labor Relations Board. Following a representation election, the Board certified International Brotherhood of Teamsters, Local 14M as the collective bargaining representative of a group of Oberthur employees. The Board also found that the company violated the National Labor Relations Act before the election by restricting employee speech and freezing employee wage benefits. In its petition for review, Oberthur challenges the Board's findings of pre-election unfair labor practices and raises objections to the representation election. For the reasons set forth below, we deny Oberthur's petition for review and grant the Board's applications for enforcement.
Oberthur manufactures credit cards, debit cards, governmental identification cards, and related products at its facility in Exton, Pennsylvania. In the spring of 2012, Teamsters' Local 14M commenced an organizing campaign at the Exton plant. During the campaign, the company banned all union-related speech on the plant floor and put a freeze on two longstanding employee wage benefit programs. The union subsequently filed unfair labor practice charges against the company.
On July 30, 2012, the union filed a petition with the Board seeking a representation election. In early August, the parties reached a Stipulated Election Agreement. The Agreement provided for a secret-ballot election and defined the relevant bargaining unit as covering "[a]ll full-time employees" working in fifteen specified departments at the Exton plant. Stipulated Election Agreement (Aug. 8, 2012) (J.A. 91). Under the Agreement, the parties waived their rights to a hearing, agreed that the Board's regional director, who approved the agreement, would supervise the election, and agreed that all post-election procedures would conform with the Board's rules and regulations.
The election took place on September 7, 2012. Oberthur declined to challenge any ballots or otherwise contest the validity of the representation election. As relevant here, however, the union challenged the ballots cast by two engineers—John DiTore and Birendra Sahijwana—on the ground that they qualified as "professional employees" under National Labor Relations Act (NLRA) § 9(b), 29 U.S.C. § 159(b), and were thus excluded from the unit. The two ballots were impounded in accordance with Board regulations. See 29 C.F.R. § 102.69(a). The final tally of the non-impounded ballots showed that the union prevailed by a narrow, two-vote margin of victory: 108 votes in favor to 106 votes against. Tally of Ballots (Sept. 7, 2012) (J.A. 94). The parties do not dispute that the two ballot challenges at issue in this petition for review could be determinative of the result of the representation election.1
In October 2012, the Regional Director consolidated the unfair labor practice charges together with the challenges to the representation election for a hearing before an Administrative Law Judge (ALJ). The ALJ found that the company violated Sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1), (3), by restricting union-related speech and by announcing and ultimately enacting a freeze on employee wage benefits. The ALJ also recommended sustaining the union's challenges to the ballots cast by DiTore and Sahijwana upon finding that both engineers qualified as "professional employees" under NLRA § 9(b), 29 U.S.C. § 159(b). Oberthur filed timely exceptions to the ALJ's pre-election unfair labor practice findings and to his decision to sustain the union's challenges to the ballots cast by DiTore and Sahijwana. In addition, in its exceptions to the ALJ's decision, the company raised a new objection for the first time: that even if DiTore and Sahijwana were professional employees, the election should still be set aside on procedural grounds.
The Board issued its opinion on August 27, 2015. With respect to the pre-election unfair labor practice charges, the Board adopted the ALJ's findings that the company violated the NLRA by restricting union-related speech and freezing employee wage benefits. Oberthur , 362 N.L.R.B. No. 198, at 1 (Aug. 27, 2015) (2015 Board Order). It directed Oberthur to rescind its restriction on union-related speech and make its employees whole for any losses stemming from the freeze on wage benefits. Id. at 3-4. With respect to the representation election, the Board adopted the ALJ's recommendation to sustain the union's challenges to the ballots cast by DiTore and Sahijwana. Id. at 2-3. It further rejected as untimely and procedurally improper Oberthur's alternative challenge to the validity of the election, id. at 3, and certified the union as the exclusive collective-bargaining representative for the stipulated unit of Oberthur employees, id . at 4.
Following certification, Oberthur refused to bargain with the union. An employer may, as Oberthur did here, "challenge a certification decision indirectly by refusing to bargain with the union and then raising its election objection in the ensuing unfair labor practice proceedings." Canadian Am. Oil Co. v. NLRB , 82 F.3d 469, 471 n.1 (D.C. Cir. 1996) ; see 29 U.S.C. § 160(f). On July 27, 2016, the Board found that Oberthur's refusal to bargain violated NLRA § 8(a)(1) and (5), 29 U.S.C. § 158(a)(1) and (5). Oberthur Technologies of Am. Corp ., 364 N.L.R.B. No. 59, at 2-3 (July 27, 2016) (2016 Board Order). Oberthur now seeks review of both the 2015 and 2016 Board Orders. The NLRB applies for enforcement of both.
We first address Oberthur's objection to the Board's findings that it violated the NLRA by restricting employee speech and freezing two longstanding employee wage benefit programs in the lead-up to the September 2012 representation election. 362 N.L.R.B. No. 198, at 1 & 1 nn.4-5 (2015 Board Order).2 This Court "must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." Spurlino Materials, LLC v. NLRB , 805 F.3d 1131, 1136 (D.C. Cir. 2015) (quotation marks omitted); see 29 U.S.C. § 160(f) ().
Section 8(a)(1) makes it unlawful for an employer to "interfere with, restrain, or coerce employees" in the exercise of their rights under NLRA § 7, 29 U.S.C. § 157. 29 U.S.C. § 158(a)(1). Section 7's guarantees " ‘necessarily encompass[ ]’ employees' rights to communicate with one another and with third parties about collective action and organizing a union." Quicken Loans, Inc. v. NLRB , 830 F.3d 542, 545 (D.C. Cir. 2016) (quoting Beth Israel Hospital v. NLRB , 437 U.S. 483, 491, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) ). Accordingly, if "considering the totality of the circumstances," an employer's statement "has a reasonable tendency to coerce or to interfere with" an employee's Section 7 right to communicate about the union, the statement violates Section 8(a)(1). Tasty Baking Co. v. NLRB , 254 F.3d 114, 124 (D.C. Cir. 2001) (citing Avecor, Inc. v. NLRB , 931 F.2d 924, 931 (D.C. Cir. 1991) ).
It is well established that an employer's warning directing employees to "cease Union-related discussions only" constitutes a Section 8(a)(1) violation. ITT Industries, Inc. v. NLRB , 251 F.3d 995, 1006 (D.C. Cir. 2001). And while non-solicitation rules designed to advance legitimate business interests in employee discipline and productivity are permissible, "[a]n employer violates the Act when employees are forbidden to discuss unionization, but are free to discuss other subjects unrelated to work." Oberthur , 362 N.L.R.B. No. 198, at 1 & n.4 (2015 Board Order) (quoting Jensen Enterprises, Inc ., 339 N.L.R.B. 877, 878 (2003) ).3
Oberthur contests the Board's finding that it violated Section 8(a)(1) by imposing a "discriminatory restriction on union-related speech." 362 N.L.R.B. No. 198, at 1 & n.4 (citing Jensen Enterprises, Inc. , 339 N.L.R.B. at 878 ). We are unpersuaded. The Board adopted the ALJ's findings on this issue, which pointed to statements by shift supervisor Frank Belcher, who told employees "that discussions about the union or organizing had to take place in common areas, not work areas." Belcher Aff. (J.A. 1171); see Belcher Testimony (J.A. 559). The ALJ found and Oberthur concedes that the company did not impose similar restrictions on discussions about non-union subjects. See 362 N.L.R.B. No. 198, at 10 & n.7 (ALJ Op.) ; Oral Arg. Recording at 6:57. Indeed, Belcher testified that discussions of all other topics—from"[w]eddings [and] funerals" to "football, basketball, [and] vacations"—were permitted in work areas. Belcher Testimony (J.A. 562). Nor did the company meet its burden of establishing "a legitimate and substantial business justification for the rule, outweighing the adverse effect on the...
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