Pac. Coast Supply, LLC v. Nat'l Labor Relations Bd.

• Citation: 801 F.3d 321
• Decision Date: 18 September 2015
• Docket Number: 14–1081.,Nos. 14–1047,s. 14–1047
• Parties: PACIFIC COAST SUPPLY, LLC, Doing Business as Anderson Lumber Company, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

801 F.3d 321

PACIFIC COAST SUPPLY, LLC, Doing Business as Anderson Lumber Company, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 14–1047

14–1081.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 10, 2014.

Decided Sept. 18, 2015.

Stephen Thomas Davenport Jr. argued the cause and filed the briefs for petitioner.

Valerie L. Collins, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Elizabeth Heaney, Supervisory Attorney.

Before: GARLAND, Chief Judge, and GRIFFITH and KAVANAUGH, Circuit Judges.

Opinion

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

Anderson Lumber Company¹ petitions for review of a determination by the National Labor Relations Board that Anderson unlawfully withdrew recognition from a union. For the reasons set forth below, we deny the company's petition for review and grant the Board's cross-application for enforcement.

I

Anderson Lumber is a lumber supply company located in North Highlands, California. Since the late 1960s, it has recognized and bargained with Chauffeurs, Teamsters, and Helpers Local 150, International Brotherhood of Teamsters. The union represents a fifteen-employee bargaining unit that includes material handlers and drivers.

After the parties' most recent collective bargaining agreement expired on February 28, 2012, the two sides began bargaining for a successor agreement. On July 20, ten days before a second scheduled bargaining session, Anderson Lumber's labor consultant contacted the union's business agent and advised him that the company thought the union lacked majority support among the employees. Thereafter, Anderson Lumber unilaterally withdrew its recognition from the union. It is undisputed that, in so doing, the company relied solely on one- or two-sentence, handwritten statements from eight of the fifteen members of the unit. The statements were written in English. Five of the eight later testified that they spoke or wrote only a little English; some had the assistance of a coworker who drafted the statements in English and translated them into Spanish. Pacific Coast Supply, LLC, 360 NLRB No. 67, at 4 n. 6 (Mar. 24, 2014).

The union filed an unfair labor practice charge, and an Administrative Law Judge (ALJ) subsequently concluded that the company had violated sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(5) and (1), by unlawfully withdrawing recognition from the union. As the ALJ explained, the seminal decision of the National Labor Relations Board (NLRB) in Levitz Furniture Co., 333 NLRB 717 (2001), bars an employer from withdrawing recognition from an incumbent union unless it can show, by a preponderance of the evidence, that at the time of the withdrawal the union had in fact lost the support of a majority of the unit employees. Pacific Coast, 360 NLRB No. 67, at 5 ; see Levitz, 333 NLRB at 725. Because the employer relied exclusively on the written statements of eight of the fifteen unit employees, the ALJ held that it bore the burden of proving that each of the eight statements showed that the employee in question no longer supported union representation. Pacific Coast, 360 NLRB No. 67, at 5.

Focusing on the statements of just four of the employees, the ALJ found that they did not show, by a preponderance, “that those employees no longer wish to be represented by the Union,” but only that they no longer wanted to be members of the union. Id. at 3, 6 (emphasis added). The four statements were as follows:

1. I resign from [the Union]. Miguel Hernandez.

2. I Mark A. Rocha do not wish to be a Union member.

3. I Sandeep Singh employee of Anderson Lumber wish to get out of the Union.

4. Chris if it is all possible I Donald Davis would like to exit the union. This is due to the union not doing any services for the cost that they are charging.

J.A. 43–44, 46, 48. Because the employer had to prove that all eight employees did not support union representation, the ALJ's findings regarding these four were (more than) sufficient to warrant the finding of an unfair labor practice. She therefore concluded that it was unnecessary to determine the meaning of the remaining four statements.

Anderson Lumber filed exceptions with the Board. The Board held “that [Anderson] violated [the NLRA] by withdrawing recognition from the Union ... because the statements submitted by employees Davis, Hernandez, Rocha, and Singh did not show that they no longer wanted the Union to represent them for the purposes of collective bargaining.” Pacific Coast, 360 NLRB No. 67, at 1 n. 1. NLRB Member Johnson concurred in the determination that Anderson violated the Act, but did so in reliance on the statements of only two of the employees, Hernandez and Rocha, which “explicitly refer only to union membership and, therefore, under extant Board law are insufficient to support the conclusion that they did not want to be represented by the Union.” Id. Finally, having found that Anderson Lumber committed an unfair labor practice, the Board imposed a remedial order that, inter alia, requires Anderson Lumber to recognize and bargain with the union.

Anderson now petitions for review, arguing that its withdrawal of recognition was lawful under Levitz. The Board cross-applies for enforcement of its order.

II

Section 8(a)(5) of the Act requires an employer to recognize and bargain with the labor organization chosen by a majority of its employees.² Under longstanding Board precedent, when a union is recognized as the collective-bargaining representative of a unit of employees, that union is entitled to a presumption that it enjoys the support of a majority of the represented employees. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785–87, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996). The presumption of majority status is irrebuttable during the term of a collective-bargaining agreement, up to three years. Thereafter, the presumption becomes rebuttable. Id. at 786, 116 S.Ct. 1754 ; McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1004 (D.C.Cir.2003).

One option available to an employer that questions an incumbent union's majority status is to ask the Board to conduct a Representation Management (RM) election, in which employees cast confidential votes for or against the union. 29 U.S.C. § 159(c)(1) ; see Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 363–64, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). To obtain an RM election, an employer need only demonstrate “reasonable good-faith uncertainty” as to the union's continuing majority status. Levitz, 333 NLRB at 723 (emphasis omitted). The NLRB has “emphasize[d] that Board-conducted elections are the preferred method of testing employees' support for unions.” Id. at 727 ; see id. at 723.

Alternatively, an employer may do what the petitioner did here: withdraw recognition unilaterally. Prior to the Board's 2001 decision in Levitz, NLRB precedent permitted an employer to unilaterally withdraw recognition from an incumbent union based on “good-faith doubt” about the union's majority status, see id. at 717 (citing Celanese Corp., 95 NLRB 664 (1951) ), which the Supreme Court interpreted to permit the employer to withdraw recognition when it had a “genuine, reasonable uncertainty” regarding the union's majority status, Allentown Mack, 522 U.S. at 367, 118 S.Ct. 818 ; see Levitz, 333 NLRB at 717. After Levitz, “doubt” or “uncertainty” is no longer enough. Now, an employer may not “withdraw recognition unless it can prove that an incumbent union has, in fact, lost majority support.” Levitz, 333 NLRB at 723. As the Board elaborated:

We emphasize that an employer with objective evidence that the union has lost majority support ... 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.

Id. at 725 ; see Highlands Hosp. Corp. v. NLRB, 508 F.3d 28, 31–32 (D.C.Cir.2007) ; Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 182 (D.C.Cir.2006). This standard, the Board said, serves the NLRA's core policies of “promoting stable collective bargaining and employee free choice.” Levitz, 333 NLRB at 723 ; see id. at 727 ; see also Highlands Hosp., 508 F.3d at 31.

The standard applied by this court, however, is different. We review Board orders under the substantial evidence standard. 29 U.S.C. § 160(e) ; see Monmouth Care Ctr. v. NLRB, 672 F.3d 1085, 1089 (D.C.Cir.2012). “[W]e will reverse for lack of substantial evidence only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.” Highlands Hosp., 508 F.3d at 31 (internal quotation marks omitted). Or, as the Supreme Court has put it, we must affirm the Board as long as, “on th[e] record it would have been possible for a reasonable jury to reach the Board's conclusion.” Allentown Mack, 522 U.S. at 366–67, 118 S.Ct. 818.

III

Anderson Lumber levels three arguments against the Board's determination that it unlawfully withdrew recognition from the union. We consider those arguments below.

A

Anderson's principal argument is that the NLRB erred in finding that four of the employee statements did not show those employees opposed continued union representation.

The Board has long maintained a distinction between an employee's desire to be represented by a union, and his or her desire to be a member of a union. Whether a union has “majority support turns on whether most unit employees wish to have union representation, not on whether most unit employees are members of a particular union.” Trans–Lux Midwest Corp., 335 NLRB 230, 232 (2001).³ Only the desire of a majority not to have union...