Parkwood Developmental Center, Inc. v. N.L.R.B., No. 07-1006.
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Griffith |
| Citation | 521 F.3d 404 |
| Parties | PARKWOOD DEVELOPMENTAL CENTER, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Food and Commercial Workers International Union, Local 1996, Intervenor. |
| Docket Number | No. 07-1027.,No. 07-1006. |
| Decision Date | 11 April 2008 |
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
United Food and Commercial Workers International Union, Local 1996, Intervenor.
[521 F.3d 406]
On Petition for Review, and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Charles P. Roberts, III argued the cause for petitioner. With him on the briefs was Clifford H. Nelson, Jr.
William M. Bernstein, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Assistant General Counsel, and Meredith L. Jason, Supervisory Attorney.
James D. Fagan, Jr. was on the brief for intervenor United Food and Commercial Workers International Union, Local 1996.
Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit Judges.
GRIFFITH, Circuit Judge:
Parkwood Developmental Center, Inc. ("Parkwood") petitions for review of an order of the National Labor Relations Board ("Board") that determined that the company unlawfully withdrew recognition from an incumbent union upon expiration of its collective bargaining agreement. The Board concluded that Parkwood had permissibly based its anticipatory withdrawal decision on an employees' petition renouncing union representation, but then improperly ignored a counter-petition rescinding the renunciation. For the reasons set forth below, we deny Parkwood's petition for review and grant the Board's cross-application to enforce its order.
Parkwood runs a home for the developmentally disabled in Valdosta, Georgia. Until 2003, the employees who worked at the home were represented by the United Food and Commercial Workers International Union, Local 1996 ("Union"). Parkwood and the Union were parties to a collective bargaining agreement ("CBA") that was scheduled to expire March 8, 2003.
On December 2, 2002 Parkwood was presented with a petition, signed by a majority of its employees at the home, announcing that they no longer wished to be represented by the Union. Believing that the Union no longer enjoyed majority support, Parkwood told the Union of the petition that same day and declared it would cease dealing with the Union upon expiration of the CBA. From that moment onward, Parkwood refused to negotiate with the Union for a successor agreement.1
On March 7, 2003, the day before expiration of the CBA, the Union presented to Parkwood a counter-petition, also signed by a majority of the employees at the home, declaring a renewed desire for Union representation and "revok[ing], rescind[ing] and cancel[ing]" the earlier petition. Parkwood was unmoved by this eleventh-hour show of support for the Union. When the CBA expired the next day, Parkwood refused to recognize the Union or bargain with it for a new agreement.
The Union filed charges with the Board alleging, among other things, that Parkwood violated § 8(a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(5), by unlawfully withdrawing recognition from the Union.2 An administrative law judge ("ALJ") found that Parkwood did not violate the NLRA by withdrawing recognition from the Union in response to the employees' petition, notwithstanding their counter-petition to the contrary. Parkwood, the Union, and the General Counsel each filed exceptions to the ALJ's decision. See 29 C.F.R. § 102.46(a)-(c) (establishing procedures for "exceptions"). Parkwood and the General Counsel then filed answering briefs responding to each other's exceptions. See id. § 102.46(d) (establishing procedures for "answering briefs").
In its decision and order of August 22, 2006, the Board reversed the ALJ's finding that the withdrawal of recognition had been lawful. Parkwood Developmental Ctr., Inc., 347 N.L.R.B. No. 95, 2006 WL 2459498 (2006). Concluding that Parkwood had violated the NLRA by refusing to deal with the Union despite a counter-petition voicing majority support, id. slip op. at 2-3 (citing Levitz Furniture Co. of the Pacific, 383 N.L.R.B. 717 (2001)), the Board imposed an affirmative bargaining order on the company. Parkwood filed a motion for reconsideration objecting to this remedy, which the Board denied as untimely. Parkwood petitions this court for review of the Board's order and the denial of its motion for reconsideration. The Board cross-petitions for enforcement of its order, and the Union intervenes in support of the Board.
We begin by considering Parkwood's argument that the Board chose the wrong moment in time at which to measure employee support for the Union. "We will set aside the Board's decision only if the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue, or if its findings are not supported by substantial evidence." Waterbury Hotel Mgmt, LLC v. NLRB, 314 F.3d 645, 650 (D.C.Cir.2003) (internal citation and quotation marks omitted). The Board's decision survives this highly deferential standard of review.
The Board determined that Parkwood violated § 8(a)(5) of the NLRA by withdrawing recognition from the Union without proving "actual loss" of majority support, as required by Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 717 (2001). See id. at 725 ("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. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5)."). In this case of contradictory petitions and counter-petitions, majority support among Parkwood's employees depends on when one measures it. From December 2, 2002 until March 6, 2003, the employees' first petition made clear their lack of support for the Union. But after March 7, 2003, the date the Union presented
the counter-petition, the objective evidence showed just the opposite. The Board measured employee support at the expiration of the CBA, on March 8, 2003, because that was the date on which Parkwood's announced withdrawal of recognition was to take effect. See Parkwood Developmental Ctr., Inc., 347 N.L.R.B. No. 95, slip op. at 2 & n. 9 (2006) (noting that March 8, 2003 was the earliest date lawfully to withdraw recognition because, under Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996), "a union enjoys a conclusive presumption of majority status during the life of a collective-bargaining agreement (up to 3 years)").
Parkwood contends that the Board should have measured majority support on December 2, 2002, the date the company announced its...
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...a notice that it refers to as an “Appendix.” See, e.g., Parkwood Dev. Ctr., Inc.,347 NLRB 974, 977–78 (2006), pet. for rev. denied,521 F.3d 404 (D.C.Cir.2008); Guardsmark, LLC & Serv. Employees Int'l Union, Local 24/7, 344 NLRB 809, 812, 814 (2005), pet. for rev. denied in relevant part......
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...an election, it must file a petition with the Board. NLRB Casehandling Manual, supra , § 11042; cf . Parkwood Dev. Ctr., Inc. v. NLRB , 521 F.3d 404, 406 & n.1 (D.C. Cir. 2008). Election is the "preferred" method of determining majority status, Levitz , 333 NLRB at 723, 725-27......
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Spectrum Health—kent Cmty. Campus v. Nat'l Labor Relations Bd., Nos. 10–1260
...petitioner] objected to the bargaining order in a motion for reconsideration, it was too late.” Parkwood Developmental Ctr., Inc. v. NLRB, 521 F.3d 404, 410 (D.C.Cir.2008); see Elmhurst Care Ctr. v. NLRB, 303 Fed.Appx. 895, 897 (D.C.Cir.2008); NLRB v. Local Union No. 74, 471 F.2d 43, 46 (7t......
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Chevron Mining, Inc. v. Nat'l Labor Relations Bd., Nos. 10–1382
...bar” in the face of which we are “powerless ... to consider arguments not made to the Board”); Parkwood Developmental Ctr., Inc. v. NLRB, 521 F.3d 404, 410 (D.C.Cir.2008) (explaining that section 10(e) meant “we have no jurisdiction to entertain [a] claim”); Alwin Mfg. Co. v. NLRB, 192 F.3d......
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United States v. Philip Morris USA, Inc., Civil Action No. 99–2496 (GK).
...a notice that it refers to as an “Appendix.” See, e.g., Parkwood Dev. Ctr., Inc.,347 NLRB 974, 977–78 (2006), pet. for rev. denied,521 F.3d 404 (D.C.Cir.2008); Guardsmark, LLC & Serv. Employees Int'l Union, Local 24/7, 344 NLRB 809, 812, 814 (2005), pet. for rev. denied in relevant part,475......
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Scomas of Sausalito, LLC v. Nat'l Labor Relations Bd., No. 15-1412
...an election, it must file a petition with the Board. NLRB Casehandling Manual, supra , § 11042; cf . Parkwood Dev. Ctr., Inc. v. NLRB , 521 F.3d 404, 406 & n.1 (D.C. Cir. 2008). Election is the "preferred" method of determining majority status, Levitz , 333 NLRB at 723, 725-27, because an e......
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Spectrum Health—kent Cmty. Campus v. Nat'l Labor Relations Bd., Nos. 10–1260
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