SFO Good–Nite Inn, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 20 November 2012
• Docket Number: Nos. 11–1295,11–1325.,s. 11–1295
• Citation: 700 F.3d 1
• Parties: SFO GOOD–NITE INN, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

700 F.3d 1

SFO GOOD–NITE INN, LLC, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 11–1295, 11–1325.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 5, 2012.

Decided Nov. 20, 2012.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.

Patrick W. Jordan argued the cause for petitioner. With him on the briefs was Nanette Joslyn.

MacKenzie Fillow, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

Before: ROGERS and GARLAND, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

SFO Good–Nite Inn, LLC, withdrew recognition of Unite Here! Local 2 based on antiunion petitions that the National Labor Relations Board found were impermissibly tainted by Good–Nite's unlawful assistance to the decertification effort in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). Good–Nite petitions for review on the principal ground that the Board applied the wrong line of its precedent, Hearst Corp., 281 N.L.R.B. 764 (1986), and expanded the conduct covered by it, unreasonably departing from its settled causality precedent in Master Slack Corp., 271 N.L.R.B. 78 (1984).

Regardless of whether the Board previously forthrightly explained the distinction between these two lines of its precedent, the Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employees' representative.” SFO Good–Nite Inn, LLC, 357 N.L.R.B. No. 16, at 4 (July 19, 2011). The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union. Upon finding that Good–Nite directly assisted and advanced the decertification effort by coercively asking employees to sign the petitions and unlawfully threatening to fire an employee for opposing it, the Board applied the Hearst presumption as there was no need to make a specific causation finding under Master Slack.

We hold that the Board's Hearst presumption is reasonable and consistent with the Act, and that the Board's factual findings are supported by substantial evidence in the record. Accordingly, we deny the petition for review and grant the Board's cross application for enforcement.

I.

In March 2004, Good–Nite purchased a hotel located near the San Francisco International Airport and assumed the prior owner's obligations under a collective bargaining agreement with housekeeping and janitorial employees represented by Unite Here! Local 2 (“the Union”). At the relevant time the represented unit consisted of 24 employees. The agreement was due to expire in November 2004, but in August 2004 Good–Nite and the Union agreed that it would remain in effect during their renegotiations for a new agreement.

During a bargaining session on August 23, 2005, the Union demanded that Good–Nite discharge five new housekeepers unless they paid union dues pursuant to a union-security clause in the agreement. On August 31, Good–Nite general manager Azfal “A.C.” Chaudhry and banquet manager Naomi Grace Vargas met with two of those housekeepers, Cristina Valencia and Maria Maldonado. At the meeting, Chaudhrytold Valencia and Maldonado about the outstanding dues, stated that the Union was “no good,” and asked them to consider signing a “paper” to eliminate the Union. According to Valencia, Chaudhry questioned why they wanted a union when he was willing to give them paid vacation and health insurance, benefits they were not then receiving. Two hours later, Vargas approached Valencia and told her that Chaudhry was waiting for her response. Neither Valencia nor Maldonado signed a decertification petition. Maldonado told co-worker Luz Verdin that she was afraid management would make her sign a petition or lose her job.

Also in late August, Good–Nite assistant manager Leah Aquino approached housekeeper Margarita Taloma and asked her to sign an anti-union petition. A few days later Aquino unexpectedly arrived at Taloma's home and again asked her to sign a petition. Taloma refused. Another employee testified that there were “rumors about signatures that were being requested [by Good–Nite management] for non-unionizing.” Tr. of ALJ Hr'g, Apr. 18, 2006, at 143.

Valencia, Maldonado, and Taloma all told housekeeping inspector Consuelo Contreras, who was on the Union negotiating committee, about Good–Nite's solicitation of their signatures. On September 6, Contreras urged another housekeeper, Xiang Tan, not to sign the petitions. Two hours later, Chaudhry and Good–Nite's owner, Eric Yokeno, asked Contreras why she was telling employees not to sign the petitions and told her that she could be fired for doing so at work. Good–Nite did not have a work rule against solicitation.

On September 7, Chaudhry fired Valencia and Maldonado, citing a seasonal slowdown in business. This was contrary to Good–Nite's usual practice of laying off employees subject to recall, rather than firing them. Contreras, the employee most knowledgeable about their work, had not been asked about their work performance and thought they were both good workers. Other housekeepers with less seniority who had signed a decertification petition were not fired. By September 7, a Union field representative heard that Good–Nite management had been asking employees to sign a decertification petition.

On September 14, 2005, Good–Nite withdrew recognition of the Union based on petitions signed by 13 of the 24 unit employees stating that they no longer wished to be represented by the Union. When housekeeper Luz Verdin requested vacation leave, assistant manager Aquino told her on October 4 that she would grant the request if Verdin signed an anti-union petition, which she did. Aquino then backdated Verdin's signature to make it appear that she had signed the petition on or before Good–Nite's withdrawal of Union recognition. On October 14, 2005, the Union filed an unfair labor practice charge with the Board. The General Counsel of the Board issued a complaint on March 1, 2006.

The administrative law judge (“ALJ”) found, after a hearing, that Good–Nite had violated section 8(a)(1) of the Act by soliciting employees to sign an anti-union petition with threats or promised benefits; sections 8(a)(3) and (1) by discharging Valencia and Maldonado to discourage union membership and activities; and sections 8(a)(5) and (1) by unlawfully withdrawing recognition of and refusing to bargain with the Union. Applying the four-factor causation test of Master Slack, the ALJ found this unlawful conduct had tainted the employee petitions disavowing the Union. The ALJ, in addition to recommending reinstatement of Maldonado and Valencia with back pay and expunging references to their unlawful discharges from Good–Nite's files, proposed a cease and desist order and various affirmative actions, including that Good–Nite bargain with the Union. In March 2008, the Board adopted the ALJ's factual findings and proposed order. SFO Good–Nite Inn, LLC, 352 N.L.R.B. 268 (2008). Because the Board's decision was rendered by a non-quorum of only two members, this court vacated the decision in view of New Process Steel, L.P. v. NLRB, ––– U.S. ––––, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010); Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C.Cir.2009), and remanded the case for further proceedings. SFO Good–Nite Inn, LLC v. NLRB, No. 08–1148 (D.C.Cir. Sept. 20, 2010).

On July 19, 2011, a three-member Board issued a decision incorporating by reference most of the 2008 decision and explaining further why Good–Nite's withdrawal of recognition violated sections 8(a)(5) and (1) of the Act. Agreeing with the General Counsel that Good–Nite's conduct per se precluded its reliance on the petitions as a valid basis for withdrawing recognition of the Union, the Board ruled that “the disposition of this case is properly controlled by Hearst Corp., holding that an employer may not withdraw recognition based on a petition that it unlawfully assisted, supported, or otherwise unlawfully encouraged, even absent specific proof of the misconduct's effect on employee choice.” SFO Good–Nite Inn, 357 N.L.R.B. No. 16, at 1 (footnote omitted). One member dissented in part, on the ground that the Hearst presumption should be rebuttable while acknowledging that the difference was immaterial because Good–Nite “failed to show that its misconduct could not have tainted the employees' petition.” Id. at 5 (Member Hayes, concurring in part, dissenting in part). A unanimous Board adopted the ALJ's proposed order. Good–Nite petitions for review, and the Board cross-applies for enforcement of its Order.

II.

“[I]t is our longstanding rule that the Board is entitled to summary enforcement of the uncontested portions of its orders.” Carpenters & Millwrights, Local Union 2471 v. NLRB, 481 F.3d 804, 808 (D.C.Cir.2007) (internal quotation marks and alterations omitted). The Board accordingly seeks summary enforcement of its unchallenged findings that Good–Nite violated section 8(a)(1) of the Act by soliciting employees Taloma and Verdin to sign an anti-union petition with threats and promised benefits, and by threatening employee Contreras with discharge if she told other employees not to sign the petitions. Because Good–Nite did not file exceptions...