United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 2005 Decided January 27, 2006
No. 04-1421
CERIDIAN CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
05-1041
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Donald W. Selzer, Jr. argued the cause for petitioner. With
him on the briefs was Joseph P. Harkins.
Jeff Barham, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and Fred B.
Jacob, Supervisory Attorney.
2
Before: SENTELLE, GARLAND, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Ceridian Corporation refused to
meet with a union bargaining committee during nonworking
hours, and at the same time refused to grant the employee
members of the committee unpaid leave to attend bargaining
sessions during working hours. The National Labor Relations
Board concluded that, in so doing, Ceridian impermissibly
interfered with its employees’ choice of bargaining
representatives. Because the Board’s conclusion was reasonable
and supported by substantial evidence, we deny Ceridian’s
petition for review and grant the Board’s cross-petition for
enforcement.
I
Ceridian is an information services company that provides
a variety of employment services to other companies throughout
the United States. One of its divisions offers assistance and
counseling to employees of customer companies that contract
with Ceridian. That division operates a call-in service center in
Eagan, Minnesota, where its consultants provide advice to
employees of customers on subjects ranging from substance
abuse to emotional well-being. The center operates 24 hours per
day, 7 days per week, 365 days per year. Consultants are
divided into teams depending on their areas of expertise, and
work the day, evening, or overnight shift.
Ceridian maintains a paid leave policy for its own
employees called “Personal Days Off” (PDO). Under the
policy, full-time employees can accrue up to four weeks of paid
time off per year. Employees may use their PDO for whatever
3
purpose they wish, including vacation, illness, or personal
business, as long as they obtain management approval. Ceridian
also provides ten paid holidays per year, four of which are
“floating” holidays that can be designated by the employee
subject to management approval. Unpaid leave, other than for
long-term absences, is not available to employees unless
required by the Family and Medical Leave Act, 29 U.S.C. §
2901 et seq. Thus, PDO and the four floating holidays are
employees’ only options for discretionary leave. Employees
who take time off in excess of their accrued PDO and floating
holidays are subject to discipline, including discharge.
On June 5, 2003, the National Labor Relations Board
(NLRB) certified Service Employees International Union 113 as
the exclusive collective bargaining representative for
approximately 130 employees at the Minnesota call-in center.
The employees included day, evening, and overnight shift
consultants, as well as other employees classified as clinical
coaches, referral specialists, and network development
specialists. The union -- the first to represent employees at the
company -- put together a committee of six employees drawn
from different work groups and shifts. The six employees
volunteered to serve as the negotiating team in pursuit of a
collective bargaining agreement with Ceridian.
The first bargaining session between the union’s committee
and Ceridian’s management took place on September 22, 2003.
All six employee representatives attended, along with a union
business representative and union negotiator. One of the first
topics of discussion was accounting for time spent by employees
in bargaining sessions. The union requested that employees be
permitted to take leave without pay, and indicated that it would
compensate the employees for their lost wages. Ceridian
refused this request and insisted instead that, in order to attend
bargaining sessions, employees would have to take time from
4
their accrued PDO in full-day segments. Although Ceridian
continued to insist that employee representatives use their PDO
to attend bargaining sessions, after further discussion it agreed
to allow them to take PDO in four-hour segments (for sessions
that were limited in advance to half days), and to permit those
who exhausted their accrued PDO to borrow against the
following year’s allotment for the purpose of attending
bargaining sessions. Ceridian also tentatively agreed to
schedule the next bargaining session in the evening, in order to
lessen the PDO burden on the employee representatives, the
majority of whom worked the day shift.
Following this first meeting, Ceridian replaced its lead
attorney with another. In a subsequent telephone call to the
union’s business representative, new lead counsel cancelled the
evening bargaining meeting. He then followed up with a letter,
insisting that “all such meetings be conducted during normal
business hours.” Joint Appendix (J.A.) 114.
After Ceridian announced that it would require employees
to use PDO for negotiating sessions and would refuse to
negotiate during nonworking hours, three of the union’s six
employee representatives stopped regularly attending bargaining
sessions. The other three continued to attend. Employee Jerry
Buchko used more than one hundred hours of his PDO and two
of his floating holidays to attend seventeen of eighteen sessions.
Employees Robert Lodin and Kevin Kirley were able to attend
most of the sessions without using PDO because they worked
the evening and night shifts. After the eighteen sessions, all
held during regular business hours on weekdays, the parties still
had not reached a contract.
On December 18, 2003, the union filed an unfair labor
practices charge with the NLRB. A hearing was held before an
administrative law judge (ALJ), and the Board entered its
5
decision and order, adopting the ALJ’s recommendations, on
November 12, 2004. The Board found that Ceridian had
violated sections 8(a)(5) and (1) of the National Labor Relations
Act, 29 U.S.C. § 158(a)(5) and (1), by denying its employees
unpaid time off to attend bargaining sessions during the
workday, while simultaneously refusing to bargain during
nonworking hours. The Board therefore ordered Ceridian to
grant the employee representatives unpaid leave to attend
negotiating sessions held during working hours, or, in the
alternative, to schedule bargaining at mutually agreed-upon
times when the employees were not scheduled to work. See
Ceridian Corp. & SEIU Local 113, 343 NLRB No. 70, 2004 WL
2604608, at *13 (Nov. 12, 2004).
Ceridian now petitions for review, and the Board cross-
petitions for enforcement of its order.
II
Under the National Labor Relations Act (NLRA),
employees have a “fundamental right” to “select representatives
of their own choosing for collective bargaining or other mutual
protection without restraint or coercion by their employer.”
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937).1
1
Section 7 of the NLRA grants employees the right “to bargain
collectively through representatives of their own choosing.” 29
U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice “to
interfere with . . . the exercise of the rights guaranteed” in section 7.
29 U.S.C. § 158(a)(1). And section 8(a)(5) makes it an unfair labor
practice for an employer “to refuse to bargain collectively with the
representatives of his employees.” 29 U.S.C. § 158(a)(5). See also
NLRA § 1, 29 U.S.C. § 151 (declaring that “protecting the exercise by
workers of full freedom of . . . designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions
of their employment,” is part of the “policy of the United States”).
6
An employer may not take action that “effectively chills its
employees’ right to select their own bargaining representatives
by preventing or discouraging those representatives from fully
participating in . . . negotiations.” Procter & Gamble Mfg. Co.
v. NLRB, 658 F.2d 968, 977 (4th Cir. 1981). Ceridian
challenges, on three grounds, the NLRB’s conclusion that it
interfered with its employees’ choice of bargaining
representatives.
1. We first consider Ceridian’s contention that the Board’s
decision is “an unreasoned and inexplicable departure from its
own precedent.” Petr.’s Br. 19. As we have repeatedly held in
considering this kind of challenge, an “agency’s interpretation
of its own precedent is entitled to deference.” Cassell v. FCC,
154 F.3d 478, 483 (D.C. Cir. 1998); see Boca Airport, Inc. v.
FAA, 389 F.3d 185, 190 (D.C. Cir. 2004); U.S. Telecom Ass’n
v. FCC, 295 F.3d 1326, 1332 (D.C. Cir. 2002); Global Crossing
Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir. 2001).
According to Ceridian, the Board’s precedents in this area
stand for the proposition that an employer is entitled to insist on
conducting collective bargaining during business hours, as long
as it gives employee representatives time off to attend
negotiations. The Board contradicted its precedents, Ceridian
argues, by holding that Ceridian was obligated to offer its
employees not just time off, but unpaid time off, in order to
attend bargaining sessions held during working hours. As
Ceridian points out, it did permit its employees to take time off,
although it required that the time come from the employees’
paid leave accounts accrued under the company’s PDO policy.
While they disagree as to their meaning, both Ceridian and
the Board agree which of the Board’s precedents are relevant:
Indiana & Michigan Elec. Co., 229 NLRB 576 (1977), enforced,
599 F.2d 185 (7th Cir. 1979); and Milwhite Co., Inc., 290 NLRB
7
1150 (1988). At first glance, we find it difficult to see any
inconsistency between Indiana and Milwhite on the one hand,
and this case on the other. The same is true at second glance.
In Indiana, the Board held:
We find that the Respondent’s refusal to grant
members of the Union’s negotiations committee
uncompensated leave to permit them to engage in
bargaining during working hours, while at the same
time refusing the Union’s request to bargain during
nonworking hours, is an unlawful interference with the
Union’s selection of its bargaining representatives.
229 NLRB at 576 (emphasis added). In Milwhite, the Board
repeated and reaffirmed the above quotation from Indiana. See
Milwhite, 290 NLRB at 1152-53. In the instant case, the Board
announced precisely the same rule with respect to Ceridian.
Ceridian rightly notes that the issue of paid versus unpaid
leave was not squarely presented in either Indiana or Milwhite.
In Indiana, the employee representatives sought unpaid leave to
attend negotiations, and the employer denied them any leave at
all; in Milwhite, the employer refused to attend negotiations
during working hours with an employee representative whose
services it deemed essential, and at the same time refused to
meet after working hours. At best, however, this makes
Ceridian’s case distinguishable from Indiana and Milwhite;2 it
does not render the Board’s decision a departure from those
cases. There are simply no grounds for concluding that the
Board acted inconsistently with its precedents by requiring an
employer who would not bargain after hours to provide
2
Indeed, that was Ceridian’s argument before the Board. See
Ceridian, 343 NLRB No. 70, at *6.
8
“unpaid” leave during working hours, given Indiana’s repeated
finding that the employer in that case violated the NLRA by
refusing to provide employee representatives with
“uncompensated” leave. See Indiana, 229 NLRB at 576-77.3
2. It is a bit imprecise, of course, to ascribe the source of
Ceridian’s distress to the fact that the Board required it to
provide unpaid leave. Surely Ceridian would have been no
happier (although presumably its employees would have been)
had the Board required the company to provide paid leave for
attendance at negotiating sessions. Rather, the gravamen of
Ceridian’s claim is that it was wrong for the Board to bar it from
insisting that any leave come from an employee’s accrued PDO
-- leave that was paid, but finite.
This brings us to Ceridian’s second line of attack: that “the
Board’s Decision constitutes an unauthorized and irrational
policy judgment.” Petr.’s Br. 19. In raising this argument,
Ceridian once again must confront our deferential standard of
review. The Supreme Court “has emphasized often that the
NLRB has the primary responsibility for developing and
applying national labor policy,” and that courts therefore must
accord its legal rules “considerable deference.” NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786 (1990). We must
3
Ceridian notes that, in one paragraph, Indiana referred to the
NLRA violation as the employer’s refusal to allow “time off,”
unadorned by the adjective “unpaid” or “uncompensated.” 229 NLRB
at 576. By that point in the opinion, however, the Board had already
referred -- five times -- to the employer’s unlawful act as refusing
“unpaid time off,” “leave without pay,” or “uncompensated leave.”
Id. The Board then went on to repeat those references three more
times. See id. at 577. We are unable to attribute the Board’s dropping
of an adjective on the occasion cited by petitioner to anything other
than, perhaps, its confidence that it had sufficiently made its point.
9
“uphold a Board rule as long as it is rational and consistent”
with the NLRA. Id. at 787. “Like other administrative
agencies, the NLRB is entitled to judicial deference when it
interprets an ambiguous provision of a statute that it
administers.” ITT Indus., Inc. v. NLRB, 251 F.3d 995, 999 (D.C.
Cir. 2001) (quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 536
(1992) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984))).
Ceridian’s argument is that, because an employer is not
required to pay employees for time spent attending negotiations,
and because Ceridian sees no meaningful difference between not
paying employees and requiring them to use PDO to attend
negotiations, it was irrational for the Board to find the company
in violation of the NLRA. The Board’s view, by contrast, is that
even if an employer is not required to pay employees while they
are participating in labor negotiations, there is a meaningful
difference between refusing to pay employees and requiring
them to deplete their finite leave allotments. The difference is
that a union can compensate employee representatives for their
lost pay (as the union offered to do here), but it cannot give them
more leave than the employer permits. See Ceridian, 343 NLRB
No. 70, at *12.
The distinction the NLRB draws is a reasonable one. As the
Board concluded, Ceridian’s policy significantly circumscribes
the universe of employees who are able to serve as bargaining
representatives, and thus interferes with its employees’ choice
of representatives. See id. Employees who need their PDO to
accommodate substantial family responsibilities, for example,
would not be able to serve. An employee who exhausted his
annual PDO allotment on bargaining meetings4 would have
4
This can occur quite quickly. As noted above, employee-
representative Jerry Buchko used more than one hundred hours of his
10
nothing left with which to meet his family responsibilities,
because the union cannot give him additional time off. And
Ceridian is simply wrong in arguing that it eliminated this
problem by modifying its policy to permit employees who
exhaust their annual PDO to borrow from the following year’s
allotment. Ceridian’s modification permitted such borrowing
only for the purpose of continuing to attend negotiating sessions;
it provided no relief for those needing leave for any other
reason. Thus, an employee representative with a sick relative
would still be out of leave and out of luck.
3. Lastly, Ceridian questions the record support for the
Board’s finding that it violated the NLRA. As with the
company’s other contentions, our role in reviewing this claim is
limited. We must uphold a finding of the Board as long as it is
“supported by substantial evidence on the record considered as
a whole.” 29 U.S.C. § 160(e). In making that determination,
“we ask only whether on this record it would have been possible
for a reasonable jury to reach the Board’s conclusion,” giving
“substantial deference to the inferences drawn by the NLRB
from the facts.” Antelope Valley Bus Co. v. NLRB, 275 F.3d
1089, 1093 (D.C. Cir. 2002) (internal quotation marks omitted).
We find that substantial evidence supports the Board’s
conclusion that Ceridian’s policy of requiring employees to use
PDO to attend negotiating sessions during the workday, while
simultaneously refusing to negotiate during nonworking hours,
interfered with the employees’ selection of their representatives.
As described above, it was reasonable for the Board to infer that
a policy that required the use of finite leave would chill
participation by those with family or other responsibilities. That
PDO and two of his floating holidays to attend seventeen of the
eighteen sessions held in this case, after which the parties still had not
reached agreement.
11
inference is supported by the fact that the union lost half of its
negotiating team after Ceridian announced the policy.
Ceridian contends that the Board’s finding is undermined
by its failure to consider the company’s justifications for its
policy. But the Board neither ignored Ceridian’s arguments nor
suggested that no set of circumstances could warrant the denial
of uncompensated leave to attend negotiating sessions. Rather,
the Board simply found that the circumstances proffered by
Ceridian were insufficient to justify its interference with its
employees’ choice of bargaining representatives. See Ceridian,
343 NLRB No. 70, at *12; cf. Procter & Gamble, 658 F.2d at
978 (enforcing a similar Board order after concluding that
“[t]here is no indication that the uncompensated leave remedy
will be abused in a manner disrupting Procter & Gamble’s
business operations”); Indiana, 599 F.2d at 191 (holding that the
Board could “reasonably conclude that any economic hardship
or managerial disruption suffered by the Company” in allowing
an employee unpaid time off to attend negotiations “is
manifestly less than that recognized by the Company from sick
leave and vacation time for employees arrived at through
collective bargaining”).
The first justification proffered by Ceridian is that, because
it had no prior “practice or policy that would entitle employee
representatives to intermittent unpaid time off for the purpose of
attending negotiations,” Petr.’s Br. 25, the Board’s decision
“conferr[ed] a preferred status on employees who choose to
engage in union activities while disadvantaging those who do
not.” Petr.’s Reply Br. 17. We do not see how employee
representatives are “preferred” over their co-workers by
permitting them to use uncompensated leave rather than PDO to
represent the interests of those co-workers in bargaining
sessions, nor how the co-workers are “disadvantag[ed]” by such
an arrangement. Moreover, it is no surprise that the company
12
did not have a prior policy or practice on the subject, since this
was the first time a union had been certified to represent
Ceridian’s employees. But the absence of such a policy -- or
even a self-imposed policy to the contrary -- cannot trump the
requirements of the NLRA. As the Supreme Court held in the
Jones & Laughlin case, “[e]mployees have as clear a right to
organize and select their representatives for lawful purposes as
the [employer] has to organize its business.” 301 U.S. at 33; cf.
Procter & Gamble, 658 F.2d at 978 (holding that the options
available to the employer under the NLRB’s remedial order --
including “leeway . . . to meet evenings or weekends rather than
to grant any uncompensated leave” -- “demonstrate that the
Board’s order does not impose a new contractual provision upon
the parties,” but rather “serves only to remedy the unfair labor
practices found in this case”).
The second justification asserted by Ceridian is two-fold:
adherence to the PDO policy is required, the company avers, “to
ensure that staffing levels remain predictable and that customers
receive effective and timely service.” Petr.’s Br. 27 (quoted
words capitalized in original). Like the Board, we find this
argument “unpersuasive.” Ceridian, 343 NLRB No. 70, at *12.
With respect to predictability, Ceridian has offered no reason to
believe that its staffing projections cannot be adjusted to take
into account planned bargaining sessions; indeed, the company’s
willingness to permit year-ahead borrowing of PDO to attend
such sessions indicates that this is not a significant problem.
And with respect to customer service, there is nothing
unreasonable in the Board’s view that the absence of six (or
fewer) employees, out of a workforce of approximately 130, is
likely to have “minimal” impact. Id. In any event, the impact
on Ceridian is nothing compared to the impact on employers that
the Board found insufficient in Indiana and Milwhite. See
Indiana, 229 NLRB at 576 (rejecting the employer’s
justification that an employee representative was a
13
troubleshooter “whose presence could not be spared” for the
requested eleven days of bargaining); Milwhite, 290 NLRB at
1150 (rejecting the employer’s justification that an employee
representative was one of only two bulldozer operators and that
his absence would leave “about 50 percent of the production
employees” idle while the representative was attending
negotiations).
Finally, and perhaps most importantly, Ceridian could have
minimized the impact of granting unpaid leave by scheduling
some of the bargaining sessions during nonworking hours.
Indeed, the impact could have been “avoided all together by
bargaining weekend days[,] for example,” when employees
would have needed neither unpaid leave nor PDO to attend.
Ceridian, 343 NLRB No. 70, at *12. Yet, Ceridian offered no
rationale other than “intrusion into [the] personal time” of its
management team for not making that accommodation. J.A.
114.5 There was nothing unreasonable in the Board’s conclusion
that this rationale was insufficient to justify Ceridian’s
interference with its employees’ choice of bargaining
representatives.
III
In Indiana, the NLRB made clear that employers have
options with respect to scheduling bargaining sessions and
granting employee representatives leave to attend those sessions:
We do not suggest that an employer is compelled to
yield to a union’s request for negotiations outside
5
Ceridian also professed concern for intruding upon the personal
time of the employee representatives, but since the employees were
the ones who proposed bargaining during nonworking hours, this
argument carries little weight.
14
normal business hours. It is free to insist on bargaining
during the working day, if it prefers, as the Respondent
did here. If it makes this choice, however, it cannot at
the same time refuse to allow unpaid time off to union
representatives on the bargaining committee . . . .
Alternatively, the Employer is free to acquiesce in the
Union’s request to bargain during nonworking hours in
order to reduce the amount of uncompensated leave . .
. and to minimize the effects of [employees’]
unavailability during their regular working hours . . . .
However, the Respondent cannot have it both ways.
Indiana, 229 NLRB at 576. The Board made clear that Ceridian
had those same options in this case. See Ceridian, 343 NLRB
No. 70, at *12. And here, as in Indiana, it was the employer’s
“attempt . . . to have it both ways that constitute[d] the violation
of the Act.” Indiana, 229 NLRB at 576. Accordingly,
Ceridian’s petition for review is denied, and the Board’s cross-
petition for enforcement of its order is granted.
So ordered.