United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2006 Decided December 15, 2006
No. 05-1373
FLYING FOOD GROUP, INC., D/B/A FLYING FOOD,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
05-1395
On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Harry J. Secaras argued the cause and filed the briefs for
petitioner.
David A. Seid, 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, Aileen A. Armstrong, Deputy
Associate General Counsel, and Robert J. Englehart, Attorney.
Steven B. Goldstein, Attorney, entered an appearance.
2
Before: HENDERSON, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Petitioner Flying Food Group,
Inc.,1 withdrew recognition from an incumbent union after
receiving a disaffection petition purportedly supported by a
majority of employees in the bargaining unit. The National
Labor Relations Board (NLRB) concluded that Flying Food
failed to meet its burden of proving that the union had actually
lost majority support, as required by the Board’s decision in
Levitz Furniture Co., 333 NLRB 717 (2001). For the reasons set
forth below, we deny the company’s petition for review and
grant the Board’s cross-petition for enforcement.
I
Flying Food Group is a Chicago-based provider of in-flight
catering services to the airline industry. On December 17, 1999,
the Hotel Employees & Restaurant Employees International
Union, Local 355, AFL-CIO prevailed in a representation
election for a bargaining unit that included drivers, kitchen
employees, and production employees at the company’s Miami
facility. After overruling the company’s election objections, the
Board certified the union as the employees’ collective-
bargaining representative.
1
The Board’s opinion referred to the petitioner as “Flying Foods
Group.” See Flying Foods Group, Inc., 345 NLRB No. 10, at 1 (Aug.
25, 2005). The petitioner’s name, however, is “Flying Food Group,”
see Petitioner’s Br. i, and to avoid confusion we will refer to it by that
name.
3
Collective bargaining began on May 24, 2000. The parties
declared themselves close to arriving at an agreement on all non-
economic issues on January 31, 2001. Bargaining subsequently
stalled, however, due to differences over wage proposals. Then,
on or about April 18, 2001, Flying Food’s Human Resources
Manager, Daysma Grana, found an employee disaffection
petition, purportedly signed by 96 of the unit’s 164 employees,
that had been slipped anonymously under her locked office door.
On the basis of that petition, the company declared that it was
“withdrawing recognition of [the] Union as the collective
bargaining representative for [the] Miami employees.” Joint
Appendix (J.A.) 281. Thereafter, the company refused to
recognize or bargain with the union.
The union filed unfair labor practices charges against the
petitioner, and, on September 28, 2001, the NLRB’s General
Counsel issued a complaint alleging that Flying Food had
committed multiple violations of section 8(a)(1) of the National
Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). These
included, inter alia, threatening employees with the loss of
business opportunities and with the withholding of wage
increases due to their support for the union, coercively
interrogating an employee about his union sympathies, and
informing employees that they were receiving wage increases as
a reward for decertifying the union. The complaint also charged
that the company had violated sections 8(a)(1) and (3) of the
Act, 29 U.S.C. §§ 158(a)(1) & (3), by implementing retroactive
wage increases to discourage employee support for the union.
The Administrative Law Judge (ALJ) and the NLRB ultimately
upheld these charges, among others, and Flying Food does not
contest them here. The Board is entitled to summary
enforcement of the uncontested portions of its order. See
Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.
Cir. 1997).
4
The General Counsel’s complaint further charged that the
company had violated sections 8(a)(1) and (5) of the NLRA, 29
U.S.C. §§ 158(a)(1) & (5), by withdrawing recognition from the
union and thereafter refusing to recognize and bargain with it.
That charge is the subject of the instant petition for review. In
the proceeding before the ALJ (as in its briefs and argument in
this court), the company did not dispute that it withdrew
recognition from the union, but rather defended on the ground
that the union had actually lost the support of a majority of its
employees at the time recognition was withdrawn. To prove
that proposition, the company introduced the disaffection
petition and called Grana to testify concerning the circumstances
of its receipt and authentication. The General Counsel
vigorously cross-examined Grana, disputing whether some of
the individuals listed on the petition had actually been employed
on the date indicated on the petition, and whether the signatures
of others were authentic.
Relying on two alternative rationales, the ALJ held that
Flying Food had unlawfully withdrawn recognition from the
union in violation of NLRA sections 8(a)(1) and (5). First,
pursuant to the Board’s decision in Levitz, the ALJ found that
the company failed to satisfy its burden of showing that the
union had actually lost the support of the majority of the
employees in the bargaining unit at the time it withdrew
recognition. Second, the ALJ found that pre-withdrawal unfair
labor practices by the company had tainted the disaffection
petition on which it relied in withdrawing recognition.
On appeal to the NLRB, the Board agreed that the
withdrawal of recognition was unlawful, but did so only on the
basis of the ALJ’s first ground. The company, the Board said,
“failed to show the Union’s ‘actual loss’ of majority status,” as
required by Levitz. Flying Foods Group, Inc., 345 NLRB No.
10, at 3 (Aug. 25, 2005). The NLRB accepted the company’s
5
representation that there were 164 employees in the bargaining
unit at the time the petition was purportedly signed on April 18,
and that only 82 valid signatures were required to show a loss of
majority support. It noted, however, that although the petition
had 96 signatures, it was undisputed that six of them should not
be counted. The Board found that three more signatures were of
employees who had left the company before April 18. Finally,
after comparing the petition signatures of seven other employees
with writing exemplars from the company’s personnel records,
the Board concluded that those seven were not authentic. This
left at most 80 valid signatures,2 an insufficient number to
satisfy the company’s burden of proving the union’s actual loss
of majority status. See id.
Flying Food now petitions for review, and the Board cross-
petitions for enforcement of its order.
II
In Levitz Furniture Co., 333 NLRB 717 (2001), the NLRB
reversed a previous line of cases and held that “an employer
may unilaterally withdraw recognition from an incumbent union
only where the union has actually lost the support of the
majority of the bargaining unit employees.” Id. at 717. Under
Levitz, an employer’s good-faith doubt about a union’s
continuing majority status is insufficient to defend against a
2
The Board noted that the General Counsel had also challenged
the validity of several other signatures, but concluded that it did not
need to consider those challenges because it had already found a
sufficient number invalid to preclude a finding that the union had
actually lost majority support. See 345 NLRB No. 10, at 3-4 n.12.
6
withdrawal-of-recognition charge. Id.3 Rather, there is a
“continuing presumption of an incumbent union’s majority
status,” which may be “rebut[ted] . . . only on a showing that the
union has, in fact, lost the support of a majority of the
employees in the bargaining unit.” Id. at 725. In a passage
directly relevant to the instant case, the Board declared:
We emphasize that an employer with objective
evidence that the union has lost majority support -- for
example, a petition signed by a majority of the
employees in the bargaining unit -- 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. 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).
Id.
3
Prior to Levitz, the Board had “long held that an employer may
withdraw recognition by showing either that the union has actually
lost the support of a majority of the bargaining unit employees or that
it has a good-faith doubt, based on objective considerations, of the
union’s continued majority status.” Levitz, 333 NLRB at 717 (citing
Celanese Corp., 95 NLRB 664 (1951)); see Auciello Iron Works, Inc.
v. NLRB, 517 U.S. 781, 786-87 (1996). After Levitz, an employer may
no longer unilaterally withdraw recognition on the basis of good-faith
doubt. It may, however, obtain a Board-supervised election (known
as a Representation Management (RM) election) by demonstrating
good-faith reasonable uncertainty as to the union’s continuing
majority status. See Levitz, 333 NLRB at 717.
7
Flying Food does not contest the validity of Levitz. Instead,
it contends that the NLRB erred both procedurally and
substantively in applying the Levitz standard. We address the
petitioner’s two procedural arguments in this Part and its
substantive argument in Part III.
A
Flying Food’s first procedural argument concerns alleged
flaws in the General Counsel’s complaint. The company
contends that the unlawful withdrawal charge should have been
dismissed because the complaint failed “to aver . . . that the
Company lacked objective evidence that a majority of
employees had disaffected from the Union.” Petitioner’s Br. 10.
Flying Food further contends that the wording of the complaint
misled it into believing that the only basis for the unlawful
withdrawal charge was a claim that the company’s pre-
withdrawal unfair labor practices had tainted the disaffection
petition, and not a claim that the majority of unit employees still
supported the union at the time of the withdrawal.
Flying Food’s argument does not fly. The General
Counsel’s complaint alleged that the company’s withdrawal of
recognition was unlawful. Compl. ¶¶ 14, 24. Although the
complaint did not expressly aver that the union retained majority
support, it did not have to. Under Levitz, there is a “continuing
presumption of an incumbent union’s majority status,” and the
contention that an incumbent union has lost its majority status
is “an affirmative defense,” which the employer “has the burden
of establishing.” 333 NLRB at 725. Because a “plaintiff is not
required to negate an affirmative defense in his complaint,”
Tregenza v. Great Am. Commc’ns Co., 12 F.3d 717, 718 (7th
Cir. 1993), the allegation of unlawful withdrawal was pleaded
sufficiently. See Gomez v. Toledo, 446 U.S. 635, 640 (1980)
(finding “no basis for imposing on the plaintiff an obligation to
8
anticipate [an affirmative] defense by stating in his complaint”
its negative); 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1276 (3d ed. 2004)
(explaining that “allegations that seek to avoid or defeat a
potential affirmative defense . . . are not an integral part of the
plaintiff’s claim for relief and lie outside his or her burden of
pleading”).
Nor is there any ground for the company’s claim that it was
misled into believing that the unlawful withdrawal charge rested
solely on allegations that pre-withdrawal unfair labor practices
had tainted the disaffection petition. To be sure, other
paragraphs of the complaint did charge that Flying Food had
committed unfair labor practices prior to April 18, 2001. See,
e.g., Compl. ¶¶ 8-13. But the allegation of unlawful withdrawal
of recognition was a stand-alone charge, see id. at ¶ 14, and
there is no reason to read it otherwise.
But even if there had been some ambiguity in the complaint,
that would not have been grounds for dismissal. As we have
long held, “[p]leadings in administrative proceedings are not
judged by the standards applied to an indictment at common
law.” Aloha Airlines, Inc. v. Civil Aeronautics Bd., 598 F.2d
250, 262 (D.C. Cir. 1979).4 Rather, “[i]t is sufficient if the
[petitioner] ‘understood the issue’ and ‘was afforded full
opportunity’ to justify its conduct during the course of the
litigation.” Id. (quoting NLRB v. Mackay Radio & Tel. Co., 304
U.S. 333, 350 (1938)).
4
See Drukker Commc’ns, Inc. v. NLRB, 700 F.2d 727, 734 (D.C.
Cir. 1983); Bakery Wagon Drivers, Local Union No. 484 v. NLRB,
321 F.2d 353, 356 (D.C. Cir. 1963); Kuhn v. CAB, 183 F.2d 839, 841-
42 (D.C. Cir. 1950).
9
It is clear Flying Food understood that the question of
whether the union had actually lost majority support was at
issue, and that it had a full opportunity to make a showing of
such loss. In its pretrial pleading, the company acknowledged
that:
Under the Board’s decision in [Levitz], the Company’s
withdrawal of recognition is lawful if it can show that
the Union did not have (that it actually had lost)
majority support at the time of the withdrawal. In the
instant case, Flying Food intends to introduce evidence
at the hearing that on April 17, 2001, it was presented
with a petition signed by a majority of the bargaining
unit members stating their desire to disaffect from the
Union and that they no longer wanted the Union to
represent them for collective bargaining purposes.
Flying Food believes that the evidence will show that,
after authenticating the petition signatures, it lawfully
withdrew recognition from the Union based on the
objective evidence that the Union had, in fact, lost
majority support.
J.A. 509. And if the company had any residual doubt that it
would have to defend the validity of the signatures, that doubt
should have been erased by the General Counsel’s vigorous
cross-examination, which called into question the employment
status of some individuals listed on the petition and the
authenticity of the signatures of others. At that point, the
company could have tried to bolster its defense by calling
handwriting experts or the purported signatories themselves. Its
failure to do so was not the consequence of a lack of either
notice or opportunity.
10
B
Flying Food’s second procedural argument is that the
withdrawal-of-recognition charge should have been dismissed
because the General Counsel failed to include, in his case-in-
chief, evidence that the majority of employees were not
disaffected from the union. In the absence of such evidence, the
company contends, the ALJ should have granted its motion to
dismiss at the close of the government’s case. Instead, the ALJ
permitted the proceeding to go forward, which in turn permitted
the General Counsel to raise questions concerning the validity
of the petition signatures during cross-examination of the
company’s own witnesses. The NLRB’s “consideration of
[such] subsequent evidence,” the company insists, “belies
procedural normalcy.” Petitioner’s Br. 10.
Once again, the petitioner misapprehends the burden it bore
under Levitz. Because Levitz makes an actual loss of majority
status an “affirmative defense” to an unlawful withdrawal-of-
recognition claim, it is the defendant that “has the burden of
establishing that defense,” Levitz, 333 NLRB at 725, just as “in
any other [case] in which an affirmative defense is raised,”
Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993). And just as
the General Counsel (or any plaintiff) does not have to plead the
non-existence of an affirmative defense in its complaint, see
supra Part II.A, the General Counsel “is not required to negate
an affirmative defense unless and until the defendant has placed
it in issue.” Oakes v. United States, 400 F.3d 92, 98 (1st Cir.
2005).5 It is true that “[a]n employer who presents evidence
5
Cf. Watson v. United States, 439 F.2d 442, 454 (D.C. Cir. 1970)
(en banc) (noting that a “defendant raising . . . affirmative defenses at
trial presumably must bear the burden of going forward with
evidence” to prove those defenses); 28 CHARLES ALAN WRIGHT &
VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE:
11
that, at the time it withdrew recognition, the union had lost
majority support should ordinarily prevail in an 8(a)(5) case if
the General Counsel does not come forward with evidence
rebutting the employer’s evidence.” Levitz, 333 NLRB at 725
n.49 (emphasis added). But if the General Counsel does then
come forward, “the burden remains on the employer to establish
loss of majority support by a preponderance of all the evidence.”
Id.
In this case, the employer presented evidence -- in the form
of the disaffection petition -- that the union had lost majority
support. The General Counsel then rebutted that evidence by
casting doubt on the validity of the signatures on the petition.
Upon a review of all the evidence, the NLRB concluded that the
company failed to meet its burden of proving that the union had
actually lost majority support. See Flying Foods, 345 NLRB
No. 10, at 3-4. We detect no procedural error in the General
Counsel’s failure to include in his case-in-chief evidence that the
majority of employees were not disaffected.6
III
Finally, Flying Food argues that the Board’s conclusion --
that the employer failed to meet its burden of showing that the
union had actually lost majority support -- was unsupported by
EVIDENCE § 6164 (1993) (stating that, “in the normal order of
presentation, the defendant presents its evidence . . . supporting any
affirmative defenses” after the completion of the plaintiff’s case).
6
There apparently is a dispute within the Board as to whether “a
petition ostensibly signed by at least half of the unit employees” is
alone sufficient to shift the burden of going forward to the General
Counsel. See Flying Food, 345 NLRB No. 10, at 3 n.9. Analysis of
that dispute is unnecessary to resolve the issues raised here, as the
General Counsel did produce rebuttal evidence.
12
substantial evidence. See 29 U.S.C. § 160(e). In particular, the
company makes two claims. First, it contends that the Board
miscalculated the total number of employees in the bargaining
unit, and hence the number required to constitute a majority.
According to Flying Food, when the Board found that three
signatories to the disaffection petition had left the company
before the petition was signed, it should have reduced not only
the number of valid signatures, but the total number of unit
employees as well. That would have reduced the total number
of employees from 164 to 161, requiring the company to
authenticate only 81 -- rather than 82 -- signatures in order to
show that the union lacked majority support. Second, the
company contends that the Board erred in finding that the
petition signature of employee Yurima Varela did not match her
writing exemplar, a W-4 tax form. With these two errors
eliminated, the company maintains, the evidence showed that
the disaffection petition was signed by 81 employees out of 161
-- a majority, albeit a thin one.
Counsel for the NLRB rejects these claims. It was Flying
Food itself that came up with the total of 164 unit employees,
counsel argues, and the company should be held to that number.
Moreover, according to Board counsel, that number was based
on up-to-date payroll information that took into account the
departure of the three employees. As for the signature of
Varela, counsel insists that the signature on the petition is not
the same as the signature on Varela’s W-4.
Whatever the merits of Flying Food’s evidentiary argument,
we are barred from considering it because the company never
presented it to the Board. Section 10(e) of the NLRA provides
that “[n]o objection that has not been urged before the Board .
. . shall be considered by the court, unless the failure or neglect
to urge such objection shall be excused because of extraordinary
circumstances.” 29 U.S.C. § 160(e). Where, as here, a
13
petitioner objects to a finding on an issue first raised in the
decision of the Board rather than of the ALJ, the petitioner must
file a petition for reconsideration with the Board to permit it to
correct the error (if there was one). See Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982) (holding that
section 10(e) deprives courts of the power to hear issues first
raised by a Board decision unless the petitioner “object[s] to the
Board’s decision in a petition for reconsideration or rehearing”);
see also Lee Lumber & Bldg. Material Corp. v. NLRB, 310 F.3d
209, 216-17 (D.C. Cir. 2002); Cobb Mech. Contractors, Inc. v.
NLRB, 295 F.3d 1370, 1378 (D.C. Cir. 2002). Flying Food
proffers no “extraordinary circumstances” to excuse its failure
to file, 29 U.S.C. § 160(e), but instead explains that it made a
“strategic decision” to present its argument to this court rather
than to seek reconsideration by the Board. Oral Arg. Tape
11:32. Characterizing its decision as “strategic,” however, does
not change the fact that the petitioner’s “failure to seek Board
reconsideration bars our review under section 10(e).” Lee
Lumber, 310 F.3d at 216.
IV
Flying Food’s petition for review is denied, and the Board’s
cross-petition for enforcement of its order is granted.
So ordered.