United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2007 Decided November 30, 2007
No. 06-1336
HIGHLANDS HOSPITAL CORPORATION, INC., D/B/A HIGHLANDS
REGIONAL MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
06-1383
On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Vincent Candiello argued the cause and filed the briefs for
petitioner.
Stacy G. Zimmerman, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Assistant General
Counsel, and David Habenstreit, Supervisory Attorney.
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Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The National Labor Relations Board
found that an employer’s withdrawal of recognition from a
union violated the National Labor Relations Act. The employer
now argues it had a right to withdraw recognition because the
union had lost majority support. Because substantial evidence
supports the Board’s finding that the employer failed to prove
actual loss of majority support, we deny the petition for review
and grant the Board’s cross-application for enforcement. The
employer also contends that the Board abused its discretion by
imposing an affirmative bargaining order, but we lack
jurisdiction to hear this challenge because the employer failed to
raise it before the Board.
I.
The National Labor Relations Board certified Service
Employees International Union, District 1199 in June 1999 to
represent a unit of registered nurses at Highlands Regional
Medical Center (HRMC) in Prestonburg, Kentucky. Two years
later, in September 2001, employees led by one of the nurses,
Ilene Lewis, formed a “Nurses Decertification Committee” to
campaign against union representation. The committee
circulated a petition entitled “Highlands Regional Medical
Center Showing of Interest for Decertification of SEIU Union
Registered Nurses.” On January 2, 2002, Lewis submitted a
decertification petition to the Board, attaching as evidence the
committee’s petition. The Board blocked the petition pending
resolution of unrelated unfair labor charges against HRMC.
A March 11 letter from the nurses’ committee to HRMC
Chief Executive Harold Warman asserted that thirty-eight of
seventy-one nurses had shown “support for decertification” by
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signing the petition, while “a number” of others—allegedly
reluctant to sign for fear of repercussions—had expressed verbal
opposition to the union. Citing only the petition, Warman
notified both the nurses and the union on March 19 that HRMC
would cancel negotiations set to begin the next day and would
withdraw recognition upon expiration of the contract. This is
precisely what HRMC did: on April 12, the day on which the
collective bargaining agreement expired, HRMC withdrew
recognition. Then, without notifying or negotiating with the
union, Warman announced a “significant” increase in hourly
wages for nurses.
The union filed two unfair labor practice charges alleging
violations of the National Labor Relations Act—specifically,
sections 8(a)(1) and (5). 29 U.S.C. § 158(a)(1), (5). Section
8(a)(1) bars employers from interfering with, restraining, or
coercing employees in the exercise of their rights to organize
and bargain collectively, while section 8(a)(5) requires
employers to bargain with employees’ designated union
representatives. Id. The first charge came the day after HRMC
announced its intent to withdraw recognition and cancel
bargaining sessions. The second followed HRMC’s unilateral
wage increase.
Before an administrative law judge, HRMC contended that
both the withdrawal of recognition and pay raise were lawful
because it had shown “actual loss of majority support” for the
union as required by Levitz Furniture Co. of the Pacific, 333
N.L.R.B. 717, 724-25 (2001). At the hearing, the parties
stipulated that on April 12, the date of withdrawal, the
bargaining unit included sixty-eight employees, thirty-four of
whom had signed the petition. One nurse, Shirley Mausser,
testified that she signed only after being told the petition aimed
to preserve employee choice and that she later joined the union
and authorized HRMC to deduct union dues from her pay. Lists
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of employees reviewed weekly by HRMC executives before
April 12 and introduced into evidence identified Mausser as a
union member. To show loss of majority support, HRMC
presented testimony from thirty-five nurses who allegedly
disapproved of the union before withdrawal. Thirty of the
testifying nurses had signed the committee’s petition. Although
five others claimed that they had opposed the union on April 12,
prior to that time none had revealed their views directly to
HRMC managers. Warman, for example, was unable to “recall
or link any particular statement with any particular” member of
the bargaining unit. Highlands Hosp. Corp., 347 N.L.R.B. No.
120, at 12 (Aug. 31, 2006). The ALJ concluded that HRMC’s
evidence failed to prove actual loss of majority support for two
reasons: (1) the showing of interest petition in part reflected
support for an election, without necessarily implying opposition
to the union; and (2) the petition contained valid signatures from
less than half the nurses who were members of the bargaining
unit on April 12. Id. at 2-3.
The Board adopted the ALJ’s findings on both points. As
to the petition’s meaning, the Board stressed that its
text—“showing of interest for decertification”—failed to
indicate clear opposition to the union; that committee members
repeatedly claimed to be seeking an election; and that three
nurses had signed only after being informed the petition’s aim
was an election. Turning to the number of valid signatures, the
Board emphasized that “the parties agree that the petition was
signed by half of the unit members only if the signature of
employee Mausser is counted.” Id. at 4. Because of Mausser’s
“unequivocal, postpetition demonstration of support” for the
union, the Board concluded that the petition “contained an
insufficient number of valid signatures” to show actual loss of
majority support even if it “clearly expressed the signers’ desire
not to be represented.” Id. Finally, the Board disregarded the
trial testimony of the thirty-five nurses “because this evidence
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was not before [HRMC] when it withdrew recognition.” Id. at
4 n.17. On this basis, the Board ruled that HRMC violated the
NLRA by withdrawing recognition and increasing wages
unilaterally. Id. at 3. As remedies, the Board ordered HRMC
to: (1) cease and desist from violating the NLRA; (2) rescind the
unilateral pay increase if the union so requests; (3) let the union
post notices on employee bulletin boards for six months; (4)
provide the union names and addresses of nurses currently in the
bargaining unit; and (5) bargain with the union. Id. at 4-7.
HRMC now challenges the two unfair labor charges
stemming from its withdrawal of recognition, as well as the
Board’s affirmative bargaining order. We accept the Board’s
findings of fact as conclusive if supported by substantial
evidence on the record as a whole. 29 U.S.C. § 160(e). Because
substantial evidence means “‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion,’” we “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.’” Palace Sports &
Entm’t, Inc. v. NLRB, 411 F.3d 212, 220 (D.C. Cir. 2005)
(quoting Resort Nursing Home v. NLRB, 389 F.3d 1262, 1270
(D.C. Cir. 2004)).
II.
According to longstanding Board policy, unions certified
under NLRA section 9(c), 29 U.S.C. § 159(c), enjoy a
presumption of majority status. Levitz, 333 N.L.R.B. at 720 &
n.17. This presumption is conclusive for up to three years
during the term of a collective bargaining agreement. See
Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996).
After the agreement expires, however, employers may rebut the
presumption. Levitz, 333 N.L.R.B. at 720 & n.17. Prior to
Levitz, employers could rebut the presumption by showing no
more than good-faith doubt about a union’s majority status
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before withdrawing recognition. See Celanese Corp. of Am., 95
N.L.R.B. 664, 671-72 (1951). But in Allentown Mack Sales &
Service, Inc. v. NLRB, 522 U.S. 359 (1998), the Supreme Court
directed the Board to interpret “doubt” to mean uncertainty, a
less stringent standard than the Board’s prior approach, which
defined doubt as disbelief. Id. at 367, 373-74; Levitz, 333
N.L.R.B. at 723. That said, Allentown Mack recognized the
Board’s discretion to adopt a different test. 522 U.S. at 373-74
(“As a theoretical matter (and leaving aside the question of legal
authority), the Board could certainly have raised the bar for . . .
withdrawal of recognition by imposing a more stringent
requirement than the reasonable-doubt test . . . .”). Capitalizing
on this opportunity, the Board decided in Levitz that requiring
employers to show actual loss of majority support, rather than
good-faith doubt, would better serve the NLRA’s twin goals of
“ensuring employee free choice and promoting stability in
bargaining relationships.” Levitz, 333 N.L.R.B. at 724. In
particular, the Board announced:
[W]e hold that an employer may rebut the continuing
presumption of an incumbent union’s majority status,
and unilaterally withdraw recognition, only on a
showing that the union has, in fact, lost the support of
a majority of the employees in the bargaining unit. . . .
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
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have rebutted the presumption of majority status, and
the withdrawal of recognition will violate Section
8(a)(5).
Id. at 725.
In this case, HRMC disputes only the application of the
Levitz standard, not its validity. Levitz places the burden on
HRMC to prove by a preponderance of the evidence that on
April 12, the day the collective bargaining agreement expired,
the union “had, in fact, lost majority support.” Id. Given the
deference we owe the Board’s factual findings, substantial
evidence supports its determination that HRMC failed to prove
actual loss of majority support at the time of withdrawal. In
communications with both the union and bargaining unit
employees, HRMC expressly relied on the petition, and only the
petition, to justify its decision to withdraw recognition, and at
the evidentiary hearing, it stipulated that without the signature
of Mausser the petition lacked support from a majority of
nurses. Before withdrawing recognition, moreover, HRMC
executives were aware of Mausser’s support for and
membership in the union. Under Levitz, absent other “objective
evidence” in HRMC’s possession at the time of withdrawal, id.,
HRMC’s stipulation and its knowledge that Mausser had joined
the union dispose of this case.
HRMC insists that it did have additional evidence of loss of
majority support. Specifically, it points to the hearing testimony
of thirty-five nurses, five of whom had declined to sign the
petition but later claimed, after the pay raise, to have opposed
the union. Both the Board and ALJ, however, refused to credit
this testimony, and for good reason: HRMC had no knowledge
of that corroborating evidence on the day it withdrew
recognition. Highlands, 347 N.L.R.B. No. 120, at 4 n.17, 10.
On that crucial date, then, besides the committee’s petition,
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HRMC had only unsubstantiated hearsay assertions that other
employees opposed the union, which “certainly do not establish
the fact of . . . disfavor with the degree of reliability ordinarily
demanded in legal proceedings.” Allentown Mack, 522 U.S. at
369 (emphasis omitted).
HRMC also challenges the alternative basis for the Board’s
decision—that certain nurses believed the petition’s purpose was
to obtain an election. But given our conclusion that the petition
lacked majority support and that HRMC has thus failed to carry
its burden under Levitz, we have no need to address this
challenge.
III.
This brings us to HRMC’s challenge to the bargaining
order. HRMC contends that the Board failed adequately to
justify this “extreme remedy,” which “invades” the rights of
nurses opposed to the union. Pet’r’s Opening Br. 32, 34. In
response, the Board argues that we lack jurisdiction to address
this issue because HRMC failed to raise it before the Board.
NLRA section 10(e) 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); see also Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665-66 (1982). In its exceptions to the ALJ’s
decision, HRMC never mentioned the affirmative bargaining
order. It objected only to the “excessive breadth of the remedy
with which the ALJ ordered [HRMC] to comply.” In its briefs
before the Board, moreover, HRMC offered no arguments at all
regarding the ordered remedy.
HRMC’s single reference to the “excessive breadth” of a
remedy with multiple parts is insufficient to satisfy section 10(e)
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because it failed to give the Board “‘adequate notice’ of the
argument it seeks to advance on review.” Am. Postal Workers
Union v. NLRB, 370 F.3d 25, 28 (D.C. Cir. 2004) (quoting Alwin
Mfg. Co. v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999)). This
“generalized objection” resembles an exception to a remedial
order “in its entirety,” which we have found too broad to
preserve challenges against affirmative bargaining orders.
Prime Serv., Inc. v. NLRB, 266 F.3d 1233, 1241 (D.C. Cir.
2001). HRMC identifies no extraordinary circumstances to
excuse its failure to preserve this issue with adequate specificity.
To be sure, the Board on its own considered the bargaining order
and found it justified. Highlands, 347 N.L.R.B. No. 120, at 5.
As the Supreme Court has made clear, however, “[t]he § 10(e)
bar applies even though” the Board has decided an issue.
Woelke, 456 U.S. at 666; see also Local 900, Int’l Union of
Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1192
(D.C. Cir. 1984) (“[T]he fact that the Board has or has not
discussed an issue raises no necessary inferences with respect to
section 10(e).”). Accordingly, we lack jurisdiction to consider
HRMC’s challenge to the bargaining order.
IV.
For the reasons given above, we deny HRMC’s petition for
review and grant the Board’s cross-application for enforcement.
So ordered.