United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2007 Decided April 11, 2008
No. 07-1006
PARKWOOD DEVELOPMENTAL CENTER, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL
UNION, LOCAL 1996,
INTERVENOR
Consolidated with
07-1027
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.
2
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.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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.
I.
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
3
(“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
1
Parkwood chose to rely upon the employees’ petition as its sole
barometer of union support, and did not file with the Board a
Representation Management petition (“RM petition”), 29 U.S.C.
§ 159(c)(1)(B); 29 C.F.R. § 102.60(a). Parkwood was under no
duty to file an RM petition, but had it done so the company could
have secured a Board-administered, secret-ballot election to
determine whether it had an obligation to bargain with the Union.
4
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, 333
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.
2
The Union also alleged violations of § 8(a)(1) of the NLRA, 29
U.S.C. § 158(a)(1). The administrative law judge found, and the
Board agreed, that Parkwood violated § 8(a)(1) and § 8(a)(5) by
blaming the Union for a lack of salary raises, by prohibiting an
employee from discussing Union business on company time, and
by unilaterally changing employees’ health insurance benefits.
Parkwood concedes that the Board is entitled to summary
affirmance on these points. Parkwood’s Br. at 2 n.3.
5
II.
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.
6
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 (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 intent to withdraw recognition in response to
the employees’ petition, rather than on March 8, 2003. In
support of this proposition, Parkwood makes three related
arguments. First, it points to Board decisions suggesting that
the earlier date was the proper moment at which to measure
support for the Union. Second, it warns that by looking to the
later date, the Board has destroyed the previously recognized
right of anticipatory withdrawal. Third, it argues that the
Board has ignored the so-called “open period.” We take the
arguments in turn and reject each.
A.
Prior to Levitz, an employer could withdraw recognition
from a union on the basis of good-faith doubt as to the
union’s continued support among a majority of employees in
the bargaining unit. See Levitz, 333 N.L.R.B. at 717 (citing
Celanese Corp., 95 N.L.R.B. 664 (1951)). In applying this
rule, the Board measured good-faith doubt at the time the
employer announced it. See, e.g., Bridgestone/Firestone, Inc.,
331 N.L.R.B. 205, 209 (2000); Burger Pits, Inc., 273
N.L.R.B. 1001, 1002 (1984), enforced sub nom. Hotel, Motel
& Rest. Employees & Bartenders Union Local No. 19 v.
NLRB, 785 F.2d 796 (9th Cir. 1986). Noting that the Board
cannot ignore its own precedent, see Manhattan Ctr. Studios,
Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006), Parkwood
7
argues that the Board was bound by pre-Levitz precedent to
measure actual loss of majority support in the same way it
once measured good-faith doubt, namely, on the day evidence
of actual loss first came to light.
This argument fails to account for Levitz, which
explicitly overruled Celanese and removed good-faith doubt
as a sufficient basis for withdrawing recognition from a
union. 333 N.L.R.B. at 717. Levitz changed what the Board
measures in scrutinizing a withdrawal of recognition, shifting
from good-faith doubt to actual loss of majority support.
Implicit in this decision is a corresponding change in how the
Board will take its measurements. The Board’s pre-Levitz
decisions never addressed the issue presented by the facts in
this case, so there was no binding precedent on this point
from which it could depart. That the Board was not bound by
its precedent to choose the earlier measuring point is apparent
from our recent decision in Highlands Hospital Corp. v.
NLRB, 508 F.3d 28 (D.C. Cir. 2007). In Highlands, we
approved the Board’s decision to consider post-petition
employee conduct in determining whether there was an actual
loss of majority support. Id. at 31–32. We could not have so
held if the Board’s precedent required it to measure actual
loss in the same way it had once measured good-faith doubt.
B.
Parkwood next contends that the Board’s decision
dispensed with the right of anticipatory withdrawal
recognized in Abbey Medical/Abbey Rents, Inc., 264 N.L.R.B.
969 (1982), enforced, 709 F.2d 1514 (Table) (9th Cir. 1983).
In Abbey Medical, the Board described the employer’s power
to effect “ ‘an anticipatory withdrawal of recognition’ in
relation to a future contract,” which allows an employer to
honor an existing CBA but question the union’s right to
8
bargain for a new agreement upon its expiration. 264
N.L.R.B. at 969. To withdraw anticipatorily, an employer
must “demonstrate that, on the date of withdrawal . . . the
union in fact had lost its majority status, or [that the]
withdrawal was predicated on a reasonable doubt based on
objective considerations of the union’s majority status.” Id.
To avoid semantic confusion, anticipatory withdrawal must
be distinguished from withdrawal of recognition. Anticipatory
withdrawal occurs prior to expiration of a CBA and does not
obviate the employer’s obligations under the existing
agreement. Withdrawal of recognition occurs after expiration
of a CBA, at which time the employer is free of contractual
obligation.
Parkwood took full advantage of Abbey Medical. During
the period that began with the employees’ petition and ended
with their counter-petition, Parkwood lawfully declined to
bargain with the Union for a new CBA. Parkwood
Developmental Ctr., Inc., 347 N.L.R.B. No. 95, slip op. at 2
n.10 (2006); cf. Point Blank Body Armor, Inc., 312 N.L.R.B.
1097, 1097 n.1 (1993) (holding employer violated the NLRA
by negotiating new CBA after employees submitted petition
disavowing incumbent union). But nothing in Abbey Medical
permitted Parkwood to ignore subsequent indicators of
majority support in deciding whether to withdraw recognition.
The counter-petition made clear that as of March 8, 2003, the
expiration date of the CBA and the earliest moment at which
Parkwood lawfully could withdraw recognition, the Union
had not actually lost majority support. The counter-petition
thus restored the presumption of majority support enjoyed by
every union during the life of its CBA, up to three years. See
Auciello, 517 U.S. at 786. The Board’s holding to this effect
was reasonable and consistent with precedent, so we reject
Parkwood’s argument that it was arbitrary and capricious.
9
C.
Finally, Parkwood argues that the Board ignored the
“open period,” during which the presumption of majority
support for the union is relaxed and the Board accepts
election petitions. See Donald Schriver, Inc. v. NLRB, 635
F.2d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal
‘contract-bar’ rules, an election petition for representative
status may not be filed during the term of a collective
bargaining agreement that has a duration of up to three years
. . . except during an open period . . . prior to the expiration
date of the contract.”). For a health care institution such as
Parkwood, this period falls between 120 and 90 days prior to
expiration of the CBA. Trinity Lutheran Hosp., 218 N.L.R.B.
199, 199 (1975). Parkwood’s December 2, 2002 withdrawal
statement fell within the open period, a fact the Board did not
discuss in its order. Parkwood argues that the Board’s silence
on this point rendered its order arbitrary and capricious by
giving undue weight to the Union’s contractual presumption
of majority support. We reject this argument. Neither the
employer, nor the employees, nor a rival union filed an
election petition, so the open period was irrelevant and the
Board was right to ignore it. If Parkwood wanted to secure the
benefit of the open period, it should have filed an RM petition
during that time. Parkwood cites no authority for the
proposition that proof of an actual loss of majority support
under Levitz is somehow dependent upon the facts as they
existed during the open period. The Board might one day
make it so, but its decision not to do so in this case was
neither arbitrary nor capricious.
III.
Alternatively, Parkwood argues that, even if the Board
did not err in holding it had violated the NLRA by
10
withdrawing recognition from the Union, the Board, in
ordering Parkwood to bargain with the Union, failed to
comply with our decision in Vincent Industrial Plastics, Inc.
v. NLRB, 209 F.3d 727 (D.C. Cir. 2000). In Vincent
Industrial, we directed the Board to premise every bargaining
order on an “explicit[] balanc[ing] [of] three considerations:
(1) the employees’ Section 7 rights [29 U.S.C. § 157]; (2)
whether other purposes of the [NLRA] override the rights of
employees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the [NLRA].” 209 F.3d at 734. Parkwood
accuses the Board of ignoring Vincent Industrial and asks us
to deny enforcement of the chosen remedy on the basis of this
shortcoming.
But we have no jurisdiction to entertain this claim. Our
authority to consider Parkwood’s petition comes from the
jurisdictional grant in § 10 of the NLRA. That portion of the
statute limits our jurisdiction as follows: “No 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 id. § 160(f)
(incorporating § 160(e)’s jurisdictional constraint). The
General Counsel requested a bargaining order in his
exceptions to the ALJ’s findings. Parkwood forfeited its
challenge to this remedy by failing to respond in its answering
brief to the General Counsel’s request. To “urge[] before the
Board” the arguments it would later have us review, id.
§ 160(e), a party must present those arguments in a
procedurally valid way. Parkwood’s first opportunity to do so
was in its answering brief, but it neglected to discuss remedial
issues in that filing. By the time Parkwood objected to the
bargaining order in a motion for reconsideration, it was too
late. According to its regulations, the Board will only
11
entertain a motion for reconsideration in “extraordinary
circumstances.” 29 C.F.R. § 102.48(d)(1). The Board found
no such circumstances here, and we must defer to the Board’s
interpretation of its own regulations because that
interpretation is neither plainly erroneous nor inconsistent
with the regulations. Long Island Care at Home, Ltd. v. Coke,
127 S. Ct. 2339, 2349 (2007) (citing Auer v. Robbins, 519
U.S. 452, 461 (1997)); Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945).
Parkwood should have opposed the General Counsel’s
request for a bargaining order in the answering brief it filed in
response to the General Counsel’s exceptions. Of course,
Parkwood could not have faulted the Board’s reasoning in a
filing that preceded the Board’s order. But Parkwood could
have alerted the Board to the possibility that a bargaining
order was unwarranted in this instance. Its failure to do so
deprives us of jurisdiction to consider the remedial challenge.
IV.
We deny Parkwood’s petition for review and grant the
Board’s cross-application to enforce its order.
So ordered.