Scomas of Sausalito, LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2017 Decided March 7, 2017

No. 15–1412

SCOMAS OF SAUSALITO, LLC,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

UNITE HERE, LOCAL 2850,
INTERVENOR

Consolidated with 15-1476

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

Diane Aqui argued the cause and filed briefs for the
petitioner.

Heather S. Beard, Attorney, National Labor Relations
Board, argued the cause for the respondent. Richard F.
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy
General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel,
 2
and Jill A. Griffin, Supervisory Attorney, were with her on
brief.

Before: HENDERSON, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Scomas of
Sausalito (Scomas) operates a seafood restaurant in northern
California. 1 From 2000 to 2013, it recognized UNITE HERE!
Local 2850 (Union) as the exclusive collective-bargaining
representative for the restaurant’s bartenders, bussers, cooks,
dishwashers, hostesses and servers. In 2013, 29 of the
bargaining unit’s 54 employees signed a decertification
petition asking Scomas to “withdraw recognition from [the
Union] immediately” if the petitioners “make up 50% or more
of the bargaining unit.” Joint Appendix (JA) 131-32. One of
the employees gave the petition to Scomas. Another filed it
with the National Labor Relations Board (NLRB or Board)
because the petition asked the Board to conduct a
decertification election if the petitioners “make up 30% or
more (and less than 50%) of the bargaining unit.” Id.
Without telling Scomas, the Union persuaded six of the
petitioners to revoke their signatures. Two days later, still
unaware that six employees had a change of heart, Scomas
withdrew recognition from the Union. The remaining
petitioners, apparently believing they were free of the Union,
withdrew the decertification petition from the Board. Only

1
Parts of the record refer to the restaurant as “Scoma’s.” The
company’s briefs call it “Scomas,” however, so we use that
formulation.
 3
then did the Union spring back into action: it filed an unfair
labor practice (ULP) charge with the Board, claiming that
Scomas had violated the National Labor Relations Act (Act),
29 U.S.C. §§ 151 et seq., by withdrawing recognition from the
Union when it in fact had majority support.

The Board sided with the Union and ordered Scomas to
recognize and bargain with it. The bargaining order includes
a “bar to raising a question concerning the Union’s continuing
majority status for a reasonable time,” on the theory that such
delay is “necessary” to “dissipate[]” the “taint” of Scomas’s
violation. 362 NLRB No. 174, at 7 (Aug. 21, 2015).

Scomas petitions for review of the Board’s order. The
Board cross-petitions for enforcement. We grant the former
petition and deny the latter. Under Board law, “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” and can stave off a ULP charge only by establishing that
“the union had, in fact, lost majority support at the time the
employer withdrew recognition.” Levitz Furniture Co., 333
NLRB 717, 725 (2001). Applying Levitz, the Board
concluded that the six revocation signatures prevented Scomas
from proving the Union lacked majority support at the time of
withdrawal. Although we do not disturb that conclusion, the
Board’s remedy does not follow from it. A bargaining order
is an extraordinary remedy that, on these facts, is out of
keeping with the Act’s purposes. It rewards the Union for
sitting on its hands. It punishes Scomas for acting unwarily
but in good faith. And it “give[s] no credence whatsoever to
employee free choice,” Skyline Distribs. v. NLRB, 99 F.3d 403,
411 (D.C. Cir. 1996) (internal quotation omitted), unduly
delaying an election to determine majority status. We
 4
therefore vacate the bargaining order and remand to the Board
for further proceedings.

I. BACKGROUND

Before recounting why and how Scomas withdrew
recognition from the Union, we summarize the legal context of
its actions.

A. THE LAW OF WITHDRAWAL

“The Act’s twin pillars” are “freedom of choice and
majority rule in employee selection of representatives.”
Conair Corp. v. NLRB, 721 F.2d 1355, 1381 (D.C. Cir. 1983).
Section 1 declares a policy of “protecting the exercise by
workers of full freedom of association, self-organization, and
designation of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.” 29 U.S.C.
§ 151. Under section 9, a “majority of the employees in a unit
appropriate for” collective bargaining selects an exclusive
bargaining representative. 29 U.S.C. § 159(a). Once an
employee unit has selected a union to represent it, the law
presumes the union enjoys “continuing majority support.”
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 794
(1990). The presumption fosters “industrial peace” and
“stability in collective-bargaining relationships, without
impairing the free choice of employees.” Id. (internal
quotation omitted).

The presumption, however, is only that: except during
certain periods not at issue here, employees are not bound to be
represented by a union they no longer want. Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996) (presumption is
“rebuttable” except for one year following union’s initial
certification and when any collective-bargaining agreement is
 5
in effect for up to three years). Employees have two ways of
severing union representation. First, if 30 per cent of the unit
employees agree, they can obtain an election by filing a
decertification petition with the Board, which decides majority
status based on the election. See 29 U.S.C. § 159(c)(1)(A)(ii);
NLRB Casehandling Manual, Pt. 2, Representation
Proceedings § 11023.1 (Jan. 2017). Or, second, the
employees can go directly to the employer, presenting it with a
petition or other evidence that the union has lost majority
support. See, e.g., Pac. Coast Supply, LLC v. NLRB, 801 F.3d
321, 324, 326 (D.C. Cir. 2015); Vincent Indus. Plastics, Inc. v.
NLRB, 209 F.3d 727, 730 (D.C. Cir. 2000).

When presented with evidence that the union no longer
has majority backing, the employer “has three options: to
request a formal, Board-supervised election, to withdraw
recognition from the union and refuse to bargain, or to conduct
an internal poll of employee support for the union.”
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
361 (1998). Only the first two options are relevant here. If
the employer opts for an election, it must file a petition with the
Board. NLRB Casehandling Manual, supra, § 11042; cf.
Parkwood Dev. Ctr., Inc. v. NLRB, 521 F.3d 404, 406 & n.1
(D.C. Cir. 2008). Election is the “preferred” method of
determining majority status, Levitz, 333 NLRB at 723, 725-27,
because an employer’s unilateral withdrawal of recognition is
more subjective and less precise, NLRB v. Cornerstone
Builders, Inc., 963 F.2d 1075, 1078 (8th Cir. 1992). Levitz
bears out this preference. Under Levitz, “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.” 333 NLRB
at 725. As a corollary, the employer acts “at its peril” when it
withdraws recognition, even when presented with “a petition
 6
signed by a majority of the employees in the bargaining unit.”
Id. By contrast, an employer obtains an election under a
“more lenient standard,” “by demonstrating reasonable
good-faith uncertainty as to [an] incumbent union[’s]
continued majority status.” Id. at 723 (emphasis omitted).

B. SCOMAS’S WITHDRAWAL

The Union is the exclusive collective-bargaining
representative of Scomas’s service staff. From 2000 until
September 2012, Scomas operated under a series of
collective-bargaining agreements with the Union. For more
than one year after the last agreement expired in 2012, the
Union did not request bargaining. Also, according to
employee Georgina Canche, the Union for years held no
meetings and gave its members no information, despite
collecting dues all the while.

“[F]rustrated,” Canche researched decertification
procedures online and obtained a standard-form decertification
petition. JA 58. Between September 26 and October 28,
2013, she collected 29 signatures from the 54 employees in the
bargaining unit. A fellow employee delivered the petition to
Roland Gotti, Scomas’s general manager, on October 28. The
next day, Canche filed the petition with the Board. The
petition asked Scomas to “withdraw recognition from [the
Union] immediately” if the petitioners “make up 50% or more
of the bargaining unit.” JA 131-32. In the alternative, it
asked the Board to conduct a decertification election if the
petitioners “make up 30% or more (and less than 50%) of the
bargaining unit.” Id.

Lian Alan, the Union’s lead organizer, heard about the
petition before it was filed. He emailed Gotti late in the
evening on October 28, 2013, to “request bargaining dates to
begin the negotiations for a collective bargaining agreement.”
 7
JA 53. The email said nothing about the petition, however, or
that Alan intended to persuade the petitioners to revoke their
signatures.

The following afternoon, October 29, 2013, Alan spoke
with several of the petitioners outside Scomas’s restaurant
during a shift change. The evidence is in conflict about what
he said. According to Alan, he told them “it was possible that
[Scomas] could withdraw recognition from the Union,” JA 22,
in which case “all of their benefits, pay, and wages would be
determined by” Scomas, JA 146. According to the
employees—whose recollections differed about the exact
words—Alan said that, if the Union were decertified, Scomas
could take away their benefits, fire them or report them to
immigration authorities. By all accounts, Alan told them that
if they wanted to withdraw their names from the decertification
petition, they could do so. He presented them with a form
stating: “If I signed a petition to decertify or get rid of the
Union, I hereby revoke my signature. I do wish to continue
being represented by [the Union] for the purposes of collective
bargaining.” JA 54. Six of the employees who had earlier
signed the decertification petition then signed the revocation
form. 2 Alan did not tell Scomas about the revocation.

In the meantime, Gotti compared the 29 signatures on the
decertification petition with the signatures on the employees’
payroll records. Because the signatures matched and
represented a majority of the unit employees, Scomas
withdrew recognition from the Union as the petition requested.
Specifically, on October 31, 2013, Scomas told Alan via fax,
email and certified mail that it had “received a petition from the

2
A seventh employee signed the revocation form but her
signature was not counted because she had not signed the
decertification petition.
 8
majority of [its] employees stating they do not want to be
represented by [the Union] any longer.” JA 65. Scomas said
that, in light of the petition, it was “withdrawing recognition”
and could not grant Alan’s October 28 request for bargaining.
Id. Scomas sent the message without knowing that Alan had
two days earlier obtained revocation signatures from six
petitioners. On receiving the message, Alan still did not tell
Scomas about the revocation. Indeed, as far as the record
shows, he did not respond at all.

On November 6, 2013, Canche withdrew the
decertification petition from the Board, presumably because
she and the other petitioners thought Scomas had mooted any
election by withdrawing recognition from the Union. On
November 12, the Union filed a ULP charge against Scomas,
claiming the Union had majority status when Scomas withdrew
recognition on October 31.

C. THE BOARD PROCEEDINGS AND BARGAINING ORDER

An administrative law judge (ALJ) conducted a hearing at
which Gotti, Alan and several unit employees testified.
Afterward, in a published order, the ALJ rejected Scomas’s
contention that “the Union had a duty to inform [Scomas] that
it had gathered evidence of support for the Union from
decertification signers.” 362 NLRB No. 174, at 6. The ALJ
observed that Levitz required Scomas to establish that the
Union “actually” lacked majority support when Scomas
withdrew recognition. Id. at 3. Crediting Alan’s testimony
over that of the revocation signatories, the ALJ found that “the
revocation signatures were not the subject of misrepresentation
or coercion and are valid revocations.” Id. at 6. In light of
that finding, the ALJ concluded that Scomas had violated
 9
section 8(a)(5) and (1) of the Act by withdrawing recognition
when the Union enjoyed majority support. 3

To remedy the violation, the ALJ ordered Scomas to (inter
alia) “recognize and bargain with the Union for a reasonable
period of time.” 362 NLRB No. 174, at 6. Consistent with
“time-honored Board practice,” Caterair Int’l v. NLRB, 22
F.3d 1114, 1122 (D.C. Cir. 1994), the order “bar[s]” Scomas
and its employees from “raising a question concerning the
Union’s continuing majority status” during the required
bargaining period, 362 NLRB No. 174, at 7.

In support of the bargaining order, the ALJ “quoted in full
and adopted” the Board’s reasoning in Anderson Lumber Co.,
360 NLRB 538 (2014), enforced sub nom., Pac. Coast Supply,
LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015), a case in which
the Board imposed the same remedy. 362 NLRB No. 174, at
7. As relevant here, the ALJ quoted Anderson Lumber for the
following three propositions, correlating to a three-factor
balancing test mandated by our case law. See, e.g., Vincent
Indus. Plastics, 209 F.3d at 738. First, in the ALJ’s view, the
order “vindicates the Section 7 rights of the unit employees
who were denied the benefits of collective bargaining by

3
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).
Section 8(a)(1) makes it “an unfair labor practice for an employer . . .
to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in” section 7, including the right “to bargain
collectively through representatives of their own choosing.” Id.
§§ 157, 158(a)(1). Because of the overlap in provisions, “an
employer who violates section 8(a)(5) also, derivatively, violates
section 8(a)(1).” Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1164
(D.C. Cir. 2004).
 10
[Scomas’s] withdrawal of recognition” and “does not unduly
prejudice” employees who oppose the Union, especially
because their opposition “may be at least in part the product of”
Scomas’s conduct. 362 NLRB No. 174, at 7 (quoting
Anderson Lumber, 360 NLRB at 538). Second, according to
the ALJ, the order “foster[s] meaningful collective bargaining
and industrial peace” by removing Scomas’s “incentive to
delay bargaining in the hope of further discouraging support
for the Union” and by ensuring the Union does not feel
“pressured . . . to achieve immediate results at the bargaining
table.” Id. (quoting Anderson Lumber, 360 NLRB at 538).
Third, in the ALJ’s telling, an alternative remedy “would be
inadequate . . . because it would permit another challenge to the
Union’s majority status before the taint of [Scomas’s] unlawful
withdrawal of recognition has dissipated, and before the
employees have had a reasonable time to regroup and bargain
through” the Union. Id. (quoting Anderson Lumber, 360
NLRB at 538-39).

The Board summarily “affirm[ed]” the ALJ’s “rulings,
findings, and conclusions” and “adopt[ed]” her remedial order
with modifications not pertinent here. 362 NLRB No. 174, at
1 (footnotes omitted). Member Johnson joined the decision
but wrote separately to note that, in an appropriate case, “he
would modify the Levitz standard by requiring that unions
present evidence of reacquired majority support within a
reasonable amount of time[.]” 4 Id. at 1 n.2.

4
Two weeks elapsed between Alan’s securing the six
signatures and his indirectly revealing the same to Scomas by filing
the ULP charge. Member Johnson stated that “the [U]nion’s failure
to give notice of its restored majority status misled [Scomas] into a
disruptive unlawful withdrawal with the collateral effect of
precluding employees from filing a decertification election petition
with the Board.” 362 NLRB No. 174, at 1 n.2. In his view,
 11
II. ANALYSIS

Scomas petitions for review on two grounds: (1) it did not
violate the Act; and (2) even if it did, an affirmative bargaining
order is too extreme a remedy. We reject the first ground but
agree with the second.

A. SCOMAS VIOLATED THE ACT.

Based on the revocation signatures and Lian Alan’s
testimony, the ALJ found that Scomas did not meet its burden
of proof under Levitz Furniture Co., 333 NLRB 717 (2001).
The Board affirmed the ALJ’s finding and Scomas does not
challenge it. Instead Scomas argues that it did not have to
satisfy Levitz at all. We disagree.

Scomas contends that an employer who relies with
“good-faith certainty . . . on a petition signed by a majority of
the employees in the bargaining unit” does not violate the Act
by decertifying a union based on the petition. Pet’r Br. 14
(emphasis omitted). Levitz squarely forecloses the
contention, holding that a decertification “petition signed by a
majority of the employees in the bargaining unit” does not
shield an employer from the “peril” of a ULP charge unless the
employer shows that the union “actually” lacked majority
support when the employer withdrew recognition. 333 NLRB
at 725. Our own precedent has recognized that principle, see,
e.g., Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 180-82
(D.C. Cir. 2006) (applying Levitz where employer relied on
“disaffection petition . . . purportedly signed by 96 of the unit’s
164 employees”), and we are not free to ignore it, see HTH
Corp. v. NLRB, 823 F.3d 668, 676 (D.C. Cir. 2016) (panel

however, Scomas had not sufficiently raised the notice issue in its
exceptions to the ALJ’s decision. Id.
 12
cannot “overrule or supersede a prior panel’s decision”
(internal quotation omitted)).

In its briefs, Scomas alternatively urged “a modification of
the Levitz framework” based on the Union’s failure to disclose
its restored majority status. Pet’r Reply Br. 6. In particular,
it asked us to “impos[e] on the [u]nion an affirmative duty to
notify an employer of reacquired majority support after
withdrawal of recognition.” Pet’r Br. 18 (emphasis in
original). We are uncertain whether its request still stands:
Scomas stated at oral argument that it is “not contesting
Levitz.” Oral Arg. Recording 3:17-3:25. In any event, we
see no basis for the modification Scomas proposed. Levitz
focuses on “the time [at which] the employer withdrew
recognition,” 333 NLRB at 725, and the Board has repeatedly
declined to consider evidence that “was not before the
[employer] when it withdrew recognition,” Highlands Hosp.
Corp., 347 NLRB 1404, 1407 n.17 (2006), enforced, 508 F.3d
28 (D.C. Cir. 2007); see also, e.g., Anderson Lumber Co., 360
NLRB 538, 543 (2014) (“post-withdrawal . . . evidence is
irrelevant”), enforced sub nom., Pac. Coast Supply, LLC v.
NLRB, 801 F.3d 321 (D.C. Cir. 2015). Our cases have
deferred to the Board’s approach as “rational and consistent
with the Act.” Pac. Coast Supply, 801 F.3d at 333 (internal
quotation omitted); see Highlands Hosp. Corp., 508 F.3d at 32.
We would run afoul of those cases were we to hold that
liability turns on what a union tells (or fails to tell) an employer
after the employer withdraws recognition.

B. THE BOARD ABUSED ITS DISCRETION IN
IMPOSING A BARGAINING ORDER.

The Act “charges the Board with the task of devising
remedies to effectuate [its] policies.” NLRB v. Seven-Up
Bottling Co., 344 U.S. 344, 346 (1953) (citing 29 U.S.C.
 13
§ 160(c)). In view of the Board’s expertise, see Caterair Int’l
v. NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994), “[w]e will
disturb [its] remedy only when it amounts to an abuse of
discretion,” Teamsters Local Union No. 639 v. NLRB, 924 F.2d
1078, 1085 (D.C. Cir. 1991). The standard of review is
deferential but not toothless: we must “assure ourselves that
the Board has considered the factors which are relevant to its
choice of remedy, selected a course which is remedial rather
than punitive, and chosen a remedy which can fairly be said to
effectuate the purposes of the Act.” Caterair Int’l, 22 F.3d at
1120 (internal quotation omitted). Here, the Board failed in
every respect.

For starters, we see no indication that the Board
considered why a bargaining order was necessary in this case,
an unusual one in which the Union withheld information about
its restored majority status. “[A]n affirmative bargaining
order is an extreme remedy, because according to
time-honored Board practice it comes accompanied by a
decertification bar that prevents employees from challenging
the Union’s majority status for at least a reasonable period.”
Caterair Int’l, 22 F.3d at 1122 (internal quotations omitted).
A decertification bar, in turn, “touch[es] at the very heart of
employees’ rights” by preventing them from “dislodg[ing] the
union” no matter “their sentiments about it.” Id. Because the
remedy is so potent, we require the Board to “justif[y]” it

by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the
employees’ § 7 rights [of self-organization and
collective bargaining]; (2) whether other
purposes of the Act override the rights of
employees to choose their bargaining
representatives; and (3) whether alternative
 14
remedies are adequate to remedy the violations
of the Act.

Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C.
Cir. 2000); see Lee Lumber & Bldg. Material Corp. v. NLRB,
117 F.3d 1454, 1461 (D.C. Cir. 1997) (per curiam) (noting
that, “[b]ecause affirmative bargaining orders interfere with
the employee free choice that is a core principle of the Act,” we
“view[] them with suspicion” and demand special justification
for them (internal quotation omitted)).

Here, the ALJ—whose findings the Board summarily
affirmed, 362 NLRB No. 174, at 1 (Aug. 21, 2015)—purported
to satisfy the reasoned-analysis requirement by quoting
wholesale, id. at 7, from the Board’s decision in Anderson
Lumber, 360 NLRB at 538-39. But Anderson Lumber is
inapposite. Unlike the Union here, the union there did not
withhold information about its restored majority status. For
that reason alone the ALJ’s cut-and-paste job does not suffice.
See Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1066 (D.C.
Cir. 2001) (“extensive quotation” is no “substitute[]” for
“consider[ing] the factors as they apply to the instant case”);
Lee Lumber, 117 F.3d at 1461 (“[I]f the Board wishes to
impose an affirmative bargaining order, it must explain why
that remedy is appropriate given the facts of that particular
case.”).

We could send the case back to the Board for a better
explanation. The problem, however, “is not just that the
Board has failed to justify its position[.]” Skyline Distribs. v.
NLRB, 99 F.3d 403, 404 (D.C. Cir. 1996). The problem is that
its position cannot be justified. We decline to merely order a
remand that would permit the Board to reimpose a bargaining
order. See id. at 412 (vacating bargaining order and
remanding for lesser remedy because no findings could justify
 15
order); see also Vincent Indus. Plastics, 209 F.3d at 739
(“[R]elief delayed under the Act may be relief denied.”).

“[A] bargaining order is not a snake-oil cure for whatever
ails the workplace[.]” Avecor, Inc. v. NLRB, 931 F.2d 924,
938-39 (D.C. Cir. 1991). It therefore should be prescribed
only when the employer has committed a “[h]allmark
violation[]” of the Act. Id. at 934, 936; see Douglas Foods
Corp., 251 F.3d at 1065. It should not be imposed if the
violation is “far from serious.” Skyline Distribs., 99 F.3d at
410. Severity depends on (inter alia) whether the employer’s
conduct was “deliberate or calculated,” id. at 411 (internal
quotations omitted), whether it was “the genesis of [the]
employees’ desire to rid themselves of” the union, Daisy’s
Originals, Inc. v. NLRB, 468 F.2d 493, 502 (5th Cir. 1972), and
whether it was so “flagrant” that an election cannot fairly be
held, id. at 503 (internal quotation omitted).

Far from being deliberate or calculated, Scomas’s
violation was unintentional. 5 The company acted in good
faith on a facially valid decertification petition. It verified the
petitioners’ signatures. The same day that its general
manager, Roland Gotti, received the petition, the Union’s lead
organizer, Lian Alan, requested bargaining for the first time in
a long time. Gotti did not have to write off the timing as a
coincidence. He could reasonably assume the Union knew of
the petition and he could reasonably expect Alan to challenge it
if the Union doubted it as a measure of employee sentiment.
Yet Alan said nothing of the petition, let alone that he intended
to persuade the petitioners to revoke their signatures. And

5
At oral argument, the Board resisted the notion that the
violation was “technical.” Oral Arg. Recording 13:14-13:50,
19:20-19:45. Fair enough; call it inadvertent and “far from
serious.” Skyline Distribs., 99 F.3d at 410.
 16
even after six petitioners revoked their signatures at Alan’s
behest—restoring the Union’s majority status—Alan did not
tell Scomas. Three days after receiving the petition and
having heard nothing from the Union, Scomas withdrew
recognition. In doing so, it may have been incautious with
respect to Levitz and insufficiently wary of Union
gamesmanship. But nothing about its conduct was “flagrant.”
Daisy’s Originals, 468 F.2d at 503 (internal quotation
omitted).

The Board suggests “any ‘gamesmanship’” was “on the
part of the Company.” Resp’t Br. 24 n.9. We see none.
Scomas did not “ignore[] the election called for by the
employees” or “its own option to request an election.” Id.
Because it had no reason to doubt that 29 of 54 unit employees
supported the decertification petition, it had no reason to call
for an election. The petition sought an election only if the
petitioners “make up 30% or more (and less than 50%) of the
bargaining unit.” JA 131-32. Indeed, the petition stated that,
if the petitioners “make up 50% or more of the bargaining
unit,” Scomas was to “withdraw recognition from [the Union]
immediately.” Id. (emphasis added). Understandably, that is
just what Scomas did.

This is not a case in which, absent a bargaining order,
Scomas would “benefit by [its] own wrongs.” Daisy’s
Originals, 468 F.2d at 502. As far as the record reflects, the
genesis of the employees’ discontent was not Scomas’s
conduct but an extended period of Union neglect. It follows
that an election can fairly be held without a bargaining order
and attendant bar on questioning the Union’s majority status.
Contrary to the Board’s analysis, 362 NLRB No. 174, at 7,
there is no “taint” to “dissipate[].” The only conceivable
function of the order, then, is to punish Scomas, presumably to
deter future violations. But we see no evidence that, absent
 17
the order, Scomas will recidivate. Cf. NLRB v. Century
Moving & Storage, Inc., 683 F.2d 1087, 1094 (7th Cir. 1982)
(reversing bargaining order where “recurring misconduct”
unlikely).

In any event, in imposing a remedy, the Board must
balance deterrence with “ascertainable employee free choice.”
Caterair Int’l, 22 F.3d at 1122 (internal quotation omitted).
Here, the bargaining order “give[s] no credence whatsoever to
employee free choice.” Skyline Distribs., 99 F.3d at 411
(internal quotation omitted). Even after six unit employees
revoked their signatures, at least 42 per cent (23 ÷ 54) of the
unit employees supported an election. The Board contends
that, because Scomas “did not demonstrate that the Union
actually lost the support of a majority of employees,” an
election would not be an appropriate “alternative remed[y].”
Resp’t Br. 30. That makes no sense. The threshold for an
election is 30 per cent, not 50 per cent. NLRB Casehandling
Manual, Pt. 2, Representation Proceedings § 11023.1 (Jan.
2017).

In sum, the bargaining order does not further the Act’s
policy of “protecting the exercise by workers of full freedom of
association, self-organization, and designation of
representatives of their own choosing[.]” 29 U.S.C. § 151.
To the contrary, it handcuffs Scomas’s employees to the Union
for no good record-based reason. Accordingly, we grant the
petition for review, deny the cross-petition for enforcement,
vacate the bargaining order and remand to the Board for the
determination of a new remedy. See Skyline Distribs., 99 F.3d
at 412.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
The United States Supreme Court has cautioned that the trial
process is not to be treated as “a poker game in which players
enjoy an absolute right always to conceal their cards until
played.” Williams v. Florida, 399 U.S. 78, 82 (1970). The
same ought to be true of labor relations. But participants on
either side of the table could easily draw a different conclusion
from Levitz Furniture Co., 333 NLRB 717 (2001), which holds
that an employer withdraws recognition from a union “at its
peril” even when it acts in good faith on a facially valid
decertification petition, id. at 725. I write separately to
express my view that Levitz should be carefully cabined in
cases involving restored majority status so that it does not
reward gamesmanship at the expense of transparency. 1

The statute itself hints at one limiting principle. 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) (emphasis added).
Ordinarily, the act of “refus[al]” is volitional: it requires “a
positive willingness,” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1910 (1993), or a knowing “reject[ion],” XIII
OXFORD ENGLISH DICTIONARY 495 (2d ed. 1989), not simply a
failure. See, e.g., Overton v. City of Austin, 748 F.2d 941, 949
(5th Cir. 1984) (court’s “mere failure” to grant injunctive relief
was “not the same as ‘refusing’ it”); Hinson v. Mich. Mut. Liab.
Co., 275 F.2d 537, 539 (5th Cir. 1960) (under since-amended
version of Federal Rule of Civil Procedure 37, excusable
1
I am not alone in this view. In the Board decision, Member
Johnson suggested that Levitz should not be read as “a policy
allowing unions to withhold evidence of reacquired majority
support.” 362 NLRB No. 174, at 1 n.2. Similarly, in Johnson
Controls, Inc., NLRB Case No. 10-CA-151843 (Feb. 16, 2016), an
ALJ declined to extend Levitz “so far that it smiles on ‘gotcha.’”
ALJ Decision at 13. As far as its docket shows, the Board has not
issued a final decision in Johnson Controls.
 2
“failure” to comply with court order was not “refusal” to obey
it). It is linguistically jarring to say that an employer acting on
a facially valid decertification petition “refuses” to bargain
with a union that, unbeknownst to the employer, has covertly
collected enough revocation signatures to restore majority
status.

Even Levitz is distinguishable on that basis. When the
employer there told the union it had “objective evidence” that
the union no longer enjoyed majority status, the union replied
that it had evidence to the contrary and was “ready at any time”
to present it. 333 NLRB at 719 (internal quotation omitted).
The employer withdrew recognition anyway, without
examining the union’s alleged evidence. Id. That is a refusal
to bargain.

I read Levitz to hold that the employer assumes the risk of
being wrong about the union’s majority status, not that the
employer assumes the risk of union subterfuge. The Act must
be construed in a way that fosters “industrial peace” and
“stability in collective-bargaining relationships” “without
impairing the free choice of employees.” NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 794 (1990) (internal
quotation omitted). Giving a union free rein to withhold
information about restored majority status would sow tension
and distrust, not peace and stability. For fear of an
unforeseeable ULP charge, a prudent employer would be hard
pressed to withdraw recognition even when presented with a
seemingly reliable decertification petition—and even where, as
here, the petition demands “immediate[]” ouster. JA 131-32.
So much for employee free choice.

True, an employer with a good-faith doubt about a union’s
majority status can call for an election, Levitz, 333 NLRB at
723, but it is no cure-all. A union can and often does file a
 3
ULP charge—a “blocking charge”—“to forestall or delay the
election.” Id. at 732 (Member Hurtgen, concurring). Even
when the charge is dismissed and the union loses the election,
it can file objections afterward. Id. The process takes
months. Jeffrey M. Hirsch, NLRB Elections: Ambush or
Anticlimax?, 64 EMORY L.J. 1647, 1652-53 (2015)
(summarizing Board statistics about election delays); see id. at
1663 (noting that recent election reforms have not addressed
use of blocking charge as “tactic” for “delay”). In the
meantime, the employer must continue to recognize the union
despite its putative lack of majority support. Levitz, 333
NLRB at 732 (Member Hurtgen, concurring).

The Union’s conduct in this case highlights the foregoing
problems. Had the Union’s lead organizer, Lian Alan, had
any concern for the wishes of unit employees, he would have
notified Scomas as soon as he collected the revocation
signatures so that, in keeping with the decertification petition,
the Board could conduct an election. After all, 23 petitioners
remained. They represented 42 per cent of the unit
employees. Their signatures alone would have triggered an
election. NLRB Casehandling Manual, Pt. 2, Representation
Proceedings § 11023.1 (Jan. 2017) (setting required threshold
of “[p]etitioner interest” at 30 per cent); see JA 131-32
(petition called for election if petitioners “make up 30% or
more (and less than 50%) of the bargaining unit”). At
minimum Alan should have told Scomas about the revocation
signatures when Scomas withdrew recognition so that it could
take immediate corrective action. His refusal to do so reflects
that he deliberately let Scomas act “at its peril,” Levitz, 333
NLRB at 725, positioning the Union to pursue a ULP charge
and delay the election. 2 It was a neat trick, really. One

2
If Scomas had challenged the ALJ’s credibility findings, this
likely would have been the rare case in which I would have voted to
 4
doubts the Union would have won an election after years of
doing nothing for the employees. And here we are another
three and one-half years later with the Union still at the helm.

In short, I do not think an employer violates the Act when,
in good faith, it withdraws recognition from a union as a result
of the union’s intentional nondisclosure of its restored majority
status. Scomas’s conduct would fit that description had
Scomas established that, fully informed, it would not have
withdrawn recognition. 3 But it introduced no direct evidence
on that score. See, e.g., Oral Arg. Recording 1:42-2:06
(Scomas’s counsel acknowledged that general manager Roland
Gotti did not testify about “what he would have done if he had

set them aside as “patently insupportable.” Douglas Foods Corp. v.
NLRB, 251 F.3d 1056, 1061 (D.C. Cir. 2001) (internal quotation
omitted). Alan’s concealment of the revocation signatures says a
great deal about his forthrightness generally. The employees who
revoked their signatures testified that they did so because Alan told
them, in some formulation or another, that they faced dire
consequences—loss of benefits, termination or immigration
consequences—if the Union were decertified. 362 NLRB No. 174,
at 5. The ALJ rejected their testimony because they could not agree
on what words were uttered, id., but the collective gist was
consistent. If their accounts differed in minor particulars, the
difference showed only that they did not script and rehearse a unified
story beforehand. It was Alan’s account that could not be
reconciled at any level of generality.
3
Because a union’s loss of majority status is “an affirmative
defense” to a ULP charge, “the employer has the burden of
establishing” it. Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 183
(D.C. Cir. 2006) (internal quotations omitted). By the same logic, I
would require an employer who claims union concealment to show
that it would not have withdrawn recognition had it known of the
union’s restored majority status.
 5
known of the six defectors”); cf. Johnson Controls, Inc., NLRB
Case No. 10-CA-151843, ALJ Decision at 13 (Feb. 16, 2016)
(finding no violation where, inter alia, employer “remained
open to considering evidence that contradicted the disaffection
petition”). Thus, I see no way around the unsatisfying
conclusion that Scomas violated the Act.