United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2023 Decided February 27, 2024
No. 22-1163
HOSPITAL MENONITA DE GUAYAMA, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 22-1180
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Patrick M. Muldowney argued the cause for petitioner.
With him on the briefs were Ángel Muñoz Noya and Gerardo
De Jesús.
Heather Beard, Senior Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Jennifer Abruzzo, General Counsel, Peter Sung Ohr,
Deputy General Counsel, Ruth E. Burdick, Deputy Associate
General Counsel, David Habenstreit, Assistant General
Counsel, and Elizabeth Heaney, Supervisory Attorney.
2
Before: HENDERSON and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge KATSAS.
EDWARDS, Senior Circuit Judge: This case emanates from
actions taken by Hospital Menonita de Guayama, Inc.
(“Petitioner”) after it acquired Hospital San Lucas Guayama
(“Hospital San Lucas”) and became a successor employer with
an obligation to recognize and bargain with the Unidad Laboral
de Enfermeras (OS) y Empleados de la Salud (“the Union”).
When Petitioner acquired Hospital San Lucas, the Union
represented five distinct bargaining units of employees. Over
the course of five months after the acquisition, Petitioner first
failed and refused to bargain in good faith with the Union. It
then serially withdrew recognition from the Union as the
employees’ collective bargaining agent in each of the five
units.
The Union filed unfair labor practice charges with the
National Labor Relations Board (“Board” or “NLRB”) and the
Board’s General Counsel then filed a complaint against
Petitioner. The complaint alleged that Petitioner had violated
Sections 8(a)(5) and (1) of the National Labor Relations Act
(“NLRA” or “Act”), 29 U.S.C. § 158(a)(1), (5). A hearing was
held before an Administrative Law Judge (“ALJ”), who
determined that Petitioner had violated the NLRA by
withdrawing recognition from the Union, failing and refusing
to bargain in good faith with the Union, unilaterally changing
the terms and conditions of employment, and withholding
information relevant to the Union’s bargaining duties. See
3
Hosp. Menonita de Guayama, Inc., No. 12-CA-214830, 2019
WL 2354716 (N.L.R.B. Div. Judges May 30, 2019) (“ALJ
Decision”). In reaching his decision, the ALJ relied on the
Board’s “successor bar” rule, which holds that an incumbent
union enjoys an irrebuttable presumption of majority status for
a reasonable period of time following the successor employer’s
voluntary recognition of the union. Id.
The Board largely adopted the findings and conclusions of
the ALJ, with one member dissenting. Hosp. Menonita de
Guayama, Inc., 371 N.L.R.B. No. 108, at 1 (June 28, 2022).
The Board denied Petitioner’s request to overrule the successor
bar rule and afford incumbent unions in successorship
situations only a rebuttable presumption of majority support.
Id. at 3-4. The Board carefully explained its adherence to the
successor bar rule, noting that its decade-old decision
implementing the rule was soundly reasoned and vindicated by
subsequent legal and economic developments. Id. at 5-6. The
Board also noted that each of the arguments raised by the
dissent had been carefully considered and rejected by the Board
in a prior decision. Id.
In its petition for review, Petitioner asks this court to
overturn the successor bar rule. We decline the invitation and
deny the petition for review. On the facts presented, the
Board’s application of the successor bar rule was consistent
with established Board precedent, permissible, and reasonable.
The ALJ’s factual findings, which the Board adopted, are
supported by substantial evidence. The Board’s conclusion that
Petitioner refused to bargain in good faith with the Union and
engaged in multiple unfair labor practices follows directly from
established Board precedent. Indeed, based on the record in this
case, there can be no doubt whatever that Petitioner was guilty
of the unfair labor practices as charged. The only issue we
consider is whether the Board erred in applying established
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precedent and enforcing the successor bar rule to preclude
Petitioner’s challenges to the Union’s majority support. After
carefully reviewing the record before us, we find that the Board
more than adequately justified its application of the successor
bar and the factual findings before us fall comfortably within
the rule’s ken. We find no merit in Petitioner’s arguments to
the contrary.
I. BACKGROUND
A. Legal and Statutory Background
Section 7 of the NLRA grants employees “the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining,” as well as “the right to
refrain from any or all of such activities.” 29 U.S.C. § 157.
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” by the NLRA. 29 U.S.C.
§ 158(a)(1). Similarly, Section 8(a)(5) labels as an unfair labor
practice an employer’s “refus[al] to bargain collectively with
the representatives of [one’s] employees.” Id. § 158(a)(5).
When an employer violates Section 8(a)(5), it concurrently
violates Section 8(a)(1). Enter. Leasing Co. of Fla. v. NLRB,
831 F.3d 534, 546 (D.C. Cir. 2016).
The NLRB is tasked with enforcing the NLRA. And the
Supreme Court “has emphasized often that the NLRB has the
primary responsibility for developing and applying national
labor policy.” NLRB v. Curtin Matheson Sci., Inc., 494 U.S.
775, 786 (1990). Accordingly, the Court has directed lower
federal courts reviewing a Board decision to “uphold a Board
rule as long as it is rational and consistent with the [NLRA],
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even if we would have formulated a different rule had we sat
on the Board.” Id. at 787 (citations omitted).
As part of its authority to interpret and enforce the NLRA,
the Board has adopted a “successor bar” rule. The Board first
used the term “successor bar” in St. Elizabeth Manor, Inc., 329
N.L.R.B. 341 (1999), which held that, “once a successor’s
obligation to recognize an incumbent union has attached
(where the successor has not adopted the predecessor’s
contract), the union is entitled to a reasonable period of
bargaining without challenge to its majority status through a
decertification effort, an employer petition, or a rival petition.”
Id. at 344 (footnote omitted). In reaching its conclusion, the
Board reasoned as follows:
In both initial recognition and successorship
situations, the employer has incurred a recognitional
obligation by a voluntary act, either by extending
recognition to a union after ascertaining demonstrated
majority support or by hiring a sufficient number of a
predecessor’s employees to constitute a majority and
thereby incurring a bargaining obligation . . . . In both
situations, because the employer and the union are
embarking on a new relationship, all the issues are
likely to be open. Thus, bargaining in both situations is
likely to present a greater challenge than bargaining
between partners in an established relationship who are
negotiating a new contract after having lived under an
earlier contract or contracts so that only selected issues
are likely to be on the table.
Moreover, as in the case of voluntary recognition
following an initial campaign, parties in a
successorship relationship are in a stressful
transitional period. Although in many cases the
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employees may have had adequate time to determine
whether the incumbent union was effective in
representing them in negotiations with the
predecessor employer, they have not had the
opportunity to learn if the incumbent will be effective
with the successor. The employees may fear that the
successor employer will not want the union or would
give them a better deal without it. This is particularly
true if the employer has exercised its prerogative to
set initial terms and conditions of employment that
differ from those that employees have enjoyed
pursuant to the union’s collective-bargaining
relationship with the predecessor. With mergers and
acquisitions commonplace, and with publicized
downsizings, restructurings, and facility closings
accompanying them, employees’ concern over the
security of their continued employment and working
conditions is understandably increased in the course
of any change in ownership. Thus, although at the
time of transition there may be no indication that the
employees had become dissatisfied with their union,
anxiety about their status under the successor may
lead to employee disaffection before the union has
had the opportunity to demonstrate its continued
effectiveness.
Furthermore, the successor may be reluctant to
commit itself wholeheartedly to bargain for a
collective-bargaining agreement with the incumbent
union when at any time following the recognition, the
union’s majority status may be attacked. A reasonable
period free of outside distractions will permit the
parties to attempt to bring their new relationship to
fruition, i.e., to engage in the process of collective
bargaining.
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Id. at 342-43 (footnote omitted).
The Board’s decision in St. Elizabeth did not write on a
blank slate. In 1975, the Board had held that, absent a successor
employer’s adoption of an existing collective bargaining
agreement, an incumbent union was entitled only to a
rebuttable presumption of majority support following a
successor’s voluntary recognition of the union. See Southern
Moldings, Inc., 219 NLRB 119, 119 (1975). Six years later, the
Board modified its position and made the presumption
irrebuttable without expressly overruling – or even
mentioning – its decision in Southern Moldings. See Landmark
Int’l Trucks, Inc., 257 N.L.R.B. 1375, 1375 (1981). The Sixth
Circuit denied enforcement of the Board’s order, finding “no
basis” for the Board’s holding. Landmark Int’l Trucks, Inc. v.
NLRB, 699 F.2d 815, 818 (6th Cir. 1983). The court posited
that, “where the union has represented the employees for a year
or more a change in ownership of the employer does not disturb
the relationship between employees and the union.” Id.
Accordingly, “[a] successor’s duty to continue recognition . . .
is no different from that of any other employer after the
certification year expires.” Id. Following the Sixth Circuit’s
decision, the Board returned to a rebuttable presumption of
majority status for an incumbent union in a successorship
situation. Harley-Davidson Transp. Co., 273 N.L.R.B. 1531,
1531 (1985).
The Board subsequently overruled Southern Moldings and
Harley-Davidson when it decided St. Elizabeth Manor. See St.
Elizabeth, 329 N.L.R.B. at 344. The Board’s decision in St.
Elizabeth Manor expressly addressed the Sixth Circuit’s
reasoning in Landmark, labeling it “faulty.” Id. at 342. As
noted above, the Board offered its own account of why
employees in a successorship situation “must be given a
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reasonable opportunity to determine the effectiveness of the
union’s representation, free of any attempts to challenge its
majority status.” Id.
St. Elizabeth Manor was not the final word on the
successor bar. Three years after the issuance of the decision,
the Board again changed its view of the rule, switching back to
a rebuttable presumption of majority status for an incumbent
union following a successor employer’s voluntary recognition.
MV Transp., 337 N.L.R.B. 770, 770 (2002). The Board’s
decision was prompted, in part, by the worry that the successor
bar, in conjunction with other bars established under Board
precedent, could block challenges to a union’s majority status
for several years. See id. at 773. For example, under the Board’s
“contract bar” rule, challenges to a union’s majority status are
precluded for the first three years of a valid collective
bargaining agreement. See Gen. Cable Corp., 139 N.L.R.B.
1123, 1125 (1962). This raised the possibility that employees
may be prevented from changing their bargaining
representative for up to six years if they are subject to a contract
bar under their predecessor employer, a successor bar, and then
a contract bar again, should the incumbent union reach an
agreement with the successor. MV Transp., 337 N.L.R.B. at
773. This prospect, in the Board’s view, demonstrated that the
successor bar might hamper employee freedom of choice, as
guaranteed by Section 7 of the NLRA. Id.
Nine years later, the Board overruled MV Transportation
and readopted the rule that an incumbent union in a
successorship situation is entitled to an irrebuttable
presumption of majority support for a reasonable period of time
following the successor’s voluntary recognition of the union.
UGL-UNICCO Serv. Co., 357 N.L.R.B. 801, 801 (2011). The
Board also defined the “reasonable period” over which the
successor bar applied, limiting the period to a minimum of six
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months and a maximum of a year. Id. at 809. The Board
explicitly addressed the MV Transportation Board’s concern
about the consecutive application of the contract bar and
successor bar doctrines, modifying the contract bar period to a
maximum of 2 years in circumstances where (1) an initial
contract is reached by the successor employer and incumbent
union within a reasonable period of bargaining, and (2) there
was no open period for challenges to the incumbent union’s
majority status during the final year of the predecessor
employer’s bargaining relationship with the union. Id. at 810.
The Board also left for future cases “whether any further
refinements in the contract-bar doctrine are appropriate in
particular successorship situations.” Id.
Since UGL-UNICCO, the Board has held firm to its
interpretation of the successor bar as requiring an irrebuttable
presumption of majority status for a reasonable period
following a successor employer’s voluntary recognition of the
union. See, e.g., Empire Janitorial Sales & Serv., LLC, 364
N.L.R.B. 1874, 1885 (2016); Lily Transp. Corp., 363 N.L.R.B.
176, 177 (2015), enf’d, 853 F.3d 31 (1st Cir. 2017); Jamestown
Fabricated Steel & Supply, Inc., 362 N.L.R.B. 1314, 1314 n.1
(2015).
B. Factual Background
On September 12, 2017, Petitioner bought the assets of
Hospital San Lucas. At the time of Petitioner’s purchase, the
Union represented five distinct bargaining units of hospital
employees: (1) Medical Technologists, (2) Registered Nurses
(“RNs”), (3) Licensed Practical Nurses (“LPNs”), (4)
Technicians, and (5) Clerical Workers. The Union had
represented the Medical Technologists since on or about March
22, 2005, and the RNs and LPNs since on or about August 25,
1998. The collective-bargaining agreements for these three
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units expired several years prior to the sale of Hospital San
Lucas. The Union had represented the Technicians and Clerical
Workers since on or about April 12, 2012, and since on or about
May 21, 2012, respectively. No collective-bargaining
agreement had ever been reached for either unit.
In early September 2017, before the formal acquisition of
Hospital San Lucas, a representative for Petitioner, Pedro
Meléndez, informed the Union that Petitioner rejected the
terms and conditions established in the expired collective-
bargaining agreements between the Union and Hospital San
Lucas. He also notified the Union that all union-represented
Hospital San Lucas employees had received offers of
employment from Petitioner, subject to new terms and
conditions of employment. Meléndez told the Union that if a
majority of the employees in the bargaining units currently
represented by the Union accepted Petitioner’s job offers,
Petitioner would recognize the Union as the collective-
bargaining representative of each of the five units. By
September 12, 2017, all employees who had previously worked
for Hospital San Lucas, union-represented or otherwise, agreed
to work for Petitioner. The next day, Petitioner assumed
operation of the hospital. As a result, no new hires were
considered. The parties have stipulated that Petitioner qualifies
as a successor employer.
On September 13, Union representative Ariel Echevarría
requested that Petitioner recognize the Union. He also sought
information about the employees who were offered
employment. Petitioner’s response to the Union was not
received for at least a month and was inconclusive.
On September 19, Hurricane Maria hit Puerto Rico.
During the disruption caused by the hurricane, Petitioner
assigned the RNs to work 12-hour shifts, rather than their
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regularly scheduled 8-hour shifts. On October 21, Petitioner
restored the RNs’ 8-hour shifts, after the Union and Petitioner
could not come to an agreement about whether and how to
make the shift change permanent.
Petitioner finally recognized the Union by letter on
November 6, 2017, and provided its response to some of the
Union’s September 13 requests for information. At a
Thanksgiving lunch on November 22, the hospital
administrator gave certificates and $150 bonuses to the
employees who worked overnight during Hurricane Maria.
Although Petitioner had officially recognized the Union prior
to the lunch, it did not inform the Union of its intention to
award the certificates or bonuses, nor did Petitioner give the
Union an opportunity to bargain over either. Petitioner and the
Union engaged in no meaningful collective bargaining after the
luncheon. Quite the contrary.
On February 5, 2018, Petitioner informed the Union that it
was withdrawing recognition from the Union as the collective
bargaining representative of the Technicians unit. The next
day, Petitioner met with employees in the Technicians unit to
notify them that they were no longer represented by the Union
and that they would receive new benefits as non-union
employees, including a salary increase, full payment of their
health insurances plans, and a uniform incentive. Six days after
its withdrawal of recognition, Petitioner increased the
Technicians’ wages.
On February 7, the Union requested that Petitioner propose
dates for bargaining sessions. Petitioner responded the same
day, asking the Union to submit proposals for the four units it
still represented. Petitioner stated it would be available to
negotiate once it had reviewed the Union’s proposals. Five
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days later, the Union submitted bargaining proposals for all
five bargaining units. No bargaining followed, however.
On February 14, Petitioner, claiming the Union’s loss of
majority status, withdrew recognition from the Union as the
collective bargaining representative for the Clerical Workers’
unit. As part of its notification to the Union of its withdrawal
of recognition, Petitioner also returned the Union’s bargaining
proposals for the Technicians’ and Clerical Workers’ units,
stating that the Union no longer represented either group. By
separate letter on the same day, Petitioner confirmed that it had
received the Union’s proposals but contended that bargaining
could only begin after Petitioner submitted its
counterproposals, which it estimated would happen by the third
week of April. This proved to be a hollow offer.
On February 16, Petitioner withdrew recognition from the
Union as the collective bargaining representative of the
Medical Technologists’ unit, again claiming that the Union had
lost its majority status. On April 6, Petitioner did the same for
RN unit. Petitioner also returned the Union’s February 12
bargaining proposal for the RN unit, on the grounds that the
Union no longer represented the unit.
On April 18, Petitioner gave the Union a counter proposal
covering employees in the LPN unit. This, too, amounted to a
largely meaningless gesture, because six days later Petitioner
withdrew recognition from the Union as the collective
bargaining representative of the LPN unit.
As Petitioner successively withdrew recognition of the
Union and declined to engage in any good faith bargaining, it
also made unilateral changes to employees’ conditions of
employment. Between April and June, Petitioner eliminated
the health insurance premium for employees in all five Union-
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represented units. On May 18, Petitioner awarded a $200
uniform bonus to employees in the RN and LPN units for the
first time. On June 17, Petitioner re-instituted 12-hour shifts for
RNs. In late June or early July, Petitioner circulated and put
into effect an employee handbook, an employee manual, and a
code of conduct, altering disciplinary procedures and employee
benefits. The Union was not informed of any of these changes
prior to Petitioner’s announcements nor was it given the
opportunity to bargain over any of these matters.
Along with its withdrawals of recognition and unilateral
changes to the employees’ conditions of employment,
Petitioner failed to respond to the Union’s requests for relevant
information. On March 14, Petitioner held a meeting with unit
employees regarding renewal of their health insurance. That
same day, the Union requested copies of all documents signed
by employees at the meeting, which included the documents
employees signed to renew their health insurance as well as the
meeting’s attendance sheet. Petitioner responded to the
Union’s request for information by sending a copy of a
document given to RNs and LPNs summarizing their health
insurance benefits and a copy of the signed attendance sheets
for the RN and LPN units. On April 4, the Union renewed its
request for copies of all documents signed at the meeting,
asserting that Petitioner had not provided all documents
requested. Petitioner never responded to the Union’s second
request.
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C. Procedural History
Acting on the unfair labor practice charges filed by the
Union, the NLRB’s General Counsel issued a complaint
against Petitioner on July 31, 2018. ALJ Decision at 1. The
complaint alleged that Petitioner’s conduct violated Sections
8(a)(5) and (1) of the NLRA. See id. at 1, 14. An ALJ
conducted a hearing and, following consideration of the
parties’ submissions, issued a decision on May 30, 2019. Id. at
1.
The ALJ concluded that, based on the evidence in the
record, Petitioner violated the NLRA by: (1) unlawfully
withdrawing recognition of the Union as the employees’ lawful
bargaining agent in five separate units; (2) failing and refusing
to bargain in good faith with the Union; (3) unilaterally altering
the employees’ terms and conditions of employment; and (4)
failing to provide the Union with information that was relevant
to the Union’s duties as the employees’ collective-bargaining
representative. Id. at 14. The ALJ ordered Petitioner to cease
and desist from its unfair labor practices and determined that
special remedies were necessary given the Petitioner’s “pattern
of conduct that showed no serious interest in engaging in
collective bargaining” and “its imposition of unilateral changes
[that] demonstrated a desire to shirk its obligations as a
successor employer.” Id. at 15. The ALJ ordered Petitioner to
recognize and bargain with the Union for a reasonable period
of at least six months to up to a year, measured from the date
of the first bargaining meeting. Id. at 16. The ALJ also ordered
that these bargaining sessions be held for a minimum of 15
hours a week and required Petitioner to submit written
bargaining process reports to an NLRB compliance officer
every 30 days. Id.
15
In finding that Petitioner unlawfully withdrew recognition
from the Union, the ALJ denied Petitioner’s request to present
evidence in support of its claim that the Union had lost its
majority status in each of the bargaining units. Id. at 3. To do
so, the ALJ relied on the “successor bar” rule as articulated by
the Board in UGL-UNICCO. The parties had stipulated that
Petitioner was a successor employer and the ALJ accordingly
held that UGL-UNICCO required Petitioner to have bargained
in good faith with the Union for at least six months from the
date of its recognition of the Union. Id. at 4, 10-11. Because
each of Petitioner’s actions to withdraw recognition from the
Union occurred before the six-month period had elapsed, the
ALJ held that Petitioner had unlawfully failed and refused to
bargain with the Union. Id. at 11.
The ALJ next examined the parties’ limited bargaining
history. He noted that Petitioner never provided justification
for telling the Union that it would take over two months to
review the Union’s proposals. Id. The ALJ additionally
observed that the parties never had face-to-face negotiations,
even though the Union had requested that the parties meet to
bargain. Id. The ALJ held that this history, in conjunction with
Petitioner’s unlawful withdrawals of recognition, “[gave] rise
to a strong suspicion that the [employer] had no intention of
engaging in meaningful bargaining with the Union.” Id.
The ALJ further found that Petitioner unlawfully made
unilateral changes to employees’ terms and conditions of
employment. Id. at 11-13. In support of this finding, the ALJ
noted that Petitioner had acted unilaterally by: (1) giving out
Hurricane Maria bonuses; (2) reinstituting 12-hour shifts for
RNs on June 17, 2018; (3) granting a wage increase to
Technicians on February 11, 2018; (4) eliminating the
requirement that unit employees pay a portion of their health
insurance premium; (5) granting a $200 uniform bonus for the
16
first time to RNs and LPNs on May 18, 2018; and (6)
distributing and putting into effect an employee manual and
general rules of conduct, which made changes in disciplinary
rules and benefits for employees in all five units. Id. at 13. In
addition, the ALJ found that Petitioner had unlawfully refused
to provide the Union with presumptively relevant information
concerning employees’ health insurance. Id. at 13-14.
Petitioner filed exceptions with the Board challenging the
ALJ’s decision. See Hosp. Menonita, 371 N.L.R.B. No. 108, at
1. In particular, Petitioner objected to the ALJ’s reliance on the
successor bar rule and his refusal to consider evidence of the
Union’s alleged loss of majority status. Id. Petitioner requested
that the Board overrule UGL-UNICCO and replace it with the
rule applied in MV Transportation, pursuant to which an
incumbent union in a successorship situation is entitled only to
a rebuttable presumption of majority support. See id. at 3.
The Board majority found no merit in Petitioner’s
exceptions. Id. at 7. The Board began by stating that, “[t]he
explicit policy of the National Labor Relations Act is to
promote collective bargaining.” Id. at 4. It went on to say:
The successor bar . . . is designed to promote collective
bargaining when a new employer, the successor, takes
over a workplace where employees are already represented
by a union. As it did in this case, the new employer is
typically free to decide—without the union’s
participation—which of the predecessor’s employees to
hire and how to change employees’ wages, benefits, and
working conditions. In such situations, the incumbent
union is in an especially vulnerable position, through no
fault of its own. Accordingly, the Board has held, with the
Supreme Court’s approval, that the policies of the Act are
best served by presuming that the union has continuing
17
majority support from employees and by requiring the
successor employer to recognize and bargain with the
union. The successor bar is an extension of this
principle . . . .
Id. (footnote omitted). Member Ring dissented in part. Id. at
10. He did not doubt that Petitioner could not prevail under
established law. Rather, he simply argued that the Board should
return to the regime under MV Transportation pursuant to
which the presumption of majority support was rebuttable. In
Member Ring’s view, the successor bar doctrine is “contrary to
Supreme Court precedent and imposes an unwarranted
restriction on employees’ Section 7 rights.” Id. at 13.
The Board majority addressed the arguments raised by its
dissenting member. Looking to the Board’s opinion in UGL-
UNICCO, the majority noted that every argument raised by the
dissent had been “fully considered and rejected” by the Board
in UGL-UNICCO. Id. at 5. The Board also noted that the rates
of mergers and acquisitions, which had formed part of the
Board’s rationale in UGL-UNICCO, had increased in the years
since UGL-UNICCO was decided. Id. While “the soundness of
the Board’s policy choice . . . does not depend on [these
economic] developments,” this continued pattern demonstrated
that the Board was justified in altering its view of the successor
bar and “that no economic changes since UGL-UNICCO
suggest that it is now time to take another look.” Id. at 6. The
Board concluded its analysis by noting that “[t]he facts in this
case make crystal clear why the protection of a successor bar is
needed and appropriately balances the successor employer’s
and the employees’ interests. . . . It is working, as Congress
intended, to promote stable and effective collective bargaining
relationships.” Id. at 7.
18
Having reaffirmed the validity of the successor bar
doctrine, the Board agreed with the ALJ’s straightforward
application of the rule and largely adopted the ALJ’s factual
findings and conclusions. Id. at 1 & n.2. The Board thus
concluded that Petitioner had violated Sections 8(a)(5) and (1)
of the NLRA by unlawfully withdrawing recognition from the
Union, failing and refusing to bargain with the Union,
unilaterally changing the terms and conditions of employment
for represented employees, and failing to respond to the
Union’s requests for information relevant to its bargaining
duties. Id. at 1.
Petitioner now seeks review of the Board’s order. The
Board cross-petitions for enforcement of its order.
II. ANALYSIS
A. Standard of Review
This court “will uphold a decision of the Board unless it
relied upon findings that are not supported by substantial
evidence, failed to apply the proper legal standard, or departed
from its precedent without providing a reasoned justification
for doing so.” E.I. Du Pont De Nemours v. NLRB, 682 F.3d 65,
67 (D.C. Cir. 2012). When “the Board adopts the ALJ’s
findings and conclusions as its own, we apply the same
deferential standard to those findings and conclusions.”
Weigand v. NLRB, 783 F.3d 889, 895 (D.C. Cir. 2015). This
court, however, does not “merely rubber-stamp NLRB
decisions.” Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir.
1991). Rather, “[i]t is our responsibility to examine carefully
both the Board’s findings and its reasoning.” Id. (quoting
Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir.
1980)).
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B. The “Successor Bar” Rule
Lest there be any confusion here, we want to make it clear
that, in reaching its decision in this case, the Board adhered to
established precedent. The Board’s decision in UGL-UNICCO,
which controls the disposition of this case, was issued 13 years
ago and has been followed ever since. Petitioner and the
dissenting member of the Board appear to suggest that UGL-
UNICCO is a fragile precedent because the judgment in that
case resulted from a change in the Board’s policy regarding the
successor bar. This is a specious claim.
“Agencies are free to change their existing policies as long
as they provide a reasoned explanation for the change.” Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). As the
Supreme Court has explained, an “agency must show that there
are good reasons for [a] new policy. But it need not
demonstrate to a court’s satisfaction that the reasons for the
new policy are better than the reasons for the old one; it suffices
that the new policy is permissible under the statute, that there
are good reasons for it, and that the agency believes it to be
better, which the conscious change of course adequately
indicates.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009) (emphasis omitted).
Considered “flexibility and adaptability to changing needs
and patterns . . . is an essential part of the office of a regulatory
agency.” American Trucking Ass’ns v. Atchison, Topeka &
Santa Fe Railway Co., 387 U.S. 397, 416 (1967). “Regulatory
agencies do not establish rules of conduct to last forever; they
are supposed, within the limits of the law and of fair and
prudent administration, to adapt their rules and practices to the
Nation’s needs in a volatile, changing economy.” Id. Indeed,
the Supreme Court has explicitly blessed the NLRB’s refusal
20
to stand by decisions that no longer serve appropriate policy
ends: “The use by an administrative agency of the evolutional
approach is particularly fitting. To hold that the Board’s earlier
decisions froze the development of . . . the national labor law
would misconceive the nature of administrative
decisionmaking.” NLRB v. J. Weingarten, Inc., 420 U.S. 251,
265-66 (1975).
Consistent with this mandate, over the years, the NLRB
has sometimes overruled precedent and established a new rule
after reweighing competing policy considerations. See, e.g.,
Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); Wendt
Corp., 372 N.L.R.B. No. 135 (Aug. 26, 2023). So long as the
Board provides “a reasoned explanation for the change,” such
a change poses no serious issue. See Encino Motorcars, 579
U.S. at 221; see also Golden State Bottling Co. v. NLRB, 414
U.S. 168, 174-76, 181-85 (1973); C.J. Krehbiel Co. v. NLRB,
844 F.2d 880, 883 (D.C. Cir. 1988); Loc. 900, Int’l Union of
Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1189
(D.C. Cir. 1984) (enforcing NLRB decisions overruling
precedent).
Nothing unusual occurred in 2011 when the Board
reversed precedent, adopted its current interpretation of the
successor bar, and comprehensively justified its decision in
UGL-UNICCO. The Board’s decision to overrule its previous
rule was neither hastily reached nor unthinkingly decided.
Rather, the Board reached its decision after issuing a notice and
invitation to file briefs, inviting the parties as well as amici to
address whether the Board should reconsider MV
Transportation. See UGL-UNICCO, 357 N.L.R.B. at 801. The
Board received briefs from the parties, including two
intervenors, as well as seven amici on both sides of the issue.
Id. at 802. The UGL-UNICCO Board’s full attention was
trained on “whether to adhere to MV Transportation.” Id.
21
Above all, the UGL-UNICCO Board provided ample
explanation for its decision to overrule MV Transportation and
adopt the Board’s current view of the successor bar rule. In its
decision, the Board outlined clear reasons for its view that
“labor law’s overriding policy” of “preserving industrial peace
by promoting stability in collective bargaining relationships,
without impairing the free choice of employees” was better
served by an irrebuttable presumption than a rebuttable one. Id.
at 805 (alteration omitted) (footnote and quotations omitted).
The Board concluded that, “[a]n insulated period for the union
. . . enables the union to focus on bargaining, as opposed to
shoring up its support among employees, and to bargain
without being under exigent pressure to produce hothouse
results or be turned out, pressure that can precipitate a labor
dispute and surely does not make reaching agreement easier.”
Id. at 807 (quotations omitted). The Board noted further that
“[a]n insulated period also increases the incentives for
successor employers to bargain toward an agreement” by
disallowing an employer from delaying bargaining as a means
of implicitly undermining support for the union. Id.
Importantly, the decision in UGL-UNICCO explicitly
addressed the reasoning in MV Transportation, providing a
clear account of why the UGL-UNICCO Board believed the
judgment in that earlier decision was ultimately flawed. First,
the Board noted that MV Transportation “does not come to
terms with the basic fact of the successorship situation: that the
bargaining relationship is an entirely new one.” Id. at 806-07.
Looking to the Supreme Court’s decision in Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 40 (1987), the Board
noted that, “as the Fall River Court recognized, the new
relationship will often begin in a context where everything that
the union has accomplished in the course of the prior
bargaining relationship (including, of course, a contract) is at
22
risk, if not already eliminated.” Id. at 807. “This is,
emphatically, a new bargaining relationship that should be
given a reasonable chance to succeed.” Id. The Board found
implausible MV Transportation’s assumption that “the
environment of uncertainty and anxiety created by
successorship might well make employees more, not less,
likely to support the union,” given that successorship law
makes it “very difficult” for an incumbent union to protect the
status quo that existed under the predecessor employer. Id.
(quotation omitted).
Second, the Board rejected MV Transportation’s view that
insulating a union from a challenge to its status for a reasonable
period would heighten instability in the workplace if a union
no longer enjoyed majority support. Id. Looking to the
purposes of the NLRA, the Board determined that the Act
“seeks to preserve . . . the stability of the existing collective-
bargaining relationship, which an insulated period obviously
protects.” Id. While “[e]mployee support for the union may
well fluctuate during the period following successorship . . .
such fluctuations in employee sentiment are not inconsistent
with stable bargaining so long as employees have a periodic
opportunity to change or revisit their representation.” Id.
UGL-UNICCO also addressed the effect of a successor bar
on the statutory right of employees to freely choose (or reject)
a union. Id. at 808. First, the Board acknowledged that
“[e]mployee freedom of choice is . . . a bedrock principle of the
statute.” Id. (alterations in original) (quotation omitted). Noting
that its previous decisions had left undefined the reasonable
time period over which the successor bar operates, the Board
sought to specify the bounds of a “reasonable period of
bargaining” with an eye to striking the “appropriate[] balance
[between] the goals of bargaining stability and the principle of
free choice.” Id. The Board turned to the multifactor analysis it
23
had outlined in Lee Lumber & Building Material Corp., 334
N.L.R.B. 399 (2001), which defined a reasonable time period
of bargaining in the context of remedying an unlawful refusal
to recognize and bargain with an incumbent union. Id. at 808-
09. Drawing on Lee Lumber, the Board decided that the
reasonable bargaining period applicable to the successor bar
was between six months to a year. Id. at 809-10. With the outer
edges of the successor bar’s application limited to one year, the
Board determined that the bar did not unduly burden employee
freedom of choice. Id. at 808.
Petitioner argues that the Board’s application of the
successor bar rule is unworthy of the deference normally
afforded Board decisions, both because the Board precedent
supporting the rule is fragile and because the successor bar rule
contravenes Section 7 of the NLRA as well as the Supreme
Court’s decisions in NLRB v. Burns International Security
Services, Inc., 406 U.S. 272 (1972) and Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Petitioner is
wrong on both counts.
Petitioner’s first argument is squarely foreclosed by case
law from the Supreme Court and this court. Because “the
NLRB has the primary responsibility for developing and
applying national labor policy,” the Supreme Court has
required that reviewing courts “accord[] Board rules
considerable deference.” Curtin Matheson, 494 U.S. at 786.
This deference stands “even if [a contested Board rule]
represents a departure from the Board’s prior policy.” Id. at
787. As we have discussed at length above, an agency is
permitted to change its policies so long as it provides a
reasoned explanation for doing so. Encino Motorcars, 579 U.S.
at 221. Here, there is no question that, in UGL-UNICCO, the
Board permissibly changed its policy by acknowledging that it
was overruling existing precedent and by providing a sound
24
explanation for its decision. Since then, the Board has
consistently enforced UGL-UNICCO’s successor bar, as it did
in the case before us. Because the Board acted reasonably in
adopting the successor bar in UGL-UNICCO, our normal
deference to reasoned Board policy choices applies. See
Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir.
2012).
Petitioner’s substantive challenges to the successor bar
also fail. In the years since UGL-UNICCO was issued, only the
First Circuit has considered the merits of the Board’s successor
bar rule. See NLRB v. Lily Transp. Corp., 853 F.3d 31, 38 (1st
Cir. 2017). The petitioner in Lily raised many of the same
arguments Petitioner now urges us to adopt. However, the First
Circuit handily upheld the successor bar, seeing “no cause to
doubt that the Board’s position . . . is within the scope of
reasoned interpretation [of the NLRA].” Id. Writing for the
court, former Associate Justice David Souter described the
Board’s decision in UGL-UNICCO as “an adequately
explained interpretive change reflecting the Board’s judgment
of a reasonable balance between the Section 7 right of
employee choice and the need for some period of stability to
give the new relationships a chance to settle down.” Id.
Lily rejected without difficulty the argument that the
successor bar violates employees’ Section 7 rights. Id. at 35.
The First Circuit noted that the bar lasts only for a limited
period – between just six months to a year – and that the bar’s
“limited discouragement of an unduly hasty reexamination of
a prior Section 7 choice serves . . . [the NLRA’s] ‘underlying
purpose.’” Id. at 35-36 (quoting Brooks v. NLRB, 348 U.S. 96,
103 (1954)). Moreover, the decision in Lily tellingly notes that
it is not even clear that a rebuttable presumption would be
obviously more effective than an irrebuttable presumption in
securing employees’ bargaining rights. Id. at 35. A rebuttable
25
presumption could ultimately become “more onerous” than the
successor bar, given the “added burden of rebuttal . . . which
could increase litigation time and expense.” Id. Indeed, the case
before us amplifies the point. Petitioner’s attempt to force the
adoption of a rebuttable presumption has prolonged the length
of the controversy and generated considerable litigation
expense. Given that both the successor bar and a rebuttable
presumption further “the obviously legitimate objective of
stability in labor and management relations during a period in
which the entrance of new management can destroy the prior
modus operandi among union, employer, and employees,” a
choice between the two approaches should bow to reasoned
Board decisionmaking. Id.
The First Circuit also easily dispensed with the suggestion
that UGL-UNICCO is contrary to Burns and Fall River.
Although both cases refer to a rebuttable presumption of
majority status for incumbent unions, see Burns, 406 U.S. at
278-79, 279 n.3; Fall River, 482 U.S. at 41 & n.8, the First
Circuit found that the Supreme Court’s language in those cases
“simply describes the legal landscape at the time.” Lily, 853
F.3d at 38-39. “Neither case holds that a rebuttable
presumption, rather than a bar, is required in a successorship
situation.” Id. at 39.
We can find no reason to disagree with the First Circuit’s
analysis. As former Justice Souter reminds us in Lily, the Board
is entitled to deference when it has thoroughly and reasonably
justified a change in policy. Id. at 38. It is not the role of the
court to second-guess the Board in such matters.
We do not purport to decide the permissible outer limits of
the successor bar rule – a question the Board itself left open for
further refinement in UGL-UNICCO. See 357 N.L.R.B. at 810.
Nor is there any need for us to do this. The Board reasonably
26
applied established precedent to find an employer liable for
unfair labor practices. We are, therefore, bound to enforce the
Board’s decision. See Avecor, 931 F.2d at 928 (“We owe
substantial deference to . . . the reasoned exercise of [the
Board’s] expert judgment . . . .”) (alteration in original)
(quotation omitted). Petitioner concedes it is a successor
employer, and it voluntarily opted to retain all its predecessor’s
employees. At the time when the hospital was acquired,
Petitioner knew that many of its new employees were
represented by a union and that, under established law, it was
obliged to bargain in good faith with their union for a period
ranging from six months to a year. Instead of abiding by settled
law, Petitioner first recognized the Union and then blocked all
efforts by the Union to pursue collective bargaining. As the
ALJ and Board found, Petitioner failed and refused to bargain
with the Union over the terms of initial collective-bargaining
agreements, unlawfully withdrew recognition from the Union,
unilaterally changed the terms and conditions of employment
of union-represented employees, and refused to furnish
relevant information to the Union when requested.
Six years have now passed since Petitioner started
stonewalling the Union. Had Petitioner followed the law, this
matter would have been resolved long ago and without
protracted litigation. The bargaining parties might have
decided upon a mutually acceptable collective bargaining
agreement or the employees might have opted to leave the
union if good faith bargaining failed. Neither a contract bar nor
any other bar doctrine would have been in play. Given the
record before us, it is clear that the Board applied established
precedent to a case that fell easily within the compass of the
successor bar rule.
27
C. Other Matters Raised by Petitioner
In addition to challenging the successor bar doctrine,
Petitioner raises a number of other issues, arguing that the
Board erred in its specific findings of unfair labor practices and
in its imposition of special remedies. None of these arguments
succeed. Petitioner did not properly preserve many of the
arguments it now presents, either by including the claims in its
exceptions to the Board regarding the ALJ’s decision or by
moving for reconsideration of the Board’s decision. 29 U.S.C.
§ 160(e); see, e.g., Flying Food Group Inc. v. NLRB, 471 F.3d
178, 185-86 (D.C. Cir. 2006) (“Whatever the merits of
[Petitioner’s] argument, we are barred from considering it
because the company never presented it to the Board.”).
Petitioner also lists several issues in its brief without
adequately amplifying its claims. These are matters that we do
not consider. Bode & Grenier, LLP v. Knight, 808 F.3d 852,
861 (D.C. Cir. 2015) (“Simply listing the issues on review
without briefing them does not preserve them.”) (quotation
omitted).
Petitioner’s remaining arguments fail under the relevant
standard of review. The Board’s legal findings are supported
by substantial evidence, and the Board properly exercised its
discretionary authority to impose remedies as it deemed
appropriate. 29 U.S.C. § 160(c); Fallbrook Hosp. Corp. v.
NLRB, 785 F.3d 729, 738, (D.C. Cir. 2015) (“[T]he court has
no business second-guessing the Board’s judgments regarding
remedies for unfair labor practices.”).
28
III. CONCLUSION
For the reasons set forth above, we deny the petition for
review and grant the Board’s cross-application for
enforcement.
KATSAS, Circuit Judge, concurring: When one employer
succeeds to the collective-bargaining obligations of another,
should the successor be barred for some time from challenging
the majority status of an incumbent union? The National Labor
Relations Board has taken shifting positions on this question.
The Board declined to impose a successor bar in 1975, imposed
one in 1981, abandoned it in 1985, imposed a different bar in
1999, abandoned it in 2002, and imposed yet a third bar in
2011. Ante at 7–9. In doing so, the Board focused on policy
questions about how best to foster collective bargaining while
still ensuring ongoing employee support for incumbent unions.
The Board was more terse, however, in addressing what the
governing statute has to say about this question.
In my view, there is a plausible argument that the National
Labor Relations Act prohibits a successor bar. Section 7 gives
employees the right to bargain collectively “through
representatives of their own choosing” or to refrain from such
bargaining. 29 U.S.C. § 157. Section 8 makes it an unfair labor
practice for employers to interfere with this right or refuse to
bargain collectively with a union, subject to section 9(a). Id.
§ 158(a)(1), (5). Section 9(a) requires unions to be chosen by
a majority of employees within the relevant bargaining unit. Id.
§ 159(a). Section 9(c) permits claims that a union no longer
commands majority support. Id. § 159(c)(1)(A)(ii). It also sets
forth one—and only one—time bar for challenges to the
continuing support of a previously certified union, which runs
for one year after any valid election. Id. § 159(c)(3); see also
id. § 159(e)(2). Under normal principles of statutory
construction, the express imposition of that time bar may
preclude, by negative implication, the imposition of others.
See, e.g., Leatherman v. Tarrant Cnty. Narcotics Intel. &
Coordination Unit, 507 U.S. 163, 168 (1993); A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts 107–
11 (2012).
2
On the other hand, our governing standard of review is
deferential. Under current Supreme Court precedent, we must
apply the familiar Chevron framework when reviewing NLRA
interpretations rendered by the Board in unfair-labor-practice
adjudications. E.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 536
(1992); UC Health v. NLRB, 803 F.3d 669, 673–74 (D.C. Cir.
2015). So, we consider whether Congress spoke “directly” to
the question presented and, if not, whether the agency adopted
a “reasonable” interpretation of the governing statute. Chevron
U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842–44 (1984). Of
course, the Supreme Court has declined to apply Chevron in
many recent cases and is now considering whether to overrule
it. Loper Bright Enters. v. Raimondo, U.S. No. 22-451;
Relentless, Inc. v. Dep’t of Com., U.S. No. 22-1219. But until
that Court instructs otherwise, we remain bound to apply
Chevron. See Agostini v. Felton, 521 U.S. 203, 237–38 (1997).
Under Chevron, the Court’s decision seems to me correct.
As noted above, the statutory bar on challenges to the
continuing support for a union, which is keyed to elections and
runs for one year, may preclude the Board from imposing other
bars with different lengths or triggers. But many of our cases
have rejected application of the negative-implication canon to
foreclose agency interpretations that would otherwise be
reasonable under Chevron. Specifically, we have said that the
canon is “an especially feeble helper in an administrative
setting, where Congress is presumed to have left to reasonable
agency discretion questions that it has not directly resolved.”
Cheney R.R. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (citing
Chevron, 467 U.S. at 843–44); see also Loper Bright Enters. v.
Raimondo, 45 F.4th 359, 366–67 (D.C. Cir. 2022), cert.
granted, 143 S. Ct. 2429 (2023); Adirondack Med. Ctr. v.
Sebelius, 740 F.3d 692, 696–97 (D.C. Cir. 2014); Mobile
Commc’ns Corp. of Am. v. FCC, 77 F.3d 1399, 1404–05 (D.C.
Cir. 1996). And without any compelled negative implication
3
from the statutory time bar, the Board could reasonably
conclude that its current successor bar, which runs for six
months to one year depending on the circumstances, does not
by itself frustrate employees’ section 7 rights to bargain
“through representatives of their own choosing.” Accordingly,
I agree with my colleagues and the First Circuit that the current
successor bar “is within the scope of reasoned interpretation
and thus subject to judicial deference under Chevron.” NLRB
v. Lily Transp. Corp., 853 F.3d 31, 38 (1st Cir. 2017); see ante
at 24–25. In so doing, I take no position on whether the bar
would survive under de novo review in a post-Chevron world.
I also agree with my colleagues that the Board has adequately
explained the policy justifications driving its interpretive
choice.