Intl Trans Svc Inc v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 27, 2006 Decided June 2, 2006

No. 05-1063

INTERNATIONAL TRANSPORTATION SERVICE, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with
05-1126

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

Scott J. Witlin argued the cause and filed the briefs for
petitioner. Stanley R. Strauss and Brian W. Steinbach entered
appearances.

Ruth E. Burdick, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Arthur F. Rosenfeld, Acting General Counsel, John H.
Ferguson, Assistant General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Julie B. Broido, Senior
 2

Attorney.

Before: SENTELLE, HENDERSON and RANDOLPH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: International Transportation
Service, Inc. (“ITS”) petitions for review of a National Labor
Relations Board (“the Board” or “NLRB”) order finding it in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act (“NLRA” or “the Act”), 29 U.S.C. § 158(a)(3)
and (1). The Board concluded that ITS committed an unfair
labor practice when it fired employee Deanna Tartaglia after she
picketed for recognition of a union as her personal bargaining
representative. Because we conclude that Tartaglia did not
engage in protected activity, and ITS therefore did not
unlawfully discharge her, we grant the petition for review.

I.

ITS operates a container terminal at the port of Long Beach
through which imports and exports pass continuously. Through
its membership in the Pacific Maritime Association (“PMA”),
the company indirectly employs longshoremen represented by
local unions affiliated with the International Longshore and
Warehouse Union (“ILWU”). ITS directly employs its office
clerical workers, a bargaining unit represented by the Office
Clerical Unit (“the Union”) of ILWU. The company also
employs a single “Payroll and Billing Representative” whose
union representation is the subject of this case.

During past bargaining with ITS on behalf of the office
clerical bargaining unit, the Union also attempted to negotiate on
behalf of the Payroll and Billing Representative. Each time,
 3

however, the Union ultimately agreed to leave the position out
of the unit. Accordingly, when ITS hired Deanna Tartaglia in
June 1999 as the Payroll and Billing Representative, the Union
was not authorized to bargain on her behalf. Not dissuaded by
prior failures, the Union asserted itself once more: On February
4, 2002, it presented ITS with a letter demanding recognition as
the bargaining representative of a single-employee unit
consisting of Tartaglia. The letter imposed a one-hour deadline,
which the Union extended until the next morning. On February
5, ITS rejected the demand and refused to recognize the Union
as Tartaglia’s bargaining representative.

Two Union representatives and Tartaglia immediately
responded by picketing. No other ITS employees joined the
picket line, but many ILWU-affiliated employees ceased
working. The work stoppage, having brought the terminal to a
halt, prompted ITS to request expedited arbitration with ILWU
through the PMA. Within a few hours, the arbitrator concluded
that the picket line was not bona fide and ruled in the company’s
favor, allowing ITS to refuse to pay employees who honored the
picket line. Although not subject to the arbitration, the Union
and Tartaglia ended the picket line following the ruling.

The short work stoppage cost ITS a significant amount of
money and goodwill with its customers. It caused a mile-long
truck backup, delayed several shipments, and cost upwards of
$90,000. In addition, despite the arbitrator’s award, many
workers who honored the picket line did not return until the next
day. Because her actions triggered the events, ITS fired
Tartaglia on February 8.

The Union filed an unfair labor practice charge against ITS
for Tartaglia’s termination. The NLRB’s Regional Director
issued a complaint based on that charge, alleging that ITS
violated Section 8(a)(3) and (1) of the NLRA by discharging
 4

Tartaglia for participating in the picket line. After a hearing, an
Administrative Law Judge (“ALJ”) found that ITS had
committed an unfair labor practice by discharging Tartaglia for
picketing.

ITS filed exceptions, arguing that it committed no violation
because Tartaglia did not engage in activity protected by the
Act. Specifically, ITS argued that the Union’s recognitional
picketing violated Section 8(b)(7)(C) because the Board could
not certify Tartaglia as a single-employee bargaining unit. By
assisting the Union’s unlawful actions, therefore, Tartaglia could
not receive the Act’s protection under ITS’s theory. ITS also
argued that Tartaglia was either a managerial or supervisory
employee not subject to the protections of the Act.

The NLRB rejected ITS’s exceptions and adopted the ALJ’s
ruling, which held on two alternative grounds that Tartaglia had
engaged in protected activity. First, relying on Teamsters Local
Union No. 115 (Vila-Barr Co.), 157 NLRB 588 (1966), it
concluded that a union does not violate Section 8(b)(7)(C) when
it pickets for recognition of a single-employee unit. ITS pressed
the Board to abandon Vila-Barr in light of a Seventh Circuit
case that questioned its correctness, see Int’l Bhd. of Teamsters
v. NLRB, 568 F.2d 12, 18 (7th Cir. l977) (“Purolator Security”),
but the Board declined. It therefore concluded that neither the
Union nor Tartaglia unlawfully picketed for recognition.

Second, the Board alternatively held that Tartaglia’s
picketing was protected even if the Union’s was prohibited.
Concluding that Tartaglia did not act as the Union’s
representative or agent, the Board refused to impute any
wrongdoing by the Union to Tartaglia. The Board also found
that the Act protected Tartaglia’s individual picketing because
it was “union activity.” Even though she did not act in concert
with other employees, it considered the union activity inherently
 5

concerted.

ITS timely petitions for review of the Board’s order, and the
Board cross-applies for enforcement. The company raises
three challenges to the Board’s order. First, it argues that
Tartaglia did not engage in protected, concerted activity when
she joined the Union’s picket line. It therefore urges this court
to reject Vila-Barr and find that Section 8(b)(7)(C) prohibits
recognitional picketing for single-employee bargaining units.
Second, ITS argues that Tartaglia was either a managerial or
supervisory employee not subject to the Act’s protections.
Third, ITS argues that the Board improperly refused to hear
evidence of Tartaglia’s misconduct prior to fashioning a remedy.
Because we agree that Tartaglia did not engage in protected
activity, we do not address the other arguments.

II.

We review the NLRB’s orders under a deferential standard.
If supported by substantial evidence, the Board’s findings of fact
are conclusive. 29 U.S.C. § 160(e). Unless arbitrary or
capricious, we will uphold the agency’s policy judgments.
Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1266
(D.C. Cir. 1997) (en banc). This level of deference, though
high, has limits, and we will not “rubberstamp NLRB
decisions.” Cleveland Constr., Inc. v. NLRB, 44 F.3d 1010,
1014 (D.C. Cir. 1995). The Board must provide “a reasoned
explanation” for its decisions. Petroleum Comm. v. FCC, 22
F.3d 1164, 1172 (D.C. Cir. 1994).

In this case, the Board held that ITS violated Section 8(a)(3)
and (1) of the Act by firing Tartaglia after she picketed for
recognition of herself as a single-employee bargaining unit.
Under Section 8(a)(1), an employer may not “interfere with,
restrain, or coerce employees in the exercise of the rights
 6

guaranteed in” Section 7 of the Act. 29 U.S.C. § 158(a)(1).
Section 8(a)(3) makes it an unfair labor practice for an employer
to terminate an employee to “discourage membership in any
labor organization.” Id. § 158(a)(3). ITS argues that it could
not have violated either of these provisions because Tartaglia’s
recognitional picketing was not protected by Section 7, which
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 or
other mutual aid or protection.” Id. § 157.

The Section 7 right to collective bargaining has never
extended to single-employee bargaining units. As the Board has
recognized since 1936, “the principle of collective bargaining
presupposes that there is more than one eligible person who
desires to bargain.” Luckenbach Steamship Co., 2 NLRB 181,
193 (1936). A single-employee bargaining unit by definition
excludes all other eligible persons from the bargaining process.
Accordingly, the Board will not certify single-employee
bargaining units because the Act does not empower it to do so.

The Board’s inability to certify a bargaining unit has ripples
in other areas of labor law, including Section 8(b)(7)(C) of the
Act, which forbids unions from picketing “where such picketing
has been conducted without a petition [for election] being filed
within a reasonable period of time not to exceed thirty days from
the commencement of such picketing.” 29 U.S.C.
§ 158(b)(7)(C). In other words, Section 8(b)(7)(C) prohibits
picketing for recognition of a bargaining unit where the Board
will not certify the unit. This principle holds true for mixed-
guard units,1 which the Act outlaws. Id. § 159(b)(3). Because

1
Section 9(b)(3) defines “guard” as a term of art for employees
who “enforce against employees and other persons rules to protect
 7

the Board may not certify mixed-guard units, longstanding law
holds that Section 8(b)(7)(C) prohibits recognitional picketing
on their behalf. See Drivers, Chauffers, Warehousemen v.
NLRB, 553 F.2d 1368, 1376-77 (D.C. Cir. 1977); Purolator
Security, 568 F.2d at 18.

In Vila-Barr, the Board exempted single-employee units
from this general rule, thus creating conflict with the mixed-
guard cases. Although the Board will not certify single-
employee units, it held in Vila-Barr that Section 8(b)(7)(C) does
not prohibit unions from picketing for recognition of such a unit.
157 NLRB 588. The Board reasoned that it would be
“inequitable” to deny the right to picket for recognition of such
units because “[t]here is no statutory or other policy against
representation of an individual employee in a stable one-man
unit by an authorized representative.” Id. at 589-91.

The Seventh Circuit has called Vila-Barr into question.
Upholding the Board’s rule on mixed-guard units, it broadly
stated that Section 8(b)(7)(C) “bars recognitional picketing after
it is determined that no Board-conducted election will be held.”
Purolator Security, 568 F.2d at 18. In dictum, the court further
stated that Vila-Barr “was incorrect.” Id. at 18 n.12. The court
disagreed with the Board’s distinguishing of Vila-Barr from the
mixed-guard cases and concluded the same policy—“to stop
unions from imposing their will on employers and
employees”—applies to preclude recognitional picketing for
single-employee units. Id.

We too have held that Section 8(b)(7)(C) “appears to
contemplate picketing by way of prelude to an election.”

property of the employer or to protect the safety of persons on the
employer’s premises.” 29 U.S.C. § 159(b)(3). A mixed-guard unit
includes both guards and nonguards.
 8

Drivers, Chauffers, Warehousemen, 553 F.2d at 1377. In other
words, a union violates Section 8(b)(7)(C) by picketing for
recognition when there is no “reasonable prospect of a Board-
conducted election.” Id. at 1376-77. We agreed with the Board
that picketing for recognition of a mixed-guard unit did not
satisfy that condition. Although we noted the tension between
our reasoning and Vila-Barr, the issue was not before us, and we
did not reject the case at the time. Id. at 1377 n.31. We do so
now.

The Board understandably followed Vila-Barr as
precedent,2 but we are not so bound. See Alabama Mun.
Distribs. Group v. FERC, 312 F.3d 470, 473-74 (D.C. Cir.
2002). No rational distinction supports the Board’s different
treatment of single-employee units and mixed-guard units for
purposes of recognitional picketing. The fact that the Act
prohibits the certification of mixed-guard units, see 29 U.S.C.
§ 159(b)(3), does not help the Board because the Act does not
permit it to certify one-person units either. As the Board held in
1936, the very nature of collective bargaining is incompatible
with single-employee bargaining units. Luckenbach, 2 NLRB
at 193. It is a distinction without a difference that the Act
expressly prohibits the Board from certifying mixed-guard units
and implicitly prohibits the certification of single-employee
units. The Act does not empower the Board to certify either
type of unit. Therefore, picketing for recognition of either type
of unit in no way serves as a “prelude to an election.” We
therefore reject Vila-Barr and hold that Section 8(b)(7)(C)
prohibits a union from petitioning for recognition of a one-
person unit, as the Union did here.

2
Two Members of the Board noted “the absence of a three-
member Board majority to overrule Vila-Barr” and therefore applied
it as Board precedent. Int’l Transp. Serv., Inc., 344 NLRB No. 22, at
1 n.2 (2005).
 9

Yet the Board held that Tartaglia did not need Vila-Barr to
receive Section 7’s protections because Section 8(b)(7)(C) only
prohibits union activity. The Board did not impute the Union’s
wrongdoing to Tartaglia because it found she was neither an
agent nor representative of the Union. This conclusion makes
little sense. Tartaglia authorized, joined, and was the subject
matter of the picket line. The Union had no other agenda than
to seek recognition as her personal bargaining representative.
Were it not for her, the Union would not have picketed in
violation of Section 8(b)(7)(C). Accordingly, Tartaglia made
possible and participated in all of the Union’s wrongdoing.
Thus, the unlawful endeavor was hers as much as the Union’s.

The Board’s error runs deeper. Even if Tartaglia did not
personally engage in prohibited activity by joining the picket
line, the Board did not explain why her assistance of prohibited
activity would otherwise be protected. The Act does not protect
all nonprohibited activities: Rather, it protects some activities,
prohibits some, and leaves others in a suspended state, neither
authorized nor punishable. The Board’s decision not to impute
wrongdoing to Tartaglia means only that she did not violate the
Act. It does not thereby usher her into the safety of Section 7.

Furthermore, the Board’s ruling creates perverse protections
for employees. It immunizes from employer discipline those
employees who aid a union’s unlawful activities. Presumably,
the ruling would also protect an employee who helps a union
vandalize his employer’s property simply because he assisted a
union. We decline to adopt this “Union made me do it” defense
for employee misconduct. The Act does not protect an
employee for assisting a union’s unlawful acts.

We also reject the Board’s alternative holding that
Tartaglia’s so-called “union activity” was the kind of concerted
activity protected by Section 7. To be sure, the Supreme Court
 10

has accepted that in some circumstances employees who act
alone may also be engaged in concerted activity. NLRB v. City
Disposal Sys., Inc., 465 U.S. 822 (1984). Specifically, the Court
approved of the NLRB’s so-called “Interboro doctrine,” which
held that an employee who individually asserted a collective
bargaining right had engaged in concerted activity. Id. at 829-30
(citing Interboro Contractors, Inc., 157 NLRB 1295 (1966)).
The Court embraced the Board’s justifications for the Interboro
doctrine as well: (1) that assertion of a collective-bargaining
right was an extension of the concerted action that resulted in
the agreement; and (2) that the individual, by asserting the right,
had affected the rights of all other employees under the
agreement. Id. at 829. The Court also recognized the Board’s
counterpart to Interboro, which held that a nonunionized
employee asserting a noncollective-bargaining right had not
engaged in concerted activity. Id. at 829 n.6 (citing Meyers
Indus., Inc., 268 NLRB 493 (1984)).

This court has also approved of the Board’s rule in Meyers:
Concerted activity “encompasses [only] those circumstances
where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees
bringing truly group complaints to the attention of
management.” Prill v. NLRB, 835 F.2d 1481, 1484 (D.C. Cir.
1987) (alteration in original). Accordingly, “concerted activity
includes circumstances where individual employees work to
initiate, induce or prepare for group action.” Citizens Inv. Servs.
Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C. Cir. 2005). To that
end, employees engage in concerted activity when bringing
group complaints to management’s attention. Id. at 1199. The
touchstone for concerted activity, then, must be some
relationship between the individual employee’s actions and
fellow employees.
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The facts do not support the Board’s conclusion that
Tartaglia engaged in concerted activity by assisting the Union.
If anything, the Board had it backwards: The Union assisted
Tartaglia. It formed a picket line for the sole purpose of
securing recognition as Tartaglia’s personal bargaining
representative. It did not assert the interest of any other party.
In other words, the Union had the sole goal of aiding Tartaglia,
and she had the sole aim of aiding the Union in helping herself.
Likewise, Tartaglia only aided the Union in its attempt to help
her personally. She did not assist the Union on behalf of her
fellow employees; neither did she “engage in behavior that
supported union employers and employees.” Tradesmen Int’l,
Inc. v. NLRB, 275 F.3d 1137, 1142 (D.C. Cir. 2002) (emphasis
in original). Under the Board’s reasoning, Tartaglia, by latching
onto a union, could seek individual ends that she could not seek
otherwise.

Tartaglia’s personal picketing did not involve collective
action for “achiev[ing] common goals” any more than the
Union’s picketing. City Disposal, 465 U.S. at 830. She did not
assert a right obtained under a collective bargaining agreement
through prior group action, as had the employee in City
Disposal. Indeed, she had been repeatedly excluded from the
office bargaining unit and therefore had no rights to assert from
prior collective action. Neither did she act on behalf of other
employees. She instead requested recognition of the Union as
her personal bargaining representative. Even upon a successful
picketing campaign, she had no interest in spurring group action;
rather, any resulting agreement would have been a personal
agreement with ITS not applicable to any other employee. Her
picketing therefore did not raise the “truly group complaints”
necessary for a finding of concerted activity.

Consequently, the Board has demonstrated no relationship
between Tartaglia’s individual action and any effect on, or
 12

authority from, fellow employees. Tartaglia did not engage in
concerted activity and therefore does not receive Section 7
protection for her picketing. Neither does Section 7 protect her
for assisting the Union’s wrongdoing. Accordingly, we
conclude that ITS did not violate Section 8(a)(3) and (1) when
it discharged Tartaglia.

III.

For the above reasons, we grant the petition for review.