The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2024 Decided June 13, 2025
No. 23-1164
TROY GROVE, A DIVISION OF RIVERSTONE GROUP, INC. AND
VERMILION QUARRY, A DIVISION OF RIVERSTONE GROUP,
INC.,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
150, AFL-CIO,
INTERVENOR
Consolidated with 23-1176, 23-1343
On Petitions for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Arthur W. Eggers argued the cause for petitioner Troy
Grove. With him on the briefs was James S. Zmuda.
2
Steven A. Davidson argued the cause for petitioner
International Union of Operating Engineers, Local 150,
AFL-CIO. With him on the briefs was Charles R. Kiser.
Barbara Sheehy, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr, Deputy
General Counsel, Ruth Burdick, Acting Deputy Associate
General Counsel, David Habenstreit, Assistant General Counsel,
and Usha Dheenan, Supervisory Attorney.
Before: KATSAS and RAO, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The National Labor
Relations Board ruled that Troy Grove and Vermilion Quarry,
two divisions of RiverStone Group, Inc., violated the National
Labor Relations Act. Seven employees worked at these two
quarries—four at Troy Grove, three at Vermilion Quarry—and
together they constituted a bargaining unit represented by the
International Union of Operating Engineers, Local 150,
AFL-CIO. The case is here on the company’s1 and the union’s
petitions for judicial review and the Board’s cross-application
for enforcement of its order.
1
Technically, RiverStone, not its two divisions, may be the proper
petitioner, but this has no effect on the issues presented. See Midwest
Operating Eng’rs Welfare Fund v. Cleveland Quarry, 844 F.3d 627,
628 (7th Cir. 2016).
3
The company objects to the Board’s decision that it
committed unfair labor practices in bargaining with the union
about a pension fund and in its treatment of two quarry
employees one afternoon. The union objects to the Board’s
selected remedies.
Part I of our opinion analyzes the bargaining issue and the
union’s objections. Part II analyzes the remaining issue
regarding the two employees.
I.
A.
The evidence about the bargaining issue tended to show the
following.
The union and the company entered into a collective
bargaining agreement that ran from July 2014 to May 2016. The
agreement required the company to contribute to the Midwest
Operating Engineers Pension Fund.2 As the agreement’s
expiration date approached, the company and the union began
negotiating a new contract. After a bargaining session in April
2016, the company learned that its withdrawal liability to the
Pension Fund for the seven employees in the bargaining unit had
increased over a two-year period from approximately $964,000
2
The Pension Fund is a multi-employer defined benefit plan, the
details of which are rather unimportant to our decision. See generally
Elizabeth A. Myers & John J. Topoleski, Cong. Rsch. Serv., R43305,
Multiemployer Defined Benefit (DB) Pension Plans: A Primer (2020).
4
to $1,353,000.3 The company, concerned about mismanagement
of the Pension Fund, decided that it had to withdraw from the
Fund to avoid incurring even greater potential liability.
For the next two years, from 2016 to 2018, as the parties
negotiated a replacement contract, the company offered, and the
union refused to accept, the company’s proposal to enter into a
contract in which the company would withdraw from the
Pension Fund.4 At the end of these two years of negotiations,
the company presented its “last, best, and final offer” to
discontinue contributing to the Pension Fund. Troy Grove &
Int’l Union Operating Eng’rs, Loc. 150, 372 N.L.R.B. No. 94,
at 19 (June 22, 2023).
A majority of the seven quarry employees voted to strike.
The strike began in March 2018 and continued through 2021.
While the strike was underway, the company hired replacement
employees. See RiverStone Grp., Inc. v. Midwest Operating
Eng’rs Fringe Benefit Funds, 33 F.4th 424, 426 (7th Cir. 2022).
No movement in the parties’ bargaining positions occurred
during the years of the strike. The parties came to the bargaining
table again on July 12, 2021, five years after the beginning of
negotiations for a replacement contract. At the July 12 meeting,
3
“Withdrawal liability” requires employers withdrawing from such
a fund to cover their portion of the plan’s under-funding. See 29
U.S.C. § 1381.
4
Some of the company’s proposals, which the union rejected, would
have diverted its contributions from the Pension Fund to the Midwest
Operating Engineers Retirement Enhancement Fund. The
Enhancement Fund is a defined contribution plan—a retirement
savings plan in which employees or employers contribute a set
amount to individual accounts.
5
the union once more proposed a new contract requiring the
company to continue making contributions to the Pension Fund.
The company counter-proposed a contract ending its
contributions to the Fund. The company asked the union if it
would accept a contract that did not include contributions to the
Pension Fund. The union replied that it would not. The union
asked the company if it would accept a contract that included
continuing the contributions. The company replied that it would
not.
Given this exchange, the company indicated that the parties
were at an “impasse.” The union replied that it would try to put
together a new proposal, but—and this is important—the union
did not suggest that it would, or even might, be willing to relieve
the company from contributing to the Pension Fund. The parties
scheduled another meeting for July 21, 2021.
On July 14, 2021, two days after the meeting just described,
the company emailed a letter to the union summarizing that
meeting and indicating again that they were at an “impasse.”
The union replied by email on the same day, giving its summary
of the July 12 meeting and denying that the parties were at an
“impasse.” Also on July 14, the union sent another letter to a
company official requesting a wide variety of information,
among which were all corporate earnings from 2015 forward; all
sales and profits from the two quarries; the amount of each
product sold per year; price sheets; the name and contact
information for each member of RiverStone’s Board of
Directors; the cost of items associated with “weathering the
strike”; legal costs dating back to 2016; and information relating
to employee demographics and compensation. In its initial
response, the company provided 288 pages of material.
Ultimately, the company gave the union just about all it
requested.
6
During the remaining days before the scheduled July 21
negotiating session, the parties continued exchanging emails.
We see no need to go into detail about much of their
correspondence. It is fair to say that both parties were still at
loggerheads and were now considering the possibility of
litigation, and that both were, in their emails, posturing in
contemplation of that event.
On July 19, the company reiterated its refusal to agree to a
contract requiring it to continue making contributions to the
Pension Plan. The company again stated that the parties were at
an “impasse.” In response, the union denied that the parties
were at an “impasse” and that the union had “never said . . .
never.” J.A. 5742. The union repeated its request for
information regarding “the seniority list, age of the employees,
hours each employee worked per year, the 401K rates, wage
rates and increases, healthcare contribution rates, etc.” Id. The
union claimed that it needed this information to prepare a
“counterproposal.” Id. The union did not explain why its seven
union members could not have provided almost all of this
information. Nor did the union indicate that it might be
considering, as a “counterproposal,” agreeing to the company’s
position regarding the Pension Fund.
At the July 21, 2021, bargaining session, neither party
produced a new proposal. The company, repeating that the
parties were at an “impasse,” threatened to cease making
contributions to the Pension Fund (a threat it did not carry out).
The General Counsel’s complaint alleged that the company
thereby committed an unfair labor practice because the parties
were not actually at an “impasse.”
B.
7
The Board, relying mainly on the opinion of the
Administrative Law Judge, ruled that the company and the union
were not at an “impasse.” See Troy Grove, 372 N.L.R.B. No.
94, at 3. Over the dissent of Member Kaplan, the two-member
Board majority held that the company had therefore bargained in
“bad faith” in violation of sections 8(a)(5) and (1) of the Act by
“threatening” to end its contributions to the Pension Fund. Id.
The Board’s decision is not supported by substantial evidence
and its legal analysis is irrational.
Employers must bargain in “good faith,”5 and unions must
do the same. 29 U.S.C. § 158(d). As in any negotiation, the
parties may not reach an agreement even if both have bargained
in “good faith.” Board law calls such a deadlock or stalemate an
“impasse,” a word (not found in the Act) that became and still is
“an imprecise term of art.” Laborers Health & Welfare Tr. Fund
for N. Cal. v. Advanced Lightweight Concrete Co., 484 U.S.
539, 543 n.5 (1988) (quoting Laborers Health & Welfare Tr.
Fund for N. Cal. v. Advanced Lightweight Concrete Co., 779
F.2d 497, 500 n.3 (9th Cir. 1985)). One definition of “impasse”
is “that point at which the parties have exhausted the prospects
of concluding an agreement and further discussions would be
fruitless.” Id. (quoting Laborers Health, 779 F.2d 497, 500 n.3).
It would be a mistake to portray an employer’s bargaining
to “impasse” as some sort of bargaining sin. “Impasse,” as
defined in labor law, is “a recurring feature in the bargaining
process, . . . a temporary deadlock or hiatus in negotiations
‘which in almost all cases is eventually broken, through either a
change of mind or the application of economic force.’” Charles
5
An employer’s “good faith” has long has been a concept fraught
with uncertainty. See Note, Employer “Good Faith Doubt”, 116 U.
Pa. L. Rev. 709, 726 (1968).
8
D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412 (1982)
(quoting Charles D. Bonanno Linen Serv., Inc., 243 N.L.R.B.
1093, 1093-94 (1979)). The Board, with the Supreme Court’s
approval, has recognized that the “use of impasse” is a legitimate
“bargaining tactic.” Brown v. Pro Football, Inc., 518 U.S. 231,
239 (1996). “Indeed, an impasse may be brought about
intentionally by one or both parties as a device to further, rather
than destroy, the bargaining process.” Bonanno Linen, 243
N.L.R.B. at 1094.
At “impasse” employers have several options: “(1) maintain
the status quo, (2) implement their last offer, (3) lock out their
workers (and either shut down or hire temporary replacements),
or (4) negotiate separate interim agreements with the union.”
Brown, 518 U.S. at 245. An employer, during an “impasse,” is
not required to bargain with the union. But “‘impasse’ is often
temporary,” and therefore “employers must stand ready to
resume collective bargaining.” Id. at 245, 244.
Two aspects of this case set it apart from many, if not most,
of the Board’s “impasse” cases charging employers with unfair
labor practices.6 The first is that, although stating its belief that
the parties were at an impasse, the company did not implement
its “last, best, and final” proposal to cease contributing to the
Pension Fund. The second is that the company continued to
“bargain” with the union even after announcing that they were
at “impasse.”7
6
We have yet to discover a case charging a union with an unfair labor
practice for wrongly declaring an “impasse,” a quite improbable
prospect for reasons stated infra.
7
Whether the company and the union met again face-to-face is
unclear, but they continued to communicate about labor relations.
9
Despite these distinguishing features, the Board determined
that the company had not negotiated in “good faith,” and
therefore had committed an unfair labor practice when it
informed the union of the obvious legal consequences of an
“impasse”—namely, that the company could and would
implement its last best offer (although it did not do this).
The Board held that the company’s so-called “threat” to do
what an “impasse” entitled it to do violated the Act because the
parties were not then at an “impasse.” We disagree with the
Board’s premise that the parties were not at an “impasse.” 8
As to whether there was an “impasse,” the Board adopted
the reasoning of the Administrative Law Judge. See Troy Grove,
372 N.L.R.B. No. 94, at 5-6 (citing Troy Grove, a Div. of
Riverstone Grp., Inc., Vermillion Quarry, a Div. of Riverstone
Grp., Inc. & Int’l Union Operating Eng’rs, Loc. 150, AFL-CIO,
No. 25-CA-276061, 2022 WL 970302 (Mar. 29, 2022)
(appended to Troy Grove, 372 N.L.R.B. No. 94, at 13)). The
ALJ relied on Taft Broadcasting Co., 163 N.L.R.B. 475 (1967),
petition for rev. denied sub nom. Am. Fed’n of Television &
Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). From the
Board’s oft-cited Taft opinion,9 the ALJ quoted part of this
periodic sentence: “The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of the parties
8
Member Kaplan dissented on the basis that a threat to implement a
proposal, even if the parties were not at an “impasse,” is not a
violation of the duty to bargain in “good faith.” See Troy Grove, 372
N.L.R.B. No. 94, at 9-12 (Member Kaplan, dissenting). Because the
parties were at an “impasse,” we do not reach the issue.
9
See, e.g., Brown, 518 U.S. at 246; Thrifty Payless, Inc. v. NLRB, 86
F.4th 909, 917 (D.C. Cir. 2023); Laurel Bay Health & Rehab. Ctr. v.
NLRB, 666 F.3d 1365, 1373 (D.C. Cir. 2012); TruServ Corp. v. NLRB,
254 F.3d 1105, 1114 (D.C. Cir. 2001).
10
as to the state of negotiations are all relevant factors to be
considered in deciding whether an impasse in bargaining
existed.” 163 N.L.R.B. at 478.10
The “bargaining history” in this case strongly supported the
company’s judgment that the parties had reached a negotiating
impasse by 2021, or even much earlier. Consider the evidence.
The union and the company met face-to-face at least 26 times
over a five-year period beginning in 2016 without reaching an
agreement. During the second year of their negotiations, the
company presented its last, best offer to withdraw from the
Pension Fund. The union responded by calling a strike. The
strike lasted for at least three more years, thus demonstrating—in
Taft’s words—“the importance of the issue” about which the
parties disagreed.
The ALJ’s opinion (and hence the Board’s) gave no
indication that this five-year “bargaining history” counted for
anything. Compare that to the Board’s analysis in Taft—an
analysis upheld by our court—that the parties in that case had
reached an “impasse” because they met 27 times over a mere
three-month period without coming to an agreement. See Am.
Fed’n of Television & Radio Artists, 395 F.2d at 624.
We are engaged in “substantial evidence” review of the
Board’s action pursuant to the Administrative Procedure Act, 5
U.S.C. § 706(2)(E), and the National Labor Relations Act, 29
U.S.C. § 160(e). See Universal Camera Corp. v. NLRB, 340
U.S. 474, 477-85 (1951); Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 366 (1998). The Board “must draw all
those inferences that the evidence fairly demands. ‘Substantial
evidence’ review exists precisely to ensure that the Board
achieves minimal compliance with this obligation, which is the
foundation of all honest and legitimate adjudication.” Allentown
Mack, 522 U.S. at 378-79.
10
This multi-factor list without any assigned weights is “by no means
a ‘test.’” Thrifty Payless, 86 F.4th at 914.
11
The Board in this case did not achieve even “minimal
compliance” with its duty to draw the inferences demanded from
the parties’ bargaining history. After recounting the evidence,
the ALJ explained it should be disregarded: “At no time,
however, did both parties understand themselves to be at an
impasse.” Troy Grove, 2022 WL 970302; Troy Grove, 372
N.L.R.B. No. 94, at 27. That explanation is not supported by
“substantial evidence.” In fact, it is not supported by any
evidence. And the ALJ’s underlying legal theory, adopted by the
Board, is irrational.
What moved the ALJ to make such a gross evidentiary
blunder is difficult to understand. If five years of unproductive
bargaining over the Pension Fund issue, and a three-year strike,
were not enough to prove that progress in negotiations had hit a
brick wall, the undisputed testimony recounting the following
exchange at the parties’ July 2021 meeting proved this beyond
a reasonable doubt:
Company to Union: Would the Union agree to a contract
that did not include contributions to the Pension Fund?
Union: No.
Union to Company: Would the Company agree to a
contract that included continuing contributions to the
Pension Fund?
Company: No.
See Troy Grove, 2022 WL 970302; Troy Grove, 372 N.L.R.B.
No. 94, at 21.
In stating that, “At no time, however, did both parties
understand themselves to be at an impasse,” perhaps the ALJ
meant something else—that because the union denied that the
parties were at impasse, they were not. Troy Grove, 2022 WL
970302; Troy Grove, 372 N.L.R.B. No. 94, at 27 (emphasis
added). That rationale is irrational. It is arbitrary, capricious,
12
and senseless.
It amounts to the faintly ridiculous proposition that the
parties were not at an impasse because they were at an impasse
about whether they were at an impasse. Our court has rejected
this absurdity. “A union official’s denial that an impasse exists,
combined with a new negotiating proposal that does not meet the
employer’s position, does not rebut an impasse.” Mike-Sell’s
Potato Chip Co. v. NLRB, 807 F.3d 318, 324 (D.C. Cir. 2015);
see also TruServ, 254 F.3d at 1117; Laurel Bay, 666 F.3d at
1375.11 The reason should be obvious, although it seems to have
eluded the ALJ and thus the Board. We explained that “it is
hard to conceive of a scenario—and the caselaw does not
suggest one—in which a union will ever declare an impasse.
After all, an impasse enables the employer to implement its last
offer. That means the union will always contend that talks must
go on. So a union’s ‘professions’ to that effect must be
considered alongside ‘objective evidence’ of the movement in its
bargaining position over the course of the negotiations.” Thrifty
Payless, 86 F.4th at 917 n.4 (quoting Atrium of Princeton, LLC
v. NLRB, 684 F.3d 1310, 1312-13 (D.C. Cir. 2012)).12
11
The ALJ also found no impasse because, “[h]ad the negotiations
continued, it is plausible that Local 150 would have been flexible with
the pension contributions . . ..” Troy Grove, 372 N.L.R.B. No. 94, at
27. This is pure speculation, contradicted by five years of bargaining
history. More than that, the “Board itself has indicated that a party’s
‘bare assertions of flexibility on open issues and its generalized
promises of new proposals [do not clearly establish] any change,
much less a substantial change’ in that party’s negotiating position.”
Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 233 (D.C. Cir.
1996) (alteration in original) (quoting Civic Motor Inns, 300 N.L.R.B.
774, 776 (1990)).
12
See also Mike-Sell’s, 807 F.3d at 323 (“Thus although it is often
said by both the Board and courts that an impasse exists when both
parties believe bargaining has reached a dead end, as we recently
recognized in TruServ, ‘[a] contemporaneous understanding as to
impasse does not . . . require the parties to reach mutual agreement as
to the state of negotiations.’ If the law were otherwise, an employer
13
The Board, but not the ALJ, added that the parties had not
reached an “impasse” because the union, in a letter, made an
information request the company had not yet satisfied in July
2021. Troy Grove, 372 N.L.R.B. No. 94, at 5. But the union’s
request for information—a request made for the first time after
five years of negotiations—came too late to avert an impasse.
The union sent its letter two days after the parties’ meeting of
July 12, 2021, during which the company indicated that the
parties were at an impasse, as they clearly were for the reasons
already stated. The request was an obvious ploy. If a union’s
“last minute movement, short of agreement” cannot avoid an
impasse, neither can a union’s “movement” after impasse has
already been reached. Mike-Sell’s, 807 F.3d at 323. We have
concluded that comparable union actions did not constitute
substantial evidence supporting a no impasse finding. See
Laurel Bay, 666 F.3d at 1375; TruServ, 254 F.3d at 1117. So
here.13
II.
A.
On December 7, 2020, seven months before the parties
restarted their negotiations, a bargaining unit employee filed a
petition to decertify the union. Employees voted using mail-in
ballots, which were to be counted on February 16, 2021. Lyle
Calkins and Brad Lower, who had returned to work, informed
their supervisor, Thomas Becker, that they were serving as
observers for the vote count on behalf of the union. The
employees voted 4-2 against decertification.
An hour after Calkins and Lower returned from monitoring
would virtually never be entitled to implement a final offer. It would,
in effect, require the union’s consent.” (alterations in original)
(citations omitted)).
13
Because we reject the Board’s no-impasse finding, we do not reach
the union’s argument that the Board’s remedial order was insufficient.
14
the tally, supervisor Becker handed them temporary layoff
notices, effective at the end of the day. The company had a
practice of temporarily laying off its employees if there was no
indoor work and cold weather prevented them from working
outdoors. Layoffs had to comply with the expired collective
bargaining agreement.14 The agreement required that layoffs be
determined in order of seniority, all else being equal. Calkins
and Lower were the second- and third-most senior employees,
respectively. Knowing that three more-junior employees were
working that day, Calkins asked supervisor Becker if he knew
who would be loading trucks at the Vermilion quarry. The
company would have been in violation of the bargaining
agreement if it allowed a more junior employee to work while
temporarily laying off Calkins and Lower. Becker responded
that he needed to call his supervisor and left the work area.
When Becker returned, he explained that there was too much
work to do and rescinded the not-yet-effective layoff notices.
Upon the union’s unfair labor charges, the Board’s General
Counsel filed a complaint alleging that the company laid off
Calkins and Lower for supporting the union, and that, in doing
so, the company violated sections 8(a)(3) and (1) of the Act. See
29 U.S.C. § 158(a)(3), (1). The Board’s ALJ agreed. Troy
Grove, 2022 WL 970302; Troy Grove, 372 N.L.R.B. No. 94, at
26. On review, the Board disagreed with the ALJ’s finding that
the company had violated the Act by laying off Calkins and
Lower. Troy Grove, 372 N.L.R.B. No. 94, at 2. In the Board’s
view, the employees did not suffer an adverse employment
action because the layoff notices “were rescinded before they
took effect and before the men stopped working for the day.” Id.
The Board then, sua sponte, found that the company
violated section 8(a)(1) when it issued the layoff notices. Troy
Grove, 372 N.L.R.B. No. 94, at 2. The Board’s reasoning was
14
When a collective bargaining agreement expires, the employer must
“maintain the status quo as to terms and conditions of employment,”
pending the negotiation of a new contract. Wilkes-Barre Hosp. Co.,
LLC v. NLRB, 857 F.3d 364, 373-74 (D.C. Cir. 2017).
15
as follows. The layoff notices to Calkins and Lower, within
hours of their participation in union activity, did not follow
seniority and were issued without explanation. The layoffs were
inconsistent with the company’s cold weather layoff practice
because both employees had been assigned indoor roles. The
company’s rapid rescission of the layoff notices supported an
inference that the company issued the notices in retaliation for
Calkins’s and Lower’s acting on behalf of the union. This
evidence, the Board held, demonstrated that the layoff notices
reasonably tended to “interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed” by the Act.
29 U.S.C. § 158(a)(1).
B.
Section 10(e) of the Act provides that “[n]o objection that
has not been urged before the Board . . . shall be considered by
the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e). A party’s failure to object “to the Board’s
decision in a petition for reconsideration or rehearing . . .
prevents consideration of the question by the courts.” Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982).
Because the company did not file a motion for
reconsideration, the Board argues that we may not consider the
company’s objections to the Board’s decision about the layoff
notices. N.L.R.B. Resp. Br. at 19. We do not believe the
company needed to file a reconsideration motion to comply with
section 10(e). The company’s exceptions to the ALJ’s decision
were sufficient. It is true that the company challenged the ALJ’s
ultimate conclusion—its finding of section 8(a)(3) and (1)
violations—but it did so by attacking each of the ALJ’s
subsidiary premises. And the Board relied on exactly those
premises in making its sua sponte determination that the
company had violated section 8(a)(1).
The ALJ’s and the Board’s finding of a section 8(a)(1)
violation relied on the premise that Calkins and Lower were laid
16
off because of their roles as union observers. See Troy Grove,
372 N.L.R.B. No. 94, at 2 (“Respondent’s rescission of the
layoffs, only 90 minutes after their issuance, would reasonably
support the notion in employees’ minds that the notices were
initially issued as a knee-jerk reaction to protected activity.”); id.
at 26 (“There is strong circumstantial evidence that the active
roles undertaken by Lower and Calkin in supporting Local 150
motivated the Company to lay them off.”). The company’s
exceptions contested the causal link between its action and
protected union activity. See J.A. 6087. The Board’s
characterization of the underlying actions—the layoff notices to
Calkins and Lower and the rescission of the notices—did not
render the company’s objections any less on point.
The company also excepted to the ALJ’s “finding[s] or
conclusion[s]” that supervisor “Thomas Becker failed to provide
a reason for issuing the layoff notices,” J.A. 5903 ¶ 7, and that
“the issuance of layoff notices . . . disregard[ed] employee
seniority rights,” id. ¶ 9. The Board relied on both of these
findings when it determined that the company had violated
section 8(a)(1). See Troy Grove, 372 N.L.R.B. No. 94, at 2
(“The layoff notices, which did not follow seniority, were issued
without explanation . . ..”) (footnote omitted).
It follows that the issues raised in the company’s petition
for judicial review satisfied section 10(e).
C.
Section 8(a)(1) of the Act 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 of the Act].”
29 U.S.C. § 158(a)(1). Under section 7, employees have “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 Board considers whether an
employee would reasonably understand the employer’s conduct
17
to threaten employees with discipline for protected activity. See
Dover Energy, Inc. v. N.L.R.B., 818 F.3d 725, 730 (D.C. Cir.
2016). The Board’s findings of fact must be supported by
“substantial evidence.” 29 U.S.C. § 160(e).
The company argues that the timing of the layoff notices,
issued shortly after the vote tally, cannot support an inference
that the company penalized Calkins and Lower for their
protected activity. RiverStone Br. at 15. In so arguing, the
company relies on Garrison Coal Co., 154 N.L.R.B. 794 (1965).
There, the Board’s General Counsel alleged that Garrison Coal’s
firing of employees one day after they engaged in protected
union activity amounted to unlawful retaliation in violation of
section 8(a)(3). Id. at 800. The Board disagreed and found that
the timing of the layoffs, without other evidence, could not
support the allegation. Id. In this case, the Board identified
multiple factors indicating the coerciveness of the layoff notices.
These include the company’s failure to tell the employees why
they were being laid off, the company’s failure to follow
seniority, the proximity of the notices to the election tally, the
inconsistency with the company’s “cold weather layoff practice
as the men were in the middle of an indoor assignment,” and the
company’s prompt rescission of the notices. See Troy Grove,
372 N.L.R.B. No. 94, at 2.
The company’s additional arguments are of a piece. Each
looks to the Board’s interpretation of the record and suggests
how the facts might leave a different, non-coercive impression
on an employee. For example, the company suggests that
employees would have understood weather-related layoffs,
issued in the winter, to be part of the company’s ordinary
operations. Or that the company’s rescission of the notices, after
Calkins inquired about work at the Vermilion quarry, indicated
to employees that the issuance of layoff notices was not
responsive to union conduct.
The company’s alternate interpretation of the evidence may
be possible, but “the Board’s interpretation of the facts is
reasonably defensible,” and so we deny this aspect of the
18
company’s petition for review. Dean Transp., Inc. v. NLRB, 551
F.3d 1055, 1061 (D.C. Cir. 2009) (quoting Pa. Transformer
Tech., Inc. v. NLRB, 254 F.3d 217, 224 (D.C. Cir. 2001)).
III.
For the foregoing reasons, we grant the company’s petition
for review regarding the Board’s decision that it had committed
unfair labor practices in violation of sections 8(a)(5) and (1) of
the National Labor Relations Act when it threatened to cease
contributions to the Pension Fund. Accordingly, we vacate the
Board’s order in relevant parts and deny the union’s petition for
review. In all other respects, RiverStone’s petition is denied and
the Board’s cross-application for enforcement is granted.
So ordered.