Dunkin' Donuts Mid-Atlantic Distribution Center, Inc. v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2003 Decided April 2, 2004

No. 02-1334

DUNKIN8 DONUTS MID–ATLANTIC DISTRIBUTION CENTER, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED FOOD AND COMMERCIAL WORKERS UNION,

LOCAL NO. 1360,

INTERVENOR

Consolidated with

Nos. 02–1335 and 02–1369

On Petitions for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Mark Peters argued the cause for petitioner Dunkin8 Do-

nuts Mid–Atlantic Distribution Center, Inc. With him on the

briefs was Alison J. Little.

Ronald I. Tisch argued the cause for petitioner Aldworth

Company, Inc. With him on the briefs were Peter A. Susser

and Jason Branciforte.

William M. Bernstein, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him

on the brief were Arthur F. Rosenfeld, General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Arm-

strong, Deputy Associate General Counsel, and Margaret A.

Gaines, Supervisory Attorney.

Before: GINSBURG, Chief Judge, RANDOLPH and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: These petitions for review, and

the National Labor Relations Board’s cross-petition for en-

forcement, primarily raise fact-bound issues relating to the

Board’s finding of joint employer status and its issuance of a

bargaining order.

Dunkin8 Donuts Mid–Atlantic Distribution Center, Inc.

shipped products from its warehouse in Swedesboro, New

Jersey, to retail Dunkin8 Donuts stores. Aldworth Company,

Inc. leased 63 drivers and 40 to 45 warehouse employees to

Dunkin8. In early 1998, the United Food and Commercial

Workers Union Local 1360 began an organizational campaign

among the Aldworth employees. Aldworth, after becoming

aware of the union’s activity, undertook extensive efforts to

defeat it. Among other actions, Aldworth solicited employee

grievances and promised to adjust them; promised employees

more benefits and other favors; threatened employees, telling

them they would start with nothing if the union came in;

solicited employees to report whether the union was bother-

ing or harassing them; threatened employees with the loss of

their jobs and their 401(k) plan if they supported the union;

ordered employees to remove their union pins; warned em-

ployees about less favorable working conditions if they union-

3

ized; coercively interrogated an employee about his union

activity and promised to refrain from discharging him if he

stopped supporting the union; and told another employee

that his suspension was a consequence of his supporting the

union. In addition, Aldworth discharged and suspended

many employees and retaliated against others because of

their union activities.

In the meantime, the union managed to procure authoriza-

tion cards from 58 of the 109 employees in the unit. See

NLRB v. Gissel Packing Co., 395 U.S. 575, 601–10 (1969).

The cards, as signed by each of these employees, stated that

‘‘I hereby authorize [the union] to represent me for purposes

of collective bargainingTTTT’’ When the union requested

recognition, Aldworth refused. The union then filed a repre-

sentation petition. The election, held in September 1998,

resulted in 48 votes against the union and 45 in favor.

Aldworth’s anti-union activities continued after the election.

The Board, agreeing with the Administrative Law Judge,

ruled that Aldworth and Dunkin8 Donuts were joint employ-

ers; that the companies had committed numerous violations

of § 8(a)(1) and (a)(3) of the National Labor Relations Act, 29

U.S.C. § 158(a)(1) & (a)(3), some of which are described

above; and that Aldworth had violated § 8(a)(1) and (a)(5) by

refusing to recognize and bargain with the union while engag-

ing in conduct that illegally undermined the union’s support

and prevented a fair rerun election. Among other remedies,

the Board ordered Aldworth and Dunkin8 Donuts to offer

reinstatement to employees illegally discharged; to make

whole employees who suffered losses; to purge the files of

employees who suffered illegal discharges or discipline; and

to post remedial notices. The Board also ordered Aldworth

to bargain with the union on request.

The case comes to us in an odd posture. Aldworth no

longer has any presence at the Swedesboro warehouse. Its

contract with Dunkin8 Donuts ended on December 31, 2000,

after the ALJ’s decision but before the Board’s. (The ALJ

issued his decision on April 20, 2000; the Board issued its

decision and order on September 30, 2002.) The administra-

4

tive docket contains an entry indicating that Aldworth’s attor-

ney wrote to the Board on November 30, 2000, advising it of

the forthcoming cancellation of its contract. At oral argu-

ment, counsel for Aldworth stated that the letter went to the

Board’s Executive Director, who informed Aldworth by letter

a few days later that he would not forward it to the Board.

The letters are not in the record. Neither Aldworth nor

Dunkin8 Donuts filed a motion to reopen the record and, so

far as appears, neither company took any other action to alert

the Board to Aldworth’s departure. The Board thus decided

this case without knowing that Aldworth no longer had a

contract with Dunkin8 Donuts. Neither company has raised

the issue whether the Executive Director erred in not for-

warding Aldworth’s letter to the Board. We therefore will

review the Board’s decision only on the basis of the evidence

the Board had before it. One further development needs to

be mentioned. Between May 2000 and February 2002 the

union filed numerous additional charges against Aldworth and

Dunkin8 Donuts. After the Board’s General Counsel issued a

complaint, the companies entered into settlement agreements.

In its agreement, Dunkin8 Donuts admitted that it was a

successor to Aldworth and promised to recognize and bargain

with the union if we enforce the Board’s order in this case.

See NLRB v. Burns Sec. Servs., 406 U.S. 272, 277–81 (1972);

Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184–87

(1973).

With respect to many of the unfair labor practices, the

companies argue that the Board’s findings are not supported

by substantial evidence. No useful purpose would be served

by reciting the details of each charge and the Board’s re-

sponse. Our review of the record shows that all of the

contested unfair labor practices discussed in the Board’s (and

the ALJ’s) opinion had sufficient evidentiary support. The

only serious questions are whether Aldworth and Dunkin8

Donuts were joint employers and whether the Board properly

ordered Aldworth to bargain.

On the subject of joint employers, Dunkin8 Donuts claims

that under Goodyear Tire & Rubber Co., 312 N.L.R.B. 674,

688–89 (1993), the union waived its right to make such a claim

5

when it named only Aldworth in its representation petition, in

its election stipulation and in its initial unfair labor practice

charges. The Board ruled that in light of the union’s omis-

sions, Goodyear relieved Dunkin8 of any bargaining obligation

but it did not relieve the company of responsibility for the

unfair labor practices as a joint employer. (Dunkin8 was later

named as a respondent to those charges.) The Board’s view

of Goodyear must be sustained. Goodyear held only that

when a union, knowing the relationship between two compa-

nies, deliberately names only one of the companies in its

representation petition and its stipulation for an election, and

requests bargaining only with that company, it may not later

substitute another company. Goodyear Tire & Rubber Co.,

312 N.L.R.B. at 688–89.

Two separate entities may be joint employers of ‘‘a single

same workforce if they ‘share or co-determine those matters

governing essential terms and conditions of employment.’ ’’

Aldworth Co., 338 N.L.R.B. No. 22, at 3 (Sept. 30, 2002),

quoting NLRB v. Browning-Ferris Indus., 691 F.2d 1117,

1124 (3d Cir. 1982). This is ‘‘essentially a factual issue.’’

Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964). The

evidence here fully supports the Board’s finding that Dun-

kin8 Donuts ‘‘was, to varying degrees, involved in decisions

relating to employment tenure, discipline, assignment of

work and equipment, recognition and awards, and day-to-day

direction of the leased employees.’’ 338 N.L.R.B. No. 22, at

4. Dunkin8 Donuts’ transportation manager received and

sometimes administered driver applicant road tests, inter-

viewed driver applicants, prevented the hiring of applicants

he did not approve, selected and assigned employees to

permanent routes, selected the vehicles they would use, di-

rected them to make special deliveries, made other work

assignments, and handled complaints about the drivers, con-

sulting with Aldworth about their discipline or speaking di-

rectly to the drivers. Dunkin8 Donuts’ warehouse supervisor

tested warehouse applicants, reported his opinion about their

qualifications, which Aldworth generally followed, and per-

sonally fired one employee. Dunkin8 Donuts also deter-

mined Aldworth employee wage and benefit rates by specify-

6

ing, in the parties’ ‘‘cost-plus’’ lease agreement, the rates it

would reimburse Aldworth. Aldworth discontinued an em-

ployee bonus program after Dunkin8 Donuts said it would no

longer endorse the program. And Dunkin8 Donuts’ trans-

portation manager developed, in significant part, the rating

categories used to determine whether drivers received incen-

tive awards. In addition, as the Board found, Dunkin8 Do-

nuts played a key role in some of the events that the Board

ultimately found to be unfair labor practices. 338 N.L.R.B.

No. 22, at 4.

More could be written, but the foregoing recital is enough

to show why substantial evidence on the record as a whole

backs up the Board’s finding that Dunkin8 Donuts was a joint

employer. See Universal Camera Corp. v. NLRB, 340 U.S.

474 (1951).

At oral argument, counsel for Dunkin8 Donuts claimed that

the Board improperly relied on some of these indicia of

common control. The Board held that ‘‘actions taken pursu-

ant to government statutes and regulations are not indicative

of joint employer status, and that the ALJ therefore erred in

considering Dunkin8 Donuts’ ‘‘role in interpreting government

rules relating to interstate commerce [and] its inclusion of

employees with its 401(k) plan TTT as indice[s] of joint em-

ployer status.’’ 338 N.L.R.B. No. 22, at 3. Although counsel

asserted in oral argument that in some instances the actions

Dunkin8 Donuts took with respect to the employees merely

fulfilled its obligations under federal health and safety regula-

tions, we do not know which particular regulations – or how

many of the Board’s ‘‘indices’’ of common control – counsel

had in mind. We do not know this because Dunkin8 Donuts

made no such argument in its opening brief or, for that

matter, in its reply brief. Rule 28(a)(9)(A) of the Federal

Rules of Appellate Procedure provides that the argument

portion of an appellant’s opening brief ‘‘must contain’’ the

‘‘appellant’s contentions and the reasons for them, with cita-

tions to the authorities and parts of the record on which the

appellant relies.’’ We have enforced this rule before and we

do so here again. See, e.g., Carducci v. Regan, 714 F.2d 171,

177 (D.C. Cir. 1983); Rollins Envtl. Servs. (NJ) Inc. v. EPA,

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937 F.2d 639, 652 n.2 (D.C. Cir. 1991); Barrick Gold Strike

Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000).

The remaining question deals with the validity of the

Board’s order that Aldworth (or its successor) bargain with

the union upon request. ‘‘[B]ecause circumstances TTT may

change during the interval between the occurrence of the

employer’s unfair labor practices and the Board’s disposition

of a case, there is an obvious danger that a bargaining order

that is intended to vindicate the rights of past employees will

infringe upon the rights of the current ones to decide whether

they wish to be represented by a union.’’ Flamingo Hilton-

Laughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C. Cir. 1998)

(citation omitted). The law of this circuit is that the Board

must determine whether a bargaining order is warranted in

light of the circumstances existing at the time it would enter

the order, even if the union had, at one time, achieved

majority status through authorization cards. Id. To this

end, we have required the Board to take into account employ-

ee turnover. See Douglas Foods Corp. v. NLRB, 251 F.3d

1056, 1066 (D.C. Cir. 2001); Avecor, Inc. v. NLRB, 931 F.2d

924, 937 (D.C. Cir. 1991).

Here, the Board found the anti-union conduct ‘‘so pervasive

as to have created a corporate culture of lawlessness.’’ 338

N.L.R.B. No. 22, at 16. ‘‘[W]hile some employees may have

voluntarily departed their jobs, those who remain will doubt-

less share this history with newcomers.’’ Id. It is true that

before the September 1998 election there had been a high

percentage of turnover among the drivers and warehouse

employees at the Swedesboro facility. But the record also

showed that, in the words of the ALJ, there was ‘‘a core of

steady employees with whom the experience of [the compa-

nies’] unlawful conduct will remain.’’ Id. at 96. Neither

Aldworth nor Dunkin8 Donuts challenges this finding or the

Board’s conclusion that the core employees will likely share

their pre- and post-election experience with new employees.

The Board thus provided a sufficient explanation for its

determination that ‘‘an affirmative bargaining order is neces-

sary to remedy the TTT unfair labor practices.’’ Id. at 16.

8

One last word is in order. In addition to employee turn-

over and the passage of time, we have required the Board to

consider the effects of any changes in management. See

Flamingo Hilton-Laughlin, 148 F.3d at 1171-73; Somerset

Welding & Steel, Inc. v. NLRB, 987 F.2d 777, 781 (D.C. Cir.

1993). But as mentioned earlier, neither Aldworth nor Dun-

kin8 Donuts ever properly moved to reopen the record in

order to place before the Board the fact that Aldworth’s

management contract ended on December 31, 2000 – twenty

one months before the Board’s order. We thus express no

opinion about whether the bargaining order would have been

sustainable if that fact had been before the Board.

The petitions for judicial review are denied and the Board’s

cross-petition for enforcement is granted.

So ordered.