Parkwood Developmental Center, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2007 Decided April 11, 2008

No. 07-1006

PARKWOOD DEVELOPMENTAL CENTER, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL

UNION, LOCAL 1996,

INTERVENOR

Consolidated with

07-1027

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Charles P. Roberts, III argued the cause for petitioner.

With him on the briefs was Clifford H. Nelson, Jr.

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William M. Bernstein, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him

on the brief were Ronald E. Meisburg, General Counsel, John

H. Ferguson, Associate General Counsel, Linda Dreeben,

Assistant General Counsel, and Meredith L. Jason,

Supervisory Attorney.

James D. Fagan, Jr. was on the brief for intervenor

United Food and Commercial Workers International Union,

Local 1996.

Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Parkwood Developmental

Center, Inc. (“Parkwood”) petitions for review of an order of

the National Labor Relations Board (“Board”) that

determined that the company unlawfully withdrew

recognition from an incumbent union upon expiration of its

collective bargaining agreement. The Board concluded that

Parkwood had permissibly based its anticipatory withdrawal

decision on an employees’ petition renouncing union

representation, but then improperly ignored a counter-petition

rescinding the renunciation. For the reasons set forth below,

we deny Parkwood’s petition for review and grant the

Board’s cross-application to enforce its order.

I.

Parkwood runs a home for the developmentally disabled

in Valdosta, Georgia. Until 2003, the employees who worked

at the home were represented by the United Food and

Commercial Workers International Union, Local 1996

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(“Union”). Parkwood and the Union were parties to a

collective bargaining agreement (“CBA”) that was scheduled

to expire March 8, 2003.

On December 2, 2002 Parkwood was presented with a

petition, signed by a majority of its employees at the home,

announcing that they no longer wished to be represented by

the Union. Believing that the Union no longer enjoyed

majority support, Parkwood told the Union of the petition that

same day and declared it would cease dealing with the Union

upon expiration of the CBA. From that moment onward,

Parkwood refused to negotiate with the Union for a successor

agreement.1

On March 7, 2003, the day before expiration of the CBA,

the Union presented to Parkwood a counter-petition, also

signed by a majority of the employees at the home, declaring

a renewed desire for Union representation and “revok[ing],

rescind[ing] and cancel[ing]” the earlier petition. Parkwood

was unmoved by this eleventh-hour show of support for the

Union. When the CBA expired the next day, Parkwood

refused to recognize the Union or bargain with it for a new

agreement.

The Union filed charges with the Board alleging, among

other things, that Parkwood violated § 8(a)(5) of the National

Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(5), by

1

Parkwood chose to rely upon the employees’ petition as its sole

barometer of union support, and did not file with the Board a

Representation Management petition (“RM petition”), 29 U.S.C.

§ 159(c)(1)(B); 29 C.F.R. § 102.60(a). Parkwood was under no

duty to file an RM petition, but had it done so the company could

have secured a Board-administered, secret-ballot election to

determine whether it had an obligation to bargain with the Union.

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unlawfully withdrawing recognition from the Union.2 An

administrative law judge (“ALJ”) found that Parkwood did

not violate the NLRA by withdrawing recognition from the

Union in response to the employees’ petition, notwithstanding

their counter-petition to the contrary. Parkwood, the Union,

and the General Counsel each filed exceptions to the ALJ’s

decision. See 29 C.F.R. § 102.46(a)–(c) (establishing

procedures for “exceptions”). Parkwood and the General

Counsel then filed answering briefs responding to each

other’s exceptions. See id. § 102.46(d) (establishing

procedures for “answering briefs”).

In its decision and order of August 22, 2006, the Board

reversed the ALJ’s finding that the withdrawal of recognition

had been lawful. Parkwood Developmental Ctr., Inc., 347

N.L.R.B. No. 95, 2006 WL 2459498 (2006). Concluding that

Parkwood had violated the NLRA by refusing to deal with the

Union despite a counter-petition voicing majority support, id.

slip op. at 2–3 (citing Levitz Furniture Co. of the Pacific, 333

N.L.R.B. 717 (2001)), the Board imposed an affirmative

bargaining order on the company. Parkwood filed a motion

for reconsideration objecting to this remedy, which the Board

denied as untimely. Parkwood petitions this court for review

of the Board’s order and the denial of its motion for

reconsideration. The Board cross-petitions for enforcement of

its order, and the Union intervenes in support of the Board.

2

The Union also alleged violations of § 8(a)(1) of the NLRA, 29

U.S.C. § 158(a)(1). The administrative law judge found, and the

Board agreed, that Parkwood violated § 8(a)(1) and § 8(a)(5) by

blaming the Union for a lack of salary raises, by prohibiting an

employee from discussing Union business on company time, and

by unilaterally changing employees’ health insurance benefits.

Parkwood concedes that the Board is entitled to summary

affirmance on these points. Parkwood’s Br. at 2 n.3.

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II.

We begin by considering Parkwood’s argument that the

Board chose the wrong moment in time at which to measure

employee support for the Union. “We will set aside the

Board’s decision only if the Board acted arbitrarily or

otherwise erred in applying established law to the facts at

issue, or if its findings are not supported by substantial

evidence.” Waterbury Hotel Mgmt., LLC v. NLRB, 314 F.3d

645, 650 (D.C. Cir. 2003) (internal citation and quotation

marks omitted). The Board’s decision survives this highly

deferential standard of review.

The Board determined that Parkwood violated § 8(a)(5)

of the NLRA by withdrawing recognition from the Union

without proving “actual loss” of majority support, as required

by Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 717

(2001). See id. at 725 (“If the union contests the withdrawal

of recognition in an unfair labor practice proceeding, the

employer will have to prove by a preponderance of the

evidence that the union had, in fact, lost majority support at

the time the employer withdrew recognition. If it fails to do

so, it will not have rebutted the presumption of majority

status, and the withdrawal of recognition will violate Section

8(a)(5).”). In this case of contradictory petitions and counter-

petitions, majority support among Parkwood’s employees

depends on when one measures it. From December 2, 2002

until March 6, 2003, the employees’ first petition made clear

their lack of support for the Union. But after March 7, 2003,

the date the Union presented the counter-petition, the

objective evidence showed just the opposite. The Board

measured employee support at the expiration of the CBA, on

March 8, 2003, because that was the date on which

Parkwood’s announced withdrawal of recognition was to take

effect. See Parkwood Developmental Ctr., Inc., 347 N.L.R.B.

6

No. 95, slip op. at 2 & n.9 (2006) (noting that March 8, 2003

was the earliest date lawfully to withdraw recognition

because, under Auciello Iron Works, Inc. v. NLRB, 517 U.S.

781, 786 (1996), “a union enjoys a conclusive presumption of

majority status during the life of a collective-bargaining

agreement (up to 3 years)”).

Parkwood contends that the Board should have measured

majority support on December 2, 2002, the date the company

announced its intent to withdraw recognition in response to

the employees’ petition, rather than on March 8, 2003. In

support of this proposition, Parkwood makes three related

arguments. First, it points to Board decisions suggesting that

the earlier date was the proper moment at which to measure

support for the Union. Second, it warns that by looking to the

later date, the Board has destroyed the previously recognized

right of anticipatory withdrawal. Third, it argues that the

Board has ignored the so-called “open period.” We take the

arguments in turn and reject each.

A.

Prior to Levitz, an employer could withdraw recognition

from a union on the basis of good-faith doubt as to the

union’s continued support among a majority of employees in

the bargaining unit. See Levitz, 333 N.L.R.B. at 717 (citing

Celanese Corp., 95 N.L.R.B. 664 (1951)). In applying this

rule, the Board measured good-faith doubt at the time the

employer announced it. See, e.g., Bridgestone/Firestone, Inc.,

331 N.L.R.B. 205, 209 (2000); Burger Pits, Inc., 273

N.L.R.B. 1001, 1002 (1984), enforced sub nom. Hotel, Motel

& Rest. Employees & Bartenders Union Local No. 19 v.

NLRB, 785 F.2d 796 (9th Cir. 1986). Noting that the Board

cannot ignore its own precedent, see Manhattan Ctr. Studios,

Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006), Parkwood

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argues that the Board was bound by pre-Levitz precedent to

measure actual loss of majority support in the same way it

once measured good-faith doubt, namely, on the day evidence

of actual loss first came to light.

This argument fails to account for Levitz, which

explicitly overruled Celanese and removed good-faith doubt

as a sufficient basis for withdrawing recognition from a

union. 333 N.L.R.B. at 717. Levitz changed what the Board

measures in scrutinizing a withdrawal of recognition, shifting

from good-faith doubt to actual loss of majority support.

Implicit in this decision is a corresponding change in how the

Board will take its measurements. The Board’s pre-Levitz

decisions never addressed the issue presented by the facts in

this case, so there was no binding precedent on this point

from which it could depart. That the Board was not bound by

its precedent to choose the earlier measuring point is apparent

from our recent decision in Highlands Hospital Corp. v.

NLRB, 508 F.3d 28 (D.C. Cir. 2007). In Highlands, we

approved the Board’s decision to consider post-petition

employee conduct in determining whether there was an actual

loss of majority support. Id. at 31–32. We could not have so

held if the Board’s precedent required it to measure actual

loss in the same way it had once measured good-faith doubt.

B.

Parkwood next contends that the Board’s decision

dispensed with the right of anticipatory withdrawal

recognized in Abbey Medical/Abbey Rents, Inc., 264 N.L.R.B.

969 (1982), enforced, 709 F.2d 1514 (Table) (9th Cir. 1983).

In Abbey Medical, the Board described the employer’s power

to effect “ ‘an anticipatory withdrawal of recognition’ in

relation to a future contract,” which allows an employer to

honor an existing CBA but question the union’s right to

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bargain for a new agreement upon its expiration. 264

N.L.R.B. at 969. To withdraw anticipatorily, an employer

must “demonstrate that, on the date of withdrawal . . . the

union in fact had lost its majority status, or [that the]

withdrawal was predicated on a reasonable doubt based on

objective considerations of the union’s majority status.” Id.

To avoid semantic confusion, anticipatory withdrawal must

be distinguished from withdrawal of recognition. Anticipatory

withdrawal occurs prior to expiration of a CBA and does not

obviate the employer’s obligations under the existing

agreement. Withdrawal of recognition occurs after expiration

of a CBA, at which time the employer is free of contractual

obligation.

Parkwood took full advantage of Abbey Medical. During

the period that began with the employees’ petition and ended

with their counter-petition, Parkwood lawfully declined to

bargain with the Union for a new CBA. Parkwood

Developmental Ctr., Inc., 347 N.L.R.B. No. 95, slip op. at 2

n.10 (2006); cf. Point Blank Body Armor, Inc., 312 N.L.R.B.

1097, 1097 n.1 (1993) (holding employer violated the NLRA

by negotiating new CBA after employees submitted petition

disavowing incumbent union). But nothing in Abbey Medical

permitted Parkwood to ignore subsequent indicators of

majority support in deciding whether to withdraw recognition.

The counter-petition made clear that as of March 8, 2003, the

expiration date of the CBA and the earliest moment at which

Parkwood lawfully could withdraw recognition, the Union

had not actually lost majority support. The counter-petition

thus restored the presumption of majority support enjoyed by

every union during the life of its CBA, up to three years. See

Auciello, 517 U.S. at 786. The Board’s holding to this effect

was reasonable and consistent with precedent, so we reject

Parkwood’s argument that it was arbitrary and capricious.

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C.

Finally, Parkwood argues that the Board ignored the

“open period,” during which the presumption of majority

support for the union is relaxed and the Board accepts

election petitions. See Donald Schriver, Inc. v. NLRB, 635

F.2d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal

‘contract-bar’ rules, an election petition for representative

status may not be filed during the term of a collective

bargaining agreement that has a duration of up to three years

. . . except during an open period . . . prior to the expiration

date of the contract.”). For a health care institution such as

Parkwood, this period falls between 120 and 90 days prior to

expiration of the CBA. Trinity Lutheran Hosp., 218 N.L.R.B.

199, 199 (1975). Parkwood’s December 2, 2002 withdrawal

statement fell within the open period, a fact the Board did not

discuss in its order. Parkwood argues that the Board’s silence

on this point rendered its order arbitrary and capricious by

giving undue weight to the Union’s contractual presumption

of majority support. We reject this argument. Neither the

employer, nor the employees, nor a rival union filed an

election petition, so the open period was irrelevant and the

Board was right to ignore it. If Parkwood wanted to secure the

benefit of the open period, it should have filed an RM petition

during that time. Parkwood cites no authority for the

proposition that proof of an actual loss of majority support

under Levitz is somehow dependent upon the facts as they

existed during the open period. The Board might one day

make it so, but its decision not to do so in this case was

neither arbitrary nor capricious.

III.

Alternatively, Parkwood argues that, even if the Board

did not err in holding it had violated the NLRA by

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withdrawing recognition from the Union, the Board, in

ordering Parkwood to bargain with the Union, failed to

comply with our decision in Vincent Industrial Plastics, Inc.

v. NLRB, 209 F.3d 727 (D.C. Cir. 2000). In Vincent

Industrial, we directed the Board to premise every bargaining

order on an “explicit[] balanc[ing] [of] three considerations:

(1) the employees’ Section 7 rights [29 U.S.C. § 157]; (2)

whether other purposes of the [NLRA] override the rights of

employees to choose their bargaining representatives; and (3)

whether alternative remedies are adequate to remedy the

violations of the [NLRA].” 209 F.3d at 734. Parkwood

accuses the Board of ignoring Vincent Industrial and asks us

to deny enforcement of the chosen remedy on the basis of this

shortcoming.

But we have no jurisdiction to entertain this claim. Our

authority to consider Parkwood’s petition comes from the

jurisdictional grant in § 10 of the NLRA. That portion of the

statute limits our jurisdiction as follows: “No 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); see also id. § 160(f)

(incorporating § 160(e)’s jurisdictional constraint). The

General Counsel requested a bargaining order in his

exceptions to the ALJ’s findings. Parkwood forfeited its

challenge to this remedy by failing to respond in its answering

brief to the General Counsel’s request. To “urge[] before the

Board” the arguments it would later have us review, id.

§ 160(e), a party must present those arguments in a

procedurally valid way. Parkwood’s first opportunity to do so

was in its answering brief, but it neglected to discuss remedial

issues in that filing. By the time Parkwood objected to the

bargaining order in a motion for reconsideration, it was too

late. According to its regulations, the Board will only

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entertain a motion for reconsideration in “extraordinary

circumstances.” 29 C.F.R. § 102.48(d)(1). The Board found

no such circumstances here, and we must defer to the Board’s

interpretation of its own regulations because that

interpretation is neither plainly erroneous nor inconsistent

with the regulations. Long Island Care at Home, Ltd. v. Coke,

127 S. Ct. 2339, 2349 (2007) (citing Auer v. Robbins, 519

U.S. 452, 461 (1997)); Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945).

Parkwood should have opposed the General Counsel’s

request for a bargaining order in the answering brief it filed in

response to the General Counsel’s exceptions. Of course,

Parkwood could not have faulted the Board’s reasoning in a

filing that preceded the Board’s order. But Parkwood could

have alerted the Board to the possibility that a bargaining

order was unwarranted in this instance. Its failure to do so

deprives us of jurisdiction to consider the remedial challenge.

IV.

We deny Parkwood’s petition for review and grant the

Board’s cross-application to enforce its order.

So ordered.