upholding NLRB decision that reinstated and incorporated by reference two earlier NLRB decisions that had been vacated because of an Appointments Clause violation
How later courts described this case
- upholding NLRB decision that reinstated and incorporated by reference two earlier NLRB decisions that had been vacated because of an Appointments Clause violation
- reviewing an NLRB decision that “rein-stat[ed] and incorporated] by reference” a prior decision issued by a two-person Board
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2015 Decided June 12, 2015
No. 14-1099
FORTUNA ENTERPRISES, LP,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITE HERE LOCAL 11,
INTERVENOR
Consolidated with 14-1115
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Stephen R. Lueke argued the cause for petitioner. With
him on the briefs was Stefan H. Black.
2
Edward D. Swidriski III, Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Richard F. Griffin, Jr., General Counsel,
John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Kira
Dellinger Vol, Supervisory Attorney.
Eric B. Myers was on the brief for intervenor Unite Here,
Local 11, in support of respondent.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Fortuna Enterprises,
L.P., petitions for review of a National Labor Relations Board
order finding that Fortuna violated § 8(a)(1) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(1), by suspending
seventy-seven employees for participating in an on-site work
stoppage. See Fortuna Enters., L.P., 360 NLRB No. 128
(May 30, 2014), 2014 WL 2448880. The Board filed a cross-
application for enforcement of the challenged order; and labor
union Unite Here, Local 11, intervenes in favor of
enforcement. For the reasons stated below, we will deny
Fortuna’s petition to review the Board’s order and grant the
Board’s cross-application for enforcement.
I. BACKGROUND
A. Factual Background
Petitioner Fortuna Enterprises operates the Los Angeles
Airport Hilton Hotel and Towers (hereinafter “Hilton”).
3
Beginning in January 2006, intervenor union, Unite Here,
Local 11, conducted a public campaign to organize Fortuna’s
employees at the Hilton. On May 10, 2006, Fortuna
suspended employee Sergio Reyes pending an investigation
of allegations of theft. Suspecting that Reyes’s suspension
was related to his union activities, several employees decided
to meet the following morning in the staff cafeteria to induce
management (specifically, Hilton’s general manager Grant
Coonley or Hilton’s food and beverage director Tom Cook) to
address the employees’ concerns over Reyes’s suspension.
At 8:00 a.m. on May 11, 2006, seventy to one hundred
employees gathered in the cafeteria. Upon arriving at the
cafeteria, the employees asked a security guard to inform
Coonley and Cook that the employees wanted to meet with
them. When housekeeping director Anna Samayoa arrived at
the cafeteria at approximately 8:13 a.m., the security guard
notified Samayoa that the employees had requested a meeting
with Cook or Coonley. The guard told Samayoa that Cook
was on his way, but Coonley was not at the hotel. Samayoa
attempted to reach Cook by telephone, but received no
answer.
At approximately 8:26 a.m., Samayoa ordered the
employees gathered in the cafeteria to return to work if they
were not on break. Employee Michael Vargas responded that
the employees were not leaving until they spoke to Coonley
or Cook. Samayoa told Vargas that Coonley was not
available, and Vargas responded, “Then we need to speak to
[Cook].” Fortuna, 2014 WL 2448880, at *2. At 8:32 a.m.,
Samayoa again ordered the employees to return to work if
they were not on break. The employees did not comply. At
8:57 a.m., Samayoa reiterated her order, this time adding that
employees would be suspended if they remained in the
4
cafeteria. Vargas then asked Samayoa to try to reach Coonley
on his cell phone; Samayoa responded that she would try.
A few minutes after the third warning, Samayoa began
suspending employees one by one. Vargas intervened and
asked Samayoa to “focus on contacting Mr. Coonley.”
Samayoa responded, “Yes, I will try,” and left the cafeteria.
Id. About this time, Hilton’s chief of security Grant Taylor
announced that he was going to call the police if the
employees failed to leave. Despite this threat, however,
Taylor also promised Vargas that he would try to contact
Coonley. A half an hour later, at approximately 9:30 a.m.,
Vargas asked Samayoa if she had contacted Coonley.
Samayoa responded, “No, we’re still waiting just like you
are.” Id. Vargas also asked hotel chief steward Rogelio de la
Rosa to contact Coonley, Cook, or human resources manager
Sue Trobaugh. De la Rosa responded, “Okay, let me go and
see what I can do.” Id.
At approximately 10:15 a.m., having received no
response from Coonley or Cook, a delegation of eight to ten
employees informed management that they wanted to return
to work. Kitchen supervisor David Aragon, after speaking
with Cook, informed the employees that they were suspended
and could not return to work. Shortly thereafter, Samayoa,
accompanied by a police officer, confirmed to the delegation
that the employees who participated in the work stoppage
were suspended and could not return to work. Having been
informed of their suspensions by the returning employee
delegation, the remaining employees left the cafeteria at
approximately 10:30 a.m. Ultimately, seventy-seven
employees who participated in the work stoppage were
suspended for five days for “[i]nsubordination” and “[f]ailure
to follow instructions.” Id. at *3.
5
B. Procedural Background
The National Labor Relations Board’s general counsel
issued a complaint against Fortuna based on the May 11
suspensions and other alleged anti-union conduct. An
Administrative Law Judge found the suspensions violated
§ 8(a)(1) of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(1), because the employees participating in the work
stoppage were engaged in concerted action for “mutual aid or
protection” under § 7 of the Act, 29 U.S.C. § 157. Fortuna
Enters., L.P., 354 NLRB 202, 211 (2009) (Board adopting
and appending ALJ’s decision). In determining whether the
concerted activity was protected under § 7, the ALJ undertook
to apply the Board precedent set forth in Quietflex
Manufacturing Co., 344 NLRB 1055 (2005). See id.
In Quietflex, the Board identified ten factors “that the
Board ha[d] considered in determining” whether the
organizational rights of employees engaged in a work
stoppage outweighed the property rights of the employer. 344
NLRB at 1056. The factors listed by the Board in Quietflex
are:
(1) the reason the employees have stopped working;
(2) whether the work stoppage was peaceful;
(3) whether the work stoppage interfered with
production, or deprived the employer access to its property;
(4) whether employees had adequate opportunity to
present grievances to management;
6
(5) whether employees were given any warning that they
must leave the premises or face discharge;
(6) the duration of the work stoppage;
(7) whether employees were represented or had an
established grievance procedure;
(8) whether employees remained on the premises beyond
their shift;
(9) whether the employees attempted to seize the
employer’s property; and
(10) the reason for which the employees were ultimately
discharged.
Id. at 1056–57; see also Fortuna Enters., L.P. v. NLRB, 665
F.3d 1295, 1300 n.3 (D.C. Cir. 2011).
The ALJ in the Fortuna dispute expressly considered
each of the ten Quietflex factors and concluded that each
factor either weighed in favor, or did not weigh against,
protection of the work stoppage. 354 NLRB at 211–12.
Thus, the ALJ determined that Fortuna violated § 8(a)(1) of
the National Labor Relations Act by suspending the
employees. The National Labor Relations Board ultimately
affirmed and adopted the ALJ’s findings of fact and
conclusions of law, subject to minor modifications. Id. at 203
& n.3; see also Fortuna Enters., L.P., 355 NLRB 602 (2010)
(reinstating and incorporating by reference Board’s earlier
decisions which were issued by a two-member Board in
contravention of New Process Steel, L.P. v. NLRB, 560 U.S.
674 (2010)).
7
Fortuna petitioned this Court for review. Fortuna, 665
F.3d at 1298. Fortuna asked the Court to set aside the Board’s
order with respect to the May 11 suspensions on the ground
that the Board’s assessment of nine of the ten Quietflex
factors was flawed. Id. at 1300. After rejecting Fortuna’s
objection to the Board’s assessment of the first Quietflex
factor (why the employees stopped working), we held that
“[w]ith two exceptions, there is nothing to the balance of
[Fortuna’s] arguments against the Board’s application of the
Quietflex factors.” Id. at 1301. “The exceptions are the
Board’s treatment of factor (3)—‘whether the work stoppage
interfered with production,’ and factors (4) and (7)—‘whether
employees had adequate opportunity to present grievances to
management’ or access to ‘an established grievance
procedure.’” Id. (quoting Quietflex, 344 NLRB at 1057).
With respect to the third factor, interference with
production, Quietflex stated in a footnote, “It is not considered
an interference of production where the employees do no
more than withhold their own services.” 344 NLRB at 1057
n.6. We were “not quite sure what to make of this” footnote.
Fortuna, 665 F.3d at 1301. Indeed, “the point of this
Quietflex factor is unclear” given that “[s]ome protected
activities,” such as strikes, “exert economic pressure on the
employer by interfering with production.” Id. (emphasis in
original). We thus remanded to the Board for an explanation
of the third Quietflex factor and an assessment of how this
factor relates to the May 11 work stoppage. Id. at 1303.
We then turned to the Board’s consideration of the fourth
and seventh Quietflex factors (whether employees had
adequate opportunity to present grievances to management or
access to an established grievance procedure). Considering
these factors, “the Board adopted the ALJ’s determination
that the complaint procedure [Fortuna] had in place
8
‘addressed only individual complaints and not group
grievances like the one presented in the instant case.’” Id. at
1302 (quoting Fortuna, 354 NLRB at 212). We held that this
finding was “not supported by substantial evidence,” id. at
1303, as the record demonstrates that Fortuna’s “open door”
policy was well known, widely used, and effective in the past
at addressing group grievances, id. at 1302–03. Noting that
“the Board never quantified the weight to be given to any one
of the Quietflex factors” we “grant[ed] the petition for review
with respect to the Board’s assessment of the May 11 protest
and remand[ed] this issue for reconsideration by the Board.”
Id. at 1303.
On remand, the Board determined that the May 11 work
stoppage was protected and that Fortuna violated the Act by
suspending the participating employees. Fortuna, 2014 WL
2448880, at *10. As noted by the Board, we “affirmed the
Board’s findings and conclusions with respect to Quietflex
factors 1, 2, 5, 6, 8, 9, and 10.” Id. at *5. Pursuant to the
remand, the Board determined how much weight to give to
each of those factors. The Board concluded that “factors 1, 2,
6, 8, and 9 strongly support a conclusion that the employees
were engaged in protected activity at the time they were
suspended;” that “factor 5 ([Fortuna’s] warning to employees)
is entitled to little weight;” and “that factor 10 (the reasons for
the discipline, here insubordination) does not weigh against
protection.” Id. at *6.
Given our concern with the Board’s articulation of
Quietflex factor three (interference with production), the
Board undertook “to clarify this factor.” Id. at *7. The Board
explained that the “focus of the Board and the courts when
applying this factor is on whether striking employees interfere
with production or the provision of services by preventing
other employees who are working from performing their
9
duties.” Id. (emphasis in original). Applying the clarified
test, the Board found that this factor “weighs strongly in favor
of protection,” as “there is no suggestion that the striking
employees attempted to prevent other employees from
working.” Id.
With respect to Quietflex factor four (whether employees
had an adequate opportunity to present grievances to
management), the Board accepted our determination that
employees had access to an established grievance procedure.
Nevertheless, the Board “conclude[d] that this factor weighs
slightly in favor of protection” given “the repeated assurances
given the employees by Samayoa and other managers that
they were trying to contact Coonley and Cook on the
employees’ behalf.” Id. at *8. The employees’ reasonable
belief “that Coonley or Cook might yet meet with them and
listen to their grievance…contributed to the employees’
decision to persist in the work stoppage for as long as they
did.” Id.
With respect to Quietflex factor seven (access to
established grievance procedure), the Board accepted our
“determination that the employees had access to an
established procedure through [Fortuna’s] ‘open door’ policy
for addressing group grievances” then gave “that factor due
weight, but not decisive weight.” Id. The fact that an
established grievance procedure may cut against protection
“does not mean…that the Act affords no protection to
employees who engage in peaceful, nondisruptive, on-site
work stoppages without first attempting to resolve their
complaint through approved channels.” Id. (emphasis in
original).
“Considering all the relevant factors,” the Board
“conclude[d] that the work stoppage was protected for its
10
entire duration.” Id. at *10. This conclusion was based
“primarily on the following factors: the purpose of the work
stoppage was clearly protected; it was peaceful and did not
disrupt the work of nonstriking employees; it was of a limited
duration; and no employees remained on [Fortuna’s] premises
beyond their shift or attempted to seize [Fortuna’s] property.”
Id. The Board determined that “[t]hese factors, taken
together, substantially outweigh the significance of the
availability of a grievance procedure in the circumstances of
this case.” Id. As the Board summarized its decision:
[T]he employees were entitled to continue their
on-site work stoppage for a reasonable period
of time in a legitimate effort to meet with
senior-level managers, despite the existence of
an established grievance procedure and despite
[Fortuna’s] directive that the employees return
to work or leave the Hotel, less than an hour
after the peaceful work stoppage began and
while employees were waiting to hear whether
senior management would meet with them.
Id. Fortuna petitions for review of that order, and the Board
has filed a cross-application for enforcement. For the reasons
stated below, we will deny Fortuna’s petition and grant the
Board’s cross-application.
II. ANALYSIS
This Court will “uphold the Board’s legal determinations
so long as they are neither arbitrary nor inconsistent with
established law.” Tualatin Elec., Inc. v. NLRB, 253 F.3d 714,
717 (D.C. Cir. 2001). “Determining whether activity is
concerted and protected within the meaning of Section 7 is a
task that ‘implicates [the Board’s] expertise in labor
11
relations.’” Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d
1195, 1198 (D.C. Cir. 2005) (quoting NLRB v. City Disposal
Sys., Inc., 465 U.S. 822, 829 (1984)) (alteration in original).
Thus, “[t]he Board’s determination that an employee has
engaged in protected concerted activity is entitled to
considerable deference if it is reasonable.” Id. “The Board’s
findings of fact, if supported by substantial evidence on the
record considered as a whole, are conclusive even if a
reviewing court on de novo review would reach a different
result.” Id.
A. The Board’s Explanation of Quietflex Factor
Three
Under the third Quietflex factor, the Board is to consider
whether the work stoppage interfered with production or
deprived the employer access to its property. Explaining what
it meant when it previously stated that “it is not considered an
interference with production where employees do no more
than withhold their own labor,” Fortuna, 354 NLRB at 211,
the Board on remand clarified that the proper focus is on
“whether striking employees interfere with production or the
provision of services by preventing other employees who are
working from performing their duties,” Fortuna, 2014 WL
2448880, at *7 (emphasis in original). Applying this
standard, the Board found that factor three weighed in favor
of protection. Fortuna contends that the Board erred by
imposing an unworkable standard for the third Quietflex
factor, and that this factor should weigh against protection
because the withdrawal of the services of the striking
employees affected the non-striking employees’ ability to do
their jobs. We disagree.
Fortuna’s primary complaint is that the Board’s clarified
third factor “is completely impracticable in the service
12
industry.” Fortuna Br. 32. Fortuna contends that unlike
factory owners who can simply shut down a production line if
part of the workforce strikes, employers in the service
industry “must re-task non-striking employees away from
their normal duties to ensure that the services normally
performed by the striking employees are in fact carried out.”
Id. at 33. Thus, “at least in the service industry, the
withdrawal of services by striking employees necessarily
impacts the work performance of non-striking employees.”
Id. at 34 (emphasis in original).
While Fortuna’s proposed industry distinction is certainly
not frivolous, it is not sufficiently powerful to carry the day.
The Board’s clarification of the third Quietflex factor, made at
the direction of this Court, is at least reasonable and therefore
entitled to deference. The Board was not obligated to create
special rules for the service industry. One possible purpose of
a work stoppage, whether at a factory or at a hotel, is to exert
economic pressure on the employer. By reassigning non-
participating workers, Hilton management sought to mitigate
the economic effects of the work stoppage employees
withholding their own services. The stoppage impacted the
work performance of other employees because Fortuna strove
to maintain full service at full capacity. In this respect,
Fortuna is like a factory owner who, after half of his
workforce engages in a work stoppage, attempts to continue
operating the factory at full capacity and reassigns other
employees to keep every production line operating. Hilton
management could have, in effect, “shut down a production
line” by cancelling room and restaurant reservations and not
accepting additional guests. This would have had an
economic impact on Fortuna, but that would be because
employees withheld their own services, not because
employees interfered with the ability of other employees to do
their jobs. In short, the Board’s clarification of the third
13
factor is reasonable and the Board was not required to create
different rules for the service industry.
Fortuna further contends that, even accepting the Board’s
clarification of the third factor, “there is ample evidence in the
record that demonstrates that the employees engaged in the
work stoppage adversely affected the working conditions of
the non-striking employees beyond simply the withholding of
their services.” Fortuna Br. 34. Fortuna argues that the
occupation of the employee cafeteria prevented non-
participating employees from eating their lunch, forced
Fortuna to reassign three separate Hilton managers to oversee
the work stoppage, and resulted in some guest rooms being
left uncleaned. Id. at 34–35.
Again, Fortuna’s argument is not unreasonable, and we
are not suggesting that the Board would have erred had it
adopted it. However, neither are we convinced that the Board
has erred in reaching the opposite conclusion. First, in
contending that the “record” shows that other employees were
prevented from eating lunch, Fortuna relies on testimony by
Hilton managers that the presiding ALJ rejected as hearsay.
See Hr’g Tr. 1548:4–11, In re Fortuna Enters., L.P. (NLRB),
No. 31-CA-27837, May 13, 2008. Based on the admissible
evidence, the Board reasonably determined that Fortuna “did
not present the testimony of a single employee that the work
stoppage interfered with their ability to use the cafeteria.”
Fortuna, 2014 WL 2448880, at *6 n.19. Second, Fortuna
made the decision to assign three separate Hilton managers to
oversee the work stoppage. “Whatever losses [Fortuna]
sustained…were caused by its own response to the work
stoppage, not by the work stoppage itself.” Accel, Inc., 339
NLRB 1052, 1053 (2003). Third, the Board reasonably
determined that “although [Fortuna] contends that there were
some rooms that were not cleaned, it does not assert that it
14
was unable to provide a clean room to any guest.” Fortuna,
2014 WL 2448880, at *6 n.19. In sum, while the record
“shows that the work stoppage did disrupt some of Hilton’s
operations,” Fortuna, 665 F.3d at 1302, it does not compel a
finding that the work stoppage interfered with the provision of
services by other employees in the relevant sense. We hold
that the Board’s clarification of Quietflex factor three and its
application thereof were reasonable and supported by
substantial evidence.
B. The Board’s Analysis of Quietflex Factors
Four and Seven
Under the fourth and seventh Quietflex factors, the Board
is to consider whether employees had adequate opportunities
to present grievances to management, and whether employees
were represented or had an established grievance procedure.
Analyzing these factors in its 2009 order, the Board
erroneously concluded that the procedure Hilton had in place
“addressed only individual complaints and not group
grievances.” Fortuna, 354 NLRB at 212. We found that
conclusion unsupported by the record, and remanded the
matter to the Board to reconsider these factors in light of our
holding that the employees had access to Hilton’s “open
door” policy, which served as “an established procedure for
handling ‘group grievances.’” Fortuna, 665 F.3d at 1302. On
remand, the Board found that factor four (opportunity to
present grievances to management) weighs slightly in favor of
protection given “the context of the repeated assurances given
the employees by Samayoa and other managers that they were
trying to contact Coonley and Cook on the employees’
behalf.” Fortuna, 2014 WL 2448880, at *8. The Board gave
factor seven (existence of established grievance procedure)
“due weight, but not decisive weight.” Id. The Board
concluded that the existence of an established grievance
15
procedure is but one factor in the analysis, which may be
outweighed by competing factors. See id.
Fortuna contends that the Board erred in its analysis of
factors four and seven, and the Board failed to give proper
weight to the Hilton’s “open door” policy. As Fortuna argues,
“[b]ecause an established grievance procedure allows
employees to exercise their Section 7 rights without infringing
upon the employer’s private property rights, the existence of
such a grievance procedure weighs heavily against protecting
an on-site work stoppage.” Fortuna Br. 24. Fortuna points to
Cone Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir. 1969), and
Cambro Manufacturing Co., 312 NLRB 634 (1993), as
examples of cases where “on-site work stoppages were held
not to be protected in large part because the employees failed
to take advantage of an effective existing grievance
procedure.” Fortuna Br. 25 (emphasis in original). Fortuna
maintains that the employees could have addressed their
concerns through availing themselves of the open door policy,
or through an off-site strike; either action would have
addressed their concerns while respecting the private property
interests of Fortuna. Fortuna further contends that the Board
erred when it concluded that factor four weighed in favor of
protection. In considering this factor, the Board relied on the
assurances by management that Coonley or Cook might speak
with the gathered employees. This, Fortuna argues,
contradicts our statement that Fortuna “had no obligation to
inform the employees in the cafeteria that it would hear and
consider their concerns in the future.” Fortuna, 665 F.3d at
1302.
Fortuna’s argument does not succeed. The Board
addressed the terms of the remand and came to a reasoned
conclusion that other “factors, taken together, substantially
outweigh the significance of the availability of a grievance
16
procedure in the circumstances of this case.” Fortuna, 2014
WL 2448880, at *10. Nothing in the National Labor
Relations Act, the Quietflex test, or judicial and Board
opinions analyzing on-site work stoppages mandates that the
existence of an alternative group grievance procedure prevails
over the other Quietflex factors. On remand, the Board
carefully distinguished Cone Mills and Cambro, id. at *9,
showing that the existence of an established grievance
procedure was not decisive in those cases, but that “the
tribunals relied on a combination of factors in concluding that
the work stoppages at issue were unprotected,” id. at *8.
It is true that management “had no obligation to inform
the employees in the cafeteria that it would hear and consider
their concerns in the future.” Fortuna, 665 F.3d at 1302. The
Board’s consideration of factor four, however, was not
premised on management’s failure to notify the employees
“that a meeting with senior managers was not immediately
possible” or failure to offer “a future opportunity to meet.”
Id. It was premised on the repeated assurances by Samayoa
and other managers that they were reaching out to Coonley
and Cook. The Board reasonably determined that “[t]he
employees thus reasonably believed that Coonley or Cook
might yet meet with them” and this “belief demonstrably
contributed to the employees’ decision to persist in the work
stoppage for as long as they did.” Fortuna, 2014 WL
2448880, at *8. This conclusion does not contradict anything
in our prior opinion, and there is substantial evidence in the
record demonstrating that Hilton management repeatedly
assured the gathered employees that there were ongoing
efforts to reach Coonley and Cook. See id. at *1–*3. While
Hilton management had no affirmative obligation to promise
a future meeting (or inform employees that there would be no
such meeting), once Hilton management induced the
gathering employees to stay in the cafeteria with the
17
implication that a meeting was possible, this inducement may
favor protection. The Board complied with our remand, and
came to a reasoned conclusion supported by substantial
evidence, in its analysis of factors four and seven.
C. Fortuna’s Remaining Challenges to the
Board’s Decision
In its earlier 2009 order, “the Board never quantified the
weight to be given to any one of the Quietflex factors.”
Fortuna, 665 F.3d at 1303. Since the Board found that none
of the Quietflex factors weighed against protection, the Board
found no need to assign any particular weight to each factor.
Having held that the Board’s analysis of factors three, four,
and seven was inadequate, we remanded the matter to the
Board to analyze and weigh all the factors in a manner
consistent with our opinion. Fortuna contends that the Board
erred in weighing these factors, arguing that each factor does
not weigh strongly in favor of protection. We disagree.
Fortuna contends that “the Board erred by rebalancing
the Quietflex factors in a manner that is plainly result-driven.”
Fortuna Br. 36. Fortuna cites Board Member Johnson’s
concurring opinion, which states that the Quietflex “test is
fraught with difficulty for remand purposes.” Fortuna, 2014
WL 2448880, at *12 n.3 (Johnson, concurring). As Member
Johnson stated:
An obvious problem posed by reweighting
factors under any multifactor test, much less a
10 factor one, after a case has been remanded to
us is the susceptibility to results-oriented
analysis. In other words, colloquially speaking,
the Board’s reweighting the factors to achieve
the same result may seem to the impartial
18
observer more like some analytical version of
Whac-A-Mole than reasoned decisionmaking.
Id. Fortuna further notes that this Court, in remanding to the
Board, held that the “apparently decisive consideration”
underlying the Board’s 2009 order (the finding that there was
not an effective group grievance procedure) was not
supported by substantial evidence. Fortuna, 665 F.3d at
1302. Fortuna argues that the Board erroneously weighed
other factors to overcome the fact that the evidence does not
support the “decisive consideration” of its prior opinion, in an
example of “result-driven decision-making.” Fortuna Br. 19.
Member Johnson’s concerns about the nebulousness of a
ten-factor balancing test may be well-taken. Balancing tests
in general are susceptible to results-driven application. As
this Court stated previously, “the sort of multi-factor
balancing ‘test’ suggested in Quietflex may be incapable of
predictable application.” Fortuna, 665 F.3d at 1300.
However, as we did before, “we shall assume [the Quietflex
test’s] validity.” Id. While Quietflex may be subject to
abuse, the record does not demonstrate that the Board abused
the test in this case. The fact that the Board reaffirmed its
prior decision does not mean that its analysis was results-
driven. The Board’s weighing of the remaining Quietflex
factors was reasonable and supported by substantial evidence.
In challenging how the Board specifically weighed each
remaining Quietflex factor, Fortuna largely repackages its
prior, unsuccessful arguments regarding the Board’s analysis
of those factors. “When there are multiple appeals taken in
the course of a single piece of litigation, law-of-the-case
doctrine holds that decisions rendered on the first appeal
should not be revisited on later trips to the appellate court.”
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.
19
Cir. 1995). When this matter was previously before this
Court, Fortuna challenged the Board’s analysis of nine of the
ten Quietflex factors. With the exceptions noted above, we
rejected Fortuna’s arguments without much comment. See
Fortuna, 665 F.3d at 1301. There was “nothing
to…[Fortuna’s] arguments against the Board’s application of
[those] Quietflex factors” then, and there is nothing to them
now. Id. We will thus deny Fortuna’s petition for review and
grant the Board’s cross-application for enforcement.
III. CONCLUSION
When this matter was previously before this Court, we
issued a limited remand directing the National Labor
Relations Board to clarify one factor of the Board’s ten-factor
balancing test, re-analyze two factors in light of our holding
that Fortuna had an established group grievance procedure,
and weigh all of the factors to determine whether the
employees’ work stoppage remained protected under the
National Labor Relations Act. The Board complied and
issued a reasonable order, supported by substantial evidence,
concluding that the May 11 work stoppage was protected and
Fortuna’s suspension of participating employees violated the
Act. We deny Fortuna’s petition for review and grant the
Board’s cross-application for enforcement.
So ordered.