Pacific Coast Supply, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2014 Decided September 18, 2015

No. 14-1047

PACIFIC COAST SUPPLY, LLC, DOING BUSINESS AS ANDERSON

LUMBER COMPANY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1081

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Stephen Thomas Davenport Jr. argued the cause and filed

the briefs for petitioner.

Valerie L. Collins, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben, Deputy

Associate General Counsel, and Elizabeth Heaney, Supervisory

Attorney.

2

Before: GARLAND, Chief Judge, and GRIFFITH and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Anderson Lumber Company1

petitions for review of a determination by the National Labor

Relations Board that Anderson unlawfully withdrew recognition

from a union. For the reasons set forth below, we deny the

company’s petition for review and grant the Board’s

cross-application for enforcement.

I

Anderson Lumber is a lumber supply company located in

North Highlands, California. Since the late 1960s, it has

recognized and bargained with Chauffeurs, Teamsters, and

Helpers Local 150, International Brotherhood of Teamsters.

The union represents a fifteen-employee bargaining unit that

includes material handlers and drivers.

After the parties’ most recent collective bargaining

agreement expired on February 28, 2012, the two sides began

bargaining for a successor agreement. On July 20, ten days

before a second scheduled bargaining session, Anderson

Lumber’s labor consultant contacted the union’s business agent

and advised him that the company thought the union lacked

majority support among the employees. Thereafter, Anderson

Lumber unilaterally withdrew its recognition from the union. It

is undisputed that, in so doing, the company relied solely on

1

The petitioner is incorporated under the name Pacific Coast

Supply, LLC and does business as Anderson Lumber Company. The

parties refer to the petitioner as the latter. To avoid confusion, we do

so as well.

3

one- or two-sentence, handwritten statements from eight of the

fifteen members of the unit. The statements were written in

English. Five of the eight later testified that they spoke or wrote

only a little English; some had the assistance of a coworker who

drafted the statements in English and translated them into

Spanish. Pacific Coast Supply, LLC, 360 NLRB No. 67, at 4 n.6

(Mar. 24, 2014).

The union filed an unfair labor practice charge, and an

Administrative Law Judge (ALJ) subsequently concluded that

the company had violated sections 8(a)(5) and (1) of the

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

& (1), by unlawfully withdrawing recognition from the union.

As the ALJ explained, the seminal decision of the National

Labor Relations Board (NLRB) in Levitz Furniture Co., 333

NLRB 717 (2001), bars an employer from withdrawing

recognition from an incumbent union unless it can show, by a

preponderance of the evidence, that at the time of the

withdrawal the union had in fact lost the support of a majority

of the unit employees. Pacific Coast, 360 NLRB No. 67, at 5;

see Levitz, 333 NLRB at 725. Because the employer relied

exclusively on the written statements of eight of the fifteen unit

employees, the ALJ held that it bore the burden of proving that

each of the eight statements showed that the employee in

question no longer supported union representation. Pacific

Coast, 360 NLRB No. 67, at 5.

Focusing on the statements of just four of the employees,

the ALJ found that they did not show, by a preponderance, “that

those employees no longer wish to be represented by the

Union,” but only that they no longer wanted to be members of

the union. Id. at 3, 6 (emphasis added). The four statements

were as follows:

4

1. I resign from [the Union]. Miguel Hernandez.

2. I Mark A. Rocha do not wish to be a Union

member.

3. I Sandeep Singh employee of Anderson Lumber

wish to get out of the Union.

4. Chris if it is all possible I Donald Davis would like

to exit the union. This is due to the union not doing

any services for the cost that they are charging.

J.A. 43-44, 46, 48. Because the employer had to prove that all

eight employees did not support union representation, the ALJ’s

findings regarding these four were (more than) sufficient to

warrant the finding of an unfair labor practice. She therefore

concluded that it was unnecessary to determine the meaning of

the remaining four statements.

Anderson Lumber filed exceptions with the Board. The

Board held “that [Anderson] violated [the NLRA] by

withdrawing recognition from the Union . . . because the

statements submitted by employees Davis, Hernandez, Rocha,

and Singh did not show that they no longer wanted the Union to

represent them for the purposes of collective bargaining.”

Pacific Coast, 360 NLRB No. 67, at 1 n.1. NLRB Member

Johnson concurred in the determination that Anderson violated

the Act, but did so in reliance on the statements of only two of

the employees, Hernandez and Rocha, which “explicitly refer

only to union membership and, therefore, under extant Board

law are insufficient to support the conclusion that they did not

want to be represented by the Union.” Id. Finally, having found

that Anderson Lumber committed an unfair labor practice, the

Board imposed a remedial order that, inter alia, requires

Anderson Lumber to recognize and bargain with the union.

5

Anderson now petitions for review, arguing that its

withdrawal of recognition was lawful under Levitz. The Board

cross-applies for enforcement of its order.

II

Section 8(a)(5) of the Act requires an employer to recognize

and bargain with the labor organization chosen by a majority of

its employees.2 Under longstanding Board precedent, when a

union is recognized as the collective-bargaining representative

of a unit of employees, that union is entitled to a presumption

that it enjoys the support of a majority of the represented

employees. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781,

785-87 (1996). The presumption of majority status is

irrebuttable during the term of a collective-bargaining

agreement, up to three years. Thereafter, the presumption

becomes rebuttable. Id. at 786; McDonald Partners, Inc. v.

NLRB, 331 F.3d 1002, 1004 (D.C. Cir. 2003).

One option available to an employer that questions an

incumbent union’s majority status is to ask the Board to conduct

a Representation Management (RM) election, in which

employees cast confidential votes for or against the union. 29

U.S.C. § 159(c)(1); see Allentown Mack Sales & Serv., Inc. v.

2

Section 8(a)(5) makes it an unfair labor practice for an employer

“to refuse to bargain collectively with the representatives of his

employees.” 29 U.S.C. § 158(a)(5). Section 8(a)(1) 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), which include the right to “bargain

collectively through representatives of their own choosing,” 29 U.S.C.

§ 157. An employer that violates Section 8(a)(5) also derivatively

violates Section 8(a)(1). See Exxon Chem. Co. v. NLRB, 386 F.3d

1160, 1164 (D.C. Cir. 2004).

6

NLRB, 522 U.S. 359, 363-64 (1998). To obtain an RM election,

an employer need only demonstrate “reasonable good-faith

uncertainty” as to the union’s continuing majority status. Levitz,

333 NLRB at 723 (emphasis omitted). The NLRB has

“emphasize[d] that Board-conducted elections are the preferred

method of testing employees’ support for unions.” Id. at 727;

see id. at 723.

Alternatively, an employer may do what the petitioner did

here: withdraw recognition unilaterally. Prior to the Board’s

2001 decision in Levitz, NLRB precedent permitted an employer

to unilaterally withdraw recognition from an incumbent union

based on “good-faith doubt” about the union’s majority status,

see id. at 717 (citing Celanese Corp., 95 NLRB 664 (1951)),

which the Supreme Court interpreted to permit the employer to

withdraw recognition when it had a “genuine, reasonable

uncertainty” regarding the union’s majority status, Allentown

Mack, 522 U.S. at 367; see Levitz, 333 NLRB at 717. After

Levitz, “doubt” or “uncertainty” is no longer enough. Now, an

employer may not “withdraw recognition unless it can prove

that an incumbent union has, in fact, lost majority support.”

Levitz, 333 NLRB at 723. As the Board elaborated:

We emphasize that an employer with objective

evidence that the union has lost majority support . . .

withdraws recognition at its peril. 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.

Id. at 725; see Highlands Hosp. Corp. v. NLRB, 508 F.3d 28, 31-

32 (D.C. Cir. 2007); Flying Food Grp., Inc. v. NLRB, 471 F.3d

178, 182 (D.C. Cir. 2006). This standard, the Board said, serves

7

the NLRA’s core policies of “promoting stable collective

bargaining and employee free choice.” Levitz, 333 NLRB at

723; see id. at 727; see also Highlands Hosp., 508 F.3d at 31.

The standard applied by this court, however, is different.

We review Board orders under the substantial evidence

standard. 29 U.S.C. § 160(e); see Monmouth Care Ctr. v.

NLRB, 672 F.3d 1085, 1089 (D.C. Cir. 2012). “[W]e will

reverse for lack of substantial evidence only when the record is

so compelling that no reasonable factfinder could fail to find to

the contrary.” Highlands Hosp., 508 F.3d at 31 (internal

quotation marks omitted). Or, as the Supreme Court has put it,

we must affirm the Board as long as, “on th[e] record it would

have been possible for a reasonable jury to reach the Board’s

conclusion.” Allentown Mack, 522 U.S. at 366-67.

III

Anderson Lumber levels three arguments against the

Board’s determination that it unlawfully withdrew recognition

from the union. We consider those arguments below.

A

Anderson’s principal argument is that the NLRB erred in

finding that four of the employee statements did not show those

employees opposed continued union representation.

The Board has long maintained a distinction between an

employee’s desire to be represented by a union, and his or her

desire to be a member of a union. Whether a union has

“majority support turns on whether most unit employees wish to

have union representation, not on whether most unit employees

are members of a particular union.” Trans-Lux Midwest Corp.,

8

335 NLRB 230, 232 (2001).3 Only the desire of a majority not

to have union representation warrants withdrawal of recognition.

See R.J.B. Knits, Inc., 309 NLRB 201, 206 (1992). Accordingly,

the Board has long held that, for employee statements to support

the showing an employer must make to warrant withdrawal,

such statements “must convey an intent not to be represented by

the union as distinguished from a desire not to become members

for any of a number of reasons or an inability or unwillingness

to pay dues.” Grand Lodge of Ohio, 233 NLRB 143, 144

(1977).4 Invoking that line of authority, the ALJ in this case

3

See NLRB v. Wallkill Valley Gen. Hosp., 866 F.2d 632, 637 (3d

Cir. 1989) (noting that the Board has “observed that there is a clear

distinction between union membership and majority support for

collective bargaining representatives”); Retired Pers. Pharmacy v.

NLRB, 519 F.2d 486, 491 (2d Cir. 1975) (explaining that the “issue to

be decided was not how many employees belonged to the union or

paid dues but rather whether a majority desired union representation

for purposes of collective bargaining”); Crete Cold Storage, LLC, 354

NLRB 1000, 1000 n.2 (2009) (“[T]he Board’s determination of

‘majority support’ turns on whether a majority of unit employees wish

to be represented by a particular union, not on whether a majority

choose to become members of that union or choose to authorize the

checkoff of union dues.”); Colonna’s Shipyard, 293 NLRB 136, 140

(1989) (“[I]t is . . . well settled that resignation from or failure to

acquire union membership does not support an inference of rejection

of union representation.”); see also NLRB v. Carmichael Constr. Co.,

728 F.2d 1137, 1140 (8th Cir. 1984).

4

See Premium Foods, Inc. v. NLRB, 709 F.2d 623, 631 (9th Cir.

1983) (holding that employees’ requests for withdrawal cards, even if

such requests indicated that the employees no longer wished to be

members of the union, did “not necessarily indicate that [they] no

longer wish to be represented by it”); Retired Pers. Pharmacy, 519

F.2d at 490 (“[A] disinclination to join the union does not imply

opposition to the union as bargaining representative.”); R.J.B. Knits,

309 NLRB at 206 (“Here, the statements made by the employees

9

noted that “[t]he Board has held for over 40 years that ‘there is

no necessary correlation between membership and the number

of union supporters since no one could know how many

employees who favor union bargaining do not become or remain

members thereof.’” Pacific Coast, 360 NLRB No. 67, at 6 n.9

(quoting Terrell Mach. Co., 173 NLRB 1480, 1481 (1969),

enf’d, 427 F.2d 1088 (4th Cir. 1970)); accord DaNite Holdings,

Ltd., 356 NLRB No. 124, at 6 (Mar. 31, 2011).

1. Applying this well-settled law, the Board concluded that

Anderson Lumber failed to meet its burden of proving that, at

the time it withdrew recognition, a majority of the fifteen unit

employees had rejected union representation. More specifically,

the Board found that four of the eight employee statements upon

which Anderson relied “did not show that [those employees] no

longer wanted the Union to represent them for the purposes of

collective bargaining.” Pacific Coast, 360 NLRB No. 67, at 1

n.1. Rather, the Board affirmed the ALJ’s finding that the

statements showed only that those employees did not want to be

union members. See id. at 1.

Anderson Lumber “does not dispute that the Davis, Singh,

Rocha, and Hernandez letters are ambiguous” with respect to

whether their authors wanted the union to continue to represent

establish only that they did not wish to become union members and/or

to pay union dues. . . . [S]uch assertions do not establish that the

employees are not interested in being represented by the Union.”);

H&N Fish Int’l, No. 20-CA-30480, 2003 WL 21353898 (NLRB Div.

of Judges May 28, 2003) (concluding that the words of a petition,

stating that the employees “Want to Withdraw From the Union,” “at

best convey . . . that the [employees] wanted to withdraw their

membership from the Union rather tha[n] indicating they no longer

wished to be represented by the Union”); see also Pioneer Inn Assocs.

v. NLRB, 578 F.2d 835, 840 (9th Cir. 1978).

10

them. Anderson Br. 26. To the contrary, it insists that each

statement is “inherently ambiguous because it could mean either

that the employee does not want to pay Union dues but still

wants the Union to represent him (as the ALJ found), or that the

employee does not want to be a Union member because he does

not support the Union.” Id. at 37 (emphasis in brief). In

Anderson Lumber’s view, however, the better interpretation of

the statements is that they are statements of non-support. Id. at

38.

The problem with Anderson’s argument is that it is aimed

at the Board’s standard of review, not ours. As we have

explained, the court’s job is not to determine whether the

employer was right that the better interpretation is that the

employees wanted no representation at all. Our job is only to

determine whether the Board was at least reasonable in

concluding otherwise. See Allentown Mack, 522 U.S. at 366-67;

see also NLRB v. Seaport Printing & Ad Specialties, Inc., 192 F.

App’x 290, 290 (5th Cir. 2006) (finding substantial evidence to

support the Board’s determination of unlawful withdrawal under

Levitz noting, “[t]hat the Board may have interpreted ambiguous

facts and statements by employees differently from this court is

within its role as factfinder”). In short, we can overturn the

Board only if it was unreasonable for it to read all four of the

statements as referring to union membership rather than union

representation. We cannot make such a determination.

As the ALJ explained, each of the four statements expressly

mentioned only union membership or remaining in the union.

None mentioned continued union representation:

1. I resign from [the Union]. Miguel Hernandez.

2. I Mark A. Rocha do not wish to be a Union

member.

11

3. I Sandeep Singh . . . wish to get out of the Union.

4. I Donald Davis would like to exit the union. This is

due to the union not doing any services for the cost that

they are charging.

Pacific Coast, 360 NLRB No. 67, at 4-6. Even if one reasonable

interpretation of these statements is that the employees wanted

to end the union’s role as bargaining representative, surely

Anderson Lumber is correct that they could be read the other

way as well. See Anderson Br. 37, 40-41. And, given the

statements’ focus on membership rather than representation, it

was not unreasonable for the Board to read them that other way,

and thus to conclude that the employer did not meet its burden

of showing that the employees wanted to end representation.

Anderson raises particular interpretative arguments about

each of the four statements. With respect to Miguel Hernandez,

Anderson argues that we should read his statement more broadly

than it is written because he is “a laborer who d[oes] not read or

write English.” Id. at 40. We think this cuts the other way.

Hernandez’s lack of facility with English renders the meaning

of his English-language statement, which is itself textually

ambiguous, even more so.

With respect to Mark Rocha, Anderson maintains that his

statement, “I do not wish to be a Union member,” shows “that

he did not support the Union” because he “was a new hire who

had not yet joined the Union.” Anderson Br. 39. We do not see

why the fact that Rocha was a new hire makes a difference,

either as a matter of textual construction or of labor law. See,

e.g., Retired Pers. Pharmacy, 519 F.2d at 490 (“[D]isinclination

to join the union does not imply opposition to the union as

bargaining representative.”); R.J.B. Knits, 309 NLRB at 206

(holding that employees’ statements that, inter alia, they would

12

“rather quit than join the union” were insufficient to “establish

that the employees [were] not interested in being represented by

the Union”); Grand Lodge of Ohio, 233 NLRB at 144 (employee

expressions of antiunion sentiment “must convey an intent not

to be represented by the union as distinguished from a desire not

to become members for any of a number of reasons or an

inability or unwillingness to pay dues”).

With respect to Sandeep Singh, Anderson argues that his

statement, “I . . . wish to get out of the union,” is akin to an

employee statement in Sofco, Inc., 268 NLRB 159 (1983), which

said, “I sure hope you guys help us in getting out from under this

union.” Id. at 159 n.4. In Sofco, the Board found that statement

supported the employer’s “good-faith, reasonably grounded

doubt of the Union’s continued majority status.” Id. at 160.

Anderson Lumber’s reliance on Sofco has two flaws. First,

the Board’s finding in Sofco was based not only on the single

quoted statement, but also on statements of union opposition

made by all but one employee, including statements that the

employees wanted “to do away with the union.” Id. at 159, 164.

The Board also noted numerous anti-union posters hanging in

the workplace, including a poster counting down the days until

the end of union representation. Id. at 159. Second, and more

important, Sofco was decided during the period when “good

faith doubt” was sufficient to warrant withdrawal. After Levitz,

the test is no longer “doubt” but preponderance of the evidence

that a majority of the employees actually wanted to end union

representation. Where the most that can be said about a

statement is that one reading of it may give rise to “doubt” about

a union’s support, it is not unreasonable for the Board to read it

the other way.

Finally, with respect to Donald Davis’ statement, Anderson

focuses on the portion that reads, “this is due to the union not

13

doing any services for the cost that they are charging.”

Anderson Br. 38. The Board, however, has historically read

statements of dissatisfaction with union services or with the cost

of union dues as indicating a desire to end union membership

rather than representation. See Wagon Wheel Bowl, Inc. v.

NLRB, 47 F.3d 332, 335 (9th Cir. 1995) (noting that the Board

has “indicate[d] that ‘dissatisfaction with quality statements’ are

generally insufficient to justify any unilateral action on the part

of any employer against a union”); Briggs Plumbingware, Inc.

v. NLRB, 877 F.2d 1282, 1288 (6th Cir. 1989) (“[S]tatements of

dissatisfaction with a union are not . . . the equivalent of

withdrawal of support for the union . . . .”).

Anderson further argues that Davis’ language resembles one

of the statements in Allentown Mack Sales & Service, Inc. v.

NLRB -- an employee’s statement that “he was not being

represented for the $35 he was paying” -- which the Supreme

Court said the Board should not have “entirely ignored.” 522

U.S. at 369. The two cases are plainly different. Unlike the

employee statement in Allentown Mack, which complained

about the union’s “represent[ation],” Davis’ statement spoke

only of his desire to “exit” the union. And unlike in Allentown

Mack, in this case the Board did not “entirely ignore” Davis’

statement. It merely construed it differently than Anderson

Lumber did.

But even if these distinctions were unpersuasive,

Anderson’s invocation of Allentown Mack would still do it no

good. In Allentown Mack, the Court concluded that the

employee’s statement was “simply an expression of

dissatisfaction with the union’s performance,” which could be

interpreted in either of two ways: it could “reflect the speaker’s

desire to save his $35 and get rid of the union,” but it also

“could reflect the speaker’s desire that the union represent him

more effectively.” Id. (emphasis omitted). That, the Court said,

14

was enough to “engender an uncertainty whether the speaker

supported the union” -- which at the time was sufficient to

warrant withdrawal of recognition. Id. As we have explained,

however, after Levitz the test is no longer “uncertainty” about

union support but rather preponderance of the evidence that the

employee(s) actually wanted to end union representation. And

once again, where the most that can be said of a statement is that

it is uncertain and can be read in either of two ways, it is not

unreasonable for the Board to read that statement in either one

of those ways.

Although we have addressed each of the four employees’

statements separately, we note that, even if Anderson Lumber

could persuade us that the NLRB’s reading was unreasonable

with respect to any one statement, that would be insufficient for

Anderson to win the day. Anderson’s decision to withdraw

recognition relied on written statements of only eight of the

fifteen unit employees. Thus, to prove a lack of majority

support before the NLRB, it had to prove that each of the eight

statements showed that the employee in question rejected union

representation. And to succeed in this court, it must show that

the NLRB’s construction of each of the four statements upon

which the Board independently relied was unreasonable. In

light of the long line of Board cases distinguishing between

union membership and union representation, and our obligation

to defer to the Board’s understanding of the workplace, see

Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir.

2002), we cannot say that the Board was unreasonable in

concluding that Anderson failed to meet its Levitz burden.

2. Anderson Lumber maintains that this case is different

from others in the line of authority just referenced because

Anderson operated under a union security agreement that

required all employees to be members of the union. Anderson

notes that California is not a “right to work” state and that

15

California does not bar such union shop agreements.5 In these

circumstances, Anderson insists, when the employees said they

did not want to be members of the union, they must have been

saying that they wanted to abolish the union. Otherwise,

Anderson maintains, they were effectively firing themselves

because the union security agreement required all employees to

become dues-paying members of the union within 31 days of

being hired.

The problem with this argument is that, as the ALJ

explained, “it rests on a misapprehension of the law.” Pacific

Coast, 360 NLRB No. 67, at 6. The Supreme Court, this court,

and the Board have all held that, even with a union security

agreement in place, an employee cannot be fired simply for

refusing to be a “member” of a union.6 The only obligation that

can be imposed is that the employee pay core financial

obligations for collective bargaining, grievance adjustment, and

contract administration -- not full union dues. See cases cited

supra note 6. Indeed, the Board requires that, “before a union

seeks to obligate an employee to pay fees and dues under a

5

See Int’l Union, UAW v. Nat’l Right to Work Legal Def. &

Educ. Found., Inc., 590 F.2d 1139, 1143 n.2 (D.C. Cir. 1978)

(“Section 14(b) of the National Labor Relations Act, 29 U.S.C.

§ 164(b) . . . , permits states to enact laws prohibiting union-security

agreements that require membership in a labor union as a condition of

employment. Such laws are popularly known as ‘right to work’

laws.”).

6

See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 36-38,

43 (1998); Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 744-45

(1988); NLRB v. Gen. Motors, 373 U.S. 734, 743-44 (1963); Int’l

Union of Elec., Elec., Salaried, Machine & Furniture Workers v.

NLRB, 41 F.3d 1532, 1534-35 (D.C. Cir. 1994); Local Union 749,

Int’l Bhd. of Boilermakers v. NLRB, 466 F.2d 343, 345 (D.C. Cir.

1972); Cal. Saw & Knife Works, 320 NLRB 224, 233 (1995).

16

union-security clause, the union should inform the employee

that he has the right to be or remain a nonmember and that

nonmembers have the right [inter alia] to object to paying for

union activities not germane to the union’s duties as bargaining

agent and to obtain a reduction in fees for such activities.” Cal.

Saw & Knife Works, 320 NLRB 224, 233 (1995). Accordingly,

the only necessary consequence of an employee’s resignation

from the union is not termination of employment but rather a

reduction in the amount of money that is deducted from his or

her paycheck.

3. Contrary to Anderson’s concerns, nothing the Board did

in this case altered the Levitz rule that an employer must show,

by a preponderance of the evidence, that the union had actually

lost majority support. It did not create a “clear statement” or

“per se” rule, requiring employees to expressly state that they no

longer want the union to represent them. Instead, the Board

merely found that four of the eight employee statements upon

which Anderson Lumber relied as its sole ground for withdrawal

of recognition failed to establish by a preponderance of the

evidence that those particular employees wanted to end union

representation altogether rather than merely end their own

membership in the union. And this court holds nothing more

than that the Board was not unreasonable in making that

finding.7

7

The petitioner takes issue with the ALJ’s finding that the

statements “clearly state a desire to withdraw from membership in the

Union.” Pacific Coast, 360 NLRB No. 67, at 5. On appeal to the

NLRB, the Board merely agreed that Anderson had unlawfully

withdrawn recognition “because the statements submitted by [the four

employees] did not show that they no longer wanted the Union to

represent them for the purposes of collective bargaining.” Id. at 1 n.1.

That explanation states the ground upon which the Board affirmed the

17

B

Anderson Lumber’s second argument is that the NLRB

wrongly barred it from bolstering its position with post-

withdrawal evidence. Anderson does not dispute that, at the

time it withdrew recognition from the union, it relied solely on

the written statements of the eight employees. At the ALJ

hearing, however, it also proffered testimony from those eight

employees that their intent had been to convey a desire that the

union no longer represent them. In addition, it offered further

affidavits from three of those employees -- none of whom had

authored any of the four statements upon which the Board

ultimately relied. Those affidavits, Anderson maintains, confirm

its position that the union had in fact lost majority support at the

time it withdrew recognition.

The ALJ ruled that Anderson’s post-withdrawal evidence

was irrelevant to the question of whether the withdrawal was

unlawful. “[T]his evidence,” the ALJ said, “was acquired long

after withdrawal of recognition, was not relied on by [Anderson]

in withdrawing recognition, and is not relevant for that reason.”

Pacific Coast, 360 NLRB No. 67, at 7.8

ALJ’s decision, and to the extent Anderson sees the two rulings as

inconsistent, the Board’s decision governs.

8

“Moreover,” the ALJ said, “given the leading format of the offer

of proof question[,] . . . I would be unwilling to accord the responses

much weight even were there no objection to the questions.” Pacific

Coast, 360 NLRB No. 67, at 7. See Retired Pers. Pharmacy, 519 F.2d

at 491 (affirming an ALJ’s decision not to permit an employer to call

employees to testify about whether they supported the union as of the

withdrawal date because the employer “would clearly have been

putting pressure on them to answer favorably” and “[i]f such

questioning were allowed, management could withdraw recognition

without basis and successfully defend itself by showing a lack of

18

Anderson Lumber argues that the preclusion of post-

withdrawal evidence contradicts the text and rationale of Levitz.

It notes, for example, that Levitz said that “an employer can

defeat a post-withdrawal refusal to bargain allegation if it shows,

as a defense, the union’s actual loss of majority status.”

Anderson Br. 16 (quoting Levitz, 333 NLRB at 717); id. at 18,

23. And it stresses the Board’s statement that the burden on the

employer is to establish loss of majority support by a

preponderance of “all” the evidence. Id. at 19 (emphasis in

brief) (quoting Levitz, 333 NLRB at 725 n.49). “All” the

evidence, Anderson maintains, includes post-withdrawal

evidence. Barring such evidence, it contends, defeats Levitz’s

intention to replace the former “good faith doubt” test “with a

test which is based on whether the employer can ‘prove’ at trial

that a loss of majority support ‘actually’ occurred ‘in fact.’” Id.

at 18.

The NLRB reads the text and rationale of Levitz differently.

See Pacific Coast, 360 NLRB No. 67, at 7 (ALJ Op.) (noting

that the Board has interpreted Levitz as rejecting the “use of

after-acquired evidence regarding employee sentiment”). In

defense of its view that Levitz supports requiring evidence of

loss of majority support at the time of the withdrawal, the Board

cites the case’s statement that, under its rule, “employers will

union support which in fact resulted not from employee dissatisfaction

but rather from the withdrawal of recognition and subsequent

proceedings”); see also Int’l Union, UAW v. NLRB, 392 F.2d 801,

807-08 (D.C. Cir. 1967) (expressing skepticism of “employees

testifying under the eye of the company officials about events which

occurred almost a year before”); Stratford Visiting Nurses Ass’n, 264

NLRB 1026, 1026 (1982) (“[S]uch testimony is highly unreliable for

it requests an employee to relate several months-old uncommunicated

states of mind, knowing that the employer’s defense rests on his or her

reply.”).

19

[now] be likely to withdraw recognition only if the evidence

before them clearly indicates that unions have lost majority

support.” NLRB Br. 24 (emphasis added) (quoting Levitz, 333

NLRB at 726); id. at 23.9 The NLRB also argues that “[t]he

Company’s proffered interpretation . . . leads to the incongruous

result that an employer could withdraw recognition even where

the evidence before it does not demonstrate that a union had

actually lost majority status, in the hope that it would unearth

evidence in time for the unfair labor practice hearing.” Id. at 24.

“Such a precipitous termination or disruption of an existing

bargaining relationship,” the Board argues, “is contrary to

Levitz’s stated goal of allowing collective bargaining

relationships ‘the opportunity to succeed without continual

baseless challenges.’” Id. (quoting Levitz, 333 NLRB at 723).

Levitz alone does not resolve the question for us. After-

acquired evidence was not at issue in that case, and hence the

Board did not directly address it. Accord Oral Arg. Recording

at 19:28-40 (acknowledgment by Anderson counsel that Levitz

did not address the issue either way). There are, as quoted

above, snippets of language to support either position. And

there are, as also noted above, policy arguments on both sides.

We, however, must “give deference to [an agency’s]

interpretations of its own precedents.” Colo. Interstate Gas Co.

v. FERC, 599 F.3d 698, 703 (D.C. Cir. 2010); see Glob.

9

See also Levitz, 333 NLRB at 724 (“If a majority of the unit

employees present evidence that they no longer support their union,

their employer may lawfully withdraw recognition.” (emphasis

added)); id. at 725 (“[W]e hold that an employer may . . . unilaterally

withdraw recognition, only on a showing that the union has, in fact,

lost the support of a majority of the employees in the bargaining

unit.”); id. (“[U]nless an employer has proof that the union has

actually lost majority support, there is simply no reason for it to

withdraw recognition unilaterally.”).

20

Crossing Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir.

2001); Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998).

Likewise, policy arguments are for the Board -- not this court --

to resolve. See Allentown Mack, 522 U.S. at 364-66. And

“[c]ourts must defer to the requirements imposed by the Board

if they are rational and consistent with the Act and if the Board’s

explication is not inadequate, irrational or arbitrary.” Id. at 364

(internal quotation marks and citation omitted).

More important, however, although Levitz does not resolve

the question, the Board’s subsequent decision in Highlands

Hospital Corp. does. 347 NLRB 1404 (2006). As the ALJ in

the present case noted, in Highlands Hospital the Board declined

to “‘address the sufficiency of . . . hearing testimony regarding

employees’ bare recollections of their sentiments for or against

union representation as of [the date of withdrawal], because this

evidence was not before the [employer] when it withdrew

recognition.’” Pacific Coast, 360 NLRB No. 67, at 7 (quoting

Highlands Hosp., 347 NLRB at 1407 n.17). In Highlands

Hospital, the NLRB held that the testimony of 30 nurses, who

wanted to explain the reasons they signed a petition, was

irrelevant because the only evidence the employer relied upon

in deciding to withdraw recognition was the petition itself. See

Highlands Hosp., 347 NLRB at 1407 n.17, 1412-13. The Board

has said the same thing in other cases as well. See Flying Foods

Grp., Inc., 345 NLRB 101, 155 & n.83 (2005) (holding that

evidence that was obtained a year after the employer withdrew

recognition was irrelevant to the lawfulness of the withdrawal of

representation); Seaport Printing & Ad Specialties, 344 NLRB

354, 357 & n.8 (2005) (suggesting that an employer cannot rely

on evidence “not known by [the employer] at the time [of the

withdrawal]”).

Finally, and most important from this panel’s point of view,

our circuit’s own decision in Highlands Hospital Corp. v. NLRB

21

also resolves the question. See 508 F.3d at 32. As the ALJ in

Anderson Lumber’s case recounted, in Highlands Hospital we

affirmed the Board’s decision not to address the post-withdrawal

testimony that the employer said provided additional evidence

of loss of majority support. See Pacific Coast, 360 NLRB No.

67, at 7. “Both the Board and ALJ,” we held, “refused to credit

this testimony, and for good reason: [Highlands] had no

knowledge of that corroborating evidence on the day it withdrew

recognition.” Highlands Hosp., 508 F.3d at 32 (emphasis

added). Although Anderson Lumber insists that our circuit’s

Highlands Hospital decision was wrong, that is a challenge a

subsequent panel may not entertain. See, e.g., United States v.

Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006).10

C

Anderson Lumber argues that interpreting Levitz in the way

the Board did in this case creates an impossible dilemma for an

employer that thinks a majority of its employees do not support

the union: it cannot withdraw recognition without risking one

kind of unfair labor practice finding, yet it cannot continue to

recognize the union without risking another -- continued

10

Anderson also maintains that Highlands Hospital contradicts

the Fourth Circuit’s decision in NLRB v. B.A. Mullican Lumber &

Manufacturing Co., 535 F.3d 271 (4th Cir. 2008). That is not correct.

In Mullican Lumber, all of the evidence upon which the employer

relied in withdrawing representation was acquired prior to withdrawal,

and the court held that this evidence demonstrated (by a

preponderance) that the employees no longer supported the union. Id.

at 277-78, 281. The opinion does contain dicta to the effect that, if the

General Counsel had acquired certain kinds of post-withdrawal

evidence, that evidence would also be relevant. Id. at 282-83. But

dicta does not a circuit split make.

22

recognition of a union known to have lost majority support.11

This, however, is precisely the “no-win situation” argument that

the Board rejected in Levitz. Levitz, 333 NLRB at 726. As

Levitz recognized, raising the bar for unilateral withdrawal of

recognition does mean that an employer “withdraws recognition

at its peril.” Levitz, 333 NLRB at 725; see Flying Food Grp.,

471 F.3d at 182. But the Board intended that result, expecting

that it would create less temptation for employers to act

unilaterally. Levitz, 333 NLRB at 726. The Board explained

that the supposed “dilemma . . . is more apparent than real”

because the employer’s ability to petition for an RM election

provides it with a “safe harbor.” Id. An employer with

reasonable good-faith uncertainty regarding the union’s

continuing majority status can petition for such an election, and

the Board “would not find that the employer [committed an

unfair labor practice] by failing to withdraw recognition while

the representation proceeding was pending.” Id.

Anderson Lumber did not seek safe harbor here. Instead, it

proceeded, at its peril, to unilaterally withdraw recognition. We

conclude that the Board was not unreasonable in finding that, in

so doing, Anderson ran aground on the shoals of an unfair labor

practice.12

11

See Levitz, 333 NLRB at 720 (“Section 8(a)(5) makes it

unlawful for an employer to refuse to bargain with the representative

of a majority of his employees. Conversely, . . . the Board has held

that an employer violates Section 8(a)(2) by . . . continuing to

recognize an incumbent union that it knows has lost majority support.”

(footnotes omitted)).

12

Anderson briefly makes two arguments for why the Board’s

remedial order was inappropriate even if the company did commit an

unfair labor practice. Anderson’s first argument -- that the Board

failed to sufficiently explain why such an order was necessary -- is

beyond our jurisdiction because Anderson did not raise it with the

23

IV

For the foregoing reasons, Anderson Lumber’s petition for

review is denied, and the Board’s cross-application for

enforcement of its order is granted.

So ordered.

Board. See 29 U.S.C. § 160(e); Flying Food Grp., 471 F.3d at 185-86.

Anderson’s second argument is that, in contravention of the Fourth

Circuit’s decision in Mullican Lumber, 535 F.3d at 283, the NLRB’s

General Counsel violated his duty not to seek enforcement of an order

requiring an employer to bargain with a union that Counsel knows no

longer represents a majority of the employees. The NLRB agrees that

its Counsel should not seek enforcement under such circumstances,

but represents that Counsel did not have evidence giving him such

knowledge. NLRB Br. 37. There is certainly no evidence in this case

like there was in Mullican Lumber (decertification slips purportedly

signed by a majority of the employees), and we have no basis for

doubting the NLRB’s representation.