Enterprise Leasing Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 17, 2016 Decided August 5, 2016

No. 15-1200

ENTERPRISE LEASING COMPANY OF FLORIDA, DOING BUSINESS

AS ALAMO RENT-A-CAR,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1255

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

D. John Sauer argued the cause for petitioner. With him

on the briefs was Daniel R. Begian.

Greg Lauro, 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 Julie B. Broido, Supervisory Attorney.

Before: GRIFFITH, PILLARD and WILKINS, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The National Labor Relations

Board concluded that petitioner Enterprise Leasing Company

of Florida (Enterprise, or the Company) committed several

unfair labor practices in late 2009 and early 2010 at a Miami,

Florida, car rental facility. Enterprise violated the National

Labor Relations Act (the Act), the Board determined, by

telling employees it was terminating short-term disability

benefits on account of their union membership, encouraging

an employee to circulate a petition to decertify the Union as

its employees’ bargaining representative, unilaterally

terminating employees’ short-term disability benefits,

interfering with a union representative’s contractual right of

access to Enterprise’s facility, unlawfully decertifying the

Union as its employees’ bargaining representative based on a

petition tainted by unfair labor practices, and thereafter

refusing to bargain with the Union or collect or remit union

dues. See Enterprise Leasing Co. of Fla., 362 NLRB No. 135

(June 26, 2015). We hold that substantial record evidence

supports each of the Board’s findings and conclusions. We

lack jurisdiction to consider the Company’s additional claim

that the Board’s remedy was unlawfully punitive, because

Enterprise failed to raise the argument before the Board.

Accordingly, we deny its petition and grant the Board’s cross-

application for enforcement.

I. Background

A. Facts

Enterprise is a national car rental company that operates a

facility at Miami International Airport, where it rents cars

under the Enterprise, National Car Rental, and Alamo Rent-

3

A-Car (Alamo) brands.1 Enterprise obtained the Alamo

operation, among others, during its acquisition of Vanguard

Car Rental, USA (Vanguard) in August 2007. At that time,

Teamsters Local Union No. 769 (the Union) represented the

employees of Alamo Miami (unit employees) in a wall-to-

wall bargaining unit. Before the acquisition, the Union and

Vanguard had negotiated a collective bargaining agreement

for Alamo employees, which was effective from November

29, 2005, through January 2, 2010. In December 2009, after

the acquisition, the Union and Enterprise agreed to extend the

existing agreement through March 31, 2010, while

negotiating a successor agreement.

Enterprise provided benefits to unit employees under a

Comprehensive Group Insurance Plan (the Group Plan),

referenced in the collective bargaining agreement. Until

August 2009, the Group Plan encompassed a subsidiary

Vanguard Short-Term Disability Plan (the Vanguard Plan).

Enterprise terminated the Vanguard Plan on August 1,

2009, eliminating the third-party administrator, as it

streamlined its National and Alamo human-resources

operations. Between that date and the end of 2009, Enterprise

continued to provide short-term disability benefits to unit

employees, but Enterprise administered those benefits on a

self-insured basis instead of through the Vanguard Plan.

1

We draw the facts from the Board’s decision, Enterprise Leasing

Co. of Fla., 362 NLRB No. 135 (June 26, 2015), which

incorporated by reference its 2013 decision, Enterprise Leasing Co.

of Fla., 359 NLRB No. 149 (July 2, 2013), appending the

Administrative Law Judge’s decision. Accordingly, citations in

this section are to the 2013 Board decision reflecting the ALJ’s

factual findings.

4

Enterprise’s provision of short-term disability benefits

was short-lived, although the Company only belatedly

informed its employees of the change. In previous years,

Enterprise typically held a benefits open-enrollment period in

October and November each year, but it did not do so in 2009

for the 2010 plan year. When Enterprise Union Steward

Marjorie Wisecup asked Enterprise’s Human Resource

Manager Lissette Dow about the omission, Dow reviewed the

2010 employee-benefits package with Wisecup, but she did

not mention that the Company had converted to a self-insured

short-term disability benefits plan in anticipation of

eliminating those benefits altogether at the end of 2009.

Around the same time, Wisecup heard Dow tell other

employees not to worry about enrollment, because benefits in

2010 would be the same as in 2009.

It was not until late November or early December, after

an open-enrollment period would have closed had it been

offered, that Dow informed Wisecup that Enterprise would no

longer provide short-term disability benefits to unit

employees in 2010. When Wisecup asked why, Dow replied

that the collective bargaining agreement did not specify short-

term disability benefits; those benefits, she said, were not

included in the Group Plan called for by the agreement.

Because the agreement did not specify short-term disability

benefits, Dow explained, the unit employees could not have

them.

In early December, Dow and Enterprise Airport Market

Manager Bridget Long conducted several employee meetings

to discuss Enterprise’s elimination of short-term disability

benefits. At one of the meetings, Long informed employees

about the change and apologized for the Company’s delay in

announcing it. Dow acknowledged that when she had met

with Wisecup earlier in the fall, she had known about

5

Enterprise’s plan to eliminate short-term disability benefits,

but that she had not mentioned the change because she did not

think it was a big deal. Another employee, Andy Felgentres,

asked Long why the benefits were being eliminated, and Long

responded, “because you’re union, you can’t have short-term

disability.” Enterprise Leasing Co. of Fla., 359 NLRB No.

149, at *8 (July 2, 2013). When Felgentres said that was

discrimination, Long replied, “don’t worry, Enterprise has

very good lawyers.” Id.

At another meeting, Enterprise employee Wanda Rivera

asked Dow if Enterprise was eliminating short-term disability

benefits because of the union contract and whether the

Company was eliminating the benefits at other locations.

Dow responded that employees at non-union locations would

retain their short-term disability benefits. Another employee,

Sara Rivera, asked whether employees would still have such

benefits if not for the Union, and Dow replied, “yes,” the

reason the unionized employees would not get the benefits

was “because [Enterprise] had to follow the union contract.”

Id. at 9. Dow repeated that at locations where there was no

union, employees would keep short-term disability benefits.

On January 1, 2010, Enterprise eliminated the unit

employees’ short-term disability benefits without notifying or

bargaining with the Union.

At around the same time, Cirilo Garcia, an Enterprise

employee who was dissatisfied because of the elimination of

unit employees’ short-term disability benefits, began

circulating to unit employees a petition to decertify the Union

as their collective-bargaining representative.

Shortly thereafter, on January 4, Union Business

Representative Eddie Valero, along with two other Union

agents, visited the Miami Alamo facility to investigate a

6

report that the decertification petition was being circulated on

company time. The then-effective collective bargaining

agreement provided that “[a]fter making [their] presence

known to a member of management,” authorized union

representatives “shall be permitted to enter the premises of the

Employer for the purpose of determining” compliance with

the agreement. Id. at 12 (quoting Miami Alamo Collective

Bargaining Agreement, J.A. 372). Accordingly, upon arrival,

Valero attempted to notify a supervisor of his presence.

Valero had made similar investigative visits in the past—

unannounced until arrival—and had not experienced any

problems.

During the January 4 visit, however, Valero and his team

ran into trouble. When they arrived, Dow came out of the

building with her arms raised, screaming at Valero and

demanding to know why he was there. Valero responded that

he was conducting an investigation. Dow announced that she

would follow him during the visit because she had orders

from above. Although Valero told Dow that he would report

her conduct to the Board if she interfered with the visit, Dow

persisted, following Valero and his team into the building

and, once inside, standing beside them for about thirty-five

minutes while they sat on a bench. It was only after Valero

called the Company’s labor-relations coordinator to report the

incident that Enterprise manager Long allowed the group to

use the break room for their investigation, reminding them not

to interrupt the workforce. Dow continued to follow Valero

and his group throughout the visit, both outside and inside the

building, and retreated only when they returned to the break

room, although other managers periodically stopped in to

monitor the group. After approximately twenty-five minutes,

Valero and his group left the facility.

7

Just over a week later, on January 13, Enterprise

supervisors Larry Elsass and Rodolfo Browne spoke with

Garcia on company property. Elsass and Browne asked

Garcia how many signatures he had obtained on the

decertification petition. At that point, only sixty-six of the

unit’s 159 employees had signed the petition. When Garcia

reported on his progress, Browne said that number was not

enough, and told Garcia to go back and get more. Garcia then

arranged to secure additional signatures to push the number

above the 50 percent mark.

Enterprise withdrew recognition from the Union on

January 19, based solely on the decertification petition that by

then reflected verified signatures of a majority of unit

employees.

Later that month, Enterprise Station Manager Johnny

Betancourt interrogated employees about, and solicited them

to withdraw, their union membership. And, over the course

of the following year, Enterprise made a series of changes to

unit employees’ terms and conditions of employment without

notifying or bargaining with the Union. In February, the

Company ceased deducting and remitting union dues for

employees who had signed dues-checkoff authorizations,

despite the requirement of the collective bargaining

agreement (effective through the end of March) to deduct and

remit those dues. The Company also made a variety of wage-

and-benefits changes, and it declined to process an employee

grievance.

B. Decision Below

Based on the foregoing conduct, between December 18,

2009, and February 16, 2011, the Union filed a series of

unfair labor practice charges against Enterprise. On April 8,

2011, the NLRB’s Acting General Counsel issued an

8

amended, consolidated complaint alleging that Enterprise had

committed multiple violations of section 8(a)(1) and (a)(5) of

the Act, 29 U.S.C. § 158(a)(1), (5).

Among other things, the complaint charged that

Enterprise violated section 8(a)(1) when Betancourt

coercively interrogated employees about, and solicited them

to withdraw, their union membership. Although the Company

initially denied that it committed those unfair labor practices,

it later admitted to them at the hearing before the ALJ, and it

does not contest them here. We therefore summarily enforce

the Board’s findings and order as to those charges. See Allied

Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 765 (D.C. Cir.

2012); Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 181

(D.C. Cir. 2006).

The Acting General Counsel’s complaint further charged

that Enterprise violated section 8(a)(1) of the Act by telling

employees that they would lose their short-term disability

benefits because of their union representation, and

encouraging employees to circulate a petition to decertify the

Union as their bargaining representative. The complaint also

alleged that the company violated section 8(a)(1) and (a)(5)

by unilaterally terminating short-term disability benefits,

interfering with the Union’s contractual right of access to

Enterprise’s facility, withdrawing recognition from the Union

as the employees’ collective-bargaining representative based

on a tainted decertification petition, and thereafter unilaterally

changing terms of employment, refusing to bargain with the

Union regarding an employee grievance, and failing to deduct

and remit dues to the Union. Although Enterprise admitted to

unilaterally terminating short-term disability benefits,

withdrawing recognition from the Union, and declining to

bargain with the Union post-withdrawal, it contested that any

9

of the alleged conduct was unlawful and denied the

commission of the other unfair labor practices charged.

After an evidentiary hearing, on April 11, 2012, the ALJ

issued a decision that Enterprise had violated the Act as

alleged, save one charge of unlawful interrogation not at issue

in this petition. Enterprise excepted to the ALJ’s decision.

The General Counsel, too, filed exceptions seeking, among

other things, an amended remedy, which Enterprise generally

opposed.

On July 2, 2013, the Board issued a decision and order

(the 2013 Decision) largely adopting the ALJ’s findings and

conclusions and amending the ALJ’s remedy as requested by

the Board. See Enterprise Leasing Co. of Fla., 359 NLRB

No. 149. The following year, while Enterprise’s petition for

review of the Board’s decision was pending, the Supreme

Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550

(2014), invalidated the appointments of two of the three 2013

Decision panel members. The Board set aside the 2013

Decision, and, on June 26, 2015, upon de novo review, a

lawfully constituted panel of the Board issued a Decision and

Order largely adopting the 2013 Decision, see Enterprise

Leasing Co. of Fla., 362 NLRB No. 135, at *1-4, with one

Member dissenting in part, see id. at *4-8. We discuss the

specifics of the Board’s Decision and Order at greater length

where relevant below. Enterprise timely petitioned for review

of the Board’s decision, and the Board filed a cross-

application for enforcement of its order. We have jurisdiction

under 29 U.S.C. § 160(e)-(f).

II. Section 8 Violations

Enterprise contests the substantiality of the evidence

underlying the Board’s findings that it violated section 8(a)(1)

10

and (a)(5) of the Act. Each of Enterprise’s arguments comes

up short.

A. Standard of Review

Assuming a “limited” role, Stephens Media, LLC v.

NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012), we review the

Board’s decision to determine whether it is supported by

substantial evidence in the record as a whole, see 29 U.S.C.

§ 160(e) (“The findings of the Board with respect to questions

of fact if supported by substantial evidence on the record

considered as a whole shall be conclusive.”); accord

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

We must “uphold[] the Board’s application of law to facts

unless arbitrary or otherwise erroneous, and give[] substantial

deference to inferences the Board draws from the facts.”

Allied Mech. Servs., 668 F.3d at 764 (internal quotation marks

and citations omitted). “An ALJ’s determinations regarding

the credibility of witnesses will not be reversed ‘unless those

determinations are hopelessly incredible, self-contradictory,

or patently unsupportable.’” Stephens Media, 677 F.3d at

1250 (quoting Federated Logistics & Operations v. NLRB,

400 F.3d 920, 924 (D.C. Cir. 2005)). We must “abide [the

Board’s] interpretation of the Act if it is reasonable and

consistent with controlling precedent.” Brockton Hosp. v.

NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002).

B. Section 8(a)(1) Violations

We begin with Enterprise’s challenge to the Board’s

determinations that it violated section 8(a)(1) of the Act. The

Board found two violations. The first occurred when

Enterprise repeatedly told its employees that it was

terminating their short-term disability benefits on account of

their union membership. The second was due to Enterprise

managers encouraging an employee to circulate a petition to

11

decertify the Union as its employees’ bargaining

representative.

Under section 8(a)(1), it is “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). Section 7 grants employees

“the right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through representatives

of their own choosing, and to engage in other concerted

activities for the purpose of collective bargaining or other

mutual aid or protection.” Id. § 157. An employer’s

statement that, “considering the totality of the

circumstances, . . . has a reasonable tendency to coerce or to

interfere with those rights,” violates section 8(a)(1). Tasty

Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001); see

Bridgestone Firestone S.C., 350 NLRB 526, 529 (2007). In

reviewing section 8(a)(1) claims, the Board “must take into

account the economic dependence of the employees on their

employers, and the necessary tendency of the former, because

of that relationship, to pick up intended implications of the

latter that might be more readily dismissed by a more

disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S.

575, 617 (1969).

i. Withholding Benefits from Employees Because of

Union Representation

Enterprise challenges on evidentiary grounds the Board’s

conclusion that the Company violated section 8(a)(1) of the

Act by informing employees it was terminating their short-

term disability benefits because of their union representation.

An employer violates section 8(a)(1) when it “threaten[s] to

penalize employees if they choose union representation, or . . .

offer[s] to reward employees if they reject it.” Avecor, Inc. v.

12

NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991) (internal citations

omitted). Such threats and promises will violate the Act,

whether they are explicit or implicit, see Unifirst Corp., 346

NLRB 591, 593 (2006); the dispositive question is whether an

employee “could reasonably perceive a direct connection

between union activities” and loss of a job or benefit,

Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 545 (D.C. Cir.

2006).

Incorporating the ALJ’s decision, the Board found that

the statements made by Dow and Long at various employee

meetings had a reasonable tendency to interfere with section 7

rights, and thus were unlawfully coercive. Enterprise Leasing

Co. of Fla., 362 NLRB No. 135, at *1 & 2 n.3. Enterprise

supervisors Dow and Long explained to unit employees that

they would lose their short-term disability benefits because

they were union and because the union contract did not

specify provision of such benefits, Id. But the Company

would continue to provide those benefits, Long explained, to

employees at other, non-union facilities. Id. From Dow and

Long’s statements, the Board concluded, see id., employees

could “reasonably perceive a direct connection between” their

union membership and Enterprise’s withdrawal of an

important benefit. Progressive Elec., 453 F.3d at 545.

Enterprise contends, and dissenting Board Member

Miscimarra agreed, that the Board inaccurately paraphrased

the record. Enterprise insists that it simply offered its

employees truthful information about their collective

bargaining agreement, which cannot constitute an unfair labor

practice. Specifically, Enterprise urges that the Board erred in

not relying solely on the version of events described in

employee Wisecup’s grievance form, in which she noted only

that Dow and Long “informed us that the reason for [the

elimination of short-term disability benefits] is [] the fact that

13

the bargaining [a]greement does not specify that [the benefit]

has to be given to employees.” Wisecup Grievance Form,

J.A. 843.

Enterprise’s argument ignores substantial record evidence

that directly supports the Board’s finding. According to

Wisecup’s testimony at the hearing before the ALJ, Long

explained to employees “because you’re union, you can’t

have short-term disability.” Testimony of Marjorie Wisecup,

J.A. 54. Wisecup additionally recounted that, when accused

of discriminating based on union membership, Long stated,

“don’t worry, Enterprise has very good lawyers.” Id.

Wisecup’s account was consistent with those given by two

other employees, Sara Rivera and Wanda Rivera. Moreover,

in light of Dow and Long’s contemporaneous statements

linking the loss of benefits to their union-represented status,

the employees readily could have understood Dow and

Long’s references to the collective bargaining agreement—as

recounted in Wisecup’s grievance form—also to tie the

withdrawal of those benefits to union membership. Dow and

Long’s union-contract justification, viewed in context, thus

“went beyond permissible statements of fact.” ALJ Decision,

J.A. 2096; see Enterprise Leasing Co. of Fla., 362 NLRB No.

135, at *1 & 2 n.3.

Finally, to the extent Dow and Long’s version of events

differed from the testimony of employees Wisecup, Sara

Rivera, and Wanda Rivera, the ALJ specifically credited the

employees’ testimony, which was mutually corroborative and

adverse to their current employer, favoring reliance on that

testimony. Those well-reasoned credibility determinations

were not “hopelessly incredible, self-contradictory, or

patently unsupportable.” Stephens Media, 677 F.3d at 1250.

Substantial evidence thus supports the Board’s determination

that, under the circumstances, Dow and Long’s justification

14

for eliminating short-term disability benefits was unlawfully

coercive.

ii. Encouragement of Decertification Petition

Enterprise also contests the Board’s determination that it

violated section 8(a)(1) by encouraging an employee to

circulate a petition to decertify the Union as the employees’

bargaining representative. Employer statements about union

decertification are not altogether off limits. For example, the

Board has held that an employer does not violate the Act if it

furnishes accurate information about, or ministerial aid to, the

decertification process, and does so without making threats or

offering benefits. See Lee Lumber & Bldg. Material Corp.,

306 NLRB 408, 409-10 (1992); E. States Optical Co., 275

NLRB 371, 372 (1985). An employer violates section

8(a)(1), however, “by ‘actively soliciting, encouraging,

promoting, or providing assistance in the initiation, signing,

or filing of an employee petition seeking to decertify the

bargaining representative.’” Mickey’s Linen & Towel Supply,

Inc., 349 NLRB 790, 791 (2007) (quoting Wire Prods. Mfg.

Co., 326 NLRB 625, 640 (1998), enforced sub nom. NLRB v.

R.T Blankenship & Assocs., Inc., 210 F.3d 375 (7th Cir. 2000)

(unpublished)); see E. States Optical Co., 275 NLRB at 372.

The Board adopted the ALJ’s finding that supervisors

Elsass and Browne unlawfully coerced employee Cirilo

Garcia to collect more signatures when, after instructing him

that the number of signatures he had gathered was not

enough, they told him to go back and get more. Enterprise

Leasing Co. of Fla., 362 NLRB No. 135, at *1 & 2 n.3.

Although the Board did not find that the statements

constituted “unlawful[] assist[ance],” it concluded that the

direct exhortation from management, “[e]ven assuming the

conversation was friendly,” could only have further impelled

15

Cirilo to continue his campaign, unlawfully promoting it. Id.

at 2 n.3. It did not matter, the Board explained, that Garcia

himself had commenced and led the campaign before the

conversation at issue.

As an initial matter, contrary to Enterprise’s contention,

the Board “engage[d] in reasoned decisionmaking” in thus

adopting and elaborating on the thorough, well-reasoned

analysis of the ALJ. Int’l Union of Operating Eng’rs, Local

147, AFL-CIO v. NLRB, 294 F.3d 186, 188 (D.C. Cir. 2002).

Moreover, the record contains substantial evidence to support

the findings underlying the violation. According to the

credited testimony of Enterprise employee Glinda Jefferies,

Jefferies observed Garcia showing the decertification petition

to Elsass and Browne. Jefferies overheard them ask Garcia

how many signatures he had gotten, and Browne told him “it

wasn’t enough, to go back and get more.” Testimony of

Glinda Jefferies, J.A. 78. Garcia then arranged to secure

additional signatures to push the number “over the 50 percent

mark.” Testimony of Jesus Torres, J.A. 202.

The record refutes Enterprise’s contention that Jefferies’s

account is incredible because Jefferies, who does not speak

Spanish, would not have been able to understand the

conversation with Garcia, who does not speak or understand

very much English. As the ALJ explained, Elsass, who

speaks only English, testified that he was able to

communicate basic instructions to Garcia in English and that

other employees could translate for him when necessary,

confirming that Jefferies indeed could have overheard the

conversation to which she testified.

Enterprise further argues that even if the conversation

transpired as Jefferies testified, Elsass and Browne solely

provided employees truthful information about the

16

decertification process and how many signatures would be

required for a petition to be successful. That argument is only

partly correct. The first part of Browne’s statement,

informing Garcia that the number of signatures he had

collected “wasn’t enough,” Testimony of Glinda Jefferies,

J.A. 78, is what Enterprise suggests—a lawful, accurate

statement about the decertification process that, by itself,

constitutes no more than ministerial aid. See Lee Lumber &

Bldg. Material Corp., 306 NLRB at 409-10; E. States Optical

Co., 275 NLRB at 372; see also Exxel/Atmos, Inc. v. NLRB,

147 F.3d 972, 975 (D.C. Cir. 1998).

But Browne did not stop there. Instead, he directed

Garcia “to go back and get more” signatures. Testimony of

Glinda Jefferies, J.A. 78. That statement, on which the Board

relied in finding a violation of section 8(a)(1), constitutes not

merely the provision of accurate information, but the “active[]

. . . encourag[ement]” and “promot[ion]” of a decertification

petition that is prohibited by the Act. Mickey’s Linen &

Towel Supply, Inc., 349 NLRB at 791.

We therefore deny Enterprise’s petition for review and

grant the Board’s cross-application for enforcement as to the

section 8(a)(1) violations.

C. Section 8(a)(1) and (a)(5) Violations

We next address Enterprise’s challenge to the Board’s

conclusion that it violated section 8(a)(1) and (a)(5) of the Act

by unilaterally withdrawing short-term disability benefits,

interfering with union agents’ contractual right of access to

the Miami Alamo facility, unlawfully decertifying the Union

as its employees’ bargaining representative, and then refusing

to bargain with the Union or collect or remit union dues.

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

employer “to refuse to bargain collectively with the

17

representatives of his employees.” 29 U.S.C. § 158(a)(5). An

employer that violates section 8(a)(5) also derivatively

violates section 8(a)(1)’s prohibition against “interfer[ing]

with, restrain[ing], or coerc[ing] employees in the exercise of

the rights guaranteed in section [7 of the Act],” id.

§ 158(a)(1), including the right to “bargain collectively

through representatives of their own choosing,” id. § 157. See

Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983);

Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321, 325 n.2

(D.C. Cir. 2015). For the reasons that follow, we deny

Enterprise’s petition as to all of the challenged section 8(a)(5)

and derivative section 8(a)(1) violations.

i. Unilateral Termination of Benefits

Enterprise first contests the Board’s decision that the

Company’s unilateral termination of short-term disability

benefits violated section 8(a)(1) and (5) of the Act. Section

8(d) provides that the obligation to bargain protected by

section 8 extends to “wages, hours, and other terms and

conditions of employment.” 29 U.S.C. § 158(d). Those

mandatory bargaining subjects include employee benefits,

such as short-term disability. See NLRB v. Katz, 369 U.S.

736, 743-44 (1962). “[A]n employer’s unilateral change in

conditions of employment under negotiation is . . . a violation

of [section] 8(a)(5),” and, derivatively, 8(a)(1). Id. at 743; see

Int’l Bhd. of Elec. Workers Local 1466, AFL-CIO v. NLRB,

795 F.2d 150, 153 (D.C. Cir. 1986).

In this case, a divided Board determined that Enterprise

committed an unfair labor practice by eliminating employees’

short-term disability benefits at the end of 2009 without first

notifying the Union or giving it an opportunity to bargain.

Enterprise does not contest that it unilaterally terminated the

benefits at issue, but argues that the Union waived or,

18

alternatively, contracted away the protections of section

8(a)(5).

Where a bargaining unit has affirmatively waived its

right to negotiate as to a subject, an employer’s unilateral

change to contract terms on that subject does not violate the

Act. But such waiver occurs only upon a bargaining unit’s

“clear and unmistakable” relinquishment of the right. Ga.

Power Co., 325 NLRB 420, 420 (1998) (quoting Metro.

Edison Co., 460 U.S. at 708). Agreeing with the ALJ, the

Board concluded that the parties’ then-effective collective

bargaining agreement did not effect a waiver of the Union’s

statutory right to bargain over the elimination of short-term

disability benefits; the unilateral change on that mandatory

subject of bargaining thus violated the Act. Enterprise

Leasing Co. of Fla., 362 NLRB No. 135, at *1-2 & n.4.

Enterprise challenges the Board’s non-waiver determination,

contending that the parties’ agreement effected a “clear and

unmistakable” waiver of the bargaining unit’s right to

negotiate benefits encompassed within the Group Insurance

Plan.

Enterprise alternatively challenges the Board’s order by

invoking the contract-coverage doctrine. In Enterprise’s

view, the collective bargaining agreement itself covers

anything having to do with the provision of benefits,

including short-term disability benefits, and thereby gives

Enterprise a contractual right to terminate those benefits

without bargaining. Under the contract-coverage doctrine,

when a subject is “covered by the collective bargaining

agreement,” the union already “has exercised its bargaining

right” on the matter—by, for example, agreeing to a particular

benefits plan that includes a reservation-of-rights clause—

leaving the employer free to make unilateral changes to such a

covered plan without running afoul of the Act. BP Amoco

19

Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir. 2000) (quoting

NLRB v. U.S. Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 1993)).

We need not reach the merits of either Enterprise’s

waiver or its contract-coverage contention, or otherwise

venture to interpret the collective bargaining agreement,

because we sustain the Board’s determination on the ground

that at the time Enterprise terminated the contested benefits,

they were no longer provided pursuant to the collective

bargaining agreement. According to the Board, the record

established that as of August 2009—well before Enterprise’s

January 1, 2010, unilateral termination of the short-term

disability benefits—the Company had begun self-

administering those benefits. Enterprise Leasing Co. of Fla.,

362 NLRB No. 135, at *1-2. The Board relied on that change

as an “alternative,” and “independently sufficient basis” to

uphold the ALJ’s decision. Id. at *2; see Local 702, Int’l Bhd.

of Elec. Workers, AFL-CIO v. NLRB, 215 F.3d 11, 15 (D.C.

Cir. 2000) (“[S]ince the Board is the agency entrusted by

Congress with the responsibility for making findings under

the statute, it . . . is free to substitute its judgment for the

ALJ’s.” (internal quotation marks and brackets omitted)).

Accordingly, “[e]ven assuming the [Company’s] waiver

arguments might otherwise have merit,” the Board explained,

“they fail here because, after August 1, 2009, [the Company]

did not provide [short-term disability] benefits pursuant to any

‘plan,’ or at least not pursuant to one of the Vanguard plans

referenced in the [agreement].” Enterprise Leasing Co. of

Fla., 362 NLRB No. 135, at *1. The Company’s failure to

bargain over that mandatory subject of bargaining thus

violated the Act. Id. at *3.

Substantial record evidence supports the Board’s

conclusion that, at the time Enterprise unilaterally terminated

the short-term disability benefits, the Company did not

20

provide those benefits pursuant to any plan referenced in the

collective bargaining agreement. Specifically, Dana Beffa,

Enterprise’s vice president of employee benefits, testified that

Enterprise terminated the Vanguard Plan on August 1, 2009,

and the third-party administrator ceased administering short-

term disability benefits. From August 1 until the end of the

year, Beffa explained, Enterprise itself administered the

benefits on a self-insured basis. Enterprise accordingly

cannot rely on any waiver or contract coverage the agreement

might have effected with respect to Group Plan benefits.

Nor was the Company’s provision of short-term disability

benefits after August 1 a “one-time gratuity” exempt from

collective-bargaining requirements, as Enterprise claims.

Reply Br. 12. Enterprise provided the benefits—first through

the Vanguard Plan and then on its own, with no break in

coverage—with such regularity to “justif[y] its employees’

expectations that they would receive the” benefit in the future.

Sykel Enters., Inc., 324 NLRB 1123, 1125 (1997). We

therefore decline to disturb the Board’s finding that

Enterprise’s unilateral benefits termination violated the Act.

ii. Interference With Union’s Workplace Access

Enterprise further challenges the Board’s conclusion that

Enterprise violated section 8(a)(1) and (a)(5) of the Act by

interfering with the Union’s contractual right of access to the

Miami facility. Where a collective bargaining agreement

permits union officials to access an employer’s worksite, it is

a violation of section 8(a)(5) to interfere with the bargained-

for access. See Frontier Hotel & Casino, 309 NLRB 761, 765

(1992), enforced sub. nom. NLRB v. Unbelievable, Inc., 71

F.3d 1434 (9th Cir. 1995). Any “undue restriction[] upon a

union representative’s access to the worksite impairs a

union’s ability to police its agreement and thereby diminishes

21

employees’ Section 7 rights.” Houston Coca-Cola Bottling

Co., 265 NLRB 766, 777 (1982), enforced as modified sub.

nom. NLRB v. Great W. Coca-Cola Bottling Co., 740 F.2d

398 (5th Cir. 1984).

Based on Eddie Valero’s credited testimony and the

terms of the applicable collective bargaining agreement, the

Board found that, on January 4, 2010, Dow and Long

interfered with the Union’s contractual right of access by

confronting, yelling at, following, and limiting access by

Eddie Valero and other union agents when they visited the

Alamo Miami facility to investigate a reported violation of the

collective bargaining agreement. Enterprise Leasing Co. of

Fla., 362 NLRB No. 135, at *1.

Enterprise does not contest that it interfered with

Valero’s access. Instead, it insists that Valero had no right of

visitation because, it contends, he failed to provide advance

notice, was not on site to monitor compliance with the

collective bargaining agreement, and interfered with

Enterprise’s business. The Board’s reasonable conclusions to

the contrary have substantial record support.

The Company’s first contention fails because the

agreement plainly does not require advance notice; it requires

Union representatives to “mak[e] [their] presence known to a

member of management” upon arrival. Miami Alamo

Collective Bargaining Agreement, J.A. 372. Once they do so,

those representatives “shall be permitted to enter the

premises” to conduct an investigation. Id. According to

Valero’s credited testimony, in the past Valero never had

given any additional, advance notice before such investigative

visits—a point corroborated by Dow on cross-examination—

and he had never encountered any problems until the visit on

January 4. And on that visit, too, Valero immediately gave

22

the required notice—to Dow herself—upon arriving at the

property. The record adequately supports the Board’s

conclusion that the agreement’s notice requirement was

satisfied.

Enterprise’s attempt to impugn Valero’s motives and on-

site conduct fares no better. In support of its version of

events, the Company points only to Long’s account of the

union representatives’ conduct on January 4. That testimony

does not speak to Valero’s reasons for being on site, however,

and, to the extent it suggests that Valero interrupted

workplace activities, it conflicts with Valero’s detailed,

credited testimony about his group’s interactions at the Alamo

Miami facility that day. Substantial record evidence thus

supports the Board’s finding that Enterprise interfered with

the Union’s right of access to the Alamo facility.

iii. Withdrawal of Union Recognition

Enterprise next takes issue with the Board’s conclusion

that the Company’s withdrawal of recognition from the Union

violated the Act. Although “an incumbent union enjoys a

presumption that it represents a majority of employees,” BPH

& Co. v. NLRB, 333 F.3d 213, 217 (D.C. Cir. 2003), an

employer may overcome the presumption and “unilaterally

withdraw recognition from a union if it can show through

objective evidence that the union has lost majority support as,

for example, by presenting a petition signed by a majority of

employees in the bargaining unit stating that they no longer

wish to be represented by the union,” SFO Good-Nite Inn,

LLC v. NLRB, 700 F.3d 1, 6 (D.C. Cir. 2012).

An employer’s “privilege” to withdraw recognition based

on a petition from a majority of employees “is not absolute.”

Id. “[I]f unfair labor practices ‘significantly contribute to

such a loss of majority or to the factors upon which doubt of

23

such majority is based’”—thus “taint[ing]” the decertification

petition—then “the employer may not withdraw recognition”

from the union. BPH & Co., 333 F.3d at 217-18 (quoting St.

Agnes Med. Ctr. v. NLRB, 871 F.2d 137, 146-47 (D.C. Cir.

1989)). Where unfair labor practices alleged to have tainted

the decertification process are not directly related to that

process, the Board applies the four-factor test articulated in

Master Slack Corp., 271 NLRB 78, 84 (1984), to evaluate the

causal link between the violations and the decreased union

support. But if the employer’s unfair labor practices involved

the decertification process itself, the Board does not demand

any such showing of causation between the unfair labor

practices and the anti-union vote; the Board will presume that

a decertification petition is tainted where it was instigated or

propelled by an employer. See SFO Good-Nite Inn, 700 F.3d

at 8. If taint is established, withdrawal of recognition violates

section 8(a)(5), and thus also 8(a)(1). See NLRB v. Curtin

Matheson Scientific, Inc., 494 U.S. 775, 778 (1990).

In this case, the Board determined that the Company

violated the Act by unlawfully withdrawing recognition from

the Union based solely on a decertification petition tainted by

the aforementioned unfair labor practices. See Enterprise

Leasing Co. of Fla., 362 NLRB No. 135, at *1-3. Enterprise

disputes that any of the cited conduct contributed to the loss

of majority support reflected in the signed petition, arguing at

length that each alleged unfair practice was insufficiently

significant, close in time, or otherwise related to the petition

to have tainted the petition under the Master Slack test. We

need not, and do not, reach the merits of those arguments. As

the Board found, the Company’s unlawful propulsion of the

decertification petition—through the direction of Enterprise

supervisors Elsass and Browne to employee Garcia, see supra

Section II.B.ii.—constitutes a per se taint of that petition.

24

SFO Good-Nite Inn, 700 F.3d at 8. We therefore enforce that

portion of the Board’s order.

iv. Post-Withdrawal Actions

The Board additionally concluded that, after the

Company withdrew its recognition from the Union, Enterprise

violated section 8(a)(5), and thus also 8(a)(1), by failing to

deduct and remit dues to the Union pursuant to the contractual

dues-checkoff provision in the still-effective collective

bargaining agreement, unilaterally changing the employees’

wages and other terms and conditions of employment, and

declining to process an employee grievance. Enterprise

Leasing Co. of Fla., 362 NLRB No. 135, at *1-3. Enterprise

admits that it engaged in all the post-withdrawal conduct

underlying those violations, and that it did so without

bargaining with the Union. It claims, however, that its post-

withdrawal conduct did not violate the Act because its

withdrawal of recognition from the Union was lawful.

Because the post-withdrawal violations thus rise and fall with

the validity of the withdrawal itself and, as we have

concluded, the Board’s determination that the withdrawal

violated the Act is supported by substantial evidence and not

otherwise arbitrary, see discussion supra Section II.C.iii., we

deny Enterprise’s petition for review, and grant the Board’s

cross-application for enforcement, of the Board’s order that

the Company’s post-withdrawal conduct violated section

8(a)(1) and (a)(5).

III. Challenge to Remedial Order

Finally, Enterprise challenges the Board’s remedial order

as unlawfully punitive. The Board ordered Enterprise to

reimburse the Union from its own funds for all union dues it

failed to pay after withdrawing recognition from the Union.

Amending the ALJ’s remedy, the Board further barred

25

Enterprise from recouping those unpaid dues from employees.

The Company claims that the Board’s order goes beyond

restoring the status quo because, had the dues been paid in the

ordinary course, the employees, not the Company, would

have had to shoulder their cost. The Board counters that this

court lacks jurisdiction to review Enterprise’s challenge to the

recoupment bar because Enterprise failed to raise its

objections before the Board as required under section 10(e) of

the Act. We agree with the Board.

Section 10(e) of the NLRA provides that “[n]o objection

that has not been urged before the Board, its member, agent,

or agency, 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

29 C.F.R. § 102.46(b), (c)(3). Section 10(e) is a

“jurisdictional bar,” in the face of which we are “powerless, in

the absence of extraordinary circumstances, to consider

arguments not made to the Board.” W & M Props. of Conn.,

Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C. Cir. 2008); see Nova

Se. Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015).

Enterprise failed to challenge the recoupment bar before

the Board as section 10(e) requires. Nowhere in any of its

filings in the proceedings below did Enterprise argue that it

was impermissibly punitive or otherwise unlawful for the

Board to prevent Enterprise from collecting from its

employees the dues it had failed to pay to the Union.

Enterprise objected generally to the ALJ’s remedy, but that

remedy did not contain any recoupment bar. “[A]n exception,

no matter how broadly formulated, cannot preserve an

objection to something that the ALJ never imposed.” HTH

Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016).

26

It was the Acting General Counsel’s exceptions that first

requested the recoupment bar the Board eventually imposed,

but Enterprise’s objections to those exceptions were silent on

the subject. Instead, the Company focused on the dates of its

unpaid-dues obligations, contending that the ALJ correctly

declined to order dues collection beyond the March 2010

expiration of the collective bargaining agreement. When the

Board amended the ALJ’s remedy to prevent Enterprise from

recouping the unpaid dues from employees, Enterprise failed

to file a motion for reconsideration addressing the recoupment

bar. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

645, 666 (1982); HTH Corp., 823 F.3d at 673.

Board Member Miscimarra’s dissent, which viewed the

Board’s recoupment-bar remedy to be impermissibly punitive,

does not excuse Enterprise’s failure to raise the objection.

“[A] party may not rely on arguments raised in a dissent or on

a discussion of the relevant issues by the majority to

overcome the § 10(e) bar; the Act requires the party to raise

its challenges itself.” HTH Corp., 823 F.3d at 673.

Notwithstanding its failure to make the argument below,

Enterprise contends that another party—the Acting General

Counsel—sufficiently raised the recoupment-bar “issue” in

his exceptions to the ALJ’s decision and remedy. Enterprise

Br. 57 n.8; Reply Br. 23-27. As support, the Company

invokes our decision in Mourning v. NLRB, 559 F.2d 768, 771

& n.5 (D.C. Cir. 1977) (per curiam), where we held that a

petitioner’s failure to raise an argument before the Board did

not result in its waiver under section 10(e), because the

Board’s General Counsel sufficiently had done so. But

Mourning is inapposite here. There, the petitioner was not

“precluded from pressing the issue,” because the precise

question already had been identified and countered by the

General Counsel. Id. Here, in contrast, the Acting General

27

Counsel neither raised nor refuted the argument petitioner

now advances. The General Counsel excepted to the ALJ’s

finding that Enterprise had not violated the Act by failing to

collect dues after March 2010, when the collective bargaining

agreement expired, and also excepted to the ALJ’s remedy on

various grounds. As relevant here, it sought modification of

the remedy to include remittance of dues to the Union after

March 2010, as well as “a prohibition against [Enterprise]

recouping the dues monies owed to the Union from its

employees’ wages.” Acting General Counsel’s Exceptions,

J.A. 2119. In requesting the recoupment bar, the Acting

General Counsel identified that specific remedy. But it did

not thereby put before the Board and preserve for our review

Enterprise’s objection that such remedy is impermissibly

punitive. Enterprise’s “argument was not made to the Board

and so comes too late.” W & M Props., 514 F.3d at 1345.

We thus lack jurisdiction to consider it. See Woelke, 456 U.S.

at 665.

***

For the reasons set forth above, we deny Enterprise’s

petition for review and grant the Board’s cross-application for

enforcement.

So ordered.