Oberthur Technologies of America Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2017 Decided August 4, 2017

No. 16-1265

OBERTHUR TECHNOLOGIES OF AMERICA CORPORATION,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

GRAPHIC COMMUNICATIONS CONFERENCE, INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, LOCAL 14M,

INTERVENOR

Consolidated with 16-1330, 16-1331

On Petition for Review,

Cross-Application for Enforcement of an Order

of the National Labor Relations Board, and Application for

Enforcement of a Second Order

Kevin C. McCormick argued the cause for petitioner. With

him on the briefs was Thomas C. Mugavero.

Michael R. Hickson, Attorney, National Labor Relations

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

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

2

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, Jennifer Abruzzo, Deputy General Counsel,

and Robert J. Englehart, Supervisory Attorney.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Oberthur Technologies of America

seeks review of orders and a certification decision issued by the

National Labor Relations Board. Following a representation

election, the Board certified International Brotherhood of

Teamsters, Local 14M as the collective bargaining

representative of a group of Oberthur employees. The Board

also found that the company violated the National Labor

Relations Act before the election by restricting employee speech

and freezing employee wage benefits. In its petition for review,

Oberthur challenges the Board’s findings of pre-election unfair

labor practices and raises objections to the representation

election. For the reasons set forth below, we deny Oberthur’s

petition for review and grant the Board’s applications for

enforcement.

I

Oberthur manufactures credit cards, debit cards,

governmental identification cards, and related products at its

facility in Exton, Pennsylvania. In the spring of 2012,

Teamsters’ Local 14M commenced an organizing campaign at

the Exton plant. During the campaign, the company banned all

union-related speech on the plant floor and put a freeze on two

longstanding employee wage benefit programs. The union

subsequently filed unfair labor practice charges against the

company.

3

On July 30, 2012, the union filed a petition with the Board

seeking a representation election. In early August, the parties

reached a Stipulated Election Agreement. The Agreement

provided for a secret-ballot election and defined the relevant

bargaining unit as covering “[a]ll full-time employees” working

in fifteen specified departments at the Exton plant. Stipulated

Election Agreement (Aug. 8, 2012) (J.A. 91). Under the

Agreement, the parties waived their rights to a hearing, agreed

that the Board’s regional director, who approved the agreement,

would supervise the election, and agreed that all post-election

procedures would conform with the Board’s rules and

regulations.

The election took place on September 7, 2012. Oberthur

declined to challenge any ballots or otherwise contest the

validity of the representation election. As relevant here,

however, the union challenged the ballots cast by two engineers

-- John DiTore and Birendra Sahijwana -- on the ground that

they qualified as “professional employees” under National

Labor Relations Act (NLRA) § 9(b), 29 U.S.C. § 159(b), and

were thus excluded from the unit. The two ballots were

impounded in accordance with Board regulations. See 29 C.F.R.

§ 102.69(a). The final tally of the non-impounded ballots

showed that the union prevailed by a narrow, two-vote margin

of victory: 108 votes in favor to 106 votes against. Tally of

Ballots (Sept. 7, 2012) (J.A. 94). The parties do not dispute that

the two ballot challenges at issue in this petition for review

could be determinative of the result of the representation

election.1

1

The union actually made a total of three timely ballot

challenges, the third being a challenge to the ballot cast by Scott

Hillman. See Notice of Hearing on Challenged Ballots and Objections

to Election (Oct. 24, 2012) (J.A. 99). Although the Administrative

Law Judge sustained the union’s challenges to DiTore and Sahijwana,

4

In October 2012, the Regional Director consolidated the

unfair labor practice charges together with the challenges to the

representation election for a hearing before an Administrative

Law Judge (ALJ). The ALJ found that the company violated

Sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1),

(3), by restricting union-related speech and by announcing and

ultimately enacting a freeze on employee wage benefits. The

ALJ also recommended sustaining the union’s challenges to the

ballots cast by DiTore and Sahijwana upon finding that both

engineers qualified as “professional employees” under NLRA

§ 9(b), 29 U.S.C. § 159(b). Oberthur filed timely exceptions to

the ALJ’s pre-election unfair labor practice findings and to his

decision to sustain the union’s challenges to the ballots cast by

DiTore and Sahijwana. In addition, in its exceptions to the

ALJ’s decision, the company raised a new objection for the first

time: that even if DiTore and Sahijwana were professional

employees, the election should still be set aside on procedural

grounds.

The Board issued its opinion on August 27, 2015. With

respect to the pre-election unfair labor practice charges, the

Board adopted the ALJ’s findings that the company violated the

NLRA by restricting union-related speech and freezing

employee wage benefits. Oberthur, 362 N.L.R.B. No. 198, at 1

(Aug. 27, 2015) (2015 Board Order). It directed Oberthur to

rescind its restriction on union-related speech and make its

employees whole for any losses stemming from the freeze on

he recommended that the Board overrule the union’s challenge to

Hillman. Oberthur Technologies of Am. Corp., 362 N.L.R.B. No. 198,

at 13 (Feb. 20, 2013) (ALJ Op.). The Board concluded that Hillman’s

ballot “is not determinative and will not be opened or counted.” Id. at

2 & n.6 (Aug. 27, 2015) (2015 Board Order). In light of our

resolution of the challenges to the other two ballots, we reach the same

conclusion.

5

wage benefits. Id. at 3-4. With respect to the representation

election, the Board adopted the ALJ’s recommendation to

sustain the union’s challenges to the ballots cast by DiTore and

Sahijwana. Id. at 2-3. It further rejected as untimely and

procedurally improper Oberthur’s alternative challenge to the

validity of the election, id. at 3, and certified the union as the

exclusive collective-bargaining representative for the stipulated

unit of Oberthur employees, id. at 4.

Following certification, Oberthur refused to bargain with

the union. An employer may, as Oberthur did here, “challenge

a certification decision indirectly by refusing to bargain with the

union and then raising its election objection in the ensuing unfair

labor practice proceedings.” Canadian Am. Oil Co. v. NLRB, 82

F.3d 469, 471 n.1 (D.C. Cir. 1996); see 29 U.S.C. § 160(f). On

July 27, 2016, the Board found that Oberthur’s refusal to bargain

violated NLRA § 8(a)(1) and (5), 29 U.S.C. § 158(a)(1) and (5).

Oberthur Technologies of Am. Corp., 364 N.L.R.B. No. 59, at

2-3 (July 27, 2016) (2016 Board Order). Oberthur now seeks

review of both the 2015 and 2016 Board Orders. The NLRB

applies for enforcement of both.

II

We first address Oberthur’s objection to the Board’s

findings that it violated the NLRA by restricting employee

speech and freezing two longstanding employee wage benefit

programs in the lead-up to the September 2012 representation

election. 362 N.L.R.B. No. 198, at 1 & 1 nn.4-5 (2015 Board

Order).2 This Court “must uphold the judgment of the Board

2

The Board also found that the company separately violated

NLRA § 8(a)(1) by telling employees that the two wage benefit

programs were on hold until after the election. Oberthur, 362

N.L.R.B. No. 198, at 1 (2015 Board Order). Oberthur argues only

6

unless, upon reviewing the record as a whole, we conclude that

the Board’s findings are not supported by substantial evidence,

or that the Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.” Spurlino Materials,

LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015) (quotation

marks omitted); see 29 U.S.C. § 160(f) (providing that the

Board’s findings of fact are “conclusive” if “supported by

substantial evidence on the record considered as a whole”).

A

Section 8(a)(1) makes it unlawful for an employer to

“interfere with, restrain, or coerce employees” in the exercise of

their rights under NLRA § 7, 29 U.S.C. § 157. 29 U.S.C.

§ 158(a)(1). Section 7’s guarantees “‘necessarily encompass[]’

employees’ rights to communicate with one another and with

third parties about collective action and organizing a union.”

Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 545 (D.C. Cir.

2016) (quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 491

(1978)). Accordingly, if “considering the totality of the

circumstances,” an employer’s statement “has a reasonable

tendency to coerce or to interfere with” an employee’s Section

7 right to communicate about the union, the statement violates

Section 8(a)(1). Tasty Baking Co. v. NLRB, 254 F.3d 114, 124

(D.C. Cir. 2001) (citing Avecor, Inc. v. NLRB, 931 F.2d 924, 931

(D.C. Cir. 1991)).

that, “[t]o the extent that” the pre-election freeze “did not violate the

Act, . . . the mere act of telling employees about a (lawful) policy

cannot itself be a violation.” Oberthur Reply Br. 24. Because we find

that the pre-election freeze did violate the Act, and because Oberthur

does not challenge the separate § 8(a)(1) violation under those

circumstances, the Board is entitled to summary enforcement with

respect to that violation. See generally Allied Mech. Servs. v. NLRB,

668 F.3d 758, 765 (D.C. Cir. 2012).

7

It is well established that an employer’s warning directing

employees to “cease Union-related discussions only” constitutes

a Section 8(a)(1) violation. ITT Industries, Inc. v. NLRB, 251

F.3d 995, 1006 (D.C. Cir. 2001). And while non-solicitation

rules designed to advance legitimate business interests in

employee discipline and productivity are permissible, “[a]n

employer violates the Act when employees are forbidden to

discuss unionization, but are free to discuss other subjects

unrelated to work.” Oberthur, 362 N.L.R.B. No. 198, at 1 & n.4

(2015 Board Order) (quoting Jensen Enterprises, Inc., 399

N.L.R.B. 877, 878 (2003)).3

Oberthur contests the Board’s finding that it violated

Section 8(a)(1) by imposing a “discriminatory restriction on

union-related speech.” 362 N.L.R.B. No. 198, at 1 & n.4 (citing

Jensen Enterprises, Inc., 339 N.L.R.B. at 878). We are

unpersuaded. The Board adopted the ALJ’s findings on this

issue, which pointed to statements by shift supervisor Frank

Belcher, who told employees “that discussions about the union

or organizing had to take place in common areas, not work

areas.” Belcher Aff. (J.A. 1171); see Belcher Testimony (J.A.

559). The ALJ found and Oberthur concedes that the company

did not impose similar restrictions on discussions about non-

union subjects. See 362 N.L.R.B. No. 198, at 10 & n.7 (ALJ

Op.); Oral Arg. Recording at 6:57. Indeed, Belcher testified that

3

Cf. Our Way, Inc., 268 N.L.R.B. 394, 394 (1983) (stating that

there would be no violation if the employer barred “solicitation for

any cause, or distribution of literature of any kind, during working

time”); F.P. Adams Co., Inc., 166 N.L.R.B. 967, 967 (1967) (finding

no violation when the employer said that “talk about the Dodgers or

the Angels, whichever your favorite baseball team may be, or about

anything else” non-work-related is permitted only “before or after

work, during meal periods and during rest periods” (emphasis

omitted)).

8

discussions of all other topics -- from“[w]eddings [and]

funerals” to “football, basketball, [and] vacations” -- were

permitted in work areas. Belcher Testimony (J.A. 562). Nor did

the company meet its burden of establishing “a legitimate and

substantial business justification for the rule, outweighing the

adverse effect on the interests of employees.” Banner Health

System v. NLRB, 851 F.3d 35, 41 (D.C. Cir. 2017) (internal

quotation marks omitted).

Oberthur further contests the Section 8(a)(1) violation on

the ground that “there was no evidence that organizing activity

was in any way limited by Belcher’s conduct, or that any

employees were disciplined.” Oberthur Br. 30-31. We have

held, however, that the “‘mere maintenance of a rule likely to

chill section 7 activity, whether explicitly or through reasonable

interpretation, can amount to an unfair labor practice even

absent evidence of enforcement of the rule by the employer.’”

Banner Health System, 851 F.3d at 40-41 (quoting Quicken

Loans, 830 F.3d at 546). “[C]onsidering the totality of the

circumstances,” there is substantial evidence to support the

Board’s conclusion that Oberthur’s statement “ha[d] a

reasonable tendency to coerce or to interfere with” its

employees’ Section 7 right to communicate about the union,

thereby violating Section 8(a)(1). Tasty Baking Co., 254 F.3d

at 124.

B

We turn next to the Board’s finding that Oberthur violated

Section 8(a)(1) and (3) by implementing a freeze on two

longstanding employee wage benefit programs in advance of the

representation election. 362 N.L.R.B. No. 198, at 1 & n.5 (2015

Board Order). The company challenges both the Board’s unfair

labor practice finding and its make-whole remedy.

9

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

unfair labor practice finding. “As a general rule, while a union

representation proceeding is pending, an employer must decide

whether to grant benefits ‘precisely as it would if the union were

not on the scene.’” Federated Logistics & Operations v. NLRB,

400 F.3d 920, 927 (D.C. Cir. 2005) (quoting Perdue Farms, Inc.

Cookin’ Good Division v. NLRB, 144 F.3d 830, 836 (D.C. Cir.

1998)). “It follows that an employer may not withhold a wage

increase that would have been granted but for a union organizing

campaign.” Id.

In this case, substantial evidence supports the Board’s

finding that Oberthur violated Section 8(a)(1) and (3) by

freezing wage benefits it had granted to its employees through

two separate wage benefit programs. The company concedes

that under the status quo, it maintained two wage benefit

programs: (1) the “Spot Bonuses” program, which rewarded

discrete examples of exceptional service with “spot bonuses”

ranging between $50 and $150; and (2) the “Wage Increase”

program, which rewarded employees for taking on more

challenging positions within the company by increasing their

base salary over the course of eighteen months to two years.

Oberthur, 362 N.L.R.B. No. 198, at 11-12 (ALJ Op.). Oberthur

further concedes that it froze the benefits “because of the Union

organizing campaign.” Oberthur Br. 32.

Oberthur acknowledges that its decision to put all spot

bonuses and wage increases “on hold” was “memorialized” in

an email sent to managers and supervisors by Diane Ware,

Oberthur’s Human Resources Manager, two days after the union

filed its election petition with the Board. Oberthur Reply Br. 22,

25. In the message, Ware instructed Oberthur’s managers and

supervisors that all wage increases and spot bonuses were on

hold, and then gave the following instruction:

10

If one of your employees is waiting for an increase -

please use the following phrase, “During this period,

we have to keep the status quo on all issues related to

wages, transfers, and promotions.” PLEASE NOTE:

We cannot say things like, ‘it’s because of the union,’

or ‘your promotion will be processed once we vote the

union down.’ These phrases, although very likely true,

will be viewed as a promise and we need to make sure

that doesn’t happen. Hopefully, with the phrase,

‘during this period,’ employees will realize that it may

be linked to unions, but we cannot draw that conclusion

for them.

Email from Diane Ware (Aug. 1, 2012) (J.A. 1168) (emphases

added).

Oberthur attempts to justify the freeze on the ground that

the “discretionary” nature of its wage benefit programs made a

freeze necessary. See Oberthur Br. 33-34. But while Oberthur

may have exercised discretion over the initial granting of the

benefits, substantial evidence supports the NLRB’s finding that

Oberthur had already approved bonuses and scheduled wage

increases for several employees prior to the freeze. See 362

N.L.R.B. No. 198, at 11-12 & nn.9-10 (ALJ Op.); id. at 3 & n.14

(2015 Board Order). Moreover, the NLRB’s remedy applied

only to an employee “whose approved bonus or scheduled wage

increase was delayed because of the Respondent’s policy to

freeze such benefits during the pendency of the election.” Id. at

14 (ALJ Op.); see id. at 1 n.5 (2015 Board Order) (“A traditional

backpay remedy, with interest, is appropriate for those

employees who would have received spot bonuses but for the

Respondent’s unlawful conduct.”).

The NLRB has recognized an exception to the principle that

employers must maintain the status quo regarding wage benefits

11

during organizing campaigns. Under this exception, an

employer may postpone an expected wage or benefits increase

so long as it makes clear to employees that: (1) “the sole

purpose” of the postponement “is to avoid the appearance of

influencing the election’s outcome”; and (2) “the employees

w[ill] receive their . . . increases after the election regardless of

the outcome.” Wal-Mart Stores, Inc., 349 N.L.R.B. 1007, 1012-

13 (2007) (internal quotation marks omitted); see Grass Valley

Grocery Outlet, 332 N.L.R.B. 1449, 1451 (2000); Uarco, Inc.,

169 N.L.R.B. 1153, 1154 (1968). In this case, substantial

evidence supports the Board’s conclusion that Oberthur failed

to satisfy those requirements. The record shows that Oberthur

did not communicate to its employees that the sole purpose of

the freeze was to avoid the appearance of influence and that the

benefits would be reinstated no matter the outcome of the

election. To the contrary, Ware’s email indicates that the

company hoped to leave employees with the impression that the

freeze was “linked to unions” and that their promotions would

be processed “once we vote the union down.” Ware Email, J.A.

1168.

Oberthur’s challenge to the Board’s remedy is also without

merit. Our review is especially deferential in this context, in

light of the Board’s “broad discretionary power . . . to fashion

remedies that effectuate the policies of the Act” under NLRA

§ 10(c), 29 U.S.C. § 160(c). Petrochem Insulation, Inc. v.

NLRB, 240 F.3d 26, 34 (D.C. Cir. 2001). The Board held that

“[a] traditional backpay remedy, with interest, is appropriate for

those employees who would have received spot bonuses but for

the Respondent’s unlawful conduct.” Oberthur, 362 N.L.R.B.

No. 198, at 1 n.5 (2015 Board Order). Although Oberthur

complains that the Board’s 2015 order “offers no methodology

whatsoever,” Oberthur Br. 36, the order made clear that “the

identification of employees unlawfully denied spot bonuses and

the determination of the amount they should receive, including

12

interest” will be determined at the compliance stage, 362

N.L.R.B. No. 198, at 1 n.5. And this Court has consistently

declined to consider challenges to remedial orders when the

Board has “reserve[d] the issue for later consideration.”

Scepter, Inc. v. NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006); see

E.I. Du Pont de Nemours & Co. v. NLRB, 489 F.3d 1310, 1317

(D.C. Cir. 2007). There is no reason to depart from that practice

here.

III

This brings us to Oberthur’s objections to the Board’s

disposition of the representation case. The parties’ stipulated

election agreement defined the bargaining unit as covering “[a]ll

full-time employees” working in fifteen specified departments

at the Exton plant. Stipulated Election Agreement (Aug. 8,

2012) (J.A. 91). When a representation election involves such

a stipulated agreement, “the Board’s function is to ascertain and

enforce the parties’ intent, provided that it is not contrary to any

statutory provision or established Board policy.” Halsted

Commc’ns, 347 N.L.R.B. 225, 225 (2006) (citing Caesar’s

Tahoe, 337 N.L.R.B. 1096, 1097 (2002)).

As relevant here, NLRA § 9(b)(1) bars the Board from

certifying any bargaining unit that includes both “professional”

employees -- as defined by NLRA § 2(12), 29 U.S.C. § 152(12)

-- and non-professional employees unless “a majority of such

professional employees vote for inclusion in such unit.” 29

U.S.C. § 159(b). To comport with this requirement when a

mixed unit is contemplated, the Board’s policy has long been to

utilize special ballots that ask professional employees both

whether they wish to be included in a unit with non-

professionals and whether they wish to be represented by the

union. This is known as a “Sonotone election.” San Miguel

13

Hosp. Corp. v. NLRB, 697 F.3d 1181, 1183 & n.2 (D.C. Cir.

2012); see Sonotone Corp., 90 N.L.R.B. 1236, 1240-42 (1950).

In this case, the Agreement did not specify the job titles of

covered employees. Instead, it simply stated that employees

working in fifteen of Oberthur’s departments were “[i]ncluded”

in the unit and that “[a]ll other employees, temporary and

seasonal employees, confidential employees, guards and

supervisors as defined in the Act” were “[e]xcluded.” Stipulated

Election Agreement (Aug. 8, 2012) (J.A. 91). As the ALJ noted,

although the Agreement neither expressly included nor

expressly excluded “professional employees,” 362 N.L.R.B. No.

198, at 9, it specifically set forth “non-Sonotone” language to be

used on all ballots:

“The question on the ballot will be ‘Do you wish to be

represented for purposes of collective bargaining by

GRAPHIC COMMUNICATIONS CONFERENCE

INTERNATIONAL BR OTHERHOOD OF

TEAMSTERS LOCAL 14-M?’ The choices on the

ballot will be ‘Yes’ or ‘No.’”

Stipulated Election Agreement (Aug. 8, 2012) (J.A. 92).

Because “the stipulation on its face [was] neither contrary

to Board policy nor violative of Section 9(b)(1) of the Act,” the

Board’s role was to enforce the intent of the parties. Hollywood

Med. Ctr., 275 N.L.R.B. 307, 308 (1985); see Sunrise, a Cmty.

for the Retarded, Inc., 282 N.L.R.B. 252, 252 (1986); Valley

View Hospital, 252 N.L.R.B. 1146, 1147 (1980). In light of the

stipulated ballot language and the parties’ implied agreement

(given the background rule of § 9(b)) that the bargaining unit

would include only non-professional employees, the Regional

Director administered a conventional, non-Sonotone election on

September 7, 2012.

14

The company raised no timely objections whatsoever to that

decision or to any other aspect of the election. The union, by

contrast, did raise timely objections to the ballots cast by John

DiTore and Birendra Sahijwana -- both engineers in the

company’s Quality Control department -- on the ground that

they were ineligible to vote in the representation election. The

Board agreed that both DiTore and Sahijwana could not vote in

the election because they qualified as “professional employees”

under 29 U.S.C. § 152(12), and that therefore their ballots

should not be counted. 362 N.L.R.B. No. 198, at 2 (2015 Board

Order); id. at 9-10 (ALJ Op.). It explained that, although both

employees worked in the company’s Quality Control

department, which was listed as an “[i]ncluded” department

under the Agreement, Stipulated Election Agreement (Aug. 8,

2012) (J.A. 91), their status as professional employees precluded

their inclusion in the unit because the parties had provided for a

conventional, non-Sonotone election to form a unit of only non-

professional employees.

In its petition for review, Oberthur raises two objections to

the representation election: (i) that the Board erred in concluding

that DiTore and Sahijwana were “professional employees”

under NLRA §§ 2(12) and 9(b); and (ii) that even if they were

professional employees, the representation election was invalid

because DiTore and Sahijwana were denied their rights to a

Sonotone election under Section 9(b)(1).

A

We begin with Oberthur’s timely objection to the Board’s

finding that DiTore and Sahijwana were “professional

employees” within the meaning of Sections 2(12) and 9(b). 362

N.L.R.B. No. 198, at 2 (2015 Board Order). The Board adopted

the ALJ’s findings, which the ALJ reached by applying the four

factors set forth in Section 2(12)(a) to the specific work that

15

DiTore and Sahijwana performed for the company. 362

N.L.R.B. No. 198, at 9-10 (ALJ Op.). The Board is entitled to

deference in the application of such factors. See generally

Evergreen Am. Corp. v. NLRB, 362 F.3d 827, 837-838 (D.C.

Cir. 2004); Seattle Opera v. NLRB, 292 F.3d 757, 761 (D.C. Cir.

2002).

In relevant part, Section 2(12)(a) defines “professional

employee” as:

any employee engaged in work (i) predominantly

intellectual and varied in character as opposed to

routine mental, manual, mechanical, or physical work;

(ii) involving the consistent exercise of discretion and

judgment in its performance; (iii) of such a character

that the output produced or the result accomplished

cannot be standardized in relation to a given period of

time; (iv) requiring knowledge of an advanced type in

a field of science or learning customarily acquired by

a prolonged course of specialized intellectual

instruction and study in an institution of higher

learning . . . as distinguished from a general academic

education or from an apprenticeship or from training in

the performance of routine mental, manual, or physical

processes.

29 U.S.C. § 152(12)(a). In applying these factors to the

engineers’ work, the ALJ began by explaining that DiTore was

a “Lean Engineer,” which is “a subspecialty in engineering” that

draws on “science, engineering, and applied mathematics” to

advance the goal of “mak[ing] the manufacturing process itself

more efficient.” 362 N.L.R.B. No. 198, at 9 (ALJ Op.).

Sahijwana, the ALJ noted, was a “quality engineer,” who was

responsible for ensuring “that the [company’s] products once

16

manufactured” were “without defects” and “m[e]t appropriate

standards.” Id.

The company contends that the Board and ALJ erred by

“applying a one-size-fits-all approach” to its determination that

DiTore and Sahijwana were professionals. Oberthur Br. 18. We

disagree. The ALJ specifically addressed distinct features of the

work each engineer performed and made the following findings.

First, neither engineer performed “routine or standardized”

work, since they had to make “independent use of the skills and

advanced knowledge” they “acquired through their engineering

education and work histories.” 362 N.L.R.B. No. 198, at 9-10;

see 29 U.S.C. § 152(12)(a)(i), (iii), (iv). They also had to

exercise “discretion” and “judgment” in their daily work, 29

U.S.C. § 152(12)(a)(ii), and their performance could not be

evaluated in a “standardized” fashion, id. at (iii). Their

supervisor, the ALJ noted, also held an engineering degree and

his “background in engineering enable[d] him to understand

what DiTore and Sahijwana [were] doing.” 362 N.L.R.B. No.

198, at 9. Although other employees in the Quality Control

department were “paid on an hourly basis,” id., DiTore and

Sahijwana were salaried employees. Finally, unlike the other

employees in the Quality Control department who “ha[d] high

school degrees” only, id., the work DiTore and Sahijwana

performed required “advanced” knowledge, 29 U.S.C.

§ 152(12)(a)(iv). DiTore held a bachelor’s degree in mechanical

engineering and masters degrees in business administration and

operations management, 362 N.L.R.B. No. 198, at 9; “John

DiTore LinkedIn,” (J.A. 941), while Sahijwana earned a

bachelor’s degree in engineering and masters degrees in

business and engineering, 362 N.L.R.B. No. 198, at 9.

Oberthur maintains that the Board placed unwarranted

reliance on the case of Westinghouse Electric Corp., 163

N.L.R.B. No. 96 (1967), which Oberthur thinks is

17

distinguishable from its own situation. But substantial record

evidence shows that, like the steam engineers who the Board

found were professionals in Westinghouse, DiTore and

Sahijwana performed work that (i) drew upon “specialized

technical or professional knowledge,” and (ii) required them to

lead “cooperative efforts”; and that both were (iii) “salaried,”

and (iv) “ha[d] academic degrees.” Westinghouse, 163 N.L.R.B.

No. 96, at 2-3 (1967). Accordingly, because the Board’s finding

that DiTore and Sahijwana qualified as professional employees

is supported by substantial evidence, and is “rational and in

accord with past precedent,” we uphold it. NBCUniversal

Media v. NLRB, 815 F.3d 821, 829 (D.C. Cir. 2016) (internal

quotation marks omitted).4

B

Oberthur maintains that, even if the Board did not err in

finding that DiTore and Sahijwana were “professional

employees,” the election certification was nonetheless invalid

because the two engineers were never issued Sonotone ballots.

Ordinarily, we would review the Board’s certification decision

for abuse of discretion. See 800 River Rd. Operating Co., LLC

v. NLRB, 846 F.3d 378, 386 (D.C. Cir. 2017). In this case,

however, “[w]hatever the merits of [Oberthur’s] contention, [it]

did not timely raise it before the Board.” Sundor Brands, Inc. v.

NLRB, 168 F.3d 515, 520 (D.C. Cir. 1999). Under the Board’s

rules, any objection to “the conduct of the election or to conduct

affecting the results of the election” must be made within seven

4

We also reject the company’s post-election challenge to the

ballot cast by another employee, Khalid Husain. That claim is barred

because Husain’s ballot was cast and commingled with the other

ballots before Oberthur raised any objection. See NLRB v. A.J. Tower

Co., 329 U.S. 324, 331-33 (1946); Schoolman Transp. Sys., Inc. v.

NLRB, 112 F.3d 519, 521 (D.C. Cir. 1997).

18

days after the Board’s tally of the ballots. 29 C.F.R.

§ 102.69(a). As we have said, “[t]he Board’s seven-day

deadline reflects its long-standing policy favoring finality in

election results in order to further industrial peace.” Manhattan

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

(citing A.J. Tower Co., 329 U.S. at 331-32).

The first time Oberthur raised its Sonotone argument was in

its exceptions to the decision of the ALJ, more than six months

after the deadline for making objections had passed. That is far

too late. See Tekweld Solutions, Inc., 361 N.L.R.B. No. 18, at 1

(2014). “Because the Company neither raised its objection in a

timely fashion nor alleged special circumstances that could

excuse its tardiness, the Board properly declined to consider it.”

Sundor, 168 F.3d at 520.

IV

Finally, we address the Board’s finding that the company

violated Sections 8(a)(1) and (5) by refusing to bargain with the

union and denying its information requests following

certification. Oberthur, 364 N.L.R.B. No. 59, at 2-3 (2016

Board Order). Oberthur does not deny that it did these things.

Accordingly, because we have held that “the certification was

valid, it follows apodictically that the [company’s] refusal to

bargain [and provide the requested information] violated

Sections 8(a)(1) and (5) of the Act.” San Miguel Hosp. Corp.,

697 F.3d at 1184. We therefore grant the Board’s cross-

application to enforce its 2016 order directing the company to

bargain in good faith and furnish the requested information.

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V

For the foregoing reasons, we deny Oberthur’s petition for

review and grant the Board’s applications for enforcement.

So ordered.