# Novelis Corp. v. Nat'l Labor Relations Bd.

> Court of Appeals for the Second Circuit · March 15, 2018 · 885 F.3d 100

URL: https://www.frixlaw.com/law-library/cases/4254781

## Case

- **Full name:** NOVELIS CORPORATION, Petitioner-Cross-Respondent, and John Tesoriero, Michael Malone, Richard Farrands, and Andrew Duschen, Intervenors, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** March 15, 2018
- **Citations:** 885 F.3d 100
- **Precedential status:** Published
- **Opinion:** Opinion by Parker
- **Judges:** Parker, Lynch, Carney
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

16-3076(L)
Novelis Corporation v. NLRB

In the
United States Court of Appeals
For the Second Circuit

August Term 2017
(Argued: August 28, 2017; Decided: March 15, 2018)

Nos. 16-3076 (Lead), 16-3570 (XAP)

NOVELIS CORPORATION,

Petitioner-Cross-Respondent,
and

JOHN TESORIERO, MICHAEL MALONE, RICHARD FARRANDS, and
ANDREW DUSCHEN,

Intervenors,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner,
and

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED INDUSTRIAL & SERVICE WORKERS INTERNATIONAL
UNION, AFL-CIO, CLC,

Intervenor.

Cross-petitions for review or enforcement of an order from the NLRB.
364 NLRB No. 101 (N.L.R.B.) Chairman Pearce and Members Hirozawa and McFerran.

1
Before: PARKER, LYNCH, and CARNEY, Circuit Judges.
________

Petitioner-Cross-Respondent Novelis Corporation petitions for review and
Respondent-Cross-Petitioner National Labor Relations Board petitions for
enforcement of an NLRB decision and order (364 NLRB No. 101). The NLRB found
that Novelis engaged in unfair labor practices in violation of the National Labor
Relations Act in an attempt to dissuade employees from voting for the United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial &
Service Workers International Union, AFL-CIO, CLC, as their bargaining
representative. The NLRB ordered Novelis to cease and desist from the unfair
practices and to bargain with the union. We agree with the Board’s
determination that Novelis violated Sections 8(a)(1) and 8(a)(3) of the Act, and
we grant enforcement as to most components of the Board’s order of remedial
relief. Because we conclude that the NLRB did not properly account for changed
circumstances at Novelis between the time of the unfair labor practices and its
decision and order, we deny enforcement of the bargaining order.
________

KURTIS A. POWELL & ROBERT T. DUMBACHER, Hunton &
Williams, LLP, Atlanta, GA; KENNETH L. DOBKIN, Novelis
Corporation, Atlanta, GA, for Petitioner-Cross-Respondent.

THOMAS G. ERON, Bond, Schoeneck & King, PLLC, Syracuse,
NY, for the Intervenors, John Tesoriero, et al.

USHA DHEENAN & KELLY ISBELL for RICHARD F. GRIFFIN, JR,
JENNIFER ABRUZZO, JOHN H. FERGUSON & LINDA DREEBEN,
National Labor Relations Board, Washington, D.C., for
Respondent-Cross-Petitioner.

RICHARD J. BREAN, DANIEL M. KOVALIK & ANTHONY P.
RESNICK, United Steelworkers Legal Department, Pittsburgh,
PA; BRIAN J. LACLAIR & KENNETH L. WAGNER, Blitman & King,
LLP, Syracuse, NY for the Intervenor, United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL-CIO, CLC.

2
BARRINGTON D. PARKER, Circuit Judge:

Novelis Corporation petitions for review, and the National Labor Relations

Board petitions for enforcement, of an NLRB decision and order requiring,

among other things, Novelis Corporation to bargain with the United Steel, Paper

and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service

Workers International Union, AFL-CIO, CLC (the “Union”). The Board also

ordered Novelis to take other remedial steps, such as to cease and desist from

engaging in various unfair labor practices and to reinstate a demoted employee.

We agree with the Board’s conclusion that Novelis engaged in unfair labor

practices, and we grant enforcement as to most components of the Board’s order

of remedial relief, except as noted below. Because we conclude that the Board

did not fully take into account events occurring between the time of the unfair

labor practices and its decision and order, we deny enforcement of the

bargaining order.

I. BACKGROUND

Novelis operates a facility in Oswego, New York, at which it

manufactures rolled aluminum products. In 2013, the plant employed

3
approximately 800 persons, of whom approximately 600 were eligible to vote in

unionization elections. In December 2013, management announced that,

beginning on January 1, 2014, employees would no longer receive Sunday

premium pay and that holiday and vacation days would no longer count

towards overtime eligibility.

In response to the announcement, Everett Abare, a Novelis employee, met

with James Ridgeway, the Union’s local president, to initiate an organizing

campaign. Between mid-December 2013 and early January 2014, Abare and

approximately 25 other Novelis employees conducted organizing activities and

ultimately obtained signed union authorization cards from a majority of the

eligible employees. On January 7, 2014, the Union requested voluntary

recognition from Novelis. Two days later, management announced that it was

restoring Sunday and holiday pay and distributed literature confirming that it

no longer contemplated changes to employee compensation. Following this

restoration of benefits, some employees who had signed authorization cards

requested their return.

4
On January 13, 2014, Novelis declined the Union’s demand for

recognition, and, in response, the Union petitioned the NLRB for a

representation election. Novelis aggressively resisted the organizing efforts and,

in the course of these activities, the Union contends, committed multiple unfair

labor practices. On February 17 and 18, 2014, Novelis managers held three

employee meetings at which President and CEO Phil Martens, Plant Manager

Chris Smith, and Senior Vice-President Marco Palmieri addressed employees.

Martens reminded employees that Novelis’ unionized plant in Quebec had

closed while the non-unionized Oswego plant continued to expand, and Smith

similarly suggested that unionization would lead to a loss of business. The

election was held on February 20 and 21, 2014, and Novelis prevailed by a vote

of 287 to 273.

Following the election, Abare posted a vulgar remark1 to his online

Facebook account complaining about his salary and castigating his fellow

workers who had voted against unionization. In response, Novelis demoted him.

1
That post read as follows: “As I look at my pay stub for the 36 hour check we get twice a month,
One worse than the other. I would just like to thank all the F*#KTARDS out there that voted ‘NO’
and that they wanted to give them another chance…! The chance they gave them was to screw us
more and not get back the things we lost….! Eat $hit ‘NO’ voters…..”Appendix (“A.”) 727.

5
Between January and May 2014, the Union filed multiple charges with the

Board. On May 6, 2014, the NLRB’s General Counsel issued a consolidated

complaint alleging that, in violation of the National Labor Relations Act

(“NLRA”), Novelis restored Sunday and holiday pay, interrogated and

threatened employees who favored unionization, and prohibited employees

from expressing support for the Union. Subsequently, the Union filed a charge

alleging that Novelis demoted Abare in retaliation for his pro-Union activities,

prompting the Board to file another complaint. In both complaints, the Board

argued that a bargaining order was a necessary remedy.

ALJ Michael A. Rosas heard the charges over the course of 17 days

between July and October 2014. After hearing testimony from numerous

employees (including Abare, but not the three high-level managers who spoke at

the January meetings), the ALJ largely accepted the allegations in the complaints

and concluded that Novelis had committed numerous unfair labor practices. He

found that Novelis violated Section 8(a)(1)2 by restoring Sunday and holiday

pay, removing Union literature, prohibiting employees from wearing Union

2
Section 8(a)(1) of the Act provides that it shall be an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].”
29 U.S.C. § 158(a)(1).

6
paraphernalia, and coercively interrogating employees about their Union

sympathies. He also found that Novelis threatened employees with wage loss,

plant closure, reduction in wages, and more onerous working conditions were

they to unionize. Finally, he found that Novelis violated Sections 8(a)(1) and (3)3

by demoting Abare. As relief, the ALJ recommended that the Board order

Novelis to cease and desist from its unfair labor practices and to offer to reinstate

Abare with back pay. The ALJ also stated his view that “traditional remedies . . .

would be insufficient to alleviate the impact reasonably incurred by eligible unit

employees,” and on that basis recommended the “extraordinary relief” of a

bargaining order. A. 1740.

Contemporaneously with the ALJ hearing, the Union sought substantial

temporary injunctive relief in the U.S. District Court for the Northern District of

New York, pursuant to Section 10(j) of the Act.4 Ley v. Novelis Corp., No. 5:14-CV-
3
Section 8(a)(3) of the Act provides that it shall be an unfair labor practice for an employer to
“discriminat[e] in regard to hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3).
4
Section 10(j) provides: “The Board shall have power, upon issuance of a complaint as provided
in subsection (b) [of this section] charging that any person has engaged in or is engaging in an
unfair labor practice, to petition any United States district court, within any district wherein the
unfair labor practice in question is alleged to have occurred or wherein such person resides or
transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such
petition the court shall cause notice thereof to be served upon such person, and thereupon shall
have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just
and proper.” 29 U.S.C. § 160(j).

7
77, 2014 WL 4384980 (N.D.N.Y. Sept. 4, 2014). Section 10(j) relief may be available

if a court concludes that reasonable cause exists to believe that unfair labor

practices have been committed and that the requested relief is “just and proper.”

See Mattina v. Kingsbridge Heights Rehab. & Care Ctr., 329 F. App’x 319, 321 (2d Cir.

2009). The District Court found reasonable cause to believe that Novelis had

committed unfair labor practices and that equitable considerations required

Novelis to reinstate Abare to his previous position. The Court also ordered

Novelis to post and read its decision and order to all employees. Ley, 2014 WL

4384980, at *7-*8.

The District Court refused, however, to issue an interim bargaining order,

explaining that “[w]hile there is reasonable cause to believe that ULPs were

committed, the evidence of ULPs is not overwhelming, or, at least, it is subject to

a wide range of interpretation. And the employees in the unit themselves—as

evinced by the copious declarations and confidential witness affidavits filed

herein—are obviously sharply divided over the issue of unionization.” Id. at *6.

Manager Chris Smith, accompanied by a Board agent, complied with the

District Court’s order when he read it in a series of employee meetings in

8
September 2014. In addition, Novelis restored Abare to his former position,

posted the order throughout the plant, and emailed and mailed it to employees.

Following the ALJ’s adverse decision, Novelis filed exceptions with the

Board. Novelis moved on three occasions to reopen the record, seeking to

introduce evidence of significant employee and management turnover since the

occurrence of the alleged unfair labor practices, arguing that changed

circumstances made the bargaining order inappropriate. Additionally, four

Novelis employees moved to intervene in support of the company, arguing that

the bargaining order violated their right under Section 7 to freely choose their

bargaining representative.5

In August 2016, more than two years after the Union filed its charges, the

Board adopted the ALJ’s findings and denied Novelis’ motions to supplement

the record. The Board concluded that Novelis engaged in numerous violations of

Section 8(a)(1) of the Act during the pre-election period. Most notably, the Board

found that Novelis restored Sunday and holiday pay to discourage employee

support for the Union, threatened employees if they were to vote for the Union,

selectively and disparately enforced the company’s posting and distribution
5
Section 7 provides: “Employees shall have 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.” 29 U.S.C. § 157.

9
rules, and maintained unlawful social media and email use rules.6 It also found

that Novelis violated Sections 8(a)(1) and (3) by its post-election demotion of

Abare. The Board denied Novelis’ motion to reopen the record because “[t]he

Board does not consider turnover among bargaining unit employees or

management officials and the passage of time in determining whether a Gissel

[bargaining] order is appropriate.” A. 1700 n.17. The Board maintained that

“[e]ven if we were to consider [Novelis’] evidence, it would not require a

different result” because, regardless of significant employee turnover, the

violations were so severe that a substantial number of unit employees would

recall the events and inform new employees of what transpired, thus tainting

any new election. Id. For these reasons, the Board adopted the ALJ’s remedial

recommendations, including the bargaining order. The bargaining order was

premised on NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which held that

sufficiently serious violations of the NLRA can justify an order requiring the

employer to bargain with a union that did not win an organizing election.

6
In assessing the lawfulness of Novelis’ workplace rules, the Board relied on the framework
established in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Subsequently, the Board
issued The Boeing Company, 365 NLRB No. 154, 2017 WL 6403495 (Dec. 14, 2017), which announced
a new test. The Board has moved to sever certain of the unfair labor practice charges to enable it
to reassess them in light of this change. Because the case is being remanded to the Board in any
event, the Board may assess the applicability, if any, of the change in the test to the affected charges.

10
Following the NLRB proceedings, Novelis petitioned this Court for review

and the Board cross-petitioned for enforcement. We have jurisdiction pursuant

to 29 U.S.C. §§ 160(e) and (f). For the reasons that follow, we grant in part and

deny in part each of the pending cross-petitions.

II. DISCUSSION

A. Standard of Review

“On appellate review, the Board’s findings of fact will not be overturned if

they are supported by substantial evidence on the record considered as a whole,

taking into account whatever in the record fairly detracts from its weight, but

giving due regard to the Board’s expertise.” NLRB v. Thalbo Corp., 171 F.3d 102,

112 (2d Cir. 1999). “‘Substantial evidence’ means more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” NLRB v. Quinnipiac Coll., 256 F.3d 68, 73 (2d Cir. 2001).

Under this standard, “reversal based upon a factual question will only be

warranted if, after looking at the record as a whole, we are left with the

impression that no rational trier of fact could reach the conclusion drawn by the

Board.” NLRB v. Katz's Delicatessen of Houston Street, Inc., 80 F.3d 755, 763 (2d Cir.

1996). In reviewing the Board’s legal conclusions, we consider whether they have

a “reasonable basis in law.” NLRB v. Long Island Ass’n for AIDS Care, Inc., 870

11
F.3d 82, 87 (2d Cir. 2017) (per curiam.). We review the Board’s application of law

to facts de novo, Beverly Enters., Inc. v. NLRB, 139 F.3d 135, 140 (2d Cir. 1998), and

the Board’s evidentiary rulings for abuse of discretion, NLRB v. Domsey Trading

Corp., 636 F.3d 33, 37 (2d Cir. 2011).

B. Findings of Unfair Labor Practices

As previously noted, the Board found that Novelis engaged in numerous

violations of Sections 8(a)(1) and (3) both before and after the election. The Board

concluded that several of those violations were especially serious, notably,

Novelis’ reinstatement of Sunday and holiday pay, management’s speeches to

employees, and Abare’s demotion.

Section 8(a)(1) of the Act prohibits employers from interfering with or

coercing employees in the exercise of their Section 7 rights. An employer violates

Section 8(a)(1) when it confers benefits on employees in an effort to interfere

with union organization. We have cautioned that employees are not likely to

miss the inference that the source of benefits conferred is also the source of

benefits denied. NLRB v. Whitney Museum of Am. Art, 636 F.2d 19, 22 (2d Cir.

1980). Novelis’ restoration of Sunday and holiday pay is such a benefit.

Substantial evidence supports the ALJ’s findings that the restoration of benefits

was motivated by an intention to interfere with the election.

12
Novelis’ response is that there was insufficient evidence before the ALJ to

establish that company management was aware of unionization activity at the

time of the restoration of benefits. However, the record shows otherwise. First,

the ALJ found that in a December 16 meeting, well before the restoration of

benefits, an employee told HR manager Peter Sheftic that workers might seek

Union representation, and Sheftic responded: “[W]e certain[ly] hope that we

don’t have to have a union here at this point, that we will—we’re better off doing

our own negotiating.” A. 1709. In addition, Novelis managers received a specific

warning, also before the restoration of benefits, about Union organization when

employee Dennis Parker informed supervisor Bryan Gigon that there was talk of

organization because employees were concerned about changes to their wages

and benefits. Given this evidence, the ALJ concluded that there was “sufficient

circumstantial evidence that [Novelis] knew of the incipient union campaign”

prior to January 9. A. 1729. The Board adopted that finding.

The record also establishes that, days before the election, Novelis

managers held three mandatory employee meetings, during which President and

CEO Martens, Plant Manager Smith, and Senior Vice-President Palmieri

addressed employees. In one of those meetings, Martens reminded employees

13
that Novelis’ unionized plant in Quebec had closed while the non-unionized

plant in Oswego was still expanding. In another, Smith suggested that

unionization would lead to a loss of business. He told the employees that “[t]he

next 12 months are critical. . . . [W]e’ve got an extremely demanding customer. . .

. That same customer will have options as we go forward. The last thing we want

to do is give them any reason to look elsewhere outside of Novelis, or specifically

Oswego. . . .” A. 1722.

Novelis argues that these statements were harmless, as Smith and

Martens later sent letters to employees clarifying any possible

misunderstandings regarding their comments.” Pet. Br. at 10. According to

Novelis, “[b]oth letters were unequivocal” in making clear that Smith did not

threaten job or wage loss and Martens did not threaten to close the company’s

Oswego branch. Id. However, under the deferential “substantial evidence”

standard of review, we are not compelled to accept these alternative

explanations. On the contrary, we conclude that the Board’s findings on this

issue are appropriately grounded in the record.

Novelis next challenges the Board’s findings regarding Abare’s demotion,

contending that the ALJ erred in prohibiting Novelis from introducing evidence

14
about Abare’s supervisory status. If Abare was a supervisor, then his Facebook

post would not be protected, as Section 8(a)(3) does not protect supervisors. See

NLRB v. Neenan Oil Co., L.P., 256 F.3d 311, 320 (2d Cir. 1988) (“Supervisors are not

protected under the NLRA and do not possess a right to bargain collectively.”).

The ALJ ruled that Novelis waived the supervisory defense by failing to plead it

as an affirmative defense. Novelis contends that it did plead the affirmative

defense when it averred that it “did not take any adverse action against any

employee under the Act,” and that this statement is an “obvious reference to the

Act’s definition of employee” as opposed to “supervisor.” Pet. Br. at 42

(emphasis added).

However, affirmative defenses must be specifically pled, and we are not

prepared, on this record, to hold that the ALJ abused his discretion in concluding

that this affirmative defense was not pled with sufficient specificity.

Furthermore, the ALJ concluded that this affirmative defense was proffered

late—fifteen days into the hearing—and that receiving it would require recalling

“many, if not most” of the witnesses and would cause “undue delay and unfairly

prejudice the [NLRB] and [the Union].” A. 1312. This reasoning does not

constitute an abuse of discretion.

15
Next, Novelis challenges the ALJ’s finding that Abare’s Facebook post

was protected under the Act. Specifically, Novelis argues that the Board erred in

finding that eleven Novelis employees had “liked” or commented on the post,

and, consequently, that it erred in characterizing the post as protected

“concerted” activity under Section 7. An employee’s speech is “concerted” if “it

is engaged in with the object of initiating or inducing group action.” NLRB v.

Caval Tool Div., 262 F.3d 184, 190 (2d Cir. 2001). We conclude that the Board’s

finding was grounded in substantial evidence, including Abare’s testimony and

screenshots of his Facebook post.

We also reject Novelis’ argument that, even if that post does qualify as

“concerted” activity, Novelis did not commit an unfair labor practice by

demoting Abare. Novelis argues that it ordered a demotion based on the

offensive content of Abare’s Facebook post and not based on whether the post

qualified as “concerted” activity pertaining to the unionization effort. At the time

of the demotion, Novelis contends, it did not know whether any company

employees had expressed support for Abare’s post. Novelis was clearly aware

that employees could view Abare’s post, however, because it was a Novelis

employee who brought the post to the company’s attention. In sum, we are

16
satisfied that the record adequately supports the ALJ’s findings, accepted by the

Board, of unfair labor practices.

C. Bargaining Order

In Gissel, the Supreme Court approved the issuance of a bargaining order

in two categories of cases: (1) “exceptional cases marked by outrageous

and pervasive unfair labor practices” (“Category I”), and (2) “less extraordinary

cases marked by less pervasive practices which nonetheless still have the

tendency to undermine majority strength and impede the election processes”

(“Category II”). 395 U.S. at 613-14.7 The Board concluded that Novelis’ violations

fell within Category II, and that a bargaining order was necessary “to dispel the

coercive atmosphere that [Novelis] ha[d] created.” A. 1700.

We have repeatedly held that “a bargaining order is a rare remedy

warranted only when it is clearly established that traditional remedies cannot

eliminate the effects of the employer’s past unfair labor practices.” J.L.M., Inc. v.

NLRB, 31 F.3d 79, 83 (2d Cir. 1994). Our case law dictates that a Category II Gissel

bargaining order is appropriate only when traditional remedies, such as a secret

7
Gissel provides that a Category II bargaining order is appropriate only when “there is also a
showing that at one point the union had a majority.” 395 U.S. at 614. We accept the ALJ’s finding
that a majority of the eligible employee unit had signed authorization cards before the Union
submitted a request for voluntary recognition on January 7, 2014. This fact alone is not dispositive,
however, because the Board must also account for significant changes to the workforce that
occurred between 2014 and when it issued a bargaining order.

17
ballot rerun of an election, do not suffice. We have recognized the superiority of,

and our preference for, secret ballot elections over bargaining orders. See, e.g.,

NLRB v. J. Coty Messenger Serv., Inc., 763 F.2d 92, 99 (2d Cir. 1985) (“Our

preference is always that the union representative be chosen in a free election.”);

HarperCollins San Francisco v. NLRB, 79 F.3d 1324, 1331 (2d Cir. 1996) (A

bargaining order “in lieu of a second election is only proper if, after an objective

review of all of the relevant surrounding . . . it may reasonably be concluded that

the employees will be unable to exercise a free choice in a Board-supervised

rerun election.”). Gissel itself recognizes that a bargaining order should be issued

only when unfair labor practices “make a fair election an unlikely possibility.”

395 U.S. at 579. Consequently, the Board carries a heavy burden to justify a

bargaining order in lieu of a second election.

Ironically, a bargaining order may unintentionally undermine the

employee rights it seeks to uphold. The preference for elections reflects the

important policy that employees should not have union representation imposed

on them when, by exercise of their free will, they might choose otherwise.

Indeed, Gissel emphasizes the importance of employee choice: “The Board’s

authority to issue such an order on a lesser showing of employer misconduct is

18
appropriate, we should reemphasize, where there is also a showing that at one

point the union had a majority; in such a case, of course, effectuating

ascertainable employee free choice becomes as important a goal as deterring

employer misbehavior.” 395 U.S. at 614.

Here, the Board did not sufficiently account for employee choice when it

afforded far too little weight to changed circumstances in determining whether a

rerun election would likely be fair. In June 2015, Novelis moved to reopen the

record to introduce evidence of significant employee and management turnover.

Novelis then filed supplemental motions in January and August of 2016, further

addressing changed circumstances. The Board denied those motions. The Board

sought to justify that result by contending that it “does not consider turnover

among bargaining unit employees or management officials and the passage of

time in determining whether a Gissel order is appropriate. . . . Rather, the Board’s

established practice is to evaluate the appropriateness of a bargaining order as of

the time the unfair labor practices were committed.”A. 1700 n.17. The Board went

on to state that “[e]ven if [it] were to consider [Novelis’] evidence, it would not

require a different result.” Id.

19
The Board’s justifications for denying Novelis’ motions to reopen the

record and failing to properly consider changed circumstances directly contradict

the law of this Circuit. We have held that the relevant circumstances must be

measured at the time of the issuance of a bargaining order and not at the time of

the election. See, e.g., NLRB v. Marion Rohr Corp., Inc., 714 F.2d 228, 231 (2d Cir.

1983) (“The Board must show that the bargaining order is appropriate when it is

issued, not at some earlier date.”); J.L.M., 31 F.3d at 84 (“The ultimate analysis

must focus on whether a bargaining order is appropriate under the conditions

facing the Board at the time of its decision.”). Consideration of events occurring

after pre-election unfair labor practices are a mandatory part of the analysis even

in cases involving much more serious and coercive misconduct than was alleged

to have occurred here. NLRB v. Heads & Threads Co., 724 F.2d 282, 289 (2d Cir.

1983). We have consistently vacated Board-issued bargaining orders where the

Board failed to consider the impact of changed circumstances, including

employee turnover, management turnover, and the passage of time. See, e.g.,

HarperCollins, 79 F.3d at 1332-33; Kinney Drugs v. NLRB, 74 F.3d 1419, 1432 (2d

Cir. 1996); J.L.M., Inc., 31 F.3d at 83-85; J. Coty Messenger Serv., Inc., 763 F.2d at

100-01; NLRB v. Windsor Indus., Inc., 730 F.2d 860, 866 (2d Cir. 1984); NLRB v. Pace

20
Oldsmobile, Inc., 739 F.2d 108 (2d Cir. 1984); NLRB v. Knogo Corp., 727 F.2d 55 (2d

Cir. 1984); NLRB v. Chester Valley, Inc., 652 F.2d 263, 273 (2d Cir. 1981); J.J.

Newberry Co. v. NLRB, 645 F.2d 148 (2d Cir. 1981); NLRB v. Jamaica Towing, Inc.,

632 F.2d 208 (2d Cir. 1980).

In light of that well-established precedent, the Board issuing a bargaining

order instead of requiring a new election is not proper. First, the Board did not

adequately account for Novelis’ remedial actions. The record reflects that Novelis

fully complied with the District Court’s 10(j) order, which required a public

reading of the order to all employees, publication of the order throughout the

plant, and reinstatement of Abare. The 10(j) order in and of itself suggests the

unlikelihood of reoccurring unfair practices. We are not prepared to presume

that a company would commit new violations when faced with an existing

federal court order and potential contempt proceedings. Indeed, the Board itself

has long held that traditional remedies, such as public readings, are an “effective

but moderate way to let in a warming wind of information and, more important,

reassurance.” U.S. Serv. Indus., Inc., 319 NLRB 231, 232 (1995); see also N. Mem’l

Health Care, 364 NLRB No. 61 (2016) (ordering reading of public notice “[t]o

dissipate as much as possible any lingering effect of [] Respondent’s serious and

21
widespread [unfair labor practices] and enable employees to exercise their

Section 7 rights free of coercion . . . .”). Tellingly, although the District Court

issued potent remedies, it concluded that a bargaining order was a bridge too far

because it did not believe that such an order necessarily best reflected employee

choice. Ley, 2014 WL 4384980, at *6.

Second, the Board did not account for the passage of two years between

the February 2014 election and the Board’s decision and order. This failure is

critical because a “substantial lapse of time casts doubt on whether the employee

preference for the union expressed . . . through authorization cards, still

reflect[s the] majority will,” Knogo Corp., 727 F.2d at 60, and also because the

passage of time “sheds doubt on the Board’s finding that . . . employees continue

to feel the effects of the ULPs,” J.L.M., Inc., 31 F.3d at 85. In addition to the

possibility that employees may have forgotten the incidents, enough time may

have passed to have at least made the chance of a fair rerun election a real

possibility.

Third, the Board ignored the turnover of company leadership, merely

noting that “[Novelis’] ownership” remains the same and “some” of the

management personnel who engaged in unfair labor practices remain employed

22
by the Company. A. 1700 n.17. Those conclusions are not supported by

substantial evidence. Had the Board admitted Novelis’ important evidence on

this point, it would have had to consider that Martens, the former President and

CEO of Novelis and the speaker who made threatening remarks at the meetings,

left the Company in April 2015, and that another speaker, Smith, left in April

2016.

Fourth, and most importantly, the Board failed to consider employee

turnover since the election. According to Novelis’ proffer, between the election

and the Board’s decision, the Oswego facility expanded into a third production

line and hired 255 new employees who would be included in the proposed

bargaining unit. Additionally, 84 of the 599 individuals who were eligible to vote

in the February 2014 election are no longer in the bargaining unit for reasons

including resignation, promotion, or retirement. The expansion and turnover

means that approximately one-third8 of Novelis employees who would be subject

to the bargaining order, many of whom had never signed authorization cards,

had no connection or exposure to the unfair labor practices. In prior cases, this

8
This percentage was derived by dividing the number of “new” employees at the time of the
bargaining order (255) by the total number of employees in the bargaining unit at that time (770).
The Union disputes this methodology, and suggests alternative calculations. We need not reconcile
these differences because under the calculations proposed by both parties the turnover was
significant.

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Court found that similar levels of turnover compelled us to deny enforcement of

bargaining orders. See, e.g., Marion Rohr Corp., Inc., 714 F.2d at 231 (bargaining

order denied due to 35% turnover); Chester Valley, 652 F.2d at 263 (34% turnover

led to denial of bargaining order).

The significant turnover leads us to conclude that it is inappropriate to

impose union membership without a reasoned finding, absent here, that a new,

fair election more than three years after the violations is not reasonably possible.

We do not for a minute wish to diminish the seriousness of the violations that the

Board found and that we uphold. But “[e]ven in the case of serious and coercive

unfair labor practices, mitigating circumstances subsequent to the unlawful acts,

such as employee turnover or new management, may obviate the need for a

bargaining order.” Heads & Threads Co., 724 F.2d at 289.

III. CONCLUSION

Accordingly, we grant in part and deny in part Novelis’ petition for

review and the Board’s cross-petition for enforcement. Specifically, (1) we grant

enforcement of the Board’s order, except for the portion which concerns Novelis’

social media policy, which may be reconsidered on remand; (2) we deny

enforcement of the portion of the Board’s order which directs Novelis to bargain

with the Union; and (3) we remand the case to the Board for further proceedings

consistent with this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4254781. Public record. Not legal advice.