Veritas Health Servs., Inc. v. Nat'l Labor Relations Bd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 14, 2017 Decided July 10, 2018

No. 16-1058

VERITAS HEALTH SERVICES, INC., D/B/A CHINO VALLEY

MEDICAL CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF

HEALTH CARE PROFESSIONALS, NUHHCE, AFSCME,

AFL-CIO,

INTERVENOR

Consolidated with 16-1076, 16-1110

On Petitions for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Jamie Konn argued the cause for petitioner Veritas Health

Services, Inc. With him on the briefs was Jonathan Batten.

Glenn M. Taubman argued the cause for petitioner Jose

Lopez, Jr. With him on the briefs was Amanda K. Freeman.

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Barbara A. Sheehy, Attorney, National Labor Relations

Board, argued the cause for respondent. On the brief were

Richard F. Griffin, Jr., General Counsel at the time the brief

was filed, John H. Ferguson, Associate General Counsel at the

time the brief was filed, Linda Dreeben, Deputy Associate

General Counsel, Julie Broido, Supervisory Attorney, and

Gregoire Sauter, Attorney.

Pamela Devi Chandran argued the cause for intervenor.

On the brief was Jay Smith.

Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Concurring opinion filed by Circuit Judge MILLETT.

PILLARD, Circuit Judge: In 2010, nurses at Chino Valley

Medical Center exercised their right under federal labor law to

elect a union to represent them. In the ensuing eight years,

Chino has resisted the Union and the nurses who elected it—in

the workplace, before the National Labor Relations Board, and

in court. Instead of coming to any labor agreement, Chino

repeatedly violated the nurses’ rights in its efforts to avoid

dealing with their chosen representative: Chino threatened,

coerced, and retaliated against the nurses—up to and including

firing a nurse in retaliation for his visible support of the Union

—and for several years Chino refused to commence bargaining

with the Union, until we enforced the Board’s order requiring

it do so.

The National Labor Relations Board (Board or NLRB)

held, in three separate orders, that Chino’s management

(incorporated under the name Veritas Health Services, Inc. but

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referred to in this opinion as Chino) violated the National Labor

Relations Act (Act or NLRA), 29 U.S.C. §§ 158(a)(1), (5), and

we and the Ninth Circuit have already granted the Board’s prior

petitions to enforce the first two orders. See Veritas Health

Servs., Inc. v. NLRB, 671 F.3d 1267 (D.C. Cir. 2012) (Veritas

I); United Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767 (9th

Cir. 2017) (Veritas II). Chino’s failed challenges to the

Board’s orders have caused many years of delay and

effectively stonewalled the nurses’ chosen representative, the

United Nurses Association of California/Union of Healthcare

Professionals (Union). As recently as 2017, Chino’s confirmed

unfair labor practices had yet to be remedied. Now, eight years

after the Union’s election, collective bargaining remains in

limbo, with the nurses still awaiting their first labor contract.

We consider here whether, in the midst of Chino’s

repeated challenges to the Board’s orders, and with the Union

on the verge of securing its first contract, Chino could lawfully

withdraw recognition from the Union—or whether, as the

Board found, its refusal to bargain constituted yet another

unfair labor practice. See Veritas Health Servs., Inc., 363

NLRB No. 108, 2016 WL 453588 (2016) (Board Order), Joint

App’x (J.A.) 1-13. We also consider whether to enforce the

Board’s chosen remedies and whether an employee opposed to

the Union had a right to intervene in the proceedings below.

We conclude that federal law did not permit Chino to withdraw

recognition from the Union when it did, that the Board’s

remedies (except one) should be enforced, and that the would-

be intervenor suffered neither prejudice nor a deprivation of his

due process rights when the Board declined to expand this case

to encompass his claim.

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I. Background

This dispute reaches back to April 2010, when Chino’s

nurses voted, 72 to 39, in favor of the Union as their collective

bargaining representative. In the months leading up to the

election, Chino committed multiple serious unfair labor

practices, as found by the Board and sustained by the Ninth

Circuit. Veritas II, 871 F.3d at 772; see also Veritas Health

Servs., Inc., 359 NLRB No. 111, 2013 WL 1952152 (2013), re-

adopted, 362 NLRB No. 32, 2015 WL 1278687 (2015). Those

violations included threatening to cut back on nurses’ vacation

benefits and flexible scheduling, and even to shut down the

hospital and to fire employees, if the nurses voted to unionize.

Veritas Health Servs., Inc., 359 NLRB No. 111, 2013 WL

1952152, at *9-11. A top executive also surveilled,

interrogated, and threatened to discipline workers who openly

supported the Union. Id. at *11-12.

After the representation election, Chino committed still

more unfair labor practices—implementing, in effect, a

“general crackdown.” Id. at *26. Chino’s chief executive

officer “announced the end of the family atmosphere at Chino,”

telling the nurses that “henceforth, because the employees

voted for the Union,” the hospital “would begin strictly

enforcing its policies and procedures.” Id. at *14. True to pre-

election threats, management reduced the nurses’ vacation

flexibility and curtailed benefits. Id. at *12, *34. Chino

refused to provide the newly elected Union with basic

information, such as employee names and contact information,

that the Union needed to perform its duties. Id. at *36. And,

within a few weeks of the election, Chino’s management fired

a nurse who was a visible Union supporter on the pretext that

he had violated a patient’s privacy. Id. at *16-29; see Veritas

II, 871 F.3d at 779 (finding “all the hallmarks of a pretextual

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firing” and “overwhelming evidence that [Chino] acted with a

discriminatory motive in firing” the Union supporter).

The Union successfully challenged these unfair labor

practices before the Board, and an NLRB Administrative Law

Judge (ALJ) ordered Chino to restore its pre-unionization

policies, to give the Union the withheld information, and to

reinstate the nurse it had fired. Veritas Health Servs., Inc., 359

NLRB No. 111, 2013 WL 1952152, at *40-42. Chino appealed

to the Board and then to the Ninth Circuit—leaving the

company’s unfair labor practices unremedied until 2017, when

that court denied its petition for review.

Meanwhile, Chino also refused to bargain with the newly

elected Union. The Union, in response, sought Board

enforcement of the representation election results and an order

compelling Chino to come to the bargaining table. See Veritas

Health Servs., Inc., 356 NLRB No. 137, 2011 WL 1396024

(2011). The Board held that Chino had unlawfully refused to

recognize the Union; we enforced its order in March of 2012

and required Chino to bargain. See Veritas I, 671 F.3d at 1271,

1274.

Within a week of our decision, on March 20, 2012, the

Union contacted Chino, requesting the documents that Chino

had refused to provide two years earlier. On March 22, Chino

provided some, but not all, of the requested documents. The

Union’s chief negotiator responded that the Union would

“review[] the information,” “proceed[] with preparations for

bargaining,” and “provide suggested bargaining dates” at some

point “in the near future.” J.A. 283. Chino’s point person for

the negotiations responded: “That’s fine. Please let me know

the available dates you have for negotiations so we can get

started right away.” Id.

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The next correspondence in the record is an April 20 letter

from the Union’s chief negotiator to Chino’s, proposing a

dozen possible bargaining dates in June and July. The parties

promptly agreed to bargain on several of those dates, including

the earliest one proposed by the Union, June 13, 2012. As far

as the record reveals, Chino never objected to the Union’s

proposed timeline, raised any concerns about the pace of

preparations, or asked for any earlier bargaining date. The

Board later found that the three-month period between this

court’s order and the start of bargaining was warranted by the

Union’s need to “engage in extensive preparation work,”

including verification of current membership following “much

turnover in the bargaining unit” since the election, and the

complete lack of “information provided to the Union” during

the two years Chino fought recognition. Board Order at 6 (J.A.

6).

Bargaining began as scheduled on June 13, 2012, after

which the parties continued to meet and to bargain for nearly a

year. Over the course of more than two dozen meetings the

parties agreed on many contract terms but, in June 2013,

remained apart on four—including, most prominently,

compensation. At that point, Chino’s most recent

compensation proposal, from May 24, 2013, was on the table,

and the Union had not yet accepted it.

Things came to a head on June 10, 2013. With the one-

year anniversary of bargaining fast approaching—a milestone

that was legally significant for reasons that will become clear—

the Union informed Chino at 3:41 p.m. that it was accepting the

May 24 compensation proposal and acceding to Chino’s

outstanding requests on the remaining terms.

At 5:09 p.m. on that same day, Chino’s chief labor

negotiator informed the Union via e-mail that Chino had

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received a “decertification petition” apparently showing that a

majority of the bargaining-unit nurses no longer wanted the

Union to represent them. Citing loss of majority support for

the Union, Chino abruptly withdrew recognition from the

Union and refused to acknowledge any deal or to continue

bargaining. 1 The Union again filed unfair labor practice

charges challenging Chino’s withdrawal of recognition and

refusal to bargain. The ALJ rejected Chino’s effort to

subpoena various internal Union records, and denied a motion

to intervene filed by bargaining unit member nurse Jose Lopez,

who sought to testify in support of the decertification petition.

Evidence introduced at a hearing before the ALJ detailed

the parties’ bargaining history, including the timing and

circumstances of Chino’s withdrawal of recognition. The

decertification petition, however, was never introduced in

evidence. Chino expressed interest in introducing the petition

and, if necessary, calling Lopez to authenticate it. But the

Board’s General Counsel and the Union would not stipulate to

the petition’s authenticity, triggering a lengthy back-and-forth

with the ALJ over how Chino could authenticate it. After a

brief recess, the ALJ ruled on the question. The parties dispute

the substance of that ruling, but agree about its result: Chino’s

lawyers briefly huddled and, without further discussion,

withdrew Chino’s request to submit the decertification petition

1

On June 13, the one-year anniversary of the parties’ first bargaining

session, Chino sent a follow-up letter “revoking and rescinding” its

June 10 recognition-withdrawal communication, but again refusing

to acknowledge that any deal had been struck or to continue

bargaining. J.A. 311; see also Board Order at 7 (J.A. 7). The ALJ

and the Board found that Chino’s June 10 letter constituted

withdrawal of recognition from the Union. Chino never challenged

that factual finding. We thus treat the June 10 letter as the operative

withdrawal of recognition, notwithstanding Chino’s June 13 letter

purporting to “rescind[]” it.

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as evidence and rested without calling Lopez or any further

witness.

At the close of the hearing, the ALJ ruled in favor of the

Union, concluding on three independent and alternative

grounds that the proffered decertification petition did not

justify Chino’s withdrawal of recognition. Board Order at 7-9

(J.A. 7-9). The ALJ ordered Chino to bargain with the Union

“on the only remaining unresolved subject, the effective date

of the agreement,” id. at 9; cease and desist from “like or

related” interference with its employees’ rights, id. at 12; post

and read aloud a notice to its employees, id.; and pay the

Union’s litigation costs and expenses, id. at 10-11.

The Board affirmed the ALJ’s decision and adopted his

order in essentially all respects, including all three independent

grounds for holding that Chino unlawfully withdrew its

recognition of the Union: (1) because Chino withdrew

recognition within the parties’ first year of bargaining; (2)

because Chino withdrew while its prior and still-unremedied

unfair labor practices continued to affect employee sentiment

toward the Union; and (3) because the decertification petition

never came into evidence. Id. at 1 n.3. The Board also

sustained the ALJ’s denial of intervention to Lopez. The Board

supplemented the ALJ’s prescribed remedies, broadening the

cease-and-desist order to forbid any future interference with

employees’ collective bargaining rights; requiring Chino’s

notice to its employees to be mailed as well as posted; and

imposing a general affirmative bargaining order.

Without first seeking reconsideration of the Board’s

ruling, Chino petitioned this court for review. Lopez, too,

petitioned for review of the order insofar as it denied him

intervention.

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II. Chino’s Petition for Review

According the Board the requisite deference, we first

consider whether it permissibly concluded that Chino’s

withdrawal of recognition from the Union was an unfair labor

practice, and we uphold that determination on two independent

grounds. We then consider and reject most of Chino’s

challenges to the Board’s remedies for that violation.

A. Standard of Review

We give considerable deference to the Board’s

adjudications and reverse its findings “only when the record is

‘so compelling that no reasonable factfinder could fail to find’

to the contrary.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d

929, 935 (D.C. Cir. 2011) (quoting United Steelworkers of Am.

v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)). We thus uphold

the Board’s decisions unless it “relied upon findings that are

not supported by substantial evidence, failed to apply the

proper legal standard, or departed from its precedent without

providing a reasoned justification for doing so.” E.I. Du Pont

De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C. Cir. 2012).

In particular, we defer to the Board’s well-reasoned

“interpretation of its own precedent,” Ceridian Corp. v. NLRB,

435 F.3d 352, 355 (D.C. Cir. 2006) (collecting cases), as well

as “the Board’s application of law to facts” and any reasonable

inferences it draws from those facts, Allied Mech. Servs., Inc.

v. NLRB, 668 F.3d 758, 764 (D.C. Cir. 2012).

We review the Board’s denial of an administrative

subpoena for abuse of discretion. See SSC Mystic Operating

Co. v. NLRB, 801 F.3d 302, 330 (D.C. Cir. 2015); Joseph T.

Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1153-54 (D.C.

Cir. 2000). A party asserting that the Board impermissibly

failed to enforce the party’s subpoena must show prejudice

from the denial. See Ozark Auto. Distribs., Inc. v. NLRB, 779

10

F.3d 576, 585-86 (D.C. Cir. 2012); Joseph T. Ryerson & Son,

216 F.3d at 1154.

B. Chino’s Withdrawal of Recognition

Violated the Act

Chino here challenges the Board’s determination that

Chino’s withdrawal of recognition from, and refusal to bargain

with, the Union violated Sections 8(a)(1) and 8(a)(5) of the

NLRA, 29 U.S.C §§ 158(a)(1), (5).

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

recognize and bargain with the labor organization chosen by a

majority of its employees.” Pac. Coast Supply, LLC v. NLRB,

801 F.3d 321, 325 (D.C. Cir. 2015); see 29 U.S.C. § 158(a)(5).

Any failure by an employer to abide by the requirements of

Section 8(a)(5) also violates Section 8(a)(1), which prohibits

“interfer[ing] with, restrain[ing], or coerc[ing] employees in

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

Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 546 (D.C.

Cir. 2016) (alterations in original) (quoting 28 U.S.C.

§ 158(a)(1)). Section 7, in turn, guarantees employees’ right to

“bargain collectively through representatives of their own

choosing.” 29 U.S.C. § 157.

“Under longstanding Board precedent, when a union is

recognized as the collective-bargaining representative of a unit

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

enjoys the support of a majority of the represented employees.”

Pac. Coast Supply, LLC, 801 F.3d at 325-26 (citing Auciello

Iron Works, Inc. v. NLRB, 517 U.S. 781, 785-87 (1996)). This

presumption is ordinarily rebuttable: An employer “may

unilaterally withdraw recognition” without violating the Act if

it “has objective evidence that a union has lost majority

support, such as a petition signed by a majority of the

employees in the bargaining unit.” Tenneco Auto., Inc. v.

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NLRB, 716 F.3d 640, 648 (D.C. Cir. 2013) (internal quotation

marks omitted). But “[a]n employer’s ‘privilege’ to withdraw

recognition based on a petition from a majority of employees

‘is not absolute.’” Enter. Leasing Co., 831 F.3d at 549 (quoting

SFO Good-Nite Inn, LLC v. NLRB, 700 F.3d 1, 6 (D.C. Cir.

2012)). The Board invoked three such limits on that privilege

as justification for its decision here.

First, there are certain times when a union’s presumption

of majority support is irrebuttable, such that any refusal to

recognize and deal with a duly elected union—with or without

a decertification petition—will violate the Act. See Auciello

Iron Works, 517 U.S. at 786; Pac. Coast Supply, 801 F.3d at

326. As relevant here, there is an irrebuttable presumption of

majority support during the first year after a union gains

recognition, the so-called “certification year” bar. See Auciello

Iron Works, 517 U.S. at 786; Brooks v. NLRB, 348 U.S. 96, 104

(1954); Chelsea Indus., Inc. v. NLRB, 285 F.3d 1073, 1075

(D.C. Cir. 2002). That window of detente promotes “stability

in collective-bargaining relationships,” allowing a union “to

concentrate on obtaining and fairly administering a collective-

bargaining agreement without worrying about the immediate

risk of decertification,” and relieving the employer of “any

temptation . . . to avoid good-faith bargaining in an effort to

undermine union support.” Auciello Iron Works, 517 U.S. at

786 (internal quotation marks omitted) (quoting Fall River

Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987));

see also Brooks, 348 U.S. at 99-100.

Second, a decertification petition may be temporarily

presumed unreliable—and thus not actionable by the

employer—if the employer’s past unfair labor practices

“significantly contribute[d] to the loss of majority status.”

Tenneco Auto., 716 F.3d at 648 (quoting Williams Enters., Inc.

v. NLRB, 956 F.2d 1226, 1234 (D.C. Cir. 1992)); see also

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Enter. Leasing Co., 831 F.3d at 549. In other words, if erosion

of workers’ support for a union is “tainted” by an employer’s

prior bad acts, that taint renders the union’s presumption of

continuing majority support temporarily conclusive: An

employer that might otherwise be allowed to act upon a

decertification petition is barred from doing so while the effects

of its own unfair labor practices linger. BPH & Co., Inc. v.

NLRB, 333 F.3d 213, 218 (D.C. Cir. 2003); see Master Slack

Corp., 271 NLRB 78, 84 (1984). This rule prevents employers

from benefiting from illegal acts that are demonstrably “of a

character as to either affect the Union’s status, cause employee

disaffection, or improperly affect the bargaining relationship

itself.” Master Slack, 271 NLRB at 84.

Third, even when the presumption that a duly elected

union continues to represent a majority of employees is fully

rebuttable, the employer must bear the burden to show “actual

loss of majority support”; it may not rely on a general

suspicion. Levitz Furniture Co., 333 NLRB 717, 725 (2001).

The Board invoked all three of these grounds in holding

Chino’s withdrawal of recognition unlawful. Board Order at

1 n.3 (J.A. 1). As discussed below, each of the first two

conclusions is supported by substantial evidence, and they

independently—whether separately or together—provide

ample basis for denying Chino’s petition and enforcing the

Board’s order. We therefore need not consider Chino’s third

argument: that Chino was unlawfully prevented from showing

a loss of majority support for the Union, because the ALJ

abused his discretion in preventing Chino from introducing and

authenticating Lopez’s decertification petition.

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1. Chino Withdrew Recognition During the

“Certification Year”

Chino first contends that the Board erred in concluding

that it unlawfully withdrew recognition during the certification

year, when the Union’s presumption of majority support was

irrebuttable. The Board found that the certification year ran

from June 13, 2012—the date of the parties’ first bargaining

session—and thus was still in effect when Chino withdrew

recognition and ceased bargaining on June 10, 2013. Id. at 8.

Chino does not dispute that its withdrawal of recognition was

unlawful if the certification year in fact ran from June 13, 2012.

Instead, Chino contends that the certification year in fact began

on an earlier date, and thus had already expired before its June

10, 2013, withdrawal of recognition.

The Board’s prior order that we enforced—directing

Chino to participate in the bargaining at issue here—specified

that the certification year bar would be extended, to begin on

“the date the Respondent begins to bargain in good faith with

the Union.” Veritas Health Servs., Inc., 356 NLRB No. 137,

2011 WL 1396024, at *2. Such extensions are a standard

remedy when an employer’s refusal to bargain has consumed

all or a substantial part of the original post-election certification

year. Dominguez Valley Hosp., 287 NLRB 149, 149 (1987);

see Local Union No. 2338, Bhd. of Elec. Workers, 499 F.2d

542, 544 & n.3 (D.C. Cir. 1974); Mar-Jac Poultry Co., 136

NLRB 785, 786 (1962).

Under the Board’s decision in Dominguez Valley Hospital

(which the parties agree governs here), the so-called “extended

certification year” runs from the date of the parties’ first formal

bargaining session. 287 NLRB at 150; see also Van Dorn

Plastic Mach. Co. v. NLRB, 939 F.2d 402, 404 (6th Cir. 1991).

Here, that first bargaining session occurred on June 13, 2012.

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Considered by reference to that date, Chino’s withdrawal from

bargaining on June 10, 2013—three days shy of a year later—

was barred as premature. See Chelsea Indus., 285 F.3d at 1075.

Chino nevertheless argues that a narrow exception

articulated in Dominguez Valley Hospital renders its

withdrawal lawful. Under Dominguez Valley Hospital, a

“significant delay in the commencement of bargaining

attributable to inexcusable procrastination or other

manifestations of bad faith” on the Union’s part may support

measuring the extended certification year from an earlier start

date. 287 NLRB at 150; see also Van Dorn Plastic Mach. Co.,

300 NLRB 278, 279 (1990) (acknowledging exception for

“unwarranted delay”). That exception, however, does not

apply here. Chino’s petitions disputing the Union’s status

consumed nearly two years, but bargaining commenced within

three months of our Veritas I opinion denying Chino’s first

petition. Where, as here, an employer comes to the bargaining

table under court order years after a union’s election, the NRLB

has consistently held, and courts of appeals affirmed, that it can

be entirely appropriate for the union to take three months to

prepare to bargain. See Virginia Mason Med. Ctr., 350 NLRB

923, 935-36 (2007), enf’d, 558 F.3d 891, 895 (9th Cir. 2009);

Van Dorn Plastic Mach., 300 NLRB at 280, enf’d, 939 F.2d

402, 405 (6th Cir. 1991). Of particular relevance, here the

Union and Chino promptly corresponded with one another, the

Union proposed mid-June as a reasonable time to commence

negotiations, and Chino accepted the June 13 date without

protest. And during the time leading into negotiations, Chino

made no suggestion to the Union that its proposed dates were

too late or that the Union was in any way dragging its feet—an

important omission under the Board’s precedent. See Virginia

Mason Med. Ctr., 350 NLRB at 935-36. Under these

circumstances, the Union’s three months of preparation was

15

not delay, much less “unwarranted” delay. See Van Dorn

Plastic Mach., 300 NLRB at 279.

Chino nevertheless assails the Board’s finding that there

was no unwarranted delay. The ALJ (affirmed by the Board)

prevented it from building a record of procrastination or bad

faith, Chino contends, by denying its request to subpoena

internal Union communications concerning the scheduling of

bargaining. Even assuming such evidence would be

discoverable, the ALJ did not abuse his discretion in quashing

the subpoena requests at issue. As discussed above, the Board

has made clear that three months—the time that elapsed here—

is a reasonable period to prepare for bargaining under

circumstances like these. Dominguez Valley Hosp., 287 NLRB

at 149-50 & n.1; see Van Dorn Plastic Mach., 300 NLRB at

280; Virginia Mason Med. Ctr., 350 NLRB at 935-36. This

case is unlike Ozark Automotive Distributors, 779 F.3d 576, in

which we held an ALJ’s flawed subpoena denial was an abuse

of discretion because the missing evidence prejudiced a critical

element of that case. See id. at 581-83. The ALJ here, in

contrast, permissibly concluded that the Union was “fairly

entitled to” the three months it took, Van Dorn Plastic Mach.,

939 F.2d at 405, thereby rendering any internal Union

communications about scheduling “irrelevant,” Order Denying

Respondent’s Petition to Revoke Subpoena at 3-4 (Nov. 17,

2014) (J.A. 150-51).

Attempting to recast three months as an unreasonable

delay, Chino cites two cases—Hudson Chemical Co., 258

NLRB 152, 157 (1981), and Wright Motors, Inc., 237 NLRB

570, 575 (1978)—in which the Board faulted employers for

refusing to commence bargaining for periods of three months

or less. But those cases ask the legally distinct question

whether the employers had violated their statutory obligations

to “meet at reasonable times” and to bargain in good faith.

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Hudson Chem., 258 NLRB at 157; Wright Motors, 237 NLRB

at 575. Neither case purports to interpret or to apply the

Dominguez Valley Hospital exception for unwarranted delays

by a union preparing for initial bargaining, and neither raises

any doubt that three months was reasonable given the

circumstances the Board confronted here.

The Board reasonably determined that the extended

certification year began on June 13, 2012. The ALJ did not

abuse his discretion in denying Chino’s subpoena, and the

Union did not delay in coming to the bargaining table. The

Board thus validly held that Chino’s withdrawal of recognition

on June 10, 2013, was within the certification year and so

unlawful.

2. Chino’s Unfair Labor Practices “Tainted” Any

Loss of Majority Support

We also consider Chino’s challenge to the Board’s second,

independent basis for finding its withdrawal of recognition

unlawful: that the employer’s many unremedied unfair labor

practices during and after the election tainted the June 2013

decertification petition. Chino contends that the Board

misapplied precedent governing when an unfair labor practice

taints a subsequent decertification effort. An employer’s unfair

labor practices taint a union’s loss of majority support where

there is a “causal nexus” between the two. Williams Enters.,

956 F.2d at 1235. The Board thus bears “the burden of

adducing substantial evidence to support its finding that an

employer’s unfair labor practices have significantly

contributed to the erosion of a union’s majority support.”

Tenneco Auto., 716 F.3d at 648 (internal quotation marks

omitted).

The parties agree that the presence or absence of a causal

nexus between unfair labor practices and a union’s loss of

17

majority support is determined under the test set forth in Master

Slack, 271 NLRB 78. See Tenneco Auto., 716 F.3d at 648; BPH

Co., 333 F.3d at 218; Williams Enters., 956 F.2d at 1236. To

guide the Board in distinguishing between employees’

disaffection for a union due to its own poor performance, and

disaffection because of the employer’s labor law violations, the

Master Slack test describes four overlapping factors:

(1) The length of time between the unfair labor

practices and the withdrawal of recognition; (2) the

nature of the illegal acts, including the possibility of

their detrimental or lasting effect on employees; (3)

any possible tendency to cause employee disaffection

from the union; and (4) the effect of the unlawful

conduct on employee morale, organizational

activities, and membership in the union.

271 NLRB at 84. The Board applies the Master Slack test to

determine when a decertification petition should not be taken

to reflect the voluntary choice of a bargaining unit’s employees

because it was signed in an atmosphere rendered threatening or

coercive by an employer’s unfair labor practices.

The Master Slack test allows parties to focus on objective

and readily discernible considerations. It calls on the Board to

consider the nature and timing of the unfair labor practices as

they bear on the reasonable likelihood of discouraging

employees under a given set of circumstances from continuing

to support their union. Even though Master Slack refers to the

“effect” of employers’ misconduct on employees’ “morale,”

the Board does not read it to license intrusive direct probing of

the specific employees’ subjective attitudes. Instead, the Board

has held that “it is the objective evidence of the commission of

unfair labor practices that has the tendency to undermine the

Union, and not the subjective state of mind of the employees,

18

that is the relevant inquiry in this regard.” AT Sys. West, Inc.,

341 NLRB 57, 60 (2004); see Wire Prods. Mfg. Corp., 326

NLRB 625, 627 & n.13 (1998) (looking to violations’

“foreseeable tendency to weaken employee support for the

Union” as reasonable basis “to infer that they contributed to the

employee disaffection,” and specifying that the causation

analysis does not require a showing of “actual knowledge by

the employees of the unfair labor practices”).

Here, the Board relied on substantial—indeed, very

robust—evidence going principally to the first three factors to

find that Chino’s past unfair labor practices tainted any

decertification petition. On the second and third factors, the

Board found that Chino’s unremedied unfair labor practices

were “numerous” and “egregious”; they included multiple

“hallmark violations” and were precisely “the sort that cause

disaffection among employees.” Board Order at 8 (J.A. 8).

Chino’s retaliatory termination of a prominent Union supporter

was, the Board found, “especially coercive” and “not likely to

be forgotten, even over a period of years.” Id. at 7 (citing Penn

Tank Lines, Inc., 336 NLRB 1066, 1067-68 (2001); Koons

Ford of Annapolis, 282 NLRB 506, 508 (1986); and United

Supermarkets, Inc., 287 NLRB 119, 120 (1987)). Chino’s

threat to shutter the hospital and its curtailment of employee

benefits also constitute “the types of violations that have

detrimental and lasting effects.” Tenneco Auto., 716 F.3d at

650. Accordingly, the second and third Master Slack factors—

the nature of the unfair labor practices and their tendency to

cause disaffection from the Union—weighed heavily in favor

of the Board’s conclusion that Chino’s prior transgressions

tainted any Union decertification effort.

The Board also found, under the first factor, that three

years was too little time to “ameliorate the effect of” such

severe and pervasive unfair labor practices. Board Order at 8

19

(J.A. 8). That finding, too, comported with Board precedent

recognizing that a decertification petition may be “unreliable

as an indicator of uncoerced employee sentiment” if it “arose

during the time when the [employer] had not yet fully remedied

its many unfair labor practices.” United Supermarkets, 287

NLRB at 119-20. While the decertification petition was

circulating among the nurses at Chino Valley Medical Center,

all of Chino’s election-related unfair labor practices remained

unremedied as a result of its time-consuming and ultimately

unsuccessful challenges. Board Order at 8 (J.A. 8). In

particular, Chino had yet to do anything to reinstate or

otherwise make whole the nurse it fired three years earlier in

retaliation for his Union support. Unlawful retaliatory firings

are “precisely the type of coercive conduct” that can have

lasting effects even five or more years later. United

Supermarkets, 287 NLRB at 120.

Chino attacks the causation evidence only by reference to

the fourth Master Slack factor—the effect on employee morale,

organizational activities and support for the Union—arguing

that it was the Union’s failings that drove employees away. In

Chino’s view, testimony in the record established that

employees signed the decertification petition because of

dissatisfaction with the Union’s slow progress in negotiations,

not because the company’s unfair labor practices stymied the

Union and suppressed its support. Chino cites a lone statement

by a Union organizer on cross-examination:

When I had discussion with folks, a lot of people were

saying . . . that things weren’t moving as fast as they

were when they first started negotiations, that the

turnover was very high, that there were now techs or

other folks in the facility talking poorly about the

Union. Therefore, morale was really low.

20

Hearing Transcript at 164 (J.A. 385). But most of the time that

passed between the Union’s 2010 election and its 2013

bargaining effort was spent litigating Chino’s labor violations.

That delay would naturally contribute to the employees’

impatience. Thus, even assuming its relevance, the testimony

on which Chino relies is at least consistent with Chino’s actions

being the primary reason for any employee dissatisfaction.

In any event, the Board was well within its discretion to

consider that fragment of testimony insufficient to overcome

the taint powerfully evinced by Chino’s unremedied labor

violations. In other cases like this one—in keeping with the

objective focus of its test—the Board has found causation due

to sufficiently severe, unremedied violations without direct

evidence of what motivated employees to petition for

decertification. See Overnite Transport. Corp., 333 NLRB

1392, 1394-95 & n.16 (2001); United Supermarkets, 287

NLRB at 120. That approach makes good sense: Because

employees may often wish both to be represented by a union

and to avoid antagonizing their employer, it is not always

desirable to elicit testimony that “the Company had done

nothing to influence their decision,” nor is such testimony

particularly probative. Tenneco Auto., 716 F.3d at 651.

Indeed, “questioning employees about the subjective motives

for their representation preferences” may “result in ‘endless

and unreliable inquiry.’” SFO Good-Nite Inn, 357 NLRB 79,

83 (2011), enf’d, 700 F.3d 1 (D.C. Cir. 2012).

Chino alternatively suggests that its “good faith

bargaining” up until June 2013 might have had some additional

“ameliorative effect” not present in Overnite Transportation or

United Supermarkets (where bargaining occurred for a

somewhat shorter period before the employer withdrew

recognition). Chino Reply Br. 5. But the Board rejected a

similar argument in Overnite Transportation on the ground

21

that, so long as serious violations remain unremedied,

“bargaining by the Employer with the Union . . . cannot suffice

to cure the [t]aint of the decertification petitions.” 333 NLRB

at 1396. In sum, Chino’s case is, at most, arguably

“distinguishable from” Overnite Transportation and United

Supermarkets, not “a departure from those cases,” such as

would invalidate the Board’s holding. Ceridian Corp., 435

F.3d at 356 (emphases in original).

That leaves only Chino’s argument that we must vacate the

Board’s rejection of the decertification petition as tainted

because, Chino says, the ALJ’s earlier decision to quash

Chino’s subpoena erroneously depended on a premature and

factually underdeveloped application of the Master Slack test.

Chino identifies no evidence its subpoena sought that could

have affected the Master Slack analysis in any “significant

way[],” Ozark Auto. Distribs., 779 F.3d at 585 (quoting Ind.

Hosp., Inc. v. NLRB, 10 F.3d 151, 154 (3d Cir. 1993)). Perhaps

that is because the few document requests that seem even

arguably relevant were sweeping requests for the Union’s

internal communications, not geared toward potential causes of

employee disaffection. The subpoena, for example, sought

“[a]ll documents that relate to the Union’s knowledge of any

efforts by Chino employees to decertify the Union from June

10, 2012 to present” and “[a]ll documents concerning,

reflecting, supporting, or relating to any alleged unfair labor

practices asserted by the Union.” Order Denying Resp’t’s Pet.

to Revoke Subpoena at 2, 5 (Nov. 17, 2014) (J.A. 149, 152).

Because Chino has identified no prejudice caused by the

subpoena denial to its ability to respond to the General

Counsel’s Master Slack showing, the denial does not affect the

Board’s finding that the decertification petition was tainted by

Chino’s unfair labor practices. See id. at 582-83.

22

C. The Board’s Choice of Remedies Was

Appropriate

Having determined that the Board permissibly held that

Chino engaged in unfair labor practices, we next consider the

remedies the Board imposed. Our review of the Board’s

remedial choices “is especially deferential” under 29 U.S.C.

§ 160(c), which accords the Board “‘broad discretionary

power . . . to fashion remedies.’” Oberthur Techs. of Am.

Corp. v. NLRB, 865 F.3d 719, 726 (D.C. Cir. 2017) (alteration

in original) (quoting Petrochem. Insulation, Inc. v. NLRB, 240

F.3d 26, 34 (D.C. Cir. 2001)); see NLRB v. Gissel Packing Co.,

395 U.S. 575, 612 n.32 (1969); Fibreboard Paper Prods. Corp.

v. NLRB, 379 U.S. 203, 216 (1964).

Chino challenges several of the Board’s chosen remedies

as unsupported by the record and unduly harsh. With one

exception, we enforce the Board’s remedies—either because

we lack jurisdiction to consider them, or because Chino’s

challenges fail on their merits.

1. Remedial Challenges We Lack Jurisdiction to

Consider

As a threshold matter, the Board notes that we are barred

from reviewing several of Chino’s challenges because Chino

failed to first present its objections to the Board, as required by

29 U.S.C. § 160(e). See Enter. Leasing Co., 831 F.3d at 550.

Even though the Board broadened several of the ALJ’s

proposed remedies, Chino was obligated to at least raise its

concerns in a motion for the Board’s reconsideration before

seeking this court’s review. See Int’l Longshore & Warehouse

Union v. NLRB, 890 F.3d 1100, 1113 (D.C. Cir. 2018);

HealthBridge Mgmt., LLC v. NLRB, 798 F.3d 1059, 1069 (D.C.

Cir. 2015); Lee Lumber & Bldg. Material Corp. v. NLRB, 310

23

F.3d 209, 216-17 (D.C. Cir. 2002). But Chino did not seek

Board reconsideration.

We are thus barred from considering Chino’s challenges

to two remedies: (1) the Board’s order that Chino cease and

desist from any and all violations of its employees’ Section 7

rights, Board Order at 3 (J.A. 3), which broadened the ALJ’s

more targeted remedy requiring Chino to cease and desist only

from “like or related” violations, id. at 12; and (2) the Board’s

requirement that Chino mail notice of its ruling to the

employees, id. at 3. Because Chino challenged neither of those

remedies before the Board, see Respondent’s Exceptions to

ALJ Decision at 7 (J.A. 180); Respondent’s Brief in Support of

Exceptions at 15-19 (J.A. 197-201), we cannot review them.

Chino argues that it constructively challenged the Board’s

broadened cease-and-desist order. The Board justified that

order in part by finding that Chino had demonstrated a

“proclivity” for violating labor laws, and Chino contends that

was similar to a finding of “repeated unlawful conduct” that

partly undergirded a separate notice-reading remedy—which

Chino did dispute in its exceptions to the Board. See Board

Order at 1, 11 (J.A. 1, 11). In Chino’s view, the unchallenged

“proclivity” finding is equivalent to the “repeated unlawful

conduct” finding that it had already challenged, such that

Chino’s earlier objection gave the Board notice that it opposed

the similar, later finding as well.

Chino’s attempt to smuggle a challenge to the broad cease-

and-desist order into its notice-reading exception fails because

it did not “state with particularity the material error claimed,”

as was required. 29 C.F.R. § 102.48(c)(1). The mere fact that

Chino challenged a similar determination underpinning a

different remedy would not put the Board on “adequate notice”

that Chino considered the Board to have insufficiently justified

24

the cease-and-desist order. Alwin Mfg. Co. v. NLRB, 192 F.3d

133, 143 (D.C. Cir. 1999); see also United Food & Commercial

Workers Union Local 204 v. NLRB, 506 F.3d 1078, 1087 (D.C.

Cir. 2007).

Chino also argues that it should be excused from seeking

reconsideration because it here challenges the sufficiency of

the Board’s reasoning. Chino says that, despite past orders of

this court taking the Board to task for inadequate reasoning, the

Board has a persistent practice of under-explained decisions.

Chino makes the rather remarkable argument that what it sees

as the Board’s insufficient regard for the lessons of our past

decisions means that “[a]sking the Board to explain its

reasoning in a motion for reconsideration would have been a

futile exercise.” Chino Reply Br. 14. Our prior reversals of

some Board decisions hardly licenses Chino to simply sidestep

the statutorily mandated Board review. We do not doubt that

the Board would have given due consideration to a timely

objection or motion for reconsideration.

2. Remedial Challenges We Resolve on Their

Merits

Chino challenged two remedies before the Board, giving

us jurisdiction to review the merits of those challenges.

Specifically, Chino contested the Board’s remedial orders

requiring that (1) Chino pay litigation costs and expenses, and

(2) Chino’s management publicly read a notice to its

employees concerning its unlawful conduct.

As to the first challenge, the Board agrees that its award of

litigation costs and expenses was incorrect and “does not seek

enforcement of those portions of its Order,” citing our

decisions in HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir.

2016), and Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085

25

(D.C. Cir. 2016). We therefore grant Chino’s petition for

review on that issue and vacate that portion of the order.

Chino’s other challenge—to the public notice reading—

fails. The Board reasonably determined that Chino’s unfair

labor practices were numerous and egregious, rising to the level

of “repeated unlawful conduct” that “likely had the effect of

chilling employees’ Section 7 activities,” making such a

reading necessary “to fully dissipate the[] coercive effect” of

Chino’s accumulated misdeeds. Board Order at 11 (J.A. 11).

We have recognized that a public reading may be appropriate

where, as here, upper management has been directly involved

in multiple violations of the Act. See Federated Logistics &

Operations, 400 F.3d at 929-30; United Food & Commercial

Workers Union v. NLRB, 852 F.2d 1344, 1348-49 (D.C. Cir.

1988).

Chino makes no persuasive case that we should overturn

the Board’s choice of remedies. Indeed, Chino does not

meaningfully contest in this court that its unfair labor practices,

several of which were committed by upper management, were

“pervasive” enough to support the notice reading remedy. See

United Food & Commercial Workers Union, 852 F.2d at 1349.

Chino argues instead that its participation in bargaining for

nearly a year obviated the need for a reading. But it cites no

authority—of either the Board or any court—endorsing that

view. And it would make no sense to compel the Board to treat

Chino’s bargaining as foreclosing this remedy when that

bargaining was bookended by unfair labor practices: Chino

had to be forced to the bargaining table under court order, then

committed yet another unfair labor practice when it cut

bargaining short without lawful justification.

Chino alternatively argues that the Board’s unfair labor

practice holdings were insufficiently final to support a notice

26

reading requirement while those findings remained pending

review in the Ninth Circuit. The Ninth Circuit has since

enforced the Board’s determinations. See Veritas II, 871 F.3d

767. We therefore enforce the Board’s notice-reading remedy.

In sum, because the Board reasonably determined both that

Chino’s withdrawal of recognition occurred within the

extended certification year and that Chino’s unfair labor

practices tainted any decertification petition, we enforce the

Board’s order insofar as it held that Chino committed an unfair

labor practice by withdrawing recognition from and refusing to

bargain with the Union. We also enforce all but one of the

Board’s remedies for that violation, granting Chino’s petition

for review only as to the Board’s award of litigation costs and

expenses.

III. Lopez’s Petition for Review

Lopez, the nurse who circulated the decertification

petition, seeks review of the Board’s order insofar as it

affirmed the ALJs’ decisions denying his intervention. Lopez

contends that the Board’s decision not to permit him to

intervene was arbitrary and erroneous, and that it hindered his

ability to avoid unwanted representation by a union that, he

believes, lacked majority support. He also contends that the

Board violated his procedural due process rights by treating the

Union as his representative without giving him “any

opportunity to be heard.” Lopez Br. 29. We review the

Board’s affirmance of an ALJ’s discretionary judgments,

including whether to deny a motion to intervene, for abuse of

discretion. Int’l Union, United Auto., Aerospace & Agr.

Implement Workers of Am. v. NLRB, 392 F.2d 801, 809-10

(D.C. Cir. 1967); see also Midwest Div.—MMC, LLC v. NLRB,

867 F.3d 1288, 1303 (D.C. Cir. 2017); Perdue Farms, Inc.,

27

Cookin’ Good Div. v. NLRB, 144 F.3d 830, 833-34 (D.C. Cir.

1998).

We need not decide whether the ALJ abused his discretion

in denying Lopez’s motion to intervene because, even if he had,

Lopez has shown no prejudice flowing from the denial. Lopez

argued that he should be granted intervention to argue that the

Union no longer enjoyed majority support in view of the

decertification petition, which he also sought to introduce,

authenticate, and testify about. Lopez Motion to Intervene at 5

(J.A. 50); see also Lopez Declaration (J.A. 61-63). But, for the

reasons discussed above, see Part II.B.1, even assuming the

validity of Lopez’s petition, any loss of majority support for the

Union would not have been actionable during the still-pending

extended certification year, see Auciello Iron Works, 517 U.S.

at 786; Brooks, 348 U.S. at 104; Chelsea Indus., 285 F.3d at

1075. The ALJ correctly noted as much in denying

intervention. See Order Denying Motion to Intervene at 2-3

(J.A. 69-70).

Nor could Lopez’s evidence have dissuaded the Board

from entering its remedial order that Chino bargain with the

Union. To the contrary, the Board’s order expressly

acknowledged the “temporary impact the affirmative

bargaining order will have on the rights of employees who

oppose continued union representation,” but found that impact

“outweigh[ed]” by (among other considerations) Chino’s

history of “serious violations” and the need to enforce the

certification-year bar to ensure employees sufficient time to

“fairly assess for themselves the Union’s effectiveness as a

bargaining representative.” Board Order at 2 (J.A. 2). Lopez

therefore has not shown prejudice from his inability to

participate in the proceedings. See Prairie State Generating

Co. LLC v. Sec’y of Labor, 792 F.3d 82, 94 (D.C. Cir. 2015).

28

Lopez further complains that the denial of intervention

was arbitrary, because the Board, in his view, failed to identify

and apply consistent standards to govern employees’ requests

to intervene in unfair labor practice proceedings against their

employers. We have no cause to resolve that contention

because, again, Lopez was not prejudiced by the denial of

intervention in any event.

Lopez’s claim that the denial of intervention violated his

due process rights also fails. Lopez argues that the Board’s

decision denying his motion to intervene deprived him, without

adequate process, of a constitutionally protected interest—

whether based in liberty or property—to be free of

representation by a union he believes has lost majority support.

But ample authority holds that the Board may—indeed, must—

balance competing interests in this context, including by

sometimes requiring dissenting employees to accept

representation by a duly elected union for a prescribed period

of time. See Commc’ns Workers of Am. v. Beck, 487 U.S. 735,

745 (1988); NLRB v. Gissel Packing Co., 395 U.S. at 613;

Franks Bros. Co. v. NLRB, 321 U.S. 702, 705-06 (1944);

Chelsea Indus., 285 F.3d at 1077.

Even assuming Lopez had a constitutionally cognizable

interest in bringing his decertification arguments before the

Board, he failed to explain why other processes available to

him under the Act were insufficient to vindicate his interests.

Specifically, he offers no persuasive explanation why Section

9(c) of the Act—which establishes a procedural mechanism for

employees like Lopez to cast off a minority union by presenting

a decertification petition directly to the Board—is inadequate

to vindicate his interests. See 29 U.S.C. § 159(c)(1) (providing

that “the Board shall investigate” any “petition . . . assert[ing]

that . . . [a] labor organization . . . is no longer a representative”

because it does not enjoy majority support); see id. § 159(a).

29

Lopez contends that resort to Section 9(c) proceedings

might in practice prove “futile,” because resolution of the

pending unfair labor practice charges against Chino would

preclude the result he seeks under the Board’s so-called

“blocking charge” doctrine. Lopez Br. 13-14; see Peoples Gas

Sys., Inc. v. NLRB, 629 F.2d 35, 39 & n.5 (D.C. Cir. 1980). But

the authorities he cites suggest just the opposite: that a Section

9(c) petition could succeed notwithstanding an unresolved

unfair labor practice charge against Chino—so long as Lopez

could establish in those proceedings that an uncoerced majority

of the workforce supported decertification independent of the

employer’s alleged misconduct, or that the unfair labor practice

charges lacked merit. See St. Gobain Abrasives, Inc., 342

NLRB 434, 434-35 (2004); NLRB Casehandling Manual, Part

Two: Representation Proceedings §§ 11730,

11731.2 (Jan. 2017), https://www.nlrb.gov/sites/default/files/

attachments/basic-page/node-1727/CHM%20Part%20II%20

Jan%202017.pdf (NLRB Casehandling Manual).

Lopez further contends that he cannot file a decertification

petition with the Board while Chino’s case is pending, because

“it would be dismissed—there is no union to decertify” until

and unless Chino must recognize the Union. Lopez Reply Br.

13. He again cites nothing supporting that proposition; his own

authorities suggest otherwise. See, e.g., NLRB Casehandling

Manual at § 11730.3(b) (setting forth procedures for

concurrent handling of representation proceedings and

“recognition issues,” including “failure to recognize or

bargain”). Requiring Lopez to await the outcome here and

temporarily abide union representation before proceeding to

seek decertification is an “inevitable” consequence of

balancing the competing interests at stake. Chelsea Indus., 285

F.3d at 1077; see also Gilbert v. Homar, 520 U.S. 924, 930

(1997); Gissel Packing Co., 395 U.S. at 613; Franks Bros., 321

U.S. at 705-06.

30

At bottom, the procedures available to Lopez are not

constitutionally inadequate simply because he opposes the

substantive outcome they may produce. Congress and the

Board considered the interests of employees in Lopez’s

position and provided another procedure for them to be heard,

even if intervention is not appropriate, that proceeds via a

petition to the Board under Section 9(c). Lopez has given us

no sound reason to think that procedural design is

constitutionally deficient. We therefore hold that he had

available to him all the process he was due.

IV. Conclusion

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

review as to all aspects of the Board’s order save for its award

of litigation costs and expenses, which we vacate. We grant

the Board’s cross-application for enforcement with the same

limitation. We also deny Lopez’s petition for review.

So ordered.

MILLETT, Circuit Judge, concurring: I join the majority

opinion in full. I write separately only to express my concerns

about the Board’s continued failure to establish any

discernible, consistent standard for granting and denying

intervention in agency proceedings.

In this case, the Board just stated summarily that the denial

of Lopez’s motion to intervene fell “within established

precedent concerning decertification petitioners’ requests to

intervene in unfair labor practice proceedings.” Board Order

at 1 n.1. Tellingly, the Board did not cite to any cases that

might constitute such a coherent body of “established

precedent.” Nor am I aware of any. Claims for deference

through paeans to agency precedent only work if a principled

body of precedent actually exists.

Instead, the Board cited only to its generic intervention

rule, 29 C.F.R. § 102.29 (2016). Board Order at 1 n.1. The

problem, though, is that the cited regulation provides no

substantive standards or guidance at all on when intervention

is or is not proper in agency proceedings. Other than outlining

the mechanical steps that an intervention request goes through,

the rule says only that intervention “may” be permitted “to such

extent and upon such terms as [the ALJ or regional director]

deem[s] proper.” Id. That is it. Seems hard to imagine a more

amorphous and indeterminate standard. Contrast FED. R. CIV.

P. 24 (spelling out specific factors for courts to consider in

resolving motions to intervene).

The Board’s persistent failure to put any meat on the

regulation’s bare bones leaves individual intervention

decisions at risk of arbitrary and inconsistent resolution. As it

turns out, that failing is ultimately without consequence in this

particular case because Lopez’s claims on intervention pertain

to a legally foreclosed decertification petition. But it remains

incumbent on the Board to formulate objective and reliable

standards for intervention in its proceedings. The transparent,

2

consistent, and evenhanded application of identified and

reasoned factors is essential to fair process for all would-be

intervenors, regardless of on which side of a case they wish to

appear.