AdvancePierre Foods, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2020 Decided July 24, 2020

No. 18-1219

ADVANCEPIERRE FOODS, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL

75,

INTERVENOR

Consolidated with 18-1246

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Aaron D. Lindstrom argued the cause for petitioner. With

him on the briefs was Amy J. Zdravecky.

Michael R. Hickson, Attorney, National Labor Relations

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

were Elizabeth A. Heaney, Supervisory Attorney, Peter B.

Robb, General Counsel, Meredith Jason, Acting Deputy

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Associate General Counsel, and David Habenstreit, Assistant

General Counsel.

Before: HENDERSON, WILKINS and KATSAS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: When

employees of AdvancePierre Foods, Inc.’s (AdvancePierre or

Company) Cincinnati, Ohio, food processing plant first sought

to organize, the Company botched its response. The National

Labor Relations Board (NLRB or Board) found that

AdvancePierre committed seventeen unfair labor practices

(ULPs) over a five-month span as the United Food and

Commercial Workers Union, Local 75 (Union) conducted an

organizing campaign. Among its remedies, the Board ordered

that a Company employee read aloud to employees a notice of

the Company’s violations. Only one ULP—whether

AdvancePierre unlawfully encouraged its employees to

withdraw their union authorization cards—and the “read-

aloud” remedy are before us. We deny AdvancePierre’s

petition on both fronts.

A. Background

Because the Board’s remedy implicates the panoply of

AdvancePierre’s misdeeds, we begin with a factual recap. In

March 2015, employees in AdvancePierre’s Cincinnati plant—

in which it manufactures processed foods for restaurant chains

and retail businesses and for sale in convenience stores—

contacted the Union to discuss organizing approximately six

hundred hourly employees. AdvancePierre was aware of the

unionization effort by May 11, at which point Union literature

and authorization cards were being widely distributed. The

3

Company’s opposition began with a critical mistake when, on

May 13, Employee Relations Manager Mandy

Ramirez (Ramirez) posted an outdated company policy on the

plant’s bulletin board. Instead of posting the then-current

policy of January 1, 2012, Ramirez posted a 2001 policy. The

2001 policy—which AdvancePierre concedes was “unlawfully

overbroad”—prohibited any on-the-job union solicitation or

distribution of union literature. Pet’r’s Br. 9. Consistent with

the outdated 2001 policy, a sign was posted above the plant’s

main employee entrance stating: “AdvancePierre Foods has a

non-solicitation and non-distribution policy.” J.A. 626. The

policy and sign were both mistakenly in effect for nearly a

month before management informed employees of its mistake.1

Not only did AdvancePierre post an outdated, overbroad

policy—the Company enforced it. On June 8, AdvancePierre

conducted a search of boxes affixed to employee clipboards,

confiscated union authorization cards attached to employee

Ronnie Fox’s clipboard and issued Fox a verbal warning for

violating the 2001 policy. The following day, acting on a tip

that Union literature was being distributed in the plant’s

breakroom, Ramirez reviewed surveillance camera footage that

showed employee Carmen Cotto distributing papers to

employees, including Sonja Guzman. Pursuant to the 2001 no-

solicitation, no-distribution policy, Cotto and Guzman both

received verbal warnings. Cotto’s was later rescinded when

AdvancePierre realized it had enforced the wrong policy.

Next, on June 16, Ramirez was informed that Guzman and

another employee—who Ramirez believed to be Diana

Concepcion—had appeared on a Spanish radio station talk

show two days earlier. Ramirez then accessed the radio

1

The parties dispute whether AdvancePierre posted the sign,

compare Resp’t’s Br. 6, with Pet’r’s Br. 9, but there is no

disagreement that the sign was in fact displayed.

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station’s Facebook page, where she noted that a link to the

interview had been “liked” by a “Yazzmin Trujuillo.” Not

recognizing the name, Ramirez suspected Trujillo was, in fact,

Concepcion. Ramirez decided to dig further and checked

Concepcion’s benefit file, which listed a beneficiary named

“Trujillo” living at Concepcion’s address. Based on this

discovery, “Ramirez believed that there was a strong

possibility that Concepcion was not who she said she was but

was really someone named Yazzmin Trujillo.” Pet’r’s Br. 14.

On June 17, Ramirez gave Concepcion a June 29 deadline by

which to provide documentation of her identity. J.A. 646. In

response, Concepcion submitted to Ramirez her Puerto Rican

birth certificate, which the Company rejected because it was

dated before July 10, 2010.2 J.A. 648. AdvancePierre then

informed Concepcion how she could obtain a new birth

certificate, offered to pay for expedited shipping and extended

the June 29 deadline to July 17. J.A. 648. When Concepcion

did not reply by July 17, AdvancePierre suspended her

indefinitely.3 J.A. 719.

AdvancePierre also issued an “attendance point” to

employee Jessenia Maldonado after she missed work to

participate in a one-day strike.4 When Maldonado called to

2

AdvancePierre informed Concepcion that “[u]nfortunately, on

July 10, 2010, Puerto Rico declared that all birth certificates issued

prior to that date would be invalid since they had been used in the

past to illegally obtain U.S. passports, Social Security benefits, and

other federal services.” J.A. 648.

3

The Board does not seek enforcement of its order as it relates

to Concepcion. Resp’t’s Br. 22, 26 n.6.

4

AdvancePierre’s policy permits employees to accumulate up

to ten “occurrence points” in a rolling twelve-month period for

“unexpected emergencies.” J.A. 730. Failure to meet attendance

standards can lead to progressive discipline up to and including

5

report her absence, she read from a Union-prepared script that

stated: “I am not reporting to work today to protest the

Company’s unfair labor practices. I will unconditionally return

to work on my next scheduled shift.” J.A. 652. AdvancePierre

concedes that Maldonado should not have received an

attendance point but claims its error was an oversight, as none

of the other striking employees received one. See Pet’r’s

Br. 16.

Before the 2015 Union organization drive, AdvancePierre

lacked a written procedure to solicit or answer employee

grievances, electing instead to maintain a suggestion box. In

July 2015, Cincinnati Plant Manager Petra Sterwerf

implemented a “new communication tool,” J.A. 96, called

Communicating Answers Tracking System (CATS) that she

had previously used elsewhere, J.A. 97. Despite a self-imposed

48-hour deadline to respond to CATS submissions,

AdvancePierre management refused to answer dozens of pro-

Union CATS forms that were submitted in the weeks

immediately after CATS was implemented.

The Company’s final uncontested ULP occurred on

August 27 when, in the context of announcing a new pay

structure, it erroneously informed employees that “information

about [employee] pay is considered personal and confidential

and should not be shared with other associates.” J.A. 680; see

Parexel Int’l, LLC, 356 N.L.R.B. 516, 518 (2011) (“[O]ur

precedents provide that restrictions on wage discussions are

violations of [29 U.S.C. § 158(a)(1)]”).

The only AdvancePierre ULP now before us happened

between mid-May and mid-June 2015, when management

notified employees how to withdraw a signed Union

termination. Following the parties’ briefs, we use “attendance point”

instead of “occurrence point.”

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authorization card. During several meetings, the Company

distributed flyers containing step-by-step instructions,

J.A. 624, and pre-printed letters that employees could send the

Union to “revoke and rescind” their Union authorization cards,

J.A. 625.5 The flyer included this disclaimer: “Please

understand that other than giving you this information,

AdvancePierre Foods is not permitted by law to assist you in

any other way in getting your card returned.” J.A. 624.

According to the Union, the combined effect of the meeting

and flyers was to unlawfully solicit employees to withdraw

their cards.

An Administrative Law Judge (ALJ) determined that

AdvancePierre committed sixteen ULPs, in violation of section

8(a)(1) and (3) of the National Labor Relations Act (Act),

29 U.S.C. § 158(a)(1), (3). J.A. 101. But the ALJ concluded

that AdvancePierre did not unlawfully solicit employees to

withdraw their Union authorization cards because “[t]here was

no attempt to require employees to inform management

(indirectly or directly) whether they availed themselves of the

opportunity” to withdraw the cards. J.A. 52. That is, the ALJ

saw the Company’s flyer as information—not a solicitation—

and rejected the ULP charge because “[i]t has long been

accepted by the Board that an employer’s provision to

employees of information on how to revoke their authorization

cards is, without more, not unlawful assistance or solicitation.”

Id. (citing, inter alia, R.L. White Co., 262 N.L.R.B. 575, 576

n.5 (1982)). The ALJ also denied the General Counsel’s

request for a notice-reading remedy because AdvancePierre’s

5

The flyer identified three steps: “1. Use the attached form to

request in writing that you want your card back and are withdrawing

your membership in the union. 2. Make a copy of the form and mail

the original to the union address on the form. 3. Go to the union

representative you gave the union authorization card to, and tell them

that you want your card back.” J.A. 624.

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violations, although “by definition serious,” did not rise to the

level at which “traditional remedies are insufficient to redress

the[ir] effects.” J.A. 103. Both sides filed exceptions with the

Board.

On review, the Board reversed the ALJ as to the

solicitation ULP, finding that “contemporaneous serious

[ULPs]—all related to the card-signing process and the

organizing effort to select the Union as the employees’

collective-bargaining representative—created an atmosphere

where employees would tend to feel peril if they refrained from

revoking their support for the Union.” AdvancePierre Foods,

Inc., 366 N.L.R.B. No. 133, at *4 (July 19, 2018). The Board

also imposed the notice-reading remedy to “dissipate as much

as possible any lingering effects of [AdvancePierre’s] unfair

labor practices, and . . . allow the employees to fully perceive

that [AdvancePierre] and its managers are bound by the

requirements of the Act.” Id. at *5 (citation and quotation

marks omitted). Significantly, AdvancePierre did not seek

reconsideration.

B. Analysis

AdvancePierre asks us to deny enforcement of the

solicitation ULP and the notice-reading remedy. The Board

seeks to enforce its order, including summary enforcement of

the uncontested portions. Resp’t’s Br. 2, 26. The Board had

jurisdiction under 29 U.S.C. § 160(a). Our jurisdiction is under

29 U.S.C. § 160(e) and (f).

Our review of the solicitation ULP is “narrow and highly

deferential.” Inova Health Sys. v. NLRB, 795 F.3d 68, 73 (D.C.

Cir. 2015) (citation and quotation marks omitted). We will

uphold the Board’s decision unless 1) its “factual findings are

not supported by substantial evidence;” 2) it “acted arbitrarily;”

or 3) it “otherwise erred in applying established law to the facts

8

of the case.” Hawaiian Dredging Constr. Co. v. NLRB,

857 F.3d 877, 881 (D.C. Cir. 2017) (citation omitted). “The

Board’s discretion in fashioning remedies under the Act is

extremely broad and subject to very limited judicial review.”

Fallbrook Hosp. Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir.

2015) (quoting St. Francis Fed’n of Nurses & Health Prof’ls v.

NLRB, 729 F.2d 844, 848 (D.C. Cir. 1984)).

Of critical importance to this case, section 10(e) of the Act

limits our jurisdiction to matters first presented to the Board

unless extraordinary circumstances excuse such failure. See

29 U.S.C. § 160(e) (“No objection that has not been urged

before the Board . . . shall be considered by the court, unless

the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.”); see also, e.g.,

Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 550 (D.C.

Cir. 2016) (“Section 10(e) is a ‘jurisdictional bar,’ in the face

of which we are ‘powerless, in the absence of extraordinary

circumstances, to consider arguments not made to the Board.’”

(quoting W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341,

1345 (D.C. Cir. 2008))). AdvancePierre’s petition squarely

collides with section 10(e)’s jurisdictional barrier and we are

therefore without authority to consider all but a small portion

the Company’s argument.

We turn first to the Board’s finding that AdvancePierre

unlawfully solicited its employees to withdraw their Union

authorization cards. Before us, AdvancePierre draws a sharp

line between the flyer’s unobjectionable content and the

environment in which it was distributed, i.e., the Company’s

aggressive but misguided enforcement of its outdated no-

solicitation, no-distribution policy. It argues that, because

section 8(c) of the Act protects an employer’s broad authority

to express itself “if such expression contains no threat of

reprisal or force or promise of benefit,” 29 U.S.C. § 158(c), we

9

should not enforce the solicitation ULP as “the Board has failed

to identify any statement, from the meetings or the flyer, that

‘contains’ any coercive element,” Pet’r’s Br. 54–55. In other

words, the Company acknowledges that “the Board can—and

did—punish the conduct that it views as creating a perilous

atmosphere,” id. at 55, but objects to the Board “double

counting” that conduct and thereby “punishing protected

speech as a method to impose a second punishment on other

conduct,” id. at 56. Regardless of its merit, we cannot consider

this argument because it was not preserved under section 10(e).

In In re Mohawk Industries, 334 N.L.R.B. 1170 (2001),

the Board made clear that an employer’s otherwise protected

speech can constitute unlawful coercion if it occurs within a

perilous atmosphere created by contemporaneous ULPs:

As a general rule, an employer may not solicit

employees to revoke their authorization

cards. An employer may, however, advise

employees that they may revoke their

authorization cards, so long as the employer

neither offers assistance in doing so or seeks to

monitor whether employees do so nor otherwise

creates an atmosphere wherein employees

would tend to feel peril in refraining from

revoking. Thus, an employer may not offer

assistance to employees in revoking

authorization cards in the context of other

contemporaneous ULPs.

Id. at 1171 (emphasis added) (alteration and citations omitted).

At no point did the Company challenge Mohawk before the

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Board.6 Indeed, the Board majority, dissenting Member

Emanuel and the ALJ all applied Mohawk but they reached

different conclusions about whether AdvancePierre’s conduct

created a “perilous atmosphere.” Compare AdvancePierre,

366 N.L.R.B. No. 133, at *3–4, with id. at *4 n.9, and J.A. 52–

53. Because AdvancePierre’s frontal attack on Board precedent

was never made to the Board and extraordinary circumstances

do not excuse its failure, we cannot reach this argument.7 See

Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir.

2016) (“In assessing forfeiture under section 10(e) of the Act,

‘the critical question’ is ‘whether the Board received adequate

notice of the basis for the objection.’” (quoting Alwin Mfg. Co.

v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999))).

Setting aside the direct challenge to Mohawk, all that

remains of AdvancePierre’s challenge to the solicitation ULP

is whether the Board’s application of Mohawk was arbitrary

and capricious. See J.A. 573. Seizing on Member Emanuel’s

dissent, the Company argues that, under Board precedent,

AdvancePierre’s conduct was not “egregious” enough to create

a “perilous atmosphere,” Pet’r’s Br. 58, and that “the Board had

no support for its finding that AdvancePierre’s conduct created

6

AdvancePierre’s Answering Brief to the Board made passing

reference to the Company’s right under section 8(c) to “present

employees with an accurate and nonthreatening description” of how

to revoke Union authorization cards. J.A. 572. But this did not put

the Board on notice of a forthcoming challenge to Mohawk’s

foundational premise, especially considering the Company’s support

of the ALJ’s decision applying Mohawk in its favor. J.A. 573.

7

AdvancePierre also contends that the Board’s “approach of

condemning neutral speech because of other conduct is . . .

inconsistent with basic First Amendment principles.” Pet’r’s Br. 56

(citing Schneider v. New Jersey, 308 U.S. 147 (1939)).

AdvancePierre did not raise this argument with the Board so we may

not consider it either.

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an atmosphere of peril so as to find that its provision of

information regarding the union card revocation process was

unlawful,” id. at 59. We reject this argument because the

Board’s factual findings are supported by substantial

evidence—i.e., AdvancePierre’s many ULPs—and the Board

did not act arbitrarily in applying its precedent. See Hawaiian

Dredging Constr. Co., 857 F.3d at 881; see also ABM Onsite

Servs.—West, Inc. v. NLRB, 849 F.3d 1137, 1142 (D.C. Cir.

2017) (“[A]n agency’s unexplained departure from precedent

is arbitrary and capricious . . . .”).

We next turn to AdvancePierre’s challenge to the Board’s

notice-reading remedy. The Company faces an uphill climb

because “the Board was acting at the ‘zenith’ of its discretion”

when it “fashion[ed] an appropriate remedy to address the

substantial unfair labor practices in this case.” Fallbrook Hosp.

Corp., 785 F.3d at 738 (quoting Niagara Mohawk Power Corp.

v. Fed. Power Comm’n, 379 F.2d 153, 159 (D.C. Cir. 1967)).

Making the hill even steeper, AdvancePierre’s argument is

again limited by its failure to preserve the issue, primarily due

to its failure to move for reconsideration before the Board.

Before us, AdvancePierre argues that a notice-reading is

an “extraordinary” remedy, Pet’r’s Br. 34, and that the Board’s

decision to impose it was arbitrary and capricious because it

did not first explain why traditional remedies were insufficient,

see id. (“A key factor the Board is required to consider when

deciding to impose an extraordinary remedy is whether

traditional remedies would be sufficient . . . .”). Citing

HTH Corp. v. NLRB, 823 F.3d 668, 674 (D.C. Cir. 2016),

AdvancePierre argues that “extraordinary remedies cannot be

12

granted unless traditional remedies are insufficient.” Pet’r’s Br.

36.8

Regarding preservation, the key distinction between this

case and HTH is that, in HTH, the ALJ (not the Board) first

imposed a notice-reading remedy, after which the company

filed an exception to it. HTH, 823 F.3d at 672. In HTH,

therefore, the Board heard argument against the notice-reading

remedy but, here, the Board imposed the notice-reading

remedy after the ALJ declined to do so. Although

AdvancePierre argued to the Board that a notice reading was

inappropriate, see J.A. 578–80, it did not argue that a notice-

reading could not be imposed unless the sufficiency of

traditional remedies was first considered and, because

AdvancePierre did not move for reconsideration, the Board

never heard this argument. Nor was the Company’s omission

based on extraordinary circumstances and, accordingly, we

lack jurisdiction to evaluate this portion of the Board’s

reasoning.9 See Flying Food Grp., Inc. v. NLRB, 471 F.3d 178,

185 (D.C. Cir. 2006) (“Where . . . a petitioner objects to a

finding on an issue first raised in the decision of the Board

rather than of the ALJ, the petitioner must file a petition for

reconsideration with the Board to permit it to correct the error

(if there was one).”).

8

The Company also relies on our decision in Avecor, Inc. v.

NLRB, 931 F.2d 924 (D.C. Cir. 1991), in which we required a

“comprehensive accounting” to support the Board’s imposition of an

affirmative bargaining order without considering “alternative

remedies,” id. at 938. HTH is more apposite because there we

addressed a notice-reading remedy.

9

Nor has AdvancePierre argued that the First Amendment

requires heightened scrutiny of notice-reading remedies.

Accordingly, we do not consider that argument.

13

Whether the Board abused its discretion when it ordered a

notice-reading remedy is properly before us but easily

resolved.10 Notwithstanding that it can be “difficult to provide

bright-line limits on the remedies that the Board can utilize,”

United Food & Commercial Workers Int’l Union v. NLRB,

852 F.2d 1344, 1349 (D.C. Cir. 1988), we have no trouble

concluding that the Board did not abuse its “extremely broad”

discretion, Fallbrook Hosp. Corp., 785 F.3d at 738 (citation

omitted), when it determined that AdvancePierre’s seventeen

ULPs were “sufficiently serious and widespread” to warrant a

notice-reading.11 AdvancePierre Foods, 366 N.L.R.B. No. 133,

at *1 n.2.

For the foregoing reasons, we deny AdvancePierre’s

petition and grant the Board’s cross-application for

enforcement of those portions of its order that are before us.

We summarily enforce the unchallenged portions of the

Board’s order. See Allied Mech. Servs., Inc. v. NLRB, 668 F.3d

758, 765 (D.C. Cir. 2012).

So ordered.

10

In its Answering Brief to the Board, AdvancePierre argued

that a notice-reading was “not [a]ppropriate.” J.A. 578.

11

AdvancePierre also argued that a notice-reading was

unwarranted because the “official in question [Ramirez] was

AdvancePierre’s employee-relations manager, not its president or

similarly high ranking official.” Pet’r’s Br. 46. Once again, we lack

jurisdiction to consider this argument because it was not presented to

the Board. See Flying Food Grp., 471 F.3d at 185.