The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 7, 2021 Decided April 13, 2021
No. 20-1031
THE AMERICAN BOTTLING COMPANY, DOING BUSINESS AS
KEURIG DR PEPPER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 727,
INTERVENOR
Consolidated with 20-1056
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Corey L. Franklin argued the cause and filed the briefs for
petitioner.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Peter B. Robb, General Counsel at the time the brief was filed,
2
Ruth E. Burdick, Deputy Associate General Counsel, David S.
Habenstreit, Assistant General Counsel, and Julie Brock
Broido, Supervisory Attorney.
Nancy B.G. Lassen was on the brief for intervenor
International Brotherhood of Teamsters Local 727 in support
of respondent. Joseph D. Richardson entered an appearance.
Before: SRINIVASAN, Chief Judge, MILLETT and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The best laid plans of mice and
humans go oft awry. 1 So too for the American Bottling
Company. The Company planned to eliminate one of the jobs
at its Northlake, Illinois plant and transition those employees
to other similar positions. The Company first planned to make
the transition in the Spring of 2018. But that did not work out.
Then the Company told its employees that it planned to
eliminate the classification around Super Bowl weekend in
2019. But that did not work out. Then the Company told them
that it would definitely eliminate the classification on April 1,
2019. But—again—that did not work out.
Enter the Teamsters Union, which filed to represent a
bargaining unit of workers that included the employment
position that the Company had thrice tried and thrice failed to
eliminate. The Company protested that a representation
election was pointless because it really, really, really was going
to eliminate the classification on July 21, 2019. The Chicago-
based Regional Director of the National Labor Relations Board
1
Adapted from Robert Burns, To a Mouse, On Turning Her Up
in Her Nest with the Plough (1785).
3
considered the record evidence and determined that the
Company had failed to demonstrate that elimination of the
position was both definite and imminent. The Board affirmed,
and the workers voted to unionize.
We deny the Company’s petition for review of the Board’s
decision. Given the Company’s track record, the Board
reasonably concluded that the fourth time might not be the
charm for the Company. Or, more specifically, that
termination of the position on July 21st was anything but
certain.
I
A
The National Labor Relations Act protects employees’
rights “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.
Section 9(a) of the Act provides that “[r]epresentatives
designated or selected for the purposes of collective bargaining
by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective
bargaining[.]” 29 U.S.C. § 159(a). In Section 9(b), Congress
granted the Board the discretion to decide on a case-by-case
basis “whether, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this subchapter,
the unit appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or subdivision
thereof[.]” Id. § 159(b).
4
When a group of employees or a union files a petition for
a representation election, the Board investigates it and holds a
hearing if it has reason to believe that a “question of
representation” exists. NLRB v. Financial Inst. Employees of
America, 475 U.S. 192, 198 (1986) (quoting 29 U.S.C.
§ 159(c)). As relevant here, a “question of representation exists
if a proper petition has been filed concerning a unit appropriate
for the purpose of collective bargaining.” 29 C.F.R.
§ 102.64(a); see also id. § 102.61(a) (listing required contents
of representation petitions). If the Board itself, or through one
of its Regional Directors, concludes that the petition meets the
statutory and regulatory requirements and the proposed
bargaining unit is appropriate under the statute, the Board
“directs a representation election by secret ballot to settle the
question.” Financial Inst. Employees, 475 U.S. at 198.
B
The American Bottling Company, a subsidiary of Keurig
Dr Pepper, manufactures and sells soft drinks around the
country, including not just Dr Pepper, but also Snapple, 7 Up,
and A&W Root Beer.
The Company operates a bottling and distribution facility
in Northlake, Illinois—one of two such facilities it operates in
the greater Chicago area. Some Northlake employees bottle
the Company’s various drinks. Some are truck drivers who
deliver the drinks from the production facility to retailers.
Some work in sales as account managers, charged with selling
the drinks at wholesale to retail stores (such as supermarkets
and convenience stores). And some are merchandisers,
responsible for making sure those retailers successfully sell the
drinks to consumers (for example, by ensuring that the drinks
are attractively displayed). This case concerns the latter two
jobs—account managers and merchandisers.
5
In most of its regional markets, the Company assigns job
responsibilities to account managers and merchandisers on a
geographic basis. That is, each account manager and
merchandiser is responsible for selling and merchandising
drinks, respectively, to and in all of the stores in their assigned
territory.
This was true in the Company’s Chicago market, too—
with one exception. Because four large chain grocery stores
represented a disproportionate amount of its business in the
Chicago area, the Company created a “hybrid” role that did not
exist in its other regional markets known as the Sales Service
Representative (“Representative”). Representatives wore two
hats serving simultaneously as account managers and
merchandisers, selling the large chain stores the Company’s
drinks wholesale and ensuring that those stores effectively sold
the drinks to consumers.
In 2017, the Company’s national headquarters ordered the
Chicago outfit to move to the same geographic selling model it
used in all of its other regional markets. This meant that the
Representative position would be eliminated. The Company
began preparing in late 2017 for the necessary changes to its
Chicago operations—a process referred to as the “Reroute.”
While the Company initially planned to implement the
Reroute in the Spring of 2018, contract negotiations with the
Company’s delivery drivers were ongoing at that time and
ultimately resulted in a strike. That stymied implementation of
the Reroute.
In November 2018, the Company’s area director for
Chicago—a man named Brad Troutman—met with the
affected employees at the Northlake facility. He informed
them that the Reroute was coming, that it would result in the
elimination of the Representative job classification, and that
6
the Company planned to implement the change “around [the]
Super Bowl” in late January or early February of 2019. See
J.A. 22.
But despite the Company’s intentions, that deadline too
fell by the wayside. As Troutman recalled, the Reroute is an
“extremely arduous” and “major process under any
circumstance” that “takes weeks and weeks and weeks” to
implement. J.A. 38–39. Later, when asked if “there are things
that can come up that change that [intended] date because it’s
* * * an intense process[,]” Troutman agreed that there were.
J.A. 39. He added that, while completing the Reroute before
the Super Bowl was “the intent,” that was not a “locked set in
stone date[].” J.A. 39.
The Company then picked a new implementation date of
April 1, 2019. On March 14, 2019, Troutman emailed several
high-ranking sales executives to notify them that the Company
had “finalized the particulars of the [Reroute]” and would “be
implementing the [Reroute] effective Monday, 4/1/19.” J.A.
22, 160. That new date was also communicated to Jewel
Foods, the Company’s number-one customer in the region,
which responded by sending an internal memo to all of its
managers on March 18th informing them that the change would
occur on April 1st. According to Troutman, this April 1st date
“was locked set in stone it was happening.” J.A. 41.
On Wednesday, March 20 and Thursday, March 21,
Troutman convened meetings with the Representatives to
inform them that the Reroute was going into effect on April 1st,
and that their job classification would be eliminated as of that
date. Representatives attending the March 20th meeting were
told that they would be transitioning into the merchandiser role
and were provided offer letters for that position. At the same
time, a smaller number of Representatives were invited to the
7
March 21st meeting and were told that they would be
transitioning into the higher-ranking and better-paid account
manager role, and they too were provided with offer letters.
The offer letters for both classifications stated that the “new
position” would be “effective March 31, 2019.” J.A. 169
(sample merchandiser offer letter), 172 (sample account
manager offer letter), 173–175 (more sample letters).
Even though the Reroute was “locked set in stone it was
happening” on April 1st, the Reroute did not happen then. J.A.
41. Less than two weeks before the supposedly set-in-stone
date, the Company’s delivery team raised a question about the
impact of the Reroute on their union contract. The Company
agreed to hold off on the Reroute until the contract issue could
be resolved.
Upon communicating this delay to its customers,
American Bottling received a request from Jewel Foods asking
it to either implement the Reroute by May 1st or to hold off
until after the very busy Fourth of July holiday. Acquiescing
to its client’s request, the Company delayed the Reroute still
longer.
On June 4, 2019, Brad Allbee—the Regional Vice
President in charge of the Company’s Chicago operations, and
Troutman’s supervisor—emailed the Company’s Texas-based
Senior Vice President of Human Resources and reported that
the new “target date” to implement the Reroute was “the week
of July 21st.” J.A. 170, 180.
On Friday, June 14, Troutman convened yet another
meeting of the Representatives. According to his
contemporaneous notes, Troutman told the Representatives
that the Reroute “will be implemented on Sunday, 7/21/19,
with all new assignments going into effect on Monday,
7/22/19. * * * Your new positions will be those that were
8
assigned to [sic] when we had the reroute meetings with the
[Representatives] on Wed, March 20th, when we announced
the original implementation date of Monday, April 1st.”
J.A. 171. Troutman testified that this information was
provided only orally and that he had not taken attendance to
verify that all Representatives were present. None of the
Representatives received updated offer letters reflecting a July
21st job-elimination date.
C
On that same day, June 14th, the International
Brotherhood of Teamsters, Local 272 (“Union”) filed a petition
with the Board to certify a bargaining unit made up of the
account managers and Representatives at the Northlake
facility. The Company opposed certification on the sole
ground that the Representatives should be excluded from the
contracting unit given the position’s planned elimination.
After conducting an evidentiary hearing, the Board’s
Regional Director rejected the Company’s opposition to a
representation election on the ground that the record did not
demonstrate definite evidence of an imminent change in the
scope of the contracting unit or a fundamental change in the
Company’s operations. He therefore directed that a
representation election be held on July 12th.
The Board subsequently denied the Company’s motion to
stay the election.
D
The morning of the election, the Board’s agent overseeing
the voting convened a meeting with the Company and Union
representatives. At that meeting, the Company’s representative
reiterated that American Bottling planned to eliminate the
9
Representative position in nine days and so intended to
challenge the vote of every Representative who attempted to
cast a ballot in the election. The Board’s agent responded that
she could not accept challenges based on job classification
alone, as that issue had been settled by the Regional Director’s
July 3rd decision.
Ultimately, 30 of the 35 Representatives cast votes, and an
additional 32 votes were cast by account managers for a total
of 62 votes. In the end, 46 votes were in favor of unionization,
with 16 votes opposed.
During the tally of the election results, the Union
photographed and/or videotaped the counting proceedings.
After announcing the final tally, the Board’s agent noticed this
conduct and said: “Oh, you should not have been videotaping
this, I should have made the announcement at the beginning of
the count . . . oh, well.” J.A. 226.
On July 21, 2019, the Company effectuated the Reroute.
E
American Bottling subsequently filed five objections to
the conduct of the election. The Regional Director overruled
each of the objections and certified the Union as the
representative of the bargaining unit. Under longstanding
Board precedent, the Regional Director overruled the first three
objections as attempting to relitigate an already-decided
issue—namely, whether elimination of the Representative
position was sufficiently definite and imminent as to make
those employees’ inclusion in a representation election
improper. He also found that no changed circumstances
existed that would allow the Company to circumvent that bar.
Finally, the Regional Director overruled the Company’s
objections based on the Union’s recording of the ballot tally
10
because post-election conduct cannot justify setting aside an
election.
The Company timely sought Board review of the Regional
Director’s Decision and Direction of Election, as well as his
Decision on Objections. The Board affirmed in all respects,
explaining that the Regional Director correctly reasoned that
the proposed contraction of the unit was not definite and
imminent considering the Company’s “long history of
delays[.]”
Then–Board Member McFerran identified two additional
grounds for affirmance. 2 She noted that the Decision and
Direction of Election could be affirmed under the Board’s
“substantial and representative” unit doctrine, and also noted
that the decision as to the Company’s post-election objections
to the Representatives’ votes could be affirmed because the
result of the election would not have changed even if the
Representatives’ votes had been excluded. For his part,
Member Emanuel stated that his vote to affirm was based
solely on the Company’s failure to demonstrate that its
elimination of the Representative classification was definite
and imminent.
The Company refused to bargain with the Union in order
to seek further review of the Regional Director’s decision to
certify the bargaining unit. The Board granted summary
judgment to the Union on the technical refusal to bargain
charge. American Bottling Co., 369 NLRB No. 19 (2020). The
2
President Biden named McFerran as the Chair of the Board
during the pendency of this appeal. NLRB, President Appoints
Lauren McFerran NLRB Chairman (Jan. 20, 2021),
https://www.nlrb.gov/news-outreach/news-story/president-appoints
-lauren-mcferran-nlrb-chairman (last accessed April 12, 2021).
11
Company filed a petition for review in this court, and the Board
cross-applied for enforcement.
II
The Board had jurisdiction to review the Regional
Director’s decisions under 29 U.S.C. § 160(a). We have
jurisdiction to review the Board’s decision under 29 U.S.C.
§ 160(e) and (f).
“The Supreme Court repeatedly has noted the ‘wide
degree of discretion’ afforded the Board by Congress in matters
concerning the conduct of representation elections.” Timsco
Inc. v. NLRB, 819 F.2d 1173, 1175–1176 (D.C. Cir. 1987)
(quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946)).
Board determinations regarding such matters are therefore
“rarely to be disturbed,” South Prairie Constr. Co. v. Local
627, Int’l Union of Operating Eng’rs, 425 U.S. 800, 805 (1976)
(internal quotation omitted), and we will do so only if such
decisions are “arbitrary or not supported by substantial
evidence in the record[,]” Rush Univ. Med. Ctr. v. NLRB, 833
F.3d 202, 206 (D.C. Cir. 2016) (internal quotation omitted); see
also 29 U.S.C. § 160(e) (Board’s factual findings “shall be
conclusive” if they are “supported by substantial evidence on
the record considered as a whole.”). A finding lacks substantial
evidence “only when the record is so compelling that no
reasonable factfinder could fail to find to the contrary.” Inova
Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (internal
quotation omitted).
III
The Board’s decision to order an election in a unit
containing Representatives was supported by substantial
evidence as the Company failed to show that contraction of the
proposed bargaining unit was definite and imminent.
12
A
The delay of an election “almost inevitably works to the
benefit of the employer and may frustrate the majority’s right
to choose to be represented by a union[.]” Amalgamated
Clothing & Textile Workers v. NLRB, 736 F.2d 1559, 1563
(D.C. Cir. 1984). Nevertheless, the Board may decline to hold
an election if a substantial expansion or contraction of the
workforce voting on unionization is “imminent and certain.”
Hughes Aircraft Co., 308 NLRB 82, 83 (1992) (“The Board
has consistently held that it will not conduct an election at a
time when a permanent layoff is imminent and certain.”); see
NLRB v. Deutsch Post Global Mail, Ltd., 315 F.3d 813, 816
(7th Cir. 2003); see also Matson Terminals, Inc. v. NLRB, 114
F.3d 300, 305 (D.C. Cir. 1997) (Henderson, J., dissenting)
(describing this precedent as the “workforce-in-flux doctrine”).
The employer bears the burden of proving that a substantial
change is “both imminent and definite.” See Retro Env’t,
Inc./Green Jobworks, LLC, 364 NLRB No. 70, at *6 (2016);
see also Company Reply Br. 14 (acknowledging same).
Substantial evidence supports the Board’s decision that the
Company had not proven the Reroute was imminent and
certain.
First, due to a variety of circumstances, the Company had
already failed three times before to meet its prior announced
implementation dates, including dates when the evidence of the
Company’s firm commitment was stronger than it was for the
July 2019 proposed date.
Recall that the Company first announced that the Reroute
would occur in the Spring of 2018. But then contract
negotiations and a strike by delivery drivers forced the Reroute
onto the back burner.
13
The Company tried again in early 2019 around the time of
the Super Bowl. But the Company found itself unprepared for
the “extremely arduous” and complicated blitz of processes
that the Reroute entailed. J.A. 38–39. So the Company was
forced to punt on that date too.
The Company’s third effort to conduct the Reroute on
April 1, 2019 seemed certain to go forward. The Company had
worked through the details of the process. Troutman testified
that, as of March 14th, the Reroute was “locked set in stone it
was happening” on April 1st. J.A. 41. Executives in the
Company were alerted, J.A. 160, as was the Company’s main
customer in the Chicago area, Jewel Foods, J.A. 161.
Troutman also prepared formal, typeset talking points for
meetings with the Representatives in which he informed them
that the Reroute “will commence Monday, April 1st.” J.A.
164; see also J.A. 166. And the Company provided official
letters to each of the Representatives, informing them of the
“new position, effective March 31, 2019,” to which they were
being transferred “[a]s part of the 2019 Chicago Area Reroute.”
J.A. 169, 172, 175. The Company also provided at least some
Representatives with information about changes to their pay
frequency and benefits, noting that they would “receive [their]
last paycheck in [their] current position on 04/05/2019, for time
worked 03/24/2019 – 03/30/2019.” J.A. 173.
But, alas, the April 1st date went the way of its
predecessors and fell through, foiled by an apparently
unforeseen need to address delivery driver contract
negotiations first. Jewel Foods then asked the Company, if it
could not implement the Reroute before May 1st, to delay it
until after the spike in soft-drink demand over the Fourth of
July holiday.
14
It was against that backdrop that the Board concluded,
based on the Regional Director’s factual findings, that the
fourth attempt to complete the Reroute in July 2019 was not
certain or imminent. While neither the Regional Director nor
the Board disputed the Company’s desire to effectuate the
Reroute at some point, the fact remained that for nearly
eighteen months the process had been repeatedly derailed.
Second, the evidence that the July 21st target date would
hold firm was far less robust than the evidence in the record for
the failed April 1st date. On June 4, the Regional Vice
President in charge of the Company’s Chicago operations
described “the week of July 21st” only as the “new target date”
for the Reroute. J.A. 170. And there was none of the
evidentiary documentation of the planned transition that the
Company had put in place prior to the failed April date. There
was no email to Northlake plant executives. No evidence of
communication with clients that the change was set for a date
certain. No paperwork provided to the Representatives
advising them of the end date for their Representative positions
and the start date for their new roles. The most the Company
mustered was an email to some managers in Texas stating that
the July 21st date was a “target[,]” J.A. 170, and notes from an
oral notification to the Representatives in the office on July
14th that the Reroute had been rescheduled. Even as to that,
Troutman was candid that he could not say with “a hundred
percent certainty” that all the Representatives had been
informed of the proposed Reroute date. J.A. 62.
To be sure, Troutman testified that he was confident the
Reroute would actually happen in July. But that confidence
had proven misplaced before. See J.A. 41 (“Q. So as of March
14, 2019, in your e-mail you’re saying that the company is
going to implement effective April 1, 2019; is that right? A.
That is correct. Q. And that was the plan, to implement April
15
1, 2019, right? A. Not only the plan. It was locked set in stone
it was happening[.] Q. It was locked set in stone that it was
going to happen April 1, 2019? A. Correct. Q. Did it happen
April 1, 2019? A. It did not.”).
Given all of that, the Regional Director reasonably found
that the July 21st “target” date was an aspiration, not a “locked
set in stone” date. J.A. 182–183; cf. Committee for a Better
Arvin v. EPA, 786 F.3d 1169, 1179 (9th Cir. 2015)
(establishing a “target” is not the same as promising to attain
it). The Company’s track record of missed and rescheduled
Reroute dates was lengthy, and the concrete steps to notify
affected workers and provide them with the needed paperwork
were more tentative in July than they had been in March. And
even those extra measures proved to be unreliable indicia for
an actual Reroute implementation in April. On this record, the
Regional Director sensibly found, and the Board reasonably
agreed, that the Reroute’s implementation date was anything
but certain at the time of the representation election.
B
The Board’s conclusion was also consistent with its own
precedent. See Retro Env’t, 364 NLRB No. 70, at *6 (“The
Board will not dismiss an election petition based on conjecture
or uncertainty concerning an employer’s future operations, an
employer’s contention that it intends to cease operations or
reduce its workload sometime in the future, or evidence of
cessation that is conditional or tentative.”), enf’t granted, 738
F. App’x 200 (4th Cir. 2018); see also Gibson Elec., 226 NLRB
1063, 1063 (1976) (ordering representation election in part
because the employer inaccurately forecasted date by which it
would lay off workforce and workers remained employed);
March Assocs. Constr., 2012 WL 1496208, at *1 n.1 (NLRB
April 27, 2012) (“[U]nsubstantiated, uncorroborated
16
testimony” from the president and owner of the employer was
“insufficient to establish the imminent and certain elimination
of the unit.”).
The Company points to M.B. Kahn Construction Co., 210
NLRB 1050 (1974), as a case where the Board credited
uncontroverted testimony from the employer in determining
that unit contraction was definite and imminent. But agencies
must resolve matters based on the whole record, see American
Wrecking Corp. v. Secretary of Labor, 351 F.3d 1254, 1261
(D.C. Cir. 2003) (citing Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951)), and that full record is what courts must
review as well, Genuine Parts Co. v. EPA, 890 F.3d 304, 346
(D.C. Cir. 2018).
The differences between the record in this case and in M.B.
Kahn are stark. In M.B. Kahn, the employer had not been
plagued by false starts like the Company here, and all evidence
indicated that the project had been and would remain on
schedule with associated termination dates occurring as
planned. See 210 NLRB. at 1050–1051. Indeed, in that case
there was testimony that, “although there had been a strike at
the project it had no effect on the target [termination] dates
originally contemplated.” Id. at 1050 n.1. The record in this
case (both before the Board and in this court) quite simply lacks
the unblinking march toward actual contraction that appears in
the cases on which the Company relies. 3 If anything, the
3
E.g., Hughes Aircraft, 308 NLRB at 83 (noting that decision
to contract had “methodically been carried forward” and sealed in
contractual letters of intent); Larson Plywood Co., 223 NLRB 1161,
1161 (1976) (noting that the corporate board had decided to shut
down the plant within 90 days, and there was “no evidence of any
inconsistent action on the part of the Employer”); see also Martin
Marietta Aluminum, 214 NLRB 646, 646–647 (1974) (unit
17
contrast between those cases and this one underscores the
reasonableness of the Board’s judgment.
Nor did the mere fact that Troutman’s testimony about the
July 21st date was not expressly contradicted foreclose the
Regional Director or Board from reasonably drawing a
contrary conclusion based on all of the evidence in the record.
For example, information elicited on cross-examination can
provide substantial evidence on which the Board could rely to
undermine the assertions made by the employer on direct
examination. See, e.g., Novato Healthcare Ctr. v. NLRB, 916
F.3d 1095, 1102–1105 (D.C. Cir. 2019). That is what
happened here. Compare J.A. 32, 34 (“Q. And is the July 21
date now a date certain when the company intends to
implement this? A. That is the date we’re going to implement,
correct.”), with J.A. 41 (Troutman admitting Reroute did not
occur on April 1st).
The Company next argues that the Regional Director
“applied [an] incorrect legal standard” because, in its view, he
required the Company to demonstrate that the Reroute would
“definitely occur on an exact calendar date.” Company Br. 35–
36. Not so.
The Company is correct that the Board’s cases do not
require an employer to prove that a unit contraction will occur
on a specific date. The employer instead may identify a period
of time during which contraction is planned. E.g., Hughes
Aircraft Co., 308 NLRB at 83 (contraction planned “between
August 3 to 16, 1992”); Larson Plywood Co., 223 NLRB at
1161 (contraction planned “within 90 days”); General Elec.
contraction was definite and imminent where employer “was already
in the process of closing the plant prior to the filing of the petition,”
and “[a] substantial number of employees had already been
terminated before the hearing”).
18
Co. (Trenton, NJ), 101 NLRB 1341, 1344 (1952) (contraction
planned “sometime * * * in mid-August”).
But the Regional Director never required that the
Company confine itself to a single date for the Reroute. It was
the Company that repeatedly advanced a single date—July
21st—as the impending date of contraction. All the Regional
Director’s decision did was respond to the Company’s position
and decide whether a contraction on that date was, in fact,
definite and imminent. The Company offered no broader
window of time for the Reroute, and so the Regional Director
did not consider one. Nothing wrong with that.
Finally, the Company contends that the fact that the
Regional Director later declined to pursue an unfair labor
charge against the Company relating to the elimination of the
Representatives’ position casts a suspect light on the Board’s
decision.
The short answer is that this matter is not in the record,
and “[i]t is well settled that judicial review of agency action is
normally confined to the full administrative record before the
agency at the time the decision was made.” Environmental
Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir.
1981); see also 29 C.F.R. § 102.68 (defining record in pre-
election proceeding).
The point is also irrelevant. When Regional Directors
decline to bring charges, they do so by exercising authority
delegated from the General Counsel rather than from the
Board. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138
(1975). And when the General Counsel declines to issue a
complaint, “no proceeding before the Board occurs at all[,]” id.
at 139, and the action has no precedential value whatsoever.
19
Anyhow, that the Company’s Reroute was determined
after the fact not to be an unfair labor practice has no relevance
to the certainty and imminence of the Reroute at the time the
Regional Director rendered his decision.
For similar reasons, it is irrelevant that the Reroute did, in
fact, occur on July 21st. The Regional Director’s task was to
make a prediction about whether the Reroute was certain to
occur on that date. The issue before the Board and us is only
the reasonableness of that prediction at the time it was made.
Needless to say, the fact that the Reroute actually happened
was not and could not have been in the record before the
Regional Director when he decided on July 3rd that
implementation of the Reroute was not, at that time, either
certain or imminent.
IV
The Board also correctly denied the Company’s objections
to the election process itself.
The Board’s discretion to assess the propriety and results
of representation elections is broad, and we will overturn a
Board decision to certify an election only in “the rarest of
circumstances.” North of Market Senior Servs., Inc. v. NLRB,
204 F.3d 1163, 1167 (D.C. Cir. 2000). The employer bears “a
heavy burden” in “showing that the election was improper.”
Amalgamated Clothing Workers v. NLRB, 424 F.2d 818, 827
(D.C. Cir. 1970). Where, as here, the objections are based on
the alleged conduct of the Board’s agent—in refusing to allow
challenges to the Representatives’ ballots and in failing to
prevent the recording of the ballot tabulation—an election will
be overturned only if the objections raise a “reasonable doubt”
as to its fairness and validity. Polymers, Inc., 174 NLRB 282,
282 (1969).
20
The Board correctly overruled the Company’s objection
that the Regional Director should have recorded a challenge to
each vote cast by a Representative. The Regional Director
specifically included the Representatives as eligible voters in
his Decision and Direction of Election. And Board precedent
is settled that “[p]ersons specifically included by the Decision
and Direction of Election should be given a ballot and
permitted to vote without challenge, unless there have been
changed circumstances.” Anheuser-Busch, LLC, 365 NLRB
No. 70, at *1 (2017) (quoting NLRB Casehandling Manual
(Part Two) Representation Proceedings § 11338.7). Indeed,
the Board’s long-established procedure and practice is “to deny
any party to an election the opportunity to challenge the ballots
of individuals in categories as to which the Board has already
ruled on eligibility[,]” and “[t]his has been announced many
times in Board decisions, as well as in the Board’s Field
Manual, and should be clearly understood by all Board
personnel and by members of the bar who regularly practice
before th[e] Board.” Amalgamated Clothing Workers, 217
NLRB 98, 98 (1975).
The Company says that it demonstrated “changed
circumstances” by confirming on July 12th that the Reroute
was still on track for July 21st. But this “confirmation”
amounted to nothing more than a verbal statement by the
Company’s Director of Labor Relations that the “previously
announced elimination of the [Representative] position would
proceed as scheduled[.]” J.A. 225. Just reiterating the same
general assertion already rejected by the Regional Director nine
days earlier does not changed circumstances make. Tellingly,
the Regional Director had spelled out what kind of factual
evidence might demonstrate that the Reroute was truly
imminent—like the provision of new offer letters to the
Representatives reflecting updated effective dates, or written
confirmation that the master data source upon which the
21
Reroute depended had been updated. The Company produced
neither of those. The mere “passage of time without any
change in [the Company’s] position,” Company Br. 19, cannot
itself sensibly be considered a changed circumstance.
The Board has also declined to set aside elections on the
basis of challenged ballots where those ballots were “not
determinative” of the election result. See, e.g., J.C. Brock
Corp., 318 NLRB 403, 404 (1995); see also KCRA-TV, 271
NLRB 1288, 1289–1290 (1984) (counting improperly cast
ballots would be “harmless error” if they “could not affect the
results of the election”). That principle applies here. Seven of
the thirty-five Representatives were becoming account
managers, and therefore remained eligible to participate in the
bargaining unit. That means that only 28 of the 35
Representatives would have been ineligible to vote. Yet even
if all 28 of those Representatives were subtracted from the pro-
Union votes, the final tally would still be 18 votes in favor of
the Union and 16 votes against. So, as then-Member McFerran
explained, the challenges would not have been outcome
determinative. See National Mining Ass’n v. United States
Dep’t of Interior, 251 F.3d 1007, 1014 (D.C. Cir. 2001). That
is not “pure speculation[,]” as the Company suggests. See
Company Reply Br. 13. That is arithmetic.
The Company’s objection to the Union’s recording of the
ballot tabulation fares no better. An election may not be
overturned based on conduct that occurred after the close of
voting and did not bear on the outcome of the election. See
Mountaineer Bolt, Inc., 300 NLRB 667, 667 (1990) (quoting
Head Ski Co., 192 NLRB 217, 218 (1971)). The recording here
took place after the polls had closed and could not conceivably
have had any bearing on the results.
22
V
For those reasons, the Company’s petition for review is
denied, and the Board’s cross-application for enforcement is
granted.
So ordered.