NLRB v. NP Palace LLC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2020 Decided June 8, 2021

No. 20-1008

NATIONAL LABOR RELATIONS BOARD,

PETITIONER

v.

NP PALACE LLC, D/B/A PALACE STATION HOTEL & CASINO,

RESPONDENT

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 501, AFL-CIO,

INTERVENOR

Consolidated with 20-1042

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

David A. Rosenfeld argued the cause and filed the briefs for

petitioner International Union of Operating Engineers, Local

501, AFL-CIO.

Heather S. Beard, Attorney, National Labor Relations

Board, argued the cause for respondent National Labor

2

Relations Board. With her on the brief were Peter B. Robb,

General Counsel, Ruth E. Burdick, Acting Deputy Associate

General Counsel, David Habenstreit, Assistant General Counsel,

and Usha Dheenan, Supervisory Attorney.

Before: TATEL and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge:

I.

In January 2018, the slot-machine technicians at Palace

Station Hotel & Casino voted to organize. The National Labor

Relations Board certified the International Union of Operating

Engineers Local 501 to represent them, and the union asked

Palace to produce documents.

Palace said no dice. For reasons irrelevant here, Palace

believed that the union should not have been certified. But

certification is not a “final agency action,” so employers like

Palace cannot go straight to court. Terrace Gardens Plaza, Inc.

v. NLRB, 91 F.3d 222, 225 (D.C. Cir. 1996). Instead, they must

first “refuse to bargain” and “suffer an unfair labor practice

charge[.]” Wackenhut Corp. v. NLRB, 178 F.3d 543, 548 (D.C.

Cir. 1999). Only then are they entitled to judicial review, with

the claimed “invalidity of . . . certification” serving as “an

affirmative defense.” Terrace Gardens, 91 F.3d at 225. So to

get its day in court, Palace stonewalled.

As a result, the Board found that Palace violated 29 U.S.C.

§§ 158(a)(1) and (5). But the Board’s usual remedy — an order

3

to “furnish all requested information” — would have left Palace

in a fix. J.A. 152 n.15. According to Palace, some of that

information was confidential, like its plans to “combat illegal

gaming activity and money laundering.” J.A. 151. Handing over

such information could “severely compromise [Palace’s]

business” and “advantage would-be malefactors[.]” J.A. 154.

(As we later explain, Board precedent caused a dilemma for any

employer wishing to challenge certification and preserve

confidentiality.)

So the Board devised a new remedy. When a certification-

testing employer raises a “specific confidentiality interest,” the

Board will now listen. J.A. 152. If the interest is “legitimate on

its face,” the Board will order accommodative bargaining

instead of immediate production. Id. Applying that rule here,

the Board found that Palace’s claim passed muster, so it ordered

Palace to bargain over the union’s request. See J.A. 153–54.

Separately, the Board ruled that customer complaints

requested by the union were “not presumptively relevant” to the

union’s duty as the employees’ bargaining representative. J.A.

151. Still, they might be relevant “in a particular case,” so the

Board remanded that issue “for further appropriate action.” Id.

These petitions followed. In No. 20-1042, the union

challenges the Board’s confidentiality and relevance rulings. In

No. 20-1008, the Board seeks enforcement against Palace.1

1

Palace also petitioned for review, maintaining that it should not

have to produce documents because the union was invalidly certified.

But Palace later abandoned its certification challenge, thus waiving

any objection to enforcement of the Board’s order.

4

II.

A.

We begin with the Board’s new remedy. The union claims

that it runs afoul of 29 U.S.C. § 160(g),2 which provides that

Board orders are not automatically stayed pending review.

According to the union, § 160(g) shows that Congress “did not

excuse” employers who “resist[] a Board order.” Reply Brief 6.

Or put another way, employers who refuse to bargain must be

“subject to the consequences.” Petitioner’s Brief 16. And the

Board, we are told, has “no right to change that[.]” Reply Brief

7.

Section 160(g) is an odd starting point for oppugning the

Board’s new remedy. That subsection says nothing at all about

remedies. And the new remedy does not “change” any liabilities

or “excus[e]” any violations. Just the opposite: the Board

explained that “a violation will be found for the refusal to

provide information . . ..” J.A. 152. Appealing to generic

“consequences” is no way to show that the Act forecloses a

particular remedy. So the union’s statutory challenge goes

nowhere.

The union also assails the Board’s explanation that it

needed a new remedy to save employers from a dilemma. As

mentioned above, under one line of precedent, employers cannot

bargain if they plan to test certification. See Terrace Gardens,

91 F.3d at 225. Meanwhile, a line of Board decisions said that

employers could not raise a confidentiality defense without first

bargaining. See, e.g., Detroit Newspaper Agency, 317 N.L.R.B.

2

“The commencement of proceedings under subsection (e) or (f)

of this section shall not, unless specifically ordered by the court,

operate as a stay of the Board’s order.” 29 U.S.C. § 160(g).

5

1071, 1072 (1995). The upshot: an employer like Palace had to

“waive either its challenge to the union’s certification or its

confidentiality defense.” J.A. 152.3

The union scoffs at all that. To test certification, it reasons,

employers must break the law. And an employer who breaks the

law “acts at its peril.” Petitioner’s Brief 17. So the new remedy

rests on a “false conflict,” and the Board was arbitrary and

capricious to adopt it. Id. at 15.

But once again this begs the question. True, an employer

like Palace tests certification at its own peril — yet this tells us

nothing about what peril should befall. That is where the Board

comes in. Here, the Board used its “broad discretion[]” to craft

a remedy that protects confidential information. Fibreboard

Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964). That

remedy is both reasonable and consistent with the Act, so we

will not disturb it. See id.

We reject, too, the union’s remaining scattershot arguments.

The Board need not predict how its ruling would apply in other

contexts or interact with other doctrines. E.g., Petitioner’s Brief

23–25 (discussing unilateral changes). On the contrary: the

Board “has reason to proceed with caution, developing its

standards in a case-by-case manner . . ..” NLRB v. Bell

Aerospace Co., 416 U.S. 267, 294 (1974). Nor does the Board’s

decision — which concerns only remedies — alter the basic

3

The Board called this situation a “Hobson’s choice,” but that is

not quite right. J.A. 153 n.23. The eponymous Hobson was an

Elizabethan liveryman who kept a stable near St. Catherine’s College,

Cambridge. To spare his best horses from overuse, he required riders

to hire whichever mount was nearest the stable door. Hence the

proverbial choice: take what is offered, or nothing at all. See Richard

Steele, The Spectator No. 509 (1712). Here, Palace instead faced a

dilemma.

6

duty to bargain. See Petitioner’s Brief 23. Finally, the Board

adequately addressed the risk that its rule would invite delay.

See id. As the Board acknowledged, information “may be

delayed” when a legitimate confidentiality interest is at stake.

But in such cases, it explained, accommodative bargaining “best

effectuates the policies of the Act . . ..” J.A. 153.

B.

As to the Board’s application of the new remedy, the union

observes that Palace waited until summary judgment to raise

confidentiality. See Petitioner’s Brief 11. And it reminds us —

quite rightly — that this was too late under the old scheme. Yet

under the new approach, employers are free to raise

confidentiality for the first time at summary judgment. See J.A.

152. The Board may grant the “benefits of a change in the law

to the very part[y] whose efforts were largely responsible for

bringing it about . . ..” Retail, Wholesale & Dep’t Store Union

v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972). So it was

reasonable to apply the new remedy here.

It was also reasonable to find Palace’s confidentiality claim

“legitimate on its face.” J.A. 152. True, Palace offered “no

affidavit or admissible evidence” to prove confidentiality.

Petitioner’s Brief 22. But the Board does not require such proof.

Instead, employers need only “articulate a specific

confidentiality interest.” J.A. 152. Palace did so, and the Board

reasonably found the claim legitimate. See Circus Circus

Casinos, Inc. v. NLRB, 961 F.3d 469, 475 (D.C. Cir. 2020).4

4

The union seems to suggest that this finding is not supported by

substantial evidence. See Petitioner’s Brief 10–12, 19. But it “never

sought reconsideration [of that issue] and it offers no extraordinary

circumstances to excuse its failure.” Nova Se. Univ. v. NLRB, 807

F.3d 308, 316 (D.C. Cir. 2015); see also 29 U.S.C. § 160(e). For the

same reason, we may not consider the union’s arguments that the new

7

III.

That brings us to the customer complaints. Recall that the

Board found such complaints “not presumptively relevant.” Id.

at 150–51. But they may be relevant “in a particular case,” so

the Board remanded “for further appropriate action.” J.A. 151.

The union challenges that decision on several grounds.

We dismiss for lack of jurisdiction. Under the Act, courts

may review only “final order[s] of the Board granting or

denying relief . . ..” 29 U.S.C. § 160(f). This ruling did neither.

Instead, the Board remanded to allow further factual

development, see J.A. 151 — hardly the “consummation of the

agency’s decisionmaking process[.]” Bennett v. Spear, 520 U.S.

154, 178 (1997) (quoting Chi. & S. Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103, 113 (1948)). It follows that the ruling

is not a final order.

Our opinion in Oil, Chemical & Atomic Workers Local

Union No. 6-418 v. NLRB, 694 F.2d 1289 (D.C. Cir. 1982), does

not hold otherwise. The union there asked for “immediate

release of the disputed information,” but the Board ordered

bargaining instead. Because the Board “denied the relief [that

the union] sought,” its order was final. Id. at 1295–96. Here, by

contrast, the Board has neither granted nor denied the requested

relief. J.A. 151.

The union ventures that its chance for judicial review might

vanish if “the General Counsel were to withdraw the complaint”

on remand. Reply Brief 25 n.14, 26 n.15. But it does not

elaborate, and “[w]e need not consider cursory arguments made

remedy creates piecemeal bargaining, impedes the duty of fair

representation, “nullifies the Complaint and Answer,” and extends too

broadly. Compare Petitioner’s Brief 7–8, 13 and Reply Brief 15–16

with J.A. 163–69.

8

only in a footnote . . ..” Hutchins v. District of Columbia, 188

F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc). In all events, the

General Counsel has “unreviewable discretion” to withdraw

complaints. NLRB v. United Food & Com. Workers Union,

Local 23, 484 U.S. 112, 126 (1987). So that prospect is not “a

problem in need of a judicial solution” but instead “evidence of

Congress’ design[.]” Guerrero-Lasprilla v. Barr, 140 S. Ct.

1062, 1078 (2020) (Thomas, J., dissenting).

*

In No. 20-1042, we deny in part and dismiss in part the

union’s petition for review. In No. 20-1008, we grant summary

enforcement to the Board. See Wayneview Care Ctr. v. NLRB,

664 F.3d 341, 347 (D.C. Cir. 2011).

So ordered.