SFO Good-Nite Inn, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2012 Decided November 20, 2012

No. 11-1295

SFO GOOD-NITE INN, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with No. 11-1325

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Patrick W. Jordan argued the cause for petitioner. With

him on the briefs was Nanette Joslyn.

MacKenzie Fillow, Attorney, National Labor Relations

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

were John H. Ferguson, Associate General Counsel, Linda

Dreeben, Deputy Associate General Counsel, and Usha

Dheenan, Supervisory Attorney.

Before: ROGERS and GARLAND, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: SFO Good-Nite Inn, LLC,

withdrew recognition of Unite Here! Local 2 based on anti-

union petitions that the National Labor Relations Board found

were impermissibly tainted by Good-Nite’s unlawful assistance

to the decertification effort in violation of sections 8(a)(5) and

(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),

(5). Good-Nite petitions for review on the principal ground that

the Board applied the wrong line of its precedent, Hearst Corp.,

281 N.L.R.B. 764 (1986), and expanded the conduct covered by

it, unreasonably departing from its settled causality precedent in

Master Slack Corp., 271 N.L.R.B. 78 (1984).

Regardless of whether the Board previously forthrightly

explained the distinction between these two lines of its

precedent, the Board has now articulated a clear line for

applying the Hearst presumption of taint in “the narrow

circumstance where an employer unlawfully instigates or

propels a decertification campaign, and then invokes the results

of that campaign to justify its unilateral withdrawal of

recognition from its employees’ representative.” SFO Good-

Nite Inn, LLC, 357 N.L.R.B. No. 16, at 4 (July 19, 2011). The

Board explained that the Hearst presumption applies where the

employer is directly involved in advancing a decertification

petition, whereas the Master Slack test applies where the

employer committed unfair labor practices unrelated to the

petition that may have contributed to the erosion of support for

the union. Upon finding that Good-Nite directly assisted and

advanced the decertification effort by coercively asking

employees to sign the petitions and unlawfully threatening to

fire an employee for opposing it, the Board applied the Hearst

presumption as there was no need to make a specific causation

finding under Master Slack.

3

We hold that the Board’s Hearst presumption is reasonable

and consistent with the Act, and that the Board’s factual findings

are supported by substantial evidence in the record.

Accordingly, we deny the petition for review and grant the

Board’s cross application for enforcement.

I.

In March 2004, Good-Nite purchased a hotel located near

the San Francisco International Airport and assumed the prior

owner’s obligations under a collective bargaining agreement

with housekeeping and janitorial employees represented by

Unite Here! Local 2 (“the Union”). At the relevant time the

represented unit consisted of 24 employees. The agreement was

due to expire in November 2004, but in August 2004 Good-Nite

and the Union agreed that it would remain in effect during their

renegotiations for a new agreement.

During a bargaining session on August 23, 2005, the Union

demanded that Good-Nite discharge five new housekeepers

unless they paid union dues pursuant to a union-security clause

in the agreement. On August 31, Good-Nite general manager

Azfal “A.C.” Chaudhry and banquet manager Naomi Grace

Vargas met with two of those housekeepers, Cristina Valencia

and Maria Maldonado. At the meeting, Chaudhry told Valencia

and Maldonado about the outstanding dues, stated that the Union

was “no good,” and asked them to consider signing a “paper” to

eliminate the Union. According to Valencia, Chaudhry

questioned why they wanted a union when he was willing to

give them paid vacation and health insurance, benefits they were

not then receiving. Two hours later, Vargas approached

Valencia and told her that Chaudhry was waiting for her

response. Neither Valencia nor Maldonado signed a

decertification petition. Maldonado told co-worker Luz Verdin

4

that she was afraid management would make her sign a petition

or lose her job.

Also in late August, Good-Nite assistant manager Leah

Aquino approached housekeeper Margarita Taloma and asked

her to sign an anti-union petition. A few days later Aquino

unexpectedly arrived at Taloma’s home and again asked her to

sign a petition. Taloma refused. Another employee testified

that there were “rumors about signatures that were being

requested [by Good-Nite management] for non-unionizing.” Tr.

of ALJ Hr’g, Apr. 18, 2006, at 143.

Valencia, Maldonado, and Taloma all told housekeeping

inspector Consuelo Contreras, who was on the Union

negotiating committee, about Good-Nite’s solicitation of their

signatures. On September 6, Contreras urged another

housekeeper, Xiang Tan, not to sign the petitions. Two hours

later, Chaudhry and Good-Nite’s owner, Eric Yokeno, asked

Contreras why she was telling employees not to sign the

petitions and told her that she could be fired for doing so at

work. Good-Nite did not have a work rule against solicitation.

On September 7, Chaudhry fired Valencia and Maldonado,

citing a seasonal slowdown in business. This was contrary to

Good-Nite’s usual practice of laying off employees subject to

recall, rather than firing them. Contreras, the employee most

knowledgeable about their work, had not been asked about their

work performance and thought they were both good workers.

Other housekeepers with less seniority who had signed a

decertification petition were not fired. By September 7, a Union

field representative heard that Good-Nite management had been

asking employees to sign a decertification petition.

On September 14, 2005, Good-Nite withdrew recognition

of the Union based on petitions signed by 13 of the 24 unit

5

employees stating that they no longer wished to be represented

by the Union. When housekeeper Luz Verdin requested

vacation leave, assistant manager Aquino told her on October 4

that she would grant the request if Verdin signed an anti-union

petition, which she did. Aquino then backdated Verdin’s

signature to make it appear that she had signed the petition on or

before Good-Nite’s withdrawal of Union recognition. On

October 14, 2005, the Union filed an unfair labor practice charge

with the Board. The General Counsel of the Board issued a

complaint on March 1, 2006.

The administrative law judge (“ALJ”) found, after a

hearing, that Good-Nite had violated section 8(a)(1) of the Act

by soliciting employees to sign an anti-union petition with

threats or promised benefits; sections 8(a)(3) and (1) by

discharging Valencia and Maldonado to discourage union

membership and activities; and sections 8(a)(5) and (1) by

unlawfully withdrawing recognition of and refusing to bargain

with the Union. Applying the four-factor causation test of

Master Slack, the ALJ found this unlawful conduct had tainted

the employee petitions disavowing the Union. The ALJ, in

addition to recommending reinstatement of Maldonado and

Valencia with back pay and expunging references to their

unlawful discharges from Good-Nite’s files, proposed a cease

and desist order and various affirmative actions, including that

Good-Nite bargain with the Union. In March 2008, the Board

adopted the ALJ’s factual findings and proposed order. SFO

Good-Nite Inn, LLC, 352 N.L.R.B. 268 (2008). Because the

Board’s decision was rendered by a non-quorum of only two

members, this court vacated the decision in view of New

Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010); Laurel

Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469,

476 (D.C. Cir. 2009), and remanded the case for further

proceedings. SFO Good-Nite Inn, LLC v NLRB, No. 08-1148

(D.C. Cir. Sept. 20, 2010).

6

On July 19, 2011, a three-member Board issued a decision

incorporating by reference most of the 2008 decision and

explaining further why Good-Nite’s withdrawal of recognition

violated sections 8(a)(5) and (1) of the Act. Agreeing with the

General Counsel that Good-Nite’s conduct per se precluded its

reliance on the petitions as a valid basis for withdrawing

recognition of the Union, the Board ruled that “the disposition

of this case is properly controlled by Hearst Corp., holding that

an employer may not withdraw recognition based on a petition

that it unlawfully assisted, supported, or otherwise unlawfully

encouraged, even absent specific proof of the misconduct’s

effect on employee choice.” SFO Good-Nite Inn, 357 N.L.R.B.

No. 16, at 1 (footnote omitted). One member dissented in part,

on the ground that the Hearst presumption should be rebuttable

while acknowledging that the difference was immaterial because

Good-Nite “failed to show that its misconduct could not have

tainted the employees’ petition.” Id. at 5 (Member Hayes,

concurring in part, dissenting in part). A unanimous Board

adopted the ALJ’s proposed order. Good-Nite petitions for

review, and the Board cross-applies for enforcement of its

Order.

II.

“[I]t is our longstanding rule that the Board is entitled to

summary enforcement of the uncontested portions of its orders.”

Carpenters & Millwrights, Local Union 2471 v. NLRB, 481 F.3d

804, 808 (D.C. Cir. 2007) (internal quotation marks and

alterations omitted). The Board accordingly seeks summary

enforcement of its unchallenged findings that Good-Nite

violated section 8(a)(1) of the Act by soliciting employees

Taloma and Verdin to sign an anti-union petition with threats

and promised benefits, and by threatening employee Contreras

with discharge if she told other employees not to sign the

petitions. Because Good-Nite did not file exceptions to these

7

findings, section 10(e) of the Act jurisdictionally bars Good-Nite

from obtaining review of them. 29 U.S.C. § 160(e); see also W

& M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C.

Cir. 2008). The Board is therefore entitled to summary

enforcement of these findings.

The Board also seeks summary enforcement of its Order

directing Good-Nite to reinstate employees Valencia and

Maldonado. The Board found that Good-Nite violated sections

8(a)(3) and (1) of the Act by discharging Valencia and

Maldonado because they did not sign the anti-union petitions.

Good-Nite challenges as clearly erroneous the factual finding

that its general manager, Chaudhry, solicited Valencia’s and

Maldonado’s signatures on an anti-union petition. But it does

not challenge the Board’s determination that the discharges were

unlawful. Good-Nite acknowledges that other record evidence

— namely Chaudhry’s possession of the signed anti-union

petitions at the time of the firings — would have supported the

finding that the firings were unlawful, irrespectively of the

alleged solicitations. The Board is therefore entitled to summary

enforcement of the reinstatement portion of its Order.

III.

Good-Nite contends that the Board erred in declining to

apply its traditional Master Slack test to evaluate disaffection

petitions for taint and instead adopted a new rule based on “its

little cited decision in Hearst Corporation,” Petr’s Br. at 18,

under which, it asserts, the General Counsel is relieved of the

burden to prove a causal nexus between the employer’s conduct

and employee disaffection and instead can rely on what Good-

Nite characterizes as overbroad “per se categories” of conduct,

id. Objecting that “the Board provided no reasoned explanation

for departing from Master Slack, [n]or explained how its new

rule will not result in arbitrary decisions with no evidentiary

8

support,” id., Good-Nite concludes that the new rule will impede

employees’ section 7 rights and curtail employers’ free speech

rights under section 8(c) of the Act. In Good-Nite’s view, had

the Board properly applied its Master Slack precedent and

considered all of the evidence, the Board “should have found

that the unfair labor practices were isolated, mostly occurring

after the Union lost majority support and were unknown to the

rest of the bargaining unit.” Id. at 18–19. Good-Nite ignores

the Board’s explanation and rationale for applying the Hearst

presumption and the substantial evidence supporting the Board’s

factual findings.

A. The court “accord[s] a very high degree of deference to

administrative adjudications by the [Board].” United

Steelworkers of Am., Local Union 14534 v. NLRB, 983 F.2d 240,

244 (D.C. Cir. 1993). “The Board, of course, is given

considerable authority to interpret the provisions of the [Act].

If the Board adopts a rule that is rational and consistent with the

Act, then the rule is entitled to deference from the courts.” Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42

(1987) (citation omitted). Such deference is appropriate here.

Section 8(a)(5) of the Act provides that “[i]t shall be an

unfair labor practice for an employer . . . to refuse to bargain

collectively with the representatives of his employees.” 29

U.S.C. § 158(a)(5). There are circumstances, however, where

an employer may unilaterally withdraw recognition from a union

if it can show through objective evidence that the union has lost

majority support as, for example, by presenting a petition signed

by a majority of employees in the bargaining unit stating that

they no longer wish to be represented by the union. See Flying

Food Grp., Inc. v. NLRB, 471 F.3d 178, 182 (D.C. Cir. 2006)

(discussing Levitz Furniture Co., 333 N.L.R.B. 717 (2001)).

This privilege is not absolute.

9

In Hearst Corp., 281 N.L.R.B. at 764, the Board found that

the employer had unlawfully solicited employee signatures on

union decertification petitions. For example, the employer had

interrogated employees about their union sympathies, told them

their continued representation by the union prevented their

receiving better benefits, promised increased benefits and

improved working conditions if they withdrew support for the

union, and suggested they sign anti-union petitions and persuade

their coworkers to withdraw their support for the union. See id.

The unfair labor practices had occurred prior to and

simultaneously with circulation of the petitions by employees.

Although decertification petitions signed by a majority of the

bargaining unit employees will generally be sufficient objective

evidence to provide a reasonable basis for withdrawing

recognition, the Board observed that it was “well settled” that an

employer’s doubt about a union’s continuing majority status at

the time it withdrew recognition “may not be raised in the

context of any employer activities aimed at causing employee

disaffection with the union.” Id. The Board concluded:

Where an employer engages in such conduct, the

decertification petitions will be found to have been

tainted by the employer’s unfair labor practices and the

latter, consequently, will be precluded from relying on

the tainted petition as a basis for questioning the

union’s continued majority status and withdrawing

recognition from that labor organization.

Id. The Board reached this conclusion, despite testimony from

19 of the 56 employees in the bargaining unit that they were

unaware of the employer’s unlawful conduct, because an

employer should not be able to “enjoy the fruits of its violations

by asserting that certain of its employees did not know of its

unlawful behavior.” Id. at 765 & n.9. Drawing on its

experience, the Board stated that it based the presumptive

10

finding of taint “not . . . on a finding of actual coercive effect,

but rather on the ‘tendency of such conduct to interfere with the

free exercise of employee rights under the Act.’” Id. at 765

(quoting Amason, Inc., 269 N.L.R.B. 750, 750 n.2 (1984)).

By contrast, the question in Master Slack was whether the

employer’s unremedied flagrant violations from an earlier unfair

labor practice case tainted the atmosphere as a matter of law,

such that the employer’s reliance in withdrawing union

recognition on a petition signed 8 to 9 years later by a majority

of the bargaining unit employees was unlawful. 271 N.L.R.B.

at 79. There were no allegations the employer directly assisted

the decertification campaign through improper solicitation,

threats, or other misconduct. To determine whether there was

a causal relationship between the employer’s earlier unlawful

conduct and the anti-union petition, the Board applied a four-

factor test: “(1) [t]he 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.” Id. at 84. The ALJ found that

there was no direct evidence of a causal relationship between the

employer’s unlawful conduct in 1973-74 and the 1982 anti-

union petition, and that the indirect factors were insufficient to

preclude the employer as a matter of law from withdrawing

recognition. See id. at 85. The Board, in adopting the ALJ’s

findings, noted that the unfair labor practices “occurred many

years before the petition’s circulation, and that the [employer]

ha[d] complied with the ordered remedies in many significant

respects well before the petition’s circulation.” Id. at 78 n.1.

In applying the Hearst presumption here, the Board began

by stating that “it is well settled that an employer may only

11

withdraw recognition [of a union] if the expression of employee

desire to decertify represents the free and uncoerced act of the

employees concerned.” SFO Good-Nite Inn, 357 N.L.R.B. No.

16, at 1 (internal quotation marks omitted). Although both

Hearst and Master Slack apply this limitation, the Board

explained, they do so in two different contexts: “Hearst applies

when an employer has engaged in unfair labor practices directly

related to an employee decertification effort,” such as here,

whereas Master Slack applies to “other unfair labor practices

distinct from any unlawful assistance by the employer in the

actual decertification petition.” Id. at 1–2 (internal quotation

marks omitted). A causal nexus must be shown in the Master

Slack line of cases because “there is no straight line between the

employer’s unfair labor practices and the decertification

campaign, and the Master Slack test must be used to draw one,

if it exists.” Id. at 2. By contrast, in the Hearst line of cases,

“the employer’s unfair labor practices are not merely coincident

with the decertification effort; rather, they directly instigate or

propel it.” Id.

The Board proceeded to elaborate on the scope and the

rationale underlying the Hearst presumption. First, the Board

emphasized that the presumption applies only in “the narrow

circumstance where an employer unlawfully instigates or

propels a decertification campaign, and then invokes the results

of that campaign to justify its unilateral withdrawal of

recognition from its employees’ representative.” Id. at 4. It then

explained that there is “little need” for a Master Slack-type

causation analysis in such circumstances because, as it had long

observed, the “foreseeable consequence of such misconduct —

and frequently its purpose — is . . . to contribute to the union’s

loss of majority status.” Id. (internal quotation marks omitted).

The Board dismissed any need for evidence that employees who

signed a petition knew of the employer’s unlawful labor

practices because the victims of such practices frequently tell

12

their co-workers, as occurred here, and thus “‘it may be

presumed that employees who signed the petition . . . were

aware of the [employer’s unlawful acts], and such knowledge is

likely to have influenced their decision.’” Id. at 4 & n.29

(quoting Caterair Int’l, 309 N.L.R.B. 869, 880 (1992)). Finally,

the Board explained as a matter of policy that its conclusive

presumption “provides a strong incentive to employers to steer

clear of potentially unlawful conduct.” Id. at 4.

The Board’s articulated distinction between these two lines

of its precedent and its reasons for the Hearst presumption are

rational and consistent with the Act.1 Good-Nite’s citation to

Board decisions applying Master Slack to determine whether an

employer’s involvement in a decertification campaign tainted

the resulting petitions is unavailing. Whether or not the Board

adequately distinguished between these two lines of its

precedent in the past, it now has clarified that distinction and

explained why the Hearst presumption applied to Good-Nite.

The Board expressly stated that “[t]o the extent prior cases may

have applied Master Slack to determine whether unfair labor

practices directly related to a decertification effort caused

employee disaffection, we clarify them in accordance with this

decision.” SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 5 n.33.

The Board may clarify its rule in this fashion so long as it

provides, as here, a rational reason and the clarification does not

conflict with the Act. See FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 514–15 (2009). Good-Nite misapprehends the

nature of our review when it objects that the Board has not

explained why the Hearst presumption is “necessary” or a

1

The Fourth Circuit has endorsed the Board’s articulated

distinction between Hearst and Master Slack, albeit where the Board

consisted of only two members. Narricot Indus. L.P. v. NLRB, 587

F.3d 654, 664–65 (4th Cir. 2009), abrogated on other grounds by New

Process Steel, 130 S. Ct. 2635.

13

“better tool” than the causation test of Master Slack. Petr’s Br.

at 39, 41. The Board “need not demonstrate to a court’s

satisfaction that the reasons for [one] policy are better than the

reasons for [another]; it suffices that the . . . policy is

permissible under the statute [and] that there are good reasons

for it.” Fox Television, 556 U.S. at 515.

Good-Nite’s other objections are unavailing. In particular,

Good-Nite mischaracterizes the Board’s decision when it

contends that the Hearst presumption adopted by the Board is

overbroad because it precludes withdrawal of union recognition

“if an employer does anything with or says anything about a

disaffection petition.” Petr’s Br. at 35. The Hearst presumption

applies only in “the narrow circumstance where an employer

unlawfully instigates or propels a decertification campaign.”

SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 4 (emphasis

added). Similarly, Good-Nite’s contention that the Hearst

presumption will impede employees’ section 7 rights overlooks

the fact, noted by the Board, that employees may still petition

the Board directly for a decertification election, id. at 3.

Good-Nite’s remaining arguments are unpersuasive. First,

its description of Hearst as “little cited” is not well taken.

Petr’s Br. at 18. The Board and Good-Nite itself cite Board

decisions enforced by the courts that applied the Hearst

presumption where an employer solicited signatures or

otherwise unlawfully encouraged a union decertification

process. See, e.g., Wire Prods Mfg., 326 N.L.R.B. 625 (1998),

enforced mem. sub. nom. NLRB v. R.T. Blankenship & Assocs.,

Inc., 210 F.3d 375 (7th Cir. 2000); V & S ProGalv, Inc., 323

N.L.R.B. 801 (1997), enforced, 168 F.3d 270 (6th Cir. 1999);

Am. Linen Supply Co., 297 N.L.R.B. 137 (1989), enforced, 945

F.2d 1428 (8th Cir. 1991).

14

Second, Good-Nite attempts to distinguish those cases as

limited to circumstances where the decertification petition

would have failed “but for” the employer assistance, whereas

the presumption in its case applies if an employer merely

supports or encourages a decertification campaign. The Board

pointed out that none of the cases suggested a “but for” analysis

or made such a finding. See Respd’s Br. 37–38. Regardless,

whether or not those cases used a direct cause analysis does not

demonstrate the Board erred in applying the Hearst presumption

here. At oral argument Good-Nite maintained that the Hearst

presumption should be limited to instances where an employer

is directly involved in the preparation and dissemination of a

decertification petition. But it offered no persuasive reason why

the rationale for such a rule would not extend to instances where

an employee created and disseminated the petition but the

employer unlawfully and coercively solicited signatures from

employees in the bargaining unit, as appears to have occurred

in Hearst itself, 281 N.L.R.B. at 764.

Good-Nite objects as well to the unrebuttable nature of the

Hearst presumption adopted by the Board, contending it will

result in arbitrary findings without substantial evidentiary

support. The Board was in agreement that unlawful employer

involvement would presumptively taint an anti-union petition

even without specific proof that the employer’s conduct affected

employee signatures. A majority concluded the presumption

should be conclusive because of the “inherent unreliability” of

after-the-fact employee testimony about their reasons for

rejecting a union. SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at

4. One Member urged that the presumption should simply shift

the burden to the employer “to present objective proof that its

misconduct did not cause or further disaffection,” suggesting it

is “possible, even if not likely, that subsequent evidence of

disaffection by an employee majority is an accurate and reliable

15

expression of free choice.” Id. at 5 (Member Hayes, concurring

in part, dissenting in part).

The Board majority’s preferred conclusive presumption is

entitled to deference as rational and consistent with the Act.

The Supreme Court has observed that “employees are more

likely than not, many months after a card drive and in response

to questions by company counsel, to give testimony damaging

to the union, particularly where company officials have

previously threatened reprisals for union activity in violation of

[section] 8(a)(1).” NLRB v. Gissel Packing Co., 395 U.S. 575,

608 (1969). Notably, the Supreme Court has endorsed a

conclusive presumption adopted by the Board in the context of

union recognition. See Auciello Iron Works, Inc. v. NLRB, 517

U.S. 781, 785–87 (1996).

B. The Board found that Good-Nite unlawfully solicited

Valencia’s, Maldonado’s, and Taloma’s signatures on anti-

union petitions with threats or promised benefits, and threatened

to fire Contreras because she told a coworker not to sign a

petition. SFO Good-Nite Inn, 357 N.L.R.B. No. 16, at 2. The

Board further found that these unfair labor practices “were

obviously directly related to furthering the employees’

decertification campaign.” Id. at 3. The Board’s factual

findings are conclusive if supported by substantial evidence on

the record considered as a whole. 29 U.S.C. § 160(e); Hard

Rock Holdings, LLC v. NLRB, 672 F.3d 1117, 1121 (D.C. Cir.

2012). The court will not reverse the Board’s adoption of the

ALJ’s credibility determination unless it is “hopelessly

incredible, self-contradictory, or patently unsupportable.” Hard

Rock Holdings, 672 F.3d at 1121 (internal quotation marks

omitted).

Good-Nite contends that some of the unfair labor practices

could not have tainted the petitions because they occurred on or

16

after September 6, when the twelfth unit employee signed a

decertification petition and the Union allegedly lost its majority

support. Even assuming this is true, Good-Nite does not extend

this suggestion to the evidence of its solicitations of Valencia,

Maldonado, and Taloma in late August 2005. Instead Good-

Nite presents a credibility challenge to the Board’s finding that

Chaudhry solicited signatures from Valencia and Maldonado.

This contention fails.

Valencia consistently testified that Chaudhry asked her and

Maldonado at the August 31 meeting to “sign a paper for him

that would de-unionize the firm.” Tr. of ALJ Hr’g, Apr. 18,

2006, at 161; see id. at 182, 189. Good-Nite suggests the

“paper” was a Union membership application rather than an

anti-union petition because the record does not indicate a

petition existed before September 3, 2005. The petitions in the

record consist of a single handwritten sentence followed by

signatures on blank pages, not technical or complex documents

that could not be created on short notice. Because Chaudhry

easily could have created a petition if Valencia and Maldonado

agreed to sign it, it is irrelevant whether a decertification

petition existed at the time of the August 31 meeting.

Additionally, the ALJ credited Valencia’s testimony over

Chaudhry’s denials about what occurred at the August 31

meeting, finding Chaudhry’s testimony “unreliable,” “shifting,”

and “evasive,” SFO Good-Nite Inn, 352 N.L.R.B. at 274 n.5,

and the Board adopted the ALJ’s credibility determinations in

finding that Chaudhry unlawfully solicited their signatures.

Although Valencia’s testimony was occasionally unclear — and

with respect to her subsequent encounter with Vargas

potentially inconsistent with her October 2005 affidavit —

Good-Nite points to nothing from which the court could

conclude this is one of the “most extraordinary circumstances”

where a credibility determination should be overturned. U-Haul

17

Co. of Nev. v. NLRB, 490 F.3d 957, 962 (D.C. Cir. 2007)

(internal quotation marks omitted).

C. Finally, Good-Nite contends that parts of the Board’s

Order are moot and should not be enforced by the court. It

relies on its asserted compliance with an affirmative bargaining

order issued by the district court that was obtained by the

Board’s General Counsel following the ALJ’s decision. See

Norelli v. SFO Good-Nite Inn, No. 06-07335, 2007 WL 662477,

at *16–17 (N.D. Cal. Mar. 1, 2007); 29 U.S.C. § 160(j).

Because it complied with the relief ordered by the district court

and that relief was equivalent in material respects to the relief

prescribed in the Board’s Order, Good-Nite maintains any claim

for further enforcement is moot. This contention fails for

several reasons.

First, the district court’s injunction did not cover all of the

relief called for in the Board’s Order, such as making whole

Valencia and Maldonado, purging Good-Nite’s records

referring to their unlawful firings, and requiring Good-Nite to

turn over certain material to the Board for use in determining

compliance. The Board’s Order also imposes a continuing

obligation for Good-Nite to bargain with the Union while the

district court’s injunction only ordered Good-Nite to bargain for

90 days. Second, Good-Nite offers no evidence to show it has

complied in full with the Board’s Order. Moreover, the

Supreme Court has held that “‘it [is] plain from the cases that

the employer’s compliance with an order of the Board does not

render the cause moot, depriving the Board of its opportunity to

secure enforcement from an appropriate court.’” NLRB v.

Raytheon Co., 398 U.S. 25, 27 (1970) (quoting NLRB v. Mexia

Textile Mills, 339 U.S. 563, 567 (1950)). Conceding this point,

Good-Nite requests that the court exercise its equitable powers

not to enforce the Order’s requirements that Good-Nite reinstate

Valencia and Maldonado and post for 60 days a signed notice

18

regarding its violations of the Act and commitment not to repeat

them. See NLRB v. Maywood Plant of Grede Plastics, 628 F.2d

1, 7 (D.C. Cir. 1980). Other than its bald assertion of

compliance Good-Nite offers no explanation why this court

should exercise its discretionary powers to deny enforcement of

the Board’s Order, and we decline to do so.

Accordingly, we deny the petition for review and grant the

Board’s cross-application for enforcement of its Order.