United States Court of Appeals, District of Columbia Circuit
February 7, 2017
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
Aqui argued the cause and filed briefs for the petitioner.
Heather S. Beard, Attorney, National Labor Relations Board,
argued the cause for the respondent. Richard F. Griffin, Jr.,
General Counsel, Jennifer Abruzzo, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Jill A. Griffin,
Supervisory Attorney, were with her on brief.
Before: Henderson, Circuit Judge, and Edwards and Sentelle,
Senior Circuit Judges.
LECRAFT HENDERSON, CIRCUIT JUDGE.
of Sausalito (Scomas) operates a seafood restaurant in
northern California. From 2000 to
2013, it recognized UNITE HERE! Local 2850 (Union) as the
exclusive collective-bargaining representative for the
restaurant's bartenders, bussers, cooks, dishwashers,
hostesses and servers. In 2013, 29 of the bargaining
unit's 54 employees signed a decertification petition
asking Scomas to "withdraw recognition from [the Union]
immediately" if the petitioners "make up 50% or
more of the bargaining unit." Joint Appendix (JA)
131-32. One of the employees gave the petition to Scomas.
Another filed it with the National Labor Relations Board
(NLRB or Board) because the petition asked the Board to
conduct a decertification election if the petitioners
"make up 30% or more (and less than 50%) of the
bargaining unit." Id. Without telling Scomas,
the Union persuaded six of the petitioners to revoke their
signatures. Two days later, still unaware that six employees
had a change of heart, Scomas withdrew recognition from the
Union. The remaining petitioners, apparently believing they
were free of the Union, withdrew the decertification petition
from the Board. Only then did the Union spring back into
action: it filed an unfair labor practice (ULP) charge with
the Board, claiming that Scomas had violated the National
Labor Relations Act (Act), 29 U.S.C. §§ 151 et
seq., by withdrawing recognition from the Union when it
in fact had majority support.
Board sided with the Union and ordered Scomas to recognize
and bargain with it. The bargaining order includes a
"bar to raising a question concerning the Union's
continuing majority status for a reasonable time, " on
the theory that such delay is "necessary" to
"dissipate" the "taint" of Scomas's
violation. 362 NLRB No. 174, at 7 (Aug. 21, 2015).
petitions for review of the Board's order. The Board
cross-petitions for enforcement. We grant the former petition
and deny the latter. Under Board law, "an employer with
objective evidence that the union has lost majority
support-for example, a petition signed by a majority of the
employees in the bargaining unit-withdraws recognition at its
peril" and can stave off a ULP charge only by
establishing that "the union had, in fact, lost majority
support at the time the employer withdrew recognition."
Levitz Furniture Co., 333 NLRB 717, 725 (2001).
Applying Levitz, the Board concluded that the six
revocation signatures prevented Scomas from proving the Union
lacked majority support at the time of withdrawal. Although
we do not disturb that conclusion, the Board's remedy
does not follow from it. A bargaining order is an
extraordinary remedy that, on these facts, is out of keeping
with the Act's purposes. It rewards the Union for sitting
on its hands. It punishes Scomas for acting unwarily but in
good faith. And it "give[s] no credence whatsoever to
employee free choice, " Skyline Distribs. v.
NLRB, 99 F.3d 403, 411 (D.C. Cir. 1996) (internal
quotation omitted), unduly delaying an election to determine
majority status. We therefore vacate the bargaining order and
remand to the Board for further proceedings.
recounting why and how Scomas withdrew recognition from the
Union, we summarize the legal context of its actions.
The Law Of Withdrawal
Act's twin pillars" are "freedom of choice and
majority rule in employee selection of representatives."
Conair Corp. v. NLRB, 721 F.2d 1355, 1381 (D.C. Cir.
1983). Section 1 declares a policy of "protecting the
exercise by workers of full freedom of association,
self-organization, and designation of representatives of
their own choosing, for the purpose of negotiating the terms
and conditions of their employment or other mutual aid or
protection." 29 U.S.C. § 151. Under section 9, a
"majority of the employees in a unit appropriate
for" collective bargaining selects an exclusive
bargaining representative. 29 U.S.C. § 159(a). Once an
employee unit has selected a union to represent it, the law
presumes the union enjoys "continuing majority
support." NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 794 (1990). The presumption fosters
"industrial peace" and "stability in
collective-bargaining relationships, without impairing the
free choice of employees." Id. (internal
presumption, however, is only that: except during certain
periods not at issue here, employees are not bound to be
represented by a union they no longer want. Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996)
(presumption is "rebuttable" except for one year
following union's initial certification and when any
collective-bargaining agreement is in effect for up to three
years). Employees have two ways of severing union
representation. First, if 30 per cent of the unit employees
agree, they can obtain an election by filing a
decertification petition with the Board, which decides
majority status based on the election. See 29 U.S.C.
§ 159(c)(1)(A)(ii); NLRB Casehandling Manual, Pt. 2,
Representation Proceedings § 11023.1 (Jan. 2017). Or,
second, the employees can go directly to the employer,
presenting it with a petition or other evidence that the
union has lost majority support. See, e.g., Pac.
Coast Supply, LLC v. NLRB, 801 F.3d 321, 324, 326 (D.C.
Cir. 2015); Vincent Indus. Plastics, Inc. v. NLRB,
209 F.3d 727, 730 (D.C. Cir. 2000).
presented with evidence that the union no longer has majority
backing, the employer "has three options: to request a
formal, Board-supervised election, to withdraw recognition
from the union and refuse to bargain, or to conduct an
internal poll of employee support for the union."
Allentown Mack Sales & Serv., Inc. v. NLRB, 522
U.S. 359, 361 (1998). Only the first two options are relevant
here. If the employer opts for an election, it must file a
petition with the Board. NLRB Casehandling Manual,
supra, § 11042; cf. Parkwood Dev.
Ctr., Inc. v. NLRB, 521 F.3d 404, 406 & n.1 (D.C.
Cir. 2008). Election is the "preferred" method of
determining majority status, Levitz, 333 NLRB at
723, 725-27, because an employer's unilateral withdrawal
of recognition is more subjective and less precise, NLRB
v. Cornerstone Builders, Inc., 963 F.2d 1075, 1078 (8th
Cir. 1992). Levitz bears out this preference. Under
Levitz, "an employer may rebut the continuing
presumption of an incumbent union's majority status, and
unilaterally withdraw recognition, only on a showing that the
union has, in fact, lost the support of a majority of the
employees in the bargaining unit." 333 NLRB at 725. As a
corollary, the employer acts "at its peril" when it
withdraws recognition, even when presented with "a
petition signed by a majority of the employees in the
bargaining unit." Id. By contrast, an employer
obtains an election under a "more lenient standard,
" "by demonstrating reasonable good-faith
uncertainty as to [an] incumbent union['s] continued
majority status." Id. at 723 (emphasis
Union is the exclusive collective-bargaining representative
of Scomas's service staff. From 2000 until September
2012, Scomas operated under a series of collective-bargaining
agreements with the Union. For more than one year after the
last agreement expired in 2012, the Union did not request
bargaining. Also, according to employee Georgina Canche, the
Union for years held no meetings and gave its members no
information, despite collecting dues all the while.
" Canche researched decertification procedures online
and obtained a standard-form decertification petition. JA 58.
Between September 26 and October 28, 2013, she collected 29
signatures from the 54 employees in the bargaining unit. A
fellow employee delivered the petition to Roland Gotti,
Scomas's general manager, on October 28. The next day,
Canche filed the petition with the Board. The petition asked
Scomas to "withdraw recognition from [the Union]
immediately" if the petitioners "make up 50% or
more of the bargaining unit." JA 131-32. In the
alternative, it asked the Board to conduct a decertification
election if the petitioners "make up 30% or more (and
less than 50%) of the bargaining unit." Id.
Alan, the Union's lead organizer, heard about the
petition before it was filed. He emailed Gotti late in the
evening on October 28, 2013, to "request bargaining
dates to begin the negotiations for a collective bargaining
agreement." JA 53. The email said nothing about the