NLRB v. NP Palace LLC ( 2021 )

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.