Enterprise Leasing Company v. NLRB , 831 F.3d 534 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2016 Decided August 5, 2016
No. 15-1200
ENTERPRISE LEASING COMPANY OF FLORIDA, DOING BUSINESS
AS ALAMO RENT-A-CAR,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1255
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
D. John Sauer argued the cause for petitioner. With him
on the briefs was Daniel R. Begian.
Greg Lauro, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Julie B. Broido, Supervisory Attorney.
Before: GRIFFITH, PILLARD and WILKINS, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The National Labor Relations
Board concluded that petitioner Enterprise Leasing Company
of Florida (Enterprise, or the Company) committed several
unfair labor practices in late 2009 and early 2010 at a Miami,
Florida, car rental facility. Enterprise violated the National
Labor Relations Act (the Act), the Board determined, by
telling employees it was terminating short-term disability
benefits on account of their union membership, encouraging
an employee to circulate a petition to decertify the Union as
its employees’ bargaining representative, unilaterally
terminating employees’ short-term disability benefits,
interfering with a union representative’s contractual right of
access to Enterprise’s facility, unlawfully decertifying the
Union as its employees’ bargaining representative based on a
petition tainted by unfair labor practices, and thereafter
refusing to bargain with the Union or collect or remit union
dues. See Enterprise Leasing Co. of Fla., 362 NLRB No. 135
(June 26, 2015). We hold that substantial record evidence
supports each of the Board’s findings and conclusions. We
lack jurisdiction to consider the Company’s additional claim
that the Board’s remedy was unlawfully punitive, because
Enterprise failed to raise the argument before the Board.
Accordingly, we deny its petition and grant the Board’s cross-
application for enforcement.
I. Background
A. Facts
Enterprise is a national car rental company that operates a
facility at Miami International Airport, where it rents cars
under the Enterprise, National Car Rental, and Alamo Rent-
3
A-Car (Alamo) brands.1 Enterprise obtained the Alamo
operation, among others, during its acquisition of Vanguard
Car Rental, USA (Vanguard) in August 2007. At that time,
Teamsters Local Union No. 769 (the Union) represented the
employees of Alamo Miami (unit employees) in a wall-to-
wall bargaining unit. Before the acquisition, the Union and
Vanguard had negotiated a collective bargaining agreement
for Alamo employees, which was effective from November
29, 2005, through January 2, 2010. In December 2009, after
the acquisition, the Union and Enterprise agreed to extend the
existing agreement through March 31, 2010, while
negotiating a successor agreement.
Enterprise provided benefits to unit employees under a
Comprehensive Group Insurance Plan (the Group Plan),
referenced in the collective bargaining agreement. Until
August 2009, the Group Plan encompassed a subsidiary
Vanguard Short-Term Disability Plan (the Vanguard Plan).
Enterprise terminated the Vanguard Plan on August 1,
2009, eliminating the third-party administrator, as it
streamlined its National and Alamo human-resources
operations. Between that date and the end of 2009, Enterprise
continued to provide short-term disability benefits to unit
employees, but Enterprise administered those benefits on a
self-insured basis instead of through the Vanguard Plan.
1
We draw the facts from the Board’s decision, Enterprise Leasing
Co. of Fla., 362 NLRB No. 135 (June 26, 2015), which
incorporated by reference its 2013 decision, Enterprise Leasing Co.
of Fla., 359 NLRB No. 149 (July 2, 2013), appending the
Administrative Law Judge’s decision. Accordingly, citations in
this section are to the 2013 Board decision reflecting the ALJ’s
factual findings.
4
Enterprise’s provision of short-term disability benefits
was short-lived, although the Company only belatedly
informed its employees of the change. In previous years,
Enterprise typically held a benefits open-enrollment period in
October and November each year, but it did not do so in 2009
for the 2010 plan year. When Enterprise Union Steward
Marjorie Wisecup asked Enterprise’s Human Resource
Manager Lissette Dow about the omission, Dow reviewed the
2010 employee-benefits package with Wisecup, but she did
not mention that the Company had converted to a self-insured
short-term disability benefits plan in anticipation of
eliminating those benefits altogether at the end of 2009.
Around the same time, Wisecup heard Dow tell other
employees not to worry about enrollment, because benefits in
2010 would be the same as in 2009.
It was not until late November or early December, after
an open-enrollment period would have closed had it been
offered, that Dow informed Wisecup that Enterprise would no
longer provide short-term disability benefits to unit
employees in 2010. When Wisecup asked why, Dow replied
that the collective bargaining agreement did not specify short-
term disability benefits; those benefits, she said, were not
included in the Group Plan called for by the agreement.
Because the agreement did not specify short-term disability
benefits, Dow explained, the unit employees could not have
them.
In early December, Dow and Enterprise Airport Market
Manager Bridget Long conducted several employee meetings
to discuss Enterprise’s elimination of short-term disability
benefits. At one of the meetings, Long informed employees
about the change and apologized for the Company’s delay in
announcing it. Dow acknowledged that when she had met
with Wisecup earlier in the fall, she had known about
5
Enterprise’s plan to eliminate short-term disability benefits,
but that she had not mentioned the change because she did not
think it was a big deal. Another employee, Andy Felgentres,
asked Long why the benefits were being eliminated, and Long
responded, “because you’re union, you can’t have short-term
disability.” Enterprise Leasing Co. of Fla., 359 NLRB No.
149, at *8 (July 2, 2013). When Felgentres said that was
discrimination, Long replied, “don’t worry, Enterprise has
very good lawyers.” Id.
At another meeting, Enterprise employee Wanda Rivera
asked Dow if Enterprise was eliminating short-term disability
benefits because of the union contract and whether the
Company was eliminating the benefits at other locations.
Dow responded that employees at non-union locations would
retain their short-term disability benefits. Another employee,
Sara Rivera, asked whether employees would still have such
benefits if not for the Union, and Dow replied, “yes,” the
reason the unionized employees would not get the benefits
was “because [Enterprise] had to follow the union contract.”
Id. at 9. Dow repeated that at locations where there was no
union, employees would keep short-term disability benefits.
On January 1, 2010, Enterprise eliminated the unit
employees’ short-term disability benefits without notifying or
bargaining with the Union.
At around the same time, Cirilo Garcia, an Enterprise
employee who was dissatisfied because of the elimination of
unit employees’ short-term disability benefits, began
circulating to unit employees a petition to decertify the Union
as their collective-bargaining representative.
Shortly thereafter, on January 4, Union Business
Representative Eddie Valero, along with two other Union
agents, visited the Miami Alamo facility to investigate a
6
report that the decertification petition was being circulated on
company time. The then-effective collective bargaining
agreement provided that “[a]fter making [their] presence
known to a member of management,” authorized union
representatives “shall be permitted to enter the premises of the
Employer for the purpose of determining” compliance with
the agreement. Id. at 12 (quoting Miami Alamo Collective
Bargaining Agreement, J.A. 372). Accordingly, upon arrival,
Valero attempted to notify a supervisor of his presence.
Valero had made similar investigative visits in the past—
unannounced until arrival—and had not experienced any
problems.
During the January 4 visit, however, Valero and his team
ran into trouble. When they arrived, Dow came out of the
building with her arms raised, screaming at Valero and
demanding to know why he was there. Valero responded that
he was conducting an investigation. Dow announced that she
would follow him during the visit because she had orders
from above. Although Valero told Dow that he would report
her conduct to the Board if she interfered with the visit, Dow
persisted, following Valero and his team into the building
and, once inside, standing beside them for about thirty-five
minutes while they sat on a bench. It was only after Valero
called the Company’s labor-relations coordinator to report the
incident that Enterprise manager Long allowed the group to
use the break room for their investigation, reminding them not
to interrupt the workforce. Dow continued to follow Valero
and his group throughout the visit, both outside and inside the
building, and retreated only when they returned to the break
room, although other managers periodically stopped in to
monitor the group. After approximately twenty-five minutes,
Valero and his group left the facility.
7
Just over a week later, on January 13, Enterprise
supervisors Larry Elsass and Rodolfo Browne spoke with
Garcia on company property. Elsass and Browne asked
Garcia how many signatures he had obtained on the
decertification petition. At that point, only sixty-six of the
unit’s 159 employees had signed the petition. When Garcia
reported on his progress, Browne said that number was not
enough, and told Garcia to go back and get more. Garcia then
arranged to secure additional signatures to push the number
above the 50 percent mark.
Enterprise withdrew recognition from the Union on
January 19, based solely on the decertification petition that by
then reflected verified signatures of a majority of unit
employees.
Later that month, Enterprise Station Manager Johnny
Betancourt interrogated employees about, and solicited them
to withdraw, their union membership. And, over the course
of the following year, Enterprise made a series of changes to
unit employees’ terms and conditions of employment without
notifying or bargaining with the Union. In February, the
Company ceased deducting and remitting union dues for
employees who had signed dues-checkoff authorizations,
despite the requirement of the collective bargaining
agreement (effective through the end of March) to deduct and
remit those dues. The Company also made a variety of wage-
and-benefits changes, and it declined to process an employee
grievance.
B. Decision Below
Based on the foregoing conduct, between December 18,
2009, and February 16, 2011, the Union filed a series of
unfair labor practice charges against Enterprise. On April 8,
2011, the NLRB’s Acting General Counsel issued an
8
amended, consolidated complaint alleging that Enterprise had
committed multiple violations of section 8(a)(1) and (a)(5) of
the Act, 29 U.S.C. § 158(a)(1), (5).
Among other things, the complaint charged that
Enterprise violated section 8(a)(1) when Betancourt
coercively interrogated employees about, and solicited them
to withdraw, their union membership. Although the Company
initially denied that it committed those unfair labor practices,
it later admitted to them at the hearing before the ALJ, and it
does not contest them here. We therefore summarily enforce
the Board’s findings and order as to those charges. See Allied
Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 765 (D.C. Cir.
2012); Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 181
(D.C. Cir. 2006).
The Acting General Counsel’s complaint further charged
that Enterprise violated section 8(a)(1) of the Act by telling
employees that they would lose their short-term disability
benefits because of their union representation, and
encouraging employees to circulate a petition to decertify the
Union as their bargaining representative. The complaint also
alleged that the company violated section 8(a)(1) and (a)(5)
by unilaterally terminating short-term disability benefits,
interfering with the Union’s contractual right of access to
Enterprise’s facility, withdrawing recognition from the Union
as the employees’ collective-bargaining representative based
on a tainted decertification petition, and thereafter unilaterally
changing terms of employment, refusing to bargain with the
Union regarding an employee grievance, and failing to deduct
and remit dues to the Union. Although Enterprise admitted to
unilaterally terminating short-term disability benefits,
withdrawing recognition from the Union, and declining to
bargain with the Union post-withdrawal, it contested that any
9
of the alleged conduct was unlawful and denied the
commission of the other unfair labor practices charged.
After an evidentiary hearing, on April 11, 2012, the ALJ
issued a decision that Enterprise had violated the Act as
alleged, save one charge of unlawful interrogation not at issue
in this petition. Enterprise excepted to the ALJ’s decision.
The General Counsel, too, filed exceptions seeking, among
other things, an amended remedy, which Enterprise generally
opposed.
On July 2, 2013, the Board issued a decision and order
(the 2013 Decision) largely adopting the ALJ’s findings and
conclusions and amending the ALJ’s remedy as requested by
the Board. See Enterprise Leasing Co. of Fla., 359 NLRB
No. 149. The following year, while Enterprise’s petition for
review of the Board’s decision was pending, the Supreme
Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550
(2014), invalidated the appointments of two of the three 2013
Decision panel members. The Board set aside the 2013
Decision, and, on June 26, 2015, upon de novo review, a
lawfully constituted panel of the Board issued a Decision and
Order largely adopting the 2013 Decision, see Enterprise
Leasing Co. of Fla., 362 NLRB No. 135, at *1-4, with one
Member dissenting in part, see id. at *4-8. We discuss the
specifics of the Board’s Decision and Order at greater length
where relevant below. Enterprise timely petitioned for review
of the Board’s decision, and the Board filed a cross-
application for enforcement of its order. We have jurisdiction
under 29 U.S.C. § 160(e)-(f).
II. Section 8 Violations
Enterprise contests the substantiality of the evidence
underlying the Board’s findings that it violated section 8(a)(1)
10
and (a)(5) of the Act. Each of Enterprise’s arguments comes
up short.
A. Standard of Review
Assuming a “limited” role, Stephens Media, LLC v.
NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012), we review the
Board’s decision to determine whether it is supported by
substantial evidence in the record as a whole, see 29 U.S.C.
§ 160(e) (“The findings of the Board with respect to questions
of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive.”); accord
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
We must “uphold[] the Board’s application of law to facts
unless arbitrary or otherwise erroneous, and give[] substantial
deference to inferences the Board draws from the facts.”
Allied Mech. Servs., 668 F.3d at 764 (internal quotation marks
and citations omitted). “An ALJ’s determinations regarding
the credibility of witnesses will not be reversed ‘unless those
determinations are hopelessly incredible, self-contradictory,
or patently unsupportable.’” Stephens Media, 677 F.3d at
1250 (quoting Federated Logistics & Operations v. NLRB,
400 F.3d 920, 924 (D.C. Cir. 2005)). We must “abide [the
Board’s] interpretation of the Act if it is reasonable and
consistent with controlling precedent.” Brockton Hosp. v.
NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002).
B. Section 8(a)(1) Violations
We begin with Enterprise’s challenge to the Board’s
determinations that it violated section 8(a)(1) of the Act. The
Board found two violations. The first occurred when
Enterprise repeatedly told its employees that it was
terminating their short-term disability benefits on account of
their union membership. The second was due to Enterprise
managers encouraging an employee to circulate a petition to
11
decertify the Union as its employees’ bargaining
representative.
Under section 8(a)(1), it is “an unfair labor practice for an
employer . . . to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [section 7] of [the
Act].” 29 U.S.C. § 158(a)(1). Section 7 grants employees
“the right 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.” Id. § 157. An employer’s
statement that, “considering the totality of the
circumstances, . . . has a reasonable tendency to coerce or to
interfere with those rights,” violates section 8(a)(1). Tasty
Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001); see
Bridgestone Firestone S.C., 350 N.L.R.B. 526, 529 (2007). In
reviewing section 8(a)(1) claims, the Board “must take into
account the economic dependence of the employees on their
employers, and the necessary tendency of the former, because
of that relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more
disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S.
575, 617 (1969).
i. Withholding Benefits from Employees Because of
Union Representation
Enterprise challenges on evidentiary grounds the Board’s
conclusion that the Company violated section 8(a)(1) of the
Act by informing employees it was terminating their short-
term disability benefits because of their union representation.
An employer violates section 8(a)(1) when it “threaten[s] to
penalize employees if they choose union representation, or . . .
offer[s] to reward employees if they reject it.” Avecor, Inc. v.
12
NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991) (internal citations
omitted). Such threats and promises will violate the Act,
whether they are explicit or implicit, see Unifirst Corp., 346
N.L.R.B. 591, 593 (2006); the dispositive question is whether an
employee “could reasonably perceive a direct connection
between union activities” and loss of a job or benefit,
Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 545 (D.C. Cir.
2006).
Incorporating the ALJ’s decision, the Board found that
the statements made by Dow and Long at various employee
meetings had a reasonable tendency to interfere with section 7
rights, and thus were unlawfully coercive. Enterprise Leasing
Co. of Fla., 362 NLRB No. 135, at *1 & 2 n.3. Enterprise
supervisors Dow and Long explained to unit employees that
they would lose their short-term disability benefits because
they were union and because the union contract did not
specify provision of such benefits, Id. But the Company
would continue to provide those benefits, Long explained, to
employees at other, non-union facilities. Id. From Dow and
Long’s statements, the Board concluded, see id., employees
could “reasonably perceive a direct connection between” their
union membership and Enterprise’s withdrawal of an
important benefit. Progressive Elec., 453 F.3d at 545.
Enterprise contends, and dissenting Board Member
Miscimarra agreed, that the Board inaccurately paraphrased
the record. Enterprise insists that it simply offered its
employees truthful information about their collective
bargaining agreement, which cannot constitute an unfair labor
practice. Specifically, Enterprise urges that the Board erred in
not relying solely on the version of events described in
employee Wisecup’s grievance form, in which she noted only
that Dow and Long “informed us that the reason for [the
elimination of short-term disability benefits] is [] the fact that
13
the bargaining [a]greement does not specify that [the benefit]
has to be given to employees.” Wisecup Grievance Form,
J.A. 843.
Enterprise’s argument ignores substantial record evidence
that directly supports the Board’s finding. According to
Wisecup’s testimony at the hearing before the ALJ, Long
explained to employees “because you’re union, you can’t
have short-term disability.” Testimony of Marjorie Wisecup,
J.A. 54. Wisecup additionally recounted that, when accused
of discriminating based on union membership, Long stated,
“don’t worry, Enterprise has very good lawyers.” Id.
Wisecup’s account was consistent with those given by two
other employees, Sara Rivera and Wanda Rivera. Moreover,
in light of Dow and Long’s contemporaneous statements
linking the loss of benefits to their union-represented status,
the employees readily could have understood Dow and
Long’s references to the collective bargaining agreement—as
recounted in Wisecup’s grievance form—also to tie the
withdrawal of those benefits to union membership. Dow and
Long’s union-contract justification, viewed in context, thus
“went beyond permissible statements of fact.” ALJ Decision,
J.A. 2096; see Enterprise Leasing Co. of Fla., 362 NLRB No.
135, at *1 & 2 n.3.
Finally, to the extent Dow and Long’s version of events
differed from the testimony of employees Wisecup, Sara
Rivera, and Wanda Rivera, the ALJ specifically credited the
employees’ testimony, which was mutually corroborative and
adverse to their current employer, favoring reliance on that
testimony. Those well-reasoned credibility determinations
were not “hopelessly incredible, self-contradictory, or
patently unsupportable.” Stephens Media, 677 F.3d at 1250.
Substantial evidence thus supports the Board’s determination
that, under the circumstances, Dow and Long’s justification
14
for eliminating short-term disability benefits was unlawfully
coercive.
ii. Encouragement of Decertification Petition
Enterprise also contests the Board’s determination that it
violated section 8(a)(1) by encouraging an employee to
circulate a petition to decertify the Union as the employees’
bargaining representative. Employer statements about union
decertification are not altogether off limits. For example, the
Board has held that an employer does not violate the Act if it
furnishes accurate information about, or ministerial aid to, the
decertification process, and does so without making threats or
offering benefits. See Lee Lumber & Bldg. Material Corp.,
306 N.L.R.B. 408, 409-10 (1992); E. States Optical Co., 275
N.L.R.B. 371, 372 (1985). An employer violates section
8(a)(1), however, “by ‘actively soliciting, encouraging,
promoting, or providing assistance in the initiation, signing,
or filing of an employee petition seeking to decertify the
bargaining representative.’” Mickey’s Linen & Towel Supply,
Inc., 349 N.L.R.B. 790, 791 (2007) (quoting Wire Prods. Mfg.
Co., 326 N.L.R.B. 625, 640 (1998), enforced sub nom. NLRB v.
R.T Blankenship & Assocs., Inc., 210 F.3d 375 (7th Cir. 2000)
(unpublished)); see E. States Optical Co., 275 N.L.R.B. at 372.
The Board adopted the ALJ’s finding that supervisors
Elsass and Browne unlawfully coerced employee Cirilo
Garcia to collect more signatures when, after instructing him
that the number of signatures he had gathered was not
enough, they told him to go back and get more. Enterprise
Leasing Co. of Fla., 362 NLRB No. 135, at *1 & 2 n.3.
Although the Board did not find that the statements
constituted “unlawful[] assist[ance],” it concluded that the
direct exhortation from management, “[e]ven assuming the
conversation was friendly,” could only have further impelled
15
Cirilo to continue his campaign, unlawfully promoting it. Id.
at 2 n.3. It did not matter, the Board explained, that Garcia
himself had commenced and led the campaign before the
conversation at issue.
As an initial matter, contrary to Enterprise’s contention,
the Board “engage[d] in reasoned decisionmaking” in thus
adopting and elaborating on the thorough, well-reasoned
analysis of the ALJ. Int’l Union of Operating Eng’rs, Local
147, AFL-CIO v. NLRB, 294 F.3d 186, 188 (D.C. Cir. 2002).
Moreover, the record contains substantial evidence to support
the findings underlying the violation. According to the
credited testimony of Enterprise employee Glinda Jefferies,
Jefferies observed Garcia showing the decertification petition
to Elsass and Browne. Jefferies overheard them ask Garcia
how many signatures he had gotten, and Browne told him “it
wasn’t enough, to go back and get more.” Testimony of
Glinda Jefferies, J.A. 78. Garcia then arranged to secure
additional signatures to push the number “over the 50 percent
mark.” Testimony of Jesus Torres, J.A. 202.
The record refutes Enterprise’s contention that Jefferies’s
account is incredible because Jefferies, who does not speak
Spanish, would not have been able to understand the
conversation with Garcia, who does not speak or understand
very much English. As the ALJ explained, Elsass, who
speaks only English, testified that he was able to
communicate basic instructions to Garcia in English and that
other employees could translate for him when necessary,
confirming that Jefferies indeed could have overheard the
conversation to which she testified.
Enterprise further argues that even if the conversation
transpired as Jefferies testified, Elsass and Browne solely
provided employees truthful information about the
16
decertification process and how many signatures would be
required for a petition to be successful. That argument is only
partly correct. The first part of Browne’s statement,
informing Garcia that the number of signatures he had
collected “wasn’t enough,” Testimony of Glinda Jefferies,
J.A. 78, is what Enterprise suggests—a lawful, accurate
statement about the decertification process that, by itself,
constitutes no more than ministerial aid. See Lee Lumber &
Bldg. Material Corp., 306 N.L.R.B. at 409-10; E. States Optical
Co., 275 N.L.R.B. at 372; see also Exxel/Atmos, Inc. v. NLRB,
147 F.3d 972, 975 (D.C. Cir. 1998).
But Browne did not stop there. Instead, he directed
Garcia “to go back and get more” signatures. Testimony of
Glinda Jefferies, J.A. 78. That statement, on which the Board
relied in finding a violation of section 8(a)(1), constitutes not
merely the provision of accurate information, but the “active[]
. . . encourag[ement]” and “promot[ion]” of a decertification
petition that is prohibited by the Act. Mickey’s Linen &
Towel Supply, Inc., 349 N.L.R.B. at 791.
We therefore deny Enterprise’s petition for review and
grant the Board’s cross-application for enforcement as to the
section 8(a)(1) violations.
C. Section 8(a)(1) and (a)(5) Violations
We next address Enterprise’s challenge to the Board’s
conclusion that it violated section 8(a)(1) and (a)(5) of the Act
by unilaterally withdrawing short-term disability benefits,
interfering with union agents’ contractual right of access to
the Miami Alamo facility, unlawfully decertifying the Union
as its employees’ bargaining representative, and then refusing
to bargain with the Union or collect or remit union dues.
Section 8(a)(5) makes it an unfair labor practice for an
employer “to refuse to bargain collectively with the
17
representatives of his employees.” 29 U.S.C. § 158(a)(5). An
employer that violates section 8(a)(5) also derivatively
violates section 8(a)(1)’s prohibition against “interfer[ing]
with, restrain[ing], or coerc[ing] employees in the exercise of
the rights guaranteed in section [7 of the Act],” id.
§ 158(a)(1), including the right to “bargain collectively
through representatives of their own choosing,” id. § 157. See
Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983);
Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321, 325 n.2
(D.C. Cir. 2015). For the reasons that follow, we deny
Enterprise’s petition as to all of the challenged section 8(a)(5)
and derivative section 8(a)(1) violations.
i. Unilateral Termination of Benefits
Enterprise first contests the Board’s decision that the
Company’s unilateral termination of short-term disability
benefits violated section 8(a)(1) and (5) of the Act. Section
8(d) provides that the obligation to bargain protected by
section 8 extends to “wages, hours, and other terms and
conditions of employment.” 29 U.S.C. § 158(d). Those
mandatory bargaining subjects include employee benefits,
such as short-term disability. See NLRB v. Katz, 369 U.S.
736, 743-44 (1962). “[A]n employer’s unilateral change in
conditions of employment under negotiation is . . . a violation
of [section] 8(a)(5),” and, derivatively, 8(a)(1). Id. at 743; see
Int’l Bhd. of Elec. Workers Local 1466, AFL-CIO v. NLRB,
795 F.2d 150, 153 (D.C. Cir. 1986).
In this case, a divided Board determined that Enterprise
committed an unfair labor practice by eliminating employees’
short-term disability benefits at the end of 2009 without first
notifying the Union or giving it an opportunity to bargain.
Enterprise does not contest that it unilaterally terminated the
benefits at issue, but argues that the Union waived or,
18
alternatively, contracted away the protections of section
8(a)(5).
Where a bargaining unit has affirmatively waived its
right to negotiate as to a subject, an employer’s unilateral
change to contract terms on that subject does not violate the
Act. But such waiver occurs only upon a bargaining unit’s
“clear and unmistakable” relinquishment of the right. Ga.
Power Co., 325 N.L.R.B. 420, 420 (1998) (quoting Metro.
Edison Co., 460 U.S. at 708). Agreeing with the ALJ, the
Board concluded that the parties’ then-effective collective
bargaining agreement did not effect a waiver of the Union’s
statutory right to bargain over the elimination of short-term
disability benefits; the unilateral change on that mandatory
subject of bargaining thus violated the Act. Enterprise
Leasing Co. of Fla., 362 NLRB No. 135, at *1-2 & n.4.
Enterprise challenges the Board’s non-waiver determination,
contending that the parties’ agreement effected a “clear and
unmistakable” waiver of the bargaining unit’s right to
negotiate benefits encompassed within the Group Insurance
Plan.
Enterprise alternatively challenges the Board’s order by
invoking the contract-coverage doctrine. In Enterprise’s
view, the collective bargaining agreement itself covers
anything having to do with the provision of benefits,
including short-term disability benefits, and thereby gives
Enterprise a contractual right to terminate those benefits
without bargaining. Under the contract-coverage doctrine,
when a subject is “covered by the collective bargaining
agreement,” the union already “has exercised its bargaining
right” on the matter—by, for example, agreeing to a particular
benefits plan that includes a reservation-of-rights clause—
leaving the employer free to make unilateral changes to such a
covered plan without running afoul of the Act. BP Amoco
19
Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir. 2000) (quoting
NLRB v. U.S. Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 1993)).
We need not reach the merits of either Enterprise’s
waiver or its contract-coverage contention, or otherwise
venture to interpret the collective bargaining agreement,
because we sustain the Board’s determination on the ground
that at the time Enterprise terminated the contested benefits,
they were no longer provided pursuant to the collective
bargaining agreement. According to the Board, the record
established that as of August 2009—well before Enterprise’s
January 1, 2010, unilateral termination of the short-term
disability benefits—the Company had begun self-
administering those benefits. Enterprise Leasing Co. of Fla.,
362 NLRB No. 135, at *1-2. The Board relied on that change
as an “alternative,” and “independently sufficient basis” to
uphold the ALJ’s decision. Id. at *2; see Local 702, Int’l Bhd.
of Elec. Workers, AFL-CIO v. NLRB, 215 F.3d 11, 15 (D.C.
Cir. 2000) (“[S]ince the Board is the agency entrusted by
Congress with the responsibility for making findings under
the statute, it . . . is free to substitute its judgment for the
ALJ’s.” (internal quotation marks and brackets omitted)).
Accordingly, “[e]ven assuming the [Company’s] waiver
arguments might otherwise have merit,” the Board explained,
“they fail here because, after August 1, 2009, [the Company]
did not provide [short-term disability] benefits pursuant to any
‘plan,’ or at least not pursuant to one of the Vanguard plans
referenced in the [agreement].” Enterprise Leasing Co. of
Fla., 362 NLRB No. 135, at *1. The Company’s failure to
bargain over that mandatory subject of bargaining thus
violated the Act. Id. at *3.
Substantial record evidence supports the Board’s
conclusion that, at the time Enterprise unilaterally terminated
the short-term disability benefits, the Company did not
20
provide those benefits pursuant to any plan referenced in the
collective bargaining agreement. Specifically, Dana Beffa,
Enterprise’s vice president of employee benefits, testified that
Enterprise terminated the Vanguard Plan on August 1, 2009,
and the third-party administrator ceased administering short-
term disability benefits. From August 1 until the end of the
year, Beffa explained, Enterprise itself administered the
benefits on a self-insured basis. Enterprise accordingly
cannot rely on any waiver or contract coverage the agreement
might have effected with respect to Group Plan benefits.
Nor was the Company’s provision of short-term disability
benefits after August 1 a “one-time gratuity” exempt from
collective-bargaining requirements, as Enterprise claims.
Reply Br. 12. Enterprise provided the benefits—first through
the Vanguard Plan and then on its own, with no break in
coverage—with such regularity to “justif[y] its employees’
expectations that they would receive the” benefit in the future.
Sykel Enters., Inc., 324 N.L.R.B. 1123, 1125 (1997). We
therefore decline to disturb the Board’s finding that
Enterprise’s unilateral benefits termination violated the Act.
ii. Interference With Union’s Workplace Access
Enterprise further challenges the Board’s conclusion that
Enterprise violated section 8(a)(1) and (a)(5) of the Act by
interfering with the Union’s contractual right of access to the
Miami facility. Where a collective bargaining agreement
permits union officials to access an employer’s worksite, it is
a violation of section 8(a)(5) to interfere with the bargained-
for access. See Frontier Hotel & Casino, 309 N.L.R.B. 761, 765
(1992), enforced sub. nom. NLRB v. Unbelievable, Inc., 71
F.3d 1434 (9th Cir. 1995). Any “undue restriction[] upon a
union representative’s access to the worksite impairs a
union’s ability to police its agreement and thereby diminishes
21
employees’ Section 7 rights.” Houston Coca-Cola Bottling
Co., 265 N.L.R.B. 766, 777 (1982), enforced as modified sub.
nom. NLRB v. Great W. Coca-Cola Bottling Co., 740 F.2d
398 (5th Cir. 1984).
Based on Eddie Valero’s credited testimony and the
terms of the applicable collective bargaining agreement, the
Board found that, on January 4, 2010, Dow and Long
interfered with the Union’s contractual right of access by
confronting, yelling at, following, and limiting access by
Eddie Valero and other union agents when they visited the
Alamo Miami facility to investigate a reported violation of the
collective bargaining agreement. Enterprise Leasing Co. of
Fla., 362 NLRB No. 135, at *1.
Enterprise does not contest that it interfered with
Valero’s access. Instead, it insists that Valero had no right of
visitation because, it contends, he failed to provide advance
notice, was not on site to monitor compliance with the
collective bargaining agreement, and interfered with
Enterprise’s business. The Board’s reasonable conclusions to
the contrary have substantial record support.
The Company’s first contention fails because the
agreement plainly does not require advance notice; it requires
Union representatives to “mak[e] [their] presence known to a
member of management” upon arrival. Miami Alamo
Collective Bargaining Agreement, J.A. 372. Once they do so,
those representatives “shall be permitted to enter the
premises” to conduct an investigation. Id. According to
Valero’s credited testimony, in the past Valero never had
given any additional, advance notice before such investigative
visits—a point corroborated by Dow on cross-examination—
and he had never encountered any problems until the visit on
January 4. And on that visit, too, Valero immediately gave
22
the required notice—to Dow herself—upon arriving at the
property. The record adequately supports the Board’s
conclusion that the agreement’s notice requirement was
satisfied.
Enterprise’s attempt to impugn Valero’s motives and on-
site conduct fares no better. In support of its version of
events, the Company points only to Long’s account of the
union representatives’ conduct on January 4. That testimony
does not speak to Valero’s reasons for being on site, however,
and, to the extent it suggests that Valero interrupted
workplace activities, it conflicts with Valero’s detailed,
credited testimony about his group’s interactions at the Alamo
Miami facility that day. Substantial record evidence thus
supports the Board’s finding that Enterprise interfered with
the Union’s right of access to the Alamo facility.
iii. Withdrawal of Union Recognition
Enterprise next takes issue with the Board’s conclusion
that the Company’s withdrawal of recognition from the Union
violated the Act. Although “an incumbent union enjoys a
presumption that it represents a majority of employees,” BPH
& Co. v. NLRB, 333 F.3d 213, 217 (D.C. Cir. 2003), an
employer may overcome the presumption and “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,” SFO Good-Nite Inn,
LLC v. NLRB, 700 F.3d 1, 6 (D.C. Cir. 2012).
An employer’s “privilege” to withdraw recognition based
on a petition from a majority of employees “is not absolute.”
Id. “[I]f unfair labor practices ‘significantly contribute to
such a loss of majority or to the factors upon which doubt of
23
such majority is based’”—thus “taint[ing]” the decertification
petition—then “the employer may not withdraw recognition”
from the union. BPH & Co., 333 F.3d at 217-18 (quoting St.
Agnes Med. Ctr. v. NLRB, 871 F.2d 137, 146-47 (D.C. Cir.
1989)). Where unfair labor practices alleged to have tainted
the decertification process are not directly related to that
process, the Board applies the four-factor test articulated in
Master Slack Corp., 271 N.L.R.B. 78, 84 (1984), to evaluate the
causal link between the violations and the decreased union
support. But if the employer’s unfair labor practices involved
the decertification process itself, the Board does not demand
any such showing of causation between the unfair labor
practices and the anti-union vote; the Board will presume that
a decertification petition is tainted where it was instigated or
propelled by an employer. See SFO Good-Nite Inn, 700 F.3d
at 8. If taint is established, withdrawal of recognition violates
section 8(a)(5), and thus also 8(a)(1). See NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 778 (1990).
In this case, the Board determined that the Company
violated the Act by unlawfully withdrawing recognition from
the Union based solely on a decertification petition tainted by
the aforementioned unfair labor practices. See Enterprise
Leasing Co. of Fla., 362 NLRB No. 135, at *1-3. Enterprise
disputes that any of the cited conduct contributed to the loss
of majority support reflected in the signed petition, arguing at
length that each alleged unfair practice was insufficiently
significant, close in time, or otherwise related to the petition
to have tainted the petition under the Master Slack test. We
need not, and do not, reach the merits of those arguments. As
the Board found, the Company’s unlawful propulsion of the
decertification petition—through the direction of Enterprise
supervisors Elsass and Browne to employee Garcia, see supra
Section II.B.ii.—constitutes a per se taint of that petition.
24
SFO Good-Nite Inn, 700 F.3d at 8. We therefore enforce that
portion of the Board’s order.
iv. Post-Withdrawal Actions
The Board additionally concluded that, after the
Company withdrew its recognition from the Union, Enterprise
violated section 8(a)(5), and thus also 8(a)(1), by failing to
deduct and remit dues to the Union pursuant to the contractual
dues-checkoff provision in the still-effective collective
bargaining agreement, unilaterally changing the employees’
wages and other terms and conditions of employment, and
declining to process an employee grievance. Enterprise
Leasing Co. of Fla., 362 NLRB No. 135, at *1-3. Enterprise
admits that it engaged in all the post-withdrawal conduct
underlying those violations, and that it did so without
bargaining with the Union. It claims, however, that its post-
withdrawal conduct did not violate the Act because its
withdrawal of recognition from the Union was lawful.
Because the post-withdrawal violations thus rise and fall with
the validity of the withdrawal itself and, as we have
concluded, the Board’s determination that the withdrawal
violated the Act is supported by substantial evidence and not
otherwise arbitrary, see discussion supra Section II.C.iii., we
deny Enterprise’s petition for review, and grant the Board’s
cross-application for enforcement, of the Board’s order that
the Company’s post-withdrawal conduct violated section
8(a)(1) and (a)(5).
III. Challenge to Remedial Order
Finally, Enterprise challenges the Board’s remedial order
as unlawfully punitive. The Board ordered Enterprise to
reimburse the Union from its own funds for all union dues it
failed to pay after withdrawing recognition from the Union.
Amending the ALJ’s remedy, the Board further barred
25
Enterprise from recouping those unpaid dues from employees.
The Company claims that the Board’s order goes beyond
restoring the status quo because, had the dues been paid in the
ordinary course, the employees, not the Company, would
have had to shoulder their cost. The Board counters that this
court lacks jurisdiction to review Enterprise’s challenge to the
recoupment bar because Enterprise failed to raise its
objections before the Board as required under section 10(e) of
the Act. We agree with the Board.
Section 10(e) of the NLRA provides that “[n]o objection
that has not been urged before the Board, its member, agent,
or agency, shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of
extraordinary circumstances.” 29 U.S.C. § 160(e); see also
29 C.F.R. § 102.46(b), (c)(3). Section 10(e) is a
“jurisdictional bar,” in the face of which we are “powerless, in
the absence of extraordinary circumstances, to consider
arguments not made to the Board.” W & M Props. of Conn.,
Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C. Cir. 2008); see Nova
Se. Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015).
Enterprise failed to challenge the recoupment bar before
the Board as section 10(e) requires. Nowhere in any of its
filings in the proceedings below did Enterprise argue that it
was impermissibly punitive or otherwise unlawful for the
Board to prevent Enterprise from collecting from its
employees the dues it had failed to pay to the Union.
Enterprise objected generally to the ALJ’s remedy, but that
remedy did not contain any recoupment bar. “[A]n exception,
no matter how broadly formulated, cannot preserve an
objection to something that the ALJ never imposed.” HTH
Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016).
26
It was the Acting General Counsel’s exceptions that first
requested the recoupment bar the Board eventually imposed,
but Enterprise’s objections to those exceptions were silent on
the subject. Instead, the Company focused on the dates of its
unpaid-dues obligations, contending that the ALJ correctly
declined to order dues collection beyond the March 2010
expiration of the collective bargaining agreement. When the
Board amended the ALJ’s remedy to prevent Enterprise from
recouping the unpaid dues from employees, Enterprise failed
to file a motion for reconsideration addressing the recoupment
bar. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.
645, 666 (1982); HTH Corp., 823 F.3d at 673.
Board Member Miscimarra’s dissent, which viewed the
Board’s recoupment-bar remedy to be impermissibly punitive,
does not excuse Enterprise’s failure to raise the objection.
“[A] party may not rely on arguments raised in a dissent or on
a discussion of the relevant issues by the majority to
overcome the § 10(e) bar; the Act requires the party to raise
its challenges itself.” HTH Corp., 823 F.3d at 673.
Notwithstanding its failure to make the argument below,
Enterprise contends that another party—the Acting General
Counsel—sufficiently raised the recoupment-bar “issue” in
his exceptions to the ALJ’s decision and remedy. Enterprise
Br. 57 n.8; Reply Br. 23-27. As support, the Company
invokes our decision in Mourning v. NLRB, 559 F.2d 768, 771
& n.5 (D.C. Cir. 1977) (per curiam), where we held that a
petitioner’s failure to raise an argument before the Board did
not result in its waiver under section 10(e), because the
Board’s General Counsel sufficiently had done so. But
Mourning is inapposite here. There, the petitioner was not
“precluded from pressing the issue,” because the precise
question already had been identified and countered by the
General Counsel. Id. Here, in contrast, the Acting General
27
Counsel neither raised nor refuted the argument petitioner
now advances. The General Counsel excepted to the ALJ’s
finding that Enterprise had not violated the Act by failing to
collect dues after March 2010, when the collective bargaining
agreement expired, and also excepted to the ALJ’s remedy on
various grounds. As relevant here, it sought modification of
the remedy to include remittance of dues to the Union after
March 2010, as well as “a prohibition against [Enterprise]
recouping the dues monies owed to the Union from its
employees’ wages.” Acting General Counsel’s Exceptions,
J.A. 2119. In requesting the recoupment bar, the Acting
General Counsel identified that specific remedy. But it did
not thereby put before the Board and preserve for our review
Enterprise’s objection that such remedy is impermissibly
punitive. Enterprise’s “argument was not made to the Board
and so comes too late.” W & M Props., 514 F.3d at 1345.
We thus lack jurisdiction to consider it. See Woelke, 456 U.S.
at 665.
***
For the reasons set forth above, we deny Enterprise’s
petition for review and grant the Board’s cross-application for
enforcement.
So ordered.