American Baptist Homes of the West v. NLRB , 858 F.3d 612 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2017 Decided June 6, 2017
No. 15-1445
AMERICAN BAPTIST HOMES OF THE WEST, DOING BUSINESS AS
PIEDMONT GARDENS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
SERVICE EMPLOYEES INTERNATIONAL UNION, UNITED
HEALTHCARE WORKERS - WEST,
INTERVENOR
Consolidated with 15-1501
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
David S. Durham argued the cause for petitioner. With him
on the briefs was Christopher M. Foster.
Kellie J. Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
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Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Usha Dheenan, Supervisory Attorney.
David A. Rosenfeld argued the cause for intervenor. With
him on the brief was Bruce Harland.
Before: GARLAND, Chief Judge, and HENDERSON and
WILKINS, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: American Baptist Homes of the
West, which does business under the name Piedmont Gardens,
fired a nursing assistant after an internal investigation into
allegations that he was sleeping on the job. The assistant’s
union requested the names, titles, and statements of witnesses
involved in the investigation. Piedmont Gardens refused to
provide the requested information.
The dispute then became the subject of an unfair labor
practice proceeding before the National Labor Relations Board
(NLRB). The Board ultimately determined that Piedmont
Gardens violated the National Labor Relations Act by
withholding certain of the requested information, and it ordered
the employer to produce that information to the union and
refrain from violating the Act in the same manner in the future.
Piedmont Gardens petitioned this court for review, and the
Board filed a cross-application for enforcement of its order.
I
Under the National Labor Relations Act, an employer’s
duty to bargain with the representative of its employees includes
the obligation “to provide information that is needed by the
bargaining representative for the proper performance of its
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duties.” NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36
(1967). In determining whether an employer is required to turn
over information like witness names, the Board applies the
Detroit Edison test, under which it balances the union’s need
for the information against the employer’s “legitimate and
substantial” confidentiality interests. Detroit Edison Co. v.
NLRB, 440 U.S. 301, 315, 318-20 (1979); see Oil, Chem. &
Atomic Workers Local Union v. NLRB, 711 F.2d 348, 354 (D.C.
Cir. 1983). Applying Detroit Edison in this case, the Board
concluded that Piedmont Gardens violated the National Labor
Relations Act, 29 U.S.C. § 158(a)(1), (5), by refusing to provide
the names and titles of three individuals who said they witnessed
the nursing assistant sleeping on duty. Am. Baptist Homes, 362
N.L.R.B. No. 139, at *8 (2015). Piedmont Gardens does not
appeal that determination.
Witness statements are another matter. In Anheuser-Busch,
Inc., the Board held that an employer’s “general obligation to
honor requests for information” from a union “does not
encompass the duty to furnish witness statements themselves.”
237 N.L.R.B. 982, 984-85 (1978) (internal quotation marks
omitted). Applying the Anheuser-Busch rule to the witness
statements in this case, the Board concluded that Piedmont
Gardens’ refusal to produce the statements of two of the
witnesses did not violate the Act because the statements were
exempt from disclosure under that rule. 362 N.L.R.B. No. 139,
at *8. That determination is also unchallenged on appeal.
At issue on this appeal are the statements of a third witness,
charge nurse Lynda Hutton. With respect to Piedmont Gardens’
refusal to produce those statements, the Board found that the
company violated the Act because they were not “witness
statements within the meaning of Anheuser-Busch.” Id. at *1.
That was so, the Board said, because Hutton’s statements “were
not provided under an assurance of confidentiality.” Id. at *9.
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Rather, she “gave the statements because it was one of her job
duties to do so.” Id.“We must uphold the judgment of the Board unless, upon
reviewing the record as a whole, we conclude that the Board’s
findings are not supported by substantial evidence, or that the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Mohave Elec. Co-op.,
Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir. 2000). Piedmont
Gardens disputes the Board’s finding that Hutton was never
given any assurance that her statements would be kept
confidential. But substantial evidence in the record supports that
finding, as well as the finding that the statements were
motivated by Hutton’s job duties and fear of punishment if she
failed to report what another nurse had already reported, rather
than by any promise of confidentiality. See J.A. 107, 110 &
n.14.
Piedmont Gardens further asserts that the Board
impermissibly departed from Anheuser-Busch by holding that
the protection of that decision extends only to statements
prompted by an assurance of confidentiality. But the Board
reasonably read its subsequent cases as holding that such an
assurance must have motivated the witness in order to bring the
statement within the protection of Anheuser-Busch, see El Paso
Elec. Co., 355 N.L.R.B. 428 (2010), enf’d, 681 F.3d 651 (5th
Cir. 2012); N.J. Bell Tel. Co., 300 N.L.R.B. 42 (1990), enf’d,
936 F.2d 144 (3d Cir. 1991), and this Court defers to the Board’s
reasonable interpretation of its own precedent, see Ceridian
Corp. v. NLRB, 435 F.3d 352, 355-56 (D.C. Cir. 2006). We note
that all five Board members in this case, including the two
dissenting members, read the Board’s El Paso Electric
precedent to require an assurance of confidentiality. 362
N.L.R.B. No. 139, at *9; id. at *10 n.12 (Member Miscimarra,
dissenting); id. at *11 n.1 (Member Johnson, dissenting in part).
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II
Although the Board applied Anheuser-Busch to resolve the
unfair labor practice charges in Piedmont Gardens’ case, it
announced that prospectively it was overruling Anheuser-
Busch’s blanket exemption for witness statements. 362
N.L.R.B. No. 139, at *1. “In future cases,” the Board said,
“when an employer argues that it has a confidentiality interest
in protecting witness statements from disclosure, we shall apply
the balancing test set forth in Detroit Edison Co. v. NLRB . . . as
we do in all other cases involving assertions that requested
information is confidential.” Id.Piedmont Gardens challenges the Board’s decision to
overrule Anheuser-Busch, notwithstanding that the decision will
apply only in future cases. It acknowledges that a party
generally lacks standing to challenge adjudicatory rulings that
have not been applied to it. Oral Arg. Recording at 3:12-40; see
Am. Family Life Assur. Co. v. FCC, 129 F.3d 625, 629 (D.C.
Cir. 1997) (holding that “the mere precedential effect of an
agency’s rationale in later adjudications is not an injury
sufficient to confer standing on someone seeking judicial review
of the agency’s ruling” (internal quotation marks and alteration
omitted)); see also Wis. Pub. Power v. FERC, 493 F.3d 239, 268
(D.C. Cir. 2007); Sea-Land Serv., Inc. v. DOT, 137 F.3d 640,
648 (D.C. Cir. 1998). Nonetheless, it maintains that it has
suffered the injury-in-fact necessary to establish standing for one
particular reason (and for that reason only): The Board’s order
contains language directing Piedmont Gardens to “cease and
desist from . . . [f]ailing and refusing to bargain in good faith
with the Union by refusing to provide requested information that
is relevant and necessary to the processing of a grievance.” 362
N.L.R.B. No. 139, at *9. Piedmont Gardens fears that this
means it could be subject not only to unfair labor practice
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proceedings if it fails to follow the new rule, but to contempt
proceedings as well. Oral Arg. Recording at 1:06-2:55; 3:12-40.
As it applies to Piedmont Gardens’ duty to disclose witness
statements, we read the language Piedmont cites as referring
only to refusals that would violate the rule the Board actually
applied in this case, that is, the Anheuser-Busch rule. The Board
found it “appropriate to apply [its] new rule prospectively only,”
acknowledging that its decision “marks a departure from
longstanding precedent, and the [r]espondent expressly relied on
existing law under which its refusal to provide the witness
statements was unquestionably lawful.” 362 N.L.R.B. No. 139,
at *7-8. The Board said nothing to suggest it intended to subject
Piedmont Gardens – alone among all employers – to the
possibility of contempt if its future conduct were unlawful only
under the Detroit Edison balancing test. Nor did the Board’s
opinion contain any rationale that would support such an intent.
Counsel for both the Board and the union agree with our
reading of the Board’s cease-and-desist order, Oral Arg.
Recording at 17:20-18:07; 28:20-30:00, although neither can
ensure that the Board itself would construe the language this
way. But given our reading and the absence of any argument to
the contrary, an attempt to treat a future violation of the newly
announced rule as having contravened the order would raise due
process concerns. Cf. FCC v. Fox Television Stations, Inc., 132
S. Ct. 2307, 2317 (2012) (“A fundamental principle in our legal
system is that laws which regulate persons or entities must give
fair notice of conduct that is forbidden or required. . . . This
requirement of clarity in regulation is essential to the protections
provided by the Due Process Clause of the Fifth Amendment.”).
Indeed, given the absence from the Board opinion of any
rationale for subjecting Piedmont Gardens to the risk of
contempt for the future withholding of witness statements
violative only of the Detroit Edison test, we could not uphold a
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cease-and-desist order that did so. See Tourus Records, Inc. v.
DEA, 259 F.3d 731, 737 (D.C. Cir. 2001) (“A fundamental
requirement of administrative law is that an agency set forth its
reasons for decision; an agency’s failure to do so constitutes
arbitrary and capricious agency action.” (internal quotation
marks omitted)).
We therefore can – and will – enforce the cited language in
the cease-and-desist order only to the extent that it requires
Piedmont Gardens to comply with the witness-statement
disclosure requirements that the Board actually applied in this
case: those of Anheuser-Busch. In other respects, Piedmont
Gardens must be treated as any other employer. Because our
holding eliminates any risk of the only injury that Piedmont
Gardens asserts it will suffer due to the Board’s adoption of the
new rule, Piedmont lacks standing to challenge that portion of
the Board’s decision. See Chamber of Commerce v. EPA, 642
F.3d 192, 200 (D.C. Cir. 2011). Accordingly, we express no
opinion as to that challenge or to the merits of the new rule.
III
Piedmont Gardens’ petition for review is denied in part and
dismissed in part. The NLRB’s cross-application for
enforcement of its order is granted as clarified.