Veritas Health Services, Inc. v. NLRB , 895 F.3d 69 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2017 Decided July 10, 2018
No. 16-1058
VERITAS HEALTH SERVICES, INC., D/B/A CHINO VALLEY
MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF
HEALTH CARE PROFESSIONALS, NUHHCE, AFSCME,
AFL-CIO,
INTERVENOR
Consolidated with 16-1076, 16-1110
On Petitions for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Jamie Konn argued the cause for petitioner Veritas Health
Services, Inc. With him on the briefs was Jonathan Batten.
Glenn M. Taubman argued the cause for petitioner Jose
Lopez, Jr. With him on the briefs was Amanda K. Freeman.
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Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. On the brief were
Richard F. Griffin, Jr., General Counsel at the time the brief
was filed, John H. Ferguson, Associate General Counsel at the
time the brief was filed, Linda Dreeben, Deputy Associate
General Counsel, Julie Broido, Supervisory Attorney, and
Gregoire Sauter, Attorney.
Pamela Devi Chandran argued the cause for intervenor.
On the brief was Jay Smith.
Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge MILLETT.
PILLARD, Circuit Judge: In 2010, nurses at Chino Valley
Medical Center exercised their right under federal labor law to
elect a union to represent them. In the ensuing eight years,
Chino has resisted the Union and the nurses who elected it—in
the workplace, before the National Labor Relations Board, and
in court. Instead of coming to any labor agreement, Chino
repeatedly violated the nurses’ rights in its efforts to avoid
dealing with their chosen representative: Chino threatened,
coerced, and retaliated against the nurses—up to and including
firing a nurse in retaliation for his visible support of the Union
—and for several years Chino refused to commence bargaining
with the Union, until we enforced the Board’s order requiring
it do so.
The National Labor Relations Board (Board or NLRB)
held, in three separate orders, that Chino’s management
(incorporated under the name Veritas Health Services, Inc. but
3
referred to in this opinion as Chino) violated the National Labor
Relations Act (Act or NLRA), 29 U.S.C. §§ 158(a)(1), (5), and
we and the Ninth Circuit have already granted the Board’s prior
petitions to enforce the first two orders. See Veritas Health
Servs., Inc. v. NLRB, 671 F.3d 1267 (D.C. Cir. 2012) (Veritas
I); United Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767 (9th
Cir. 2017) (Veritas II). Chino’s failed challenges to the
Board’s orders have caused many years of delay and
effectively stonewalled the nurses’ chosen representative, the
United Nurses Association of California/Union of Healthcare
Professionals (Union). As recently as 2017, Chino’s confirmed
unfair labor practices had yet to be remedied. Now, eight years
after the Union’s election, collective bargaining remains in
limbo, with the nurses still awaiting their first labor contract.
We consider here whether, in the midst of Chino’s
repeated challenges to the Board’s orders, and with the Union
on the verge of securing its first contract, Chino could lawfully
withdraw recognition from the Union—or whether, as the
Board found, its refusal to bargain constituted yet another
unfair labor practice. See Veritas Health Servs., Inc., 363
NLRB No. 108, 2016 WL 453588 (2016) (Board Order), Joint
App’x (J.A.) 1-13. We also consider whether to enforce the
Board’s chosen remedies and whether an employee opposed to
the Union had a right to intervene in the proceedings below.
We conclude that federal law did not permit Chino to withdraw
recognition from the Union when it did, that the Board’s
remedies (except one) should be enforced, and that the would-
be intervenor suffered neither prejudice nor a deprivation of his
due process rights when the Board declined to expand this case
to encompass his claim.
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I. Background
This dispute reaches back to April 2010, when Chino’s
nurses voted, 72 to 39, in favor of the Union as their collective
bargaining representative. In the months leading up to the
election, Chino committed multiple serious unfair labor
practices, as found by the Board and sustained by the Ninth
Circuit. Veritas II, 871 F.3d at 772; see also Veritas Health
Servs., Inc., 359 NLRB No. 111, 2013 WL 1952152 (2013), re-
adopted, 362 NLRB No. 32, 2015 WL 1278687 (2015). Those
violations included threatening to cut back on nurses’ vacation
benefits and flexible scheduling, and even to shut down the
hospital and to fire employees, if the nurses voted to unionize.
Veritas Health Servs., Inc., 359 NLRB No. 111, 2013 WL
1952152, at *9-11. A top executive also surveilled,
interrogated, and threatened to discipline workers who openly
supported the Union. Id. at *11-12.
After the representation election, Chino committed still
more unfair labor practices—implementing, in effect, a
“general crackdown.” Id. at *26. Chino’s chief executive
officer “announced the end of the family atmosphere at Chino,”
telling the nurses that “henceforth, because the employees
voted for the Union,” the hospital “would begin strictly
enforcing its policies and procedures.” Id. at *14. True to pre-
election threats, management reduced the nurses’ vacation
flexibility and curtailed benefits. Id. at *12, *34. Chino
refused to provide the newly elected Union with basic
information, such as employee names and contact information,
that the Union needed to perform its duties. Id. at *36. And,
within a few weeks of the election, Chino’s management fired
a nurse who was a visible Union supporter on the pretext that
he had violated a patient’s privacy. Id. at *16-29; see Veritas
II, 871 F.3d at 779 (finding “all the hallmarks of a pretextual
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firing” and “overwhelming evidence that [Chino] acted with a
discriminatory motive in firing” the Union supporter).
The Union successfully challenged these unfair labor
practices before the Board, and an NLRB Administrative Law
Judge (ALJ) ordered Chino to restore its pre-unionization
policies, to give the Union the withheld information, and to
reinstate the nurse it had fired. Veritas Health Servs., Inc., 359
NLRB No. 111, 2013 WL 1952152, at *40-42. Chino appealed
to the Board and then to the Ninth Circuit—leaving the
company’s unfair labor practices unremedied until 2017, when
that court denied its petition for review.
Meanwhile, Chino also refused to bargain with the newly
elected Union. The Union, in response, sought Board
enforcement of the representation election results and an order
compelling Chino to come to the bargaining table. See Veritas
Health Servs., Inc., 356 NLRB No. 137, 2011 WL 1396024
(2011). The Board held that Chino had unlawfully refused to
recognize the Union; we enforced its order in March of 2012
and required Chino to bargain. See Veritas I, 671 F.3d at 1271,
1274.
Within a week of our decision, on March 20, 2012, the
Union contacted Chino, requesting the documents that Chino
had refused to provide two years earlier. On March 22, Chino
provided some, but not all, of the requested documents. The
Union’s chief negotiator responded that the Union would
“review[] the information,” “proceed[] with preparations for
bargaining,” and “provide suggested bargaining dates” at some
point “in the near future.” J.A. 283. Chino’s point person for
the negotiations responded: “That’s fine. Please let me know
the available dates you have for negotiations so we can get
started right away.” Id.
6
The next correspondence in the record is an April 20 letter
from the Union’s chief negotiator to Chino’s, proposing a
dozen possible bargaining dates in June and July. The parties
promptly agreed to bargain on several of those dates, including
the earliest one proposed by the Union, June 13, 2012. As far
as the record reveals, Chino never objected to the Union’s
proposed timeline, raised any concerns about the pace of
preparations, or asked for any earlier bargaining date. The
Board later found that the three-month period between this
court’s order and the start of bargaining was warranted by the
Union’s need to “engage in extensive preparation work,”
including verification of current membership following “much
turnover in the bargaining unit” since the election, and the
complete lack of “information provided to the Union” during
the two years Chino fought recognition. Board Order at 6 (J.A.
6).
Bargaining began as scheduled on June 13, 2012, after
which the parties continued to meet and to bargain for nearly a
year. Over the course of more than two dozen meetings the
parties agreed on many contract terms but, in June 2013,
remained apart on four—including, most prominently,
compensation. At that point, Chino’s most recent
compensation proposal, from May 24, 2013, was on the table,
and the Union had not yet accepted it.
Things came to a head on June 10, 2013. With the one-
year anniversary of bargaining fast approaching—a milestone
that was legally significant for reasons that will become clear—
the Union informed Chino at 3:41 p.m. that it was accepting the
May 24 compensation proposal and acceding to Chino’s
outstanding requests on the remaining terms.
At 5:09 p.m. on that same day, Chino’s chief labor
negotiator informed the Union via e-mail that Chino had
7
received a “decertification petition” apparently showing that a
majority of the bargaining-unit nurses no longer wanted the
Union to represent them. Citing loss of majority support for
the Union, Chino abruptly withdrew recognition from the
Union and refused to acknowledge any deal or to continue
bargaining. 1 The Union again filed unfair labor practice
charges challenging Chino’s withdrawal of recognition and
refusal to bargain. The ALJ rejected Chino’s effort to
subpoena various internal Union records, and denied a motion
to intervene filed by bargaining unit member nurse Jose Lopez,
who sought to testify in support of the decertification petition.
Evidence introduced at a hearing before the ALJ detailed
the parties’ bargaining history, including the timing and
circumstances of Chino’s withdrawal of recognition. The
decertification petition, however, was never introduced in
evidence. Chino expressed interest in introducing the petition
and, if necessary, calling Lopez to authenticate it. But the
Board’s General Counsel and the Union would not stipulate to
the petition’s authenticity, triggering a lengthy back-and-forth
with the ALJ over how Chino could authenticate it. After a
brief recess, the ALJ ruled on the question. The parties dispute
the substance of that ruling, but agree about its result: Chino’s
lawyers briefly huddled and, without further discussion,
withdrew Chino’s request to submit the decertification petition
1
On June 13, the one-year anniversary of the parties’ first bargaining
session, Chino sent a follow-up letter “revoking and rescinding” its
June 10 recognition-withdrawal communication, but again refusing
to acknowledge that any deal had been struck or to continue
bargaining. J.A. 311; see also Board Order at 7 (J.A. 7). The ALJ
and the Board found that Chino’s June 10 letter constituted
withdrawal of recognition from the Union. Chino never challenged
that factual finding. We thus treat the June 10 letter as the operative
withdrawal of recognition, notwithstanding Chino’s June 13 letter
purporting to “rescind[]” it.
8
as evidence and rested without calling Lopez or any further
witness.
At the close of the hearing, the ALJ ruled in favor of the
Union, concluding on three independent and alternative
grounds that the proffered decertification petition did not
justify Chino’s withdrawal of recognition. Board Order at 7-9
(J.A. 7-9). The ALJ ordered Chino to bargain with the Union
“on the only remaining unresolved subject, the effective date
of the agreement,” id. at 9; cease and desist from “like or
related” interference with its employees’ rights, id. at 12; post
and read aloud a notice to its employees, id.; and pay the
Union’s litigation costs and expenses, id. at 10-11.
The Board affirmed the ALJ’s decision and adopted his
order in essentially all respects, including all three independent
grounds for holding that Chino unlawfully withdrew its
recognition of the Union: (1) because Chino withdrew
recognition within the parties’ first year of bargaining; (2)
because Chino withdrew while its prior and still-unremedied
unfair labor practices continued to affect employee sentiment
toward the Union; and (3) because the decertification petition
never came into evidence. Id. at 1 n.3. The Board also
sustained the ALJ’s denial of intervention to Lopez. The Board
supplemented the ALJ’s prescribed remedies, broadening the
cease-and-desist order to forbid any future interference with
employees’ collective bargaining rights; requiring Chino’s
notice to its employees to be mailed as well as posted; and
imposing a general affirmative bargaining order.
Without first seeking reconsideration of the Board’s
ruling, Chino petitioned this court for review. Lopez, too,
petitioned for review of the order insofar as it denied him
intervention.
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II. Chino’s Petition for Review
According the Board the requisite deference, we first
consider whether it permissibly concluded that Chino’s
withdrawal of recognition from the Union was an unfair labor
practice, and we uphold that determination on two independent
grounds. We then consider and reject most of Chino’s
challenges to the Board’s remedies for that violation.
A. Standard of Review
We give considerable deference to the Board’s
adjudications and reverse its findings “only when the record is
‘so compelling that no reasonable factfinder could fail to find’
to the contrary.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d
929, 935 (D.C. Cir. 2011) (quoting United Steelworkers of Am.
v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)). We thus uphold
the Board’s decisions unless it “relied upon findings that are
not supported by substantial evidence, failed to apply the
proper legal standard, or departed from its precedent without
providing a reasoned justification for doing so.” E.I. Du Pont
De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C. Cir. 2012).
In particular, we defer to the Board’s well-reasoned
“interpretation of its own precedent,” Ceridian Corp. v. NLRB,
435 F.3d 352, 355 (D.C. Cir. 2006) (collecting cases), as well
as “the Board’s application of law to facts” and any reasonable
inferences it draws from those facts, Allied Mech. Servs., Inc.
v. NLRB, 668 F.3d 758, 764 (D.C. Cir. 2012).
We review the Board’s denial of an administrative
subpoena for abuse of discretion. See SSC Mystic Operating
Co. v. NLRB, 801 F.3d 302, 330 (D.C. Cir. 2015); Joseph T.
Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1153-54 (D.C.
Cir. 2000). A party asserting that the Board impermissibly
failed to enforce the party’s subpoena must show prejudice
from the denial. See Ozark Auto. Distribs., Inc. v. NLRB, 779
10
F.3d 576, 585-86 (D.C. Cir. 2012); Joseph T. Ryerson & Son,
216 F.3d at 1154.
B. Chino’s Withdrawal of Recognition
Violated the Act
Chino here challenges the Board’s determination that
Chino’s withdrawal of recognition from, and refusal to bargain
with, the Union violated Sections 8(a)(1) and 8(a)(5) of the
NLRA, 29 U.S.C §§ 158(a)(1), (5).
Section 8(a)(5) of the Act “requires an employer to
recognize and bargain with the labor organization chosen by a
majority of its employees.” Pac. Coast Supply, LLC v. NLRB,
801 F.3d 321, 325 (D.C. Cir. 2015); see 29 U.S.C. § 158(a)(5).
Any failure by an employer to abide by the requirements of
Section 8(a)(5) also violates Section 8(a)(1), which prohibits
“interfer[ing] with, restrain[ing], or coerc[ing] employees in
the exercise of the rights guaranteed in section [7 of the Act].”
Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 546 (D.C.
Cir. 2016) (alterations in original) (quoting 28 U.S.C.
§ 158(a)(1)). Section 7, in turn, guarantees employees’ right to
“bargain collectively through representatives of their own
choosing.” 29 U.S.C. § 157.
“Under longstanding Board precedent, when a union is
recognized as the collective-bargaining representative of a unit
of employees, that union is entitled to a presumption that it
enjoys the support of a majority of the represented employees.”
Pac. Coast Supply, LLC, 801 F.3d at 325-26 (citing Auciello
Iron Works, Inc. v. NLRB, 517 U.S. 781, 785-87 (1996)). This
presumption is ordinarily rebuttable: An employer “may
unilaterally withdraw recognition” without violating the Act if
it “has objective evidence that a union has lost majority
support, such as a petition signed by a majority of the
employees in the bargaining unit.” Tenneco Auto., Inc. v.
11
NLRB, 716 F.3d 640, 648 (D.C. Cir. 2013) (internal quotation
marks omitted). But “[a]n employer’s ‘privilege’ to withdraw
recognition based on a petition from a majority of employees
‘is not absolute.’” Enter. Leasing Co., 831 F.3d at 549 (quoting
SFO Good-Nite Inn, LLC v. NLRB, 700 F.3d 1, 6 (D.C. Cir.
2012)). The Board invoked three such limits on that privilege
as justification for its decision here.
First, there are certain times when a union’s presumption
of majority support is irrebuttable, such that any refusal to
recognize and deal with a duly elected union—with or without
a decertification petition—will violate the Act. See Auciello
Iron Works, 517 U.S. at 786; Pac. Coast Supply, 801 F.3d at
326. As relevant here, there is an irrebuttable presumption of
majority support during the first year after a union gains
recognition, the so-called “certification year” bar. See Auciello
Iron Works, 517 U.S. at 786; Brooks v. NLRB, 348 U.S. 96, 104
(1954); Chelsea Indus., Inc. v. NLRB, 285 F.3d 1073, 1075
(D.C. Cir. 2002). That window of detente promotes “stability
in collective-bargaining relationships,” allowing a union “to
concentrate on obtaining and fairly administering a collective-
bargaining agreement without worrying about the immediate
risk of decertification,” and relieving the employer of “any
temptation . . . to avoid good-faith bargaining in an effort to
undermine union support.” Auciello Iron Works, 517 U.S. at
786 (internal quotation marks omitted) (quoting Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987));
see also Brooks, 348 U.S. at 99-100.
Second, a decertification petition may be temporarily
presumed unreliable—and thus not actionable by the
employer—if the employer’s past unfair labor practices
“significantly contribute[d] to the loss of majority status.”
Tenneco Auto., 716 F.3d at 648 (quoting Williams Enters., Inc.
v. NLRB, 956 F.2d 1226, 1234 (D.C. Cir. 1992)); see also
12
Enter. Leasing Co., 831 F.3d at 549. In other words, if erosion
of workers’ support for a union is “tainted” by an employer’s
prior bad acts, that taint renders the union’s presumption of
continuing majority support temporarily conclusive: An
employer that might otherwise be allowed to act upon a
decertification petition is barred from doing so while the effects
of its own unfair labor practices linger. BPH & Co., Inc. v.
NLRB, 333 F.3d 213, 218 (D.C. Cir. 2003); see Master Slack
Corp., 271 N.L.R.B. 78, 84 (1984). This rule prevents employers
from benefiting from illegal acts that are demonstrably “of a
character as to either affect the Union’s status, cause employee
disaffection, or improperly affect the bargaining relationship
itself.” Master Slack, 271 N.L.R.B. at 84.
Third, even when the presumption that a duly elected
union continues to represent a majority of employees is fully
rebuttable, the employer must bear the burden to show “actual
loss of majority support”; it may not rely on a general
suspicion. Levitz Furniture Co., 333 N.L.R.B. 717, 725 (2001).
The Board invoked all three of these grounds in holding
Chino’s withdrawal of recognition unlawful. Board Order at
1 n.3 (J.A. 1). As discussed below, each of the first two
conclusions is supported by substantial evidence, and they
independently—whether separately or together—provide
ample basis for denying Chino’s petition and enforcing the
Board’s order. We therefore need not consider Chino’s third
argument: that Chino was unlawfully prevented from showing
a loss of majority support for the Union, because the ALJ
abused his discretion in preventing Chino from introducing and
authenticating Lopez’s decertification petition.
13
1. Chino Withdrew Recognition During the
“Certification Year”
Chino first contends that the Board erred in concluding
that it unlawfully withdrew recognition during the certification
year, when the Union’s presumption of majority support was
irrebuttable. The Board found that the certification year ran
from June 13, 2012—the date of the parties’ first bargaining
session—and thus was still in effect when Chino withdrew
recognition and ceased bargaining on June 10, 2013. Id. at 8.
Chino does not dispute that its withdrawal of recognition was
unlawful if the certification year in fact ran from June 13, 2012.
Instead, Chino contends that the certification year in fact began
on an earlier date, and thus had already expired before its June
10, 2013, withdrawal of recognition.
The Board’s prior order that we enforced—directing
Chino to participate in the bargaining at issue here—specified
that the certification year bar would be extended, to begin on
“the date the Respondent begins to bargain in good faith with
the Union.” Veritas Health Servs., Inc., 356 NLRB No. 137,
2011 WL 1396024, at *2. Such extensions are a standard
remedy when an employer’s refusal to bargain has consumed
all or a substantial part of the original post-election certification
year. Dominguez Valley Hosp., 287 N.L.R.B. 149, 149 (1987);
see Local Union No. 2338, Bhd. of Elec. Workers, 499 F.2d
542, 544 & n.3 (D.C. Cir. 1974); Mar-Jac Poultry Co., 136
N.L.R.B. 785, 786 (1962).
Under the Board’s decision in Dominguez Valley Hospital
(which the parties agree governs here), the so-called “extended
certification year” runs from the date of the parties’ first formal
bargaining session. 287 N.L.R.B. at 150; see also Van Dorn
Plastic Mach. Co. v. NLRB, 939 F.2d 402, 404 (6th Cir. 1991).
Here, that first bargaining session occurred on June 13, 2012.
14
Considered by reference to that date, Chino’s withdrawal from
bargaining on June 10, 2013—three days shy of a year later—
was barred as premature. See Chelsea Indus., 285 F.3d at 1075.
Chino nevertheless argues that a narrow exception
articulated in Dominguez Valley Hospital renders its
withdrawal lawful. Under Dominguez Valley Hospital, a
“significant delay in the commencement of bargaining
attributable to inexcusable procrastination or other
manifestations of bad faith” on the Union’s part may support
measuring the extended certification year from an earlier start
date. 287 N.L.R.B. at 150; see also Van Dorn Plastic Mach. Co.,
300 N.L.R.B. 278, 279 (1990) (acknowledging exception for
“unwarranted delay”). That exception, however, does not
apply here. Chino’s petitions disputing the Union’s status
consumed nearly two years, but bargaining commenced within
three months of our Veritas I opinion denying Chino’s first
petition. Where, as here, an employer comes to the bargaining
table under court order years after a union’s election, the NRLB
has consistently held, and courts of appeals affirmed, that it can
be entirely appropriate for the union to take three months to
prepare to bargain. See Virginia Mason Med. Ctr., 350 N.L.R.B.
923, 935-36 (2007), enf’d, 558 F.3d 891, 895 (9th Cir. 2009);
Van Dorn Plastic Mach., 300 N.L.R.B. at 280, enf’d, 939 F.2d
402, 405 (6th Cir. 1991). Of particular relevance, here the
Union and Chino promptly corresponded with one another, the
Union proposed mid-June as a reasonable time to commence
negotiations, and Chino accepted the June 13 date without
protest. And during the time leading into negotiations, Chino
made no suggestion to the Union that its proposed dates were
too late or that the Union was in any way dragging its feet—an
important omission under the Board’s precedent. See Virginia
Mason Med. Ctr., 350 N.L.R.B. at 935-36. Under these
circumstances, the Union’s three months of preparation was
15
not delay, much less “unwarranted” delay. See Van Dorn
Plastic Mach., 300 N.L.R.B. at 279.
Chino nevertheless assails the Board’s finding that there
was no unwarranted delay. The ALJ (affirmed by the Board)
prevented it from building a record of procrastination or bad
faith, Chino contends, by denying its request to subpoena
internal Union communications concerning the scheduling of
bargaining. Even assuming such evidence would be
discoverable, the ALJ did not abuse his discretion in quashing
the subpoena requests at issue. As discussed above, the Board
has made clear that three months—the time that elapsed here—
is a reasonable period to prepare for bargaining under
circumstances like these. Dominguez Valley Hosp., 287 N.L.R.B.
at 149-50 & n.1; see Van Dorn Plastic Mach., 300 N.L.R.B. at
280; Virginia Mason Med. Ctr., 350 N.L.R.B. at 935-36. This
case is unlike Ozark Automotive Distributors, 779 F.3d 576, in
which we held an ALJ’s flawed subpoena denial was an abuse
of discretion because the missing evidence prejudiced a critical
element of that case. See id. at 581-83. The ALJ here, in
contrast, permissibly concluded that the Union was “fairly
entitled to” the three months it took, Van Dorn Plastic Mach.,
939 F.2d at 405, thereby rendering any internal Union
communications about scheduling “irrelevant,” Order Denying
Respondent’s Petition to Revoke Subpoena at 3-4 (Nov. 17,
2014) (J.A. 150-51).
Attempting to recast three months as an unreasonable
delay, Chino cites two cases—Hudson Chemical Co., 258
N.L.R.B. 152, 157 (1981), and Wright Motors, Inc., 237 N.L.R.B.
570, 575 (1978)—in which the Board faulted employers for
refusing to commence bargaining for periods of three months
or less. But those cases ask the legally distinct question
whether the employers had violated their statutory obligations
to “meet at reasonable times” and to bargain in good faith.
16
Hudson Chem., 258 N.L.R.B. at 157; Wright Motors, 237 N.L.R.B.
at 575. Neither case purports to interpret or to apply the
Dominguez Valley Hospital exception for unwarranted delays
by a union preparing for initial bargaining, and neither raises
any doubt that three months was reasonable given the
circumstances the Board confronted here.
The Board reasonably determined that the extended
certification year began on June 13, 2012. The ALJ did not
abuse his discretion in denying Chino’s subpoena, and the
Union did not delay in coming to the bargaining table. The
Board thus validly held that Chino’s withdrawal of recognition
on June 10, 2013, was within the certification year and so
unlawful.
2. Chino’s Unfair Labor Practices “Tainted” Any
Loss of Majority Support
We also consider Chino’s challenge to the Board’s second,
independent basis for finding its withdrawal of recognition
unlawful: that the employer’s many unremedied unfair labor
practices during and after the election tainted the June 2013
decertification petition. Chino contends that the Board
misapplied precedent governing when an unfair labor practice
taints a subsequent decertification effort. An employer’s unfair
labor practices taint a union’s loss of majority support where
there is a “causal nexus” between the two. Williams Enters.,
956 F.2d at 1235. The Board thus bears “the burden of
adducing substantial evidence to support its finding that an
employer’s unfair labor practices have significantly
contributed to the erosion of a union’s majority support.”
Tenneco Auto., 716 F.3d at 648 (internal quotation marks
omitted).
The parties agree that the presence or absence of a causal
nexus between unfair labor practices and a union’s loss of
17
majority support is determined under the test set forth in Master
Slack, 271 N.L.R.B. 78. See Tenneco Auto., 716 F.3d at 648; BPH
Co., 333 F.3d at 218; Williams Enters., 956 F.2d at 1236. To
guide the Board in distinguishing between employees’
disaffection for a union due to its own poor performance, and
disaffection because of the employer’s labor law violations, the
Master Slack test describes four overlapping factors:
(1) The 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.
271 N.L.R.B. at 84. The Board applies the Master Slack test to
determine when a decertification petition should not be taken
to reflect the voluntary choice of a bargaining unit’s employees
because it was signed in an atmosphere rendered threatening or
coercive by an employer’s unfair labor practices.
The Master Slack test allows parties to focus on objective
and readily discernible considerations. It calls on the Board to
consider the nature and timing of the unfair labor practices as
they bear on the reasonable likelihood of discouraging
employees under a given set of circumstances from continuing
to support their union. Even though Master Slack refers to the
“effect” of employers’ misconduct on employees’ “morale,”
the Board does not read it to license intrusive direct probing of
the specific employees’ subjective attitudes. Instead, the Board
has held that “it is the objective evidence of the commission of
unfair labor practices that has the tendency to undermine the
Union, and not the subjective state of mind of the employees,
18
that is the relevant inquiry in this regard.” AT Sys. West, Inc.,
341 N.L.R.B. 57, 60 (2004); see Wire Prods. Mfg. Corp., 326
N.L.R.B. 625, 627 & n.13 (1998) (looking to violations’
“foreseeable tendency to weaken employee support for the
Union” as reasonable basis “to infer that they contributed to the
employee disaffection,” and specifying that the causation
analysis does not require a showing of “actual knowledge by
the employees of the unfair labor practices”).
Here, the Board relied on substantial—indeed, very
robust—evidence going principally to the first three factors to
find that Chino’s past unfair labor practices tainted any
decertification petition. On the second and third factors, the
Board found that Chino’s unremedied unfair labor practices
were “numerous” and “egregious”; they included multiple
“hallmark violations” and were precisely “the sort that cause
disaffection among employees.” Board Order at 8 (J.A. 8).
Chino’s retaliatory termination of a prominent Union supporter
was, the Board found, “especially coercive” and “not likely to
be forgotten, even over a period of years.” Id. at 7 (citing Penn
Tank Lines, Inc., 336 N.L.R.B. 1066, 1067-68 (2001); Koons
Ford of Annapolis, 282 N.L.R.B. 506, 508 (1986); and United
Supermarkets, Inc., 287 N.L.R.B. 119, 120 (1987)). Chino’s
threat to shutter the hospital and its curtailment of employee
benefits also constitute “the types of violations that have
detrimental and lasting effects.” Tenneco Auto., 716 F.3d at
650. Accordingly, the second and third Master Slack factors—
the nature of the unfair labor practices and their tendency to
cause disaffection from the Union—weighed heavily in favor
of the Board’s conclusion that Chino’s prior transgressions
tainted any Union decertification effort.
The Board also found, under the first factor, that three
years was too little time to “ameliorate the effect of” such
severe and pervasive unfair labor practices. Board Order at 8
19
(J.A. 8). That finding, too, comported with Board precedent
recognizing that a decertification petition may be “unreliable
as an indicator of uncoerced employee sentiment” if it “arose
during the time when the [employer] had not yet fully remedied
its many unfair labor practices.” United Supermarkets, 287
N.L.R.B. at 119-20. While the decertification petition was
circulating among the nurses at Chino Valley Medical Center,
all of Chino’s election-related unfair labor practices remained
unremedied as a result of its time-consuming and ultimately
unsuccessful challenges. Board Order at 8 (J.A. 8). In
particular, Chino had yet to do anything to reinstate or
otherwise make whole the nurse it fired three years earlier in
retaliation for his Union support. Unlawful retaliatory firings
are “precisely the type of coercive conduct” that can have
lasting effects even five or more years later. United
Supermarkets, 287 N.L.R.B. at 120.
Chino attacks the causation evidence only by reference to
the fourth Master Slack factor—the effect on employee morale,
organizational activities and support for the Union—arguing
that it was the Union’s failings that drove employees away. In
Chino’s view, testimony in the record established that
employees signed the decertification petition because of
dissatisfaction with the Union’s slow progress in negotiations,
not because the company’s unfair labor practices stymied the
Union and suppressed its support. Chino cites a lone statement
by a Union organizer on cross-examination:
When I had discussion with folks, a lot of people were
saying . . . that things weren’t moving as fast as they
were when they first started negotiations, that the
turnover was very high, that there were now techs or
other folks in the facility talking poorly about the
Union. Therefore, morale was really low.
20
Hearing Transcript at 164 (J.A. 385). But most of the time that
passed between the Union’s 2010 election and its 2013
bargaining effort was spent litigating Chino’s labor violations.
That delay would naturally contribute to the employees’
impatience. Thus, even assuming its relevance, the testimony
on which Chino relies is at least consistent with Chino’s actions
being the primary reason for any employee dissatisfaction.
In any event, the Board was well within its discretion to
consider that fragment of testimony insufficient to overcome
the taint powerfully evinced by Chino’s unremedied labor
violations. In other cases like this one—in keeping with the
objective focus of its test—the Board has found causation due
to sufficiently severe, unremedied violations without direct
evidence of what motivated employees to petition for
decertification. See Overnite Transport. Corp., 333 N.L.R.B.
1392, 1394-95 & n.16 (2001); United Supermarkets, 287
N.L.R.B. at 120. That approach makes good sense: Because
employees may often wish both to be represented by a union
and to avoid antagonizing their employer, it is not always
desirable to elicit testimony that “the Company had done
nothing to influence their decision,” nor is such testimony
particularly probative. Tenneco Auto., 716 F.3d at 651.
Indeed, “questioning employees about the subjective motives
for their representation preferences” may “result in ‘endless
and unreliable inquiry.’” SFO Good-Nite Inn, 357 N.L.R.B. 79,
83 (2011), enf’d, 700 F.3d 1 (D.C. Cir. 2012).
Chino alternatively suggests that its “good faith
bargaining” up until June 2013 might have had some additional
“ameliorative effect” not present in Overnite Transportation or
United Supermarkets (where bargaining occurred for a
somewhat shorter period before the employer withdrew
recognition). Chino Reply Br. 5. But the Board rejected a
similar argument in Overnite Transportation on the ground
21
that, so long as serious violations remain unremedied,
“bargaining by the Employer with the Union . . . cannot suffice
to cure the [t]aint of the decertification petitions.” 333 N.L.R.B.
at 1396. In sum, Chino’s case is, at most, arguably
“distinguishable from” Overnite Transportation and United
Supermarkets, not “a departure from those cases,” such as
would invalidate the Board’s holding. Ceridian Corp., 435
F.3d at 356 (emphases in original).
That leaves only Chino’s argument that we must vacate the
Board’s rejection of the decertification petition as tainted
because, Chino says, the ALJ’s earlier decision to quash
Chino’s subpoena erroneously depended on a premature and
factually underdeveloped application of the Master Slack test.
Chino identifies no evidence its subpoena sought that could
have affected the Master Slack analysis in any “significant
way[],” Ozark Auto. Distribs., 779 F.3d at 585 (quoting Ind.
Hosp., Inc. v. NLRB, 10 F.3d 151, 154 (3d Cir. 1993)). Perhaps
that is because the few document requests that seem even
arguably relevant were sweeping requests for the Union’s
internal communications, not geared toward potential causes of
employee disaffection. The subpoena, for example, sought
“[a]ll documents that relate to the Union’s knowledge of any
efforts by Chino employees to decertify the Union from June
10, 2012 to present” and “[a]ll documents concerning,
reflecting, supporting, or relating to any alleged unfair labor
practices asserted by the Union.” Order Denying Resp’t’s Pet.
to Revoke Subpoena at 2, 5 (Nov. 17, 2014) (J.A. 149, 152).
Because Chino has identified no prejudice caused by the
subpoena denial to its ability to respond to the General
Counsel’s Master Slack showing, the denial does not affect the
Board’s finding that the decertification petition was tainted by
Chino’s unfair labor practices. See id. at 582-83.
 22
C. The Board’s Choice of Remedies Was
Appropriate
Having determined that the Board permissibly held that
Chino engaged in unfair labor practices, we next consider the
remedies the Board imposed. Our review of the Board’s
remedial choices “is especially deferential” under 29 U.S.C.
§ 160(c), which accords the Board “‘broad discretionary
power . . . to fashion remedies.’” Oberthur Techs. of Am.
Corp. v. NLRB, 865 F.3d 719, 726 (D.C. Cir. 2017) (alteration
in original) (quoting Petrochem. Insulation, Inc. v. NLRB, 240
F.3d 26, 34 (D.C. Cir. 2001)); see NLRB v. Gissel Packing Co.,
395 U.S. 575, 612 n.32 (1969); Fibreboard Paper Prods. Corp.
v. NLRB, 379 U.S. 203, 216 (1964).
Chino challenges several of the Board’s chosen remedies
as unsupported by the record and unduly harsh. With one
exception, we enforce the Board’s remedies—either because
we lack jurisdiction to consider them, or because Chino’s
challenges fail on their merits.
1. Remedial Challenges We Lack Jurisdiction to
Consider
As a threshold matter, the Board notes that we are barred
from reviewing several of Chino’s challenges because Chino
failed to first present its objections to the Board, as required by
29 U.S.C. § 160(e). See Enter. Leasing Co., 831 F.3d at 550.
Even though the Board broadened several of the ALJ’s
proposed remedies, Chino was obligated to at least raise its
concerns in a motion for the Board’s reconsideration before
seeking this court’s review. See Int’l Longshore & Warehouse
Union v. NLRB, 890 F.3d 1100, 1113 (D.C. Cir. 2018);
HealthBridge Mgmt., LLC v. NLRB, 798 F.3d 1059, 1069 (D.C.
Cir. 2015); Lee Lumber & Bldg. Material Corp. v. NLRB, 310
23
F.3d 209, 216-17 (D.C. Cir. 2002). But Chino did not seek
Board reconsideration.
We are thus barred from considering Chino’s challenges
to two remedies: (1) the Board’s order that Chino cease and
desist from any and all violations of its employees’ Section 7
rights, Board Order at 3 (J.A. 3), which broadened the ALJ’s
more targeted remedy requiring Chino to cease and desist only
from “like or related” violations, id. at 12; and (2) the Board’s
requirement that Chino mail notice of its ruling to the
employees, id. at 3. Because Chino challenged neither of those
remedies before the Board, see Respondent’s Exceptions to
ALJ Decision at 7 (J.A. 180); Respondent’s Brief in Support of
Exceptions at 15-19 (J.A. 197-201), we cannot review them.
Chino argues that it constructively challenged the Board’s
broadened cease-and-desist order. The Board justified that
order in part by finding that Chino had demonstrated a
“proclivity” for violating labor laws, and Chino contends that
was similar to a finding of “repeated unlawful conduct” that
partly undergirded a separate notice-reading remedy—which
Chino did dispute in its exceptions to the Board. See Board
Order at 1, 11 (J.A. 1, 11). In Chino’s view, the unchallenged
“proclivity” finding is equivalent to the “repeated unlawful
conduct” finding that it had already challenged, such that
Chino’s earlier objection gave the Board notice that it opposed
the similar, later finding as well.
Chino’s attempt to smuggle a challenge to the broad cease-
and-desist order into its notice-reading exception fails because
it did not “state with particularity the material error claimed,”
as was required. 29 C.F.R. § 102.48(c)(1). The mere fact that
Chino challenged a similar determination underpinning a
different remedy would not put the Board on “adequate notice”
that Chino considered the Board to have insufficiently justified
24
the cease-and-desist order. Alwin Mfg. Co. v. NLRB, 192 F.3d
133, 143 (D.C. Cir. 1999); see also United Food & Commercial
Workers Union Local 204 v. NLRB, 506 F.3d 1078, 1087 (D.C.
Cir. 2007).
Chino also argues that it should be excused from seeking
reconsideration because it here challenges the sufficiency of
the Board’s reasoning. Chino says that, despite past orders of
this court taking the Board to task for inadequate reasoning, the
Board has a persistent practice of under-explained decisions.
Chino makes the rather remarkable argument that what it sees
as the Board’s insufficient regard for the lessons of our past
decisions means that “[a]sking the Board to explain its
reasoning in a motion for reconsideration would have been a
futile exercise.” Chino Reply Br. 14. Our prior reversals of
some Board decisions hardly licenses Chino to simply sidestep
the statutorily mandated Board review. We do not doubt that
the Board would have given due consideration to a timely
objection or motion for reconsideration.
2. Remedial Challenges We Resolve on Their
Merits
Chino challenged two remedies before the Board, giving
us jurisdiction to review the merits of those challenges.
Specifically, Chino contested the Board’s remedial orders
requiring that (1) Chino pay litigation costs and expenses, and
(2) Chino’s management publicly read a notice to its
employees concerning its unlawful conduct.
As to the first challenge, the Board agrees that its award of
litigation costs and expenses was incorrect and “does not seek
enforcement of those portions of its Order,” citing our
decisions in HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir.
2016), and Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085
 25
(D.C. Cir. 2016). We therefore grant Chino’s petition for
review on that issue and vacate that portion of the order.
Chino’s other challenge—to the public notice reading—
fails. The Board reasonably determined that Chino’s unfair
labor practices were numerous and egregious, rising to the level
of “repeated unlawful conduct” that “likely had the effect of
chilling employees’ Section 7 activities,” making such a
reading necessary “to fully dissipate the[] coercive effect” of
Chino’s accumulated misdeeds. Board Order at 11 (J.A. 11).
We have recognized that a public reading may be appropriate
where, as here, upper management has been directly involved
in multiple violations of the Act. See Federated Logistics &
Operations, 400 F.3d at 929-30; United Food & Commercial
Workers Union v. NLRB, 852 F.2d 1344, 1348-49 (D.C. Cir.
1988).
Chino makes no persuasive case that we should overturn
the Board’s choice of remedies. Indeed, Chino does not
meaningfully contest in this court that its unfair labor practices,
several of which were committed by upper management, were
“pervasive” enough to support the notice reading remedy. See
United Food & Commercial Workers Union, 852 F.2d at 1349.
Chino argues instead that its participation in bargaining for
nearly a year obviated the need for a reading. But it cites no
authority—of either the Board or any court—endorsing that
view. And it would make no sense to compel the Board to treat
Chino’s bargaining as foreclosing this remedy when that
bargaining was bookended by unfair labor practices: Chino
had to be forced to the bargaining table under court order, then
committed yet another unfair labor practice when it cut
bargaining short without lawful justification.
Chino alternatively argues that the Board’s unfair labor
practice holdings were insufficiently final to support a notice
26
reading requirement while those findings remained pending
review in the Ninth Circuit. The Ninth Circuit has since
enforced the Board’s determinations. See Veritas II, 871 F.3d
767. We therefore enforce the Board’s notice-reading remedy.
In sum, because the Board reasonably determined both that
Chino’s withdrawal of recognition occurred within the
extended certification year and that Chino’s unfair labor
practices tainted any decertification petition, we enforce the
Board’s order insofar as it held that Chino committed an unfair
labor practice by withdrawing recognition from and refusing to
bargain with the Union. We also enforce all but one of the
Board’s remedies for that violation, granting Chino’s petition
for review only as to the Board’s award of litigation costs and
expenses.
III. Lopez’s Petition for Review
Lopez, the nurse who circulated the decertification
petition, seeks review of the Board’s order insofar as it
affirmed the ALJs’ decisions denying his intervention. Lopez
contends that the Board’s decision not to permit him to
intervene was arbitrary and erroneous, and that it hindered his
ability to avoid unwanted representation by a union that, he
believes, lacked majority support. He also contends that the
Board violated his procedural due process rights by treating the
Union as his representative without giving him “any
opportunity to be heard.” Lopez Br. 29. We review the
Board’s affirmance of an ALJ’s discretionary judgments,
including whether to deny a motion to intervene, for abuse of
discretion. Int’l Union, United Auto., Aerospace & Agr.
Implement Workers of Am. v. NLRB, 392 F.2d 801, 809-10
(D.C. Cir. 1967); see also Midwest Div.—MMC, LLC v. NLRB,
867 F.3d 1288, 1303 (D.C. Cir. 2017); Perdue Farms, Inc.,
27
Cookin’ Good Div. v. NLRB, 144 F.3d 830, 833-34 (D.C. Cir.
1998).
We need not decide whether the ALJ abused his discretion
in denying Lopez’s motion to intervene because, even if he had,
Lopez has shown no prejudice flowing from the denial. Lopez
argued that he should be granted intervention to argue that the
Union no longer enjoyed majority support in view of the
decertification petition, which he also sought to introduce,
authenticate, and testify about. Lopez Motion to Intervene at 5
(J.A. 50); see also Lopez Declaration (J.A. 61-63). But, for the
reasons discussed above, see Part II.B.1, even assuming the
validity of Lopez’s petition, any loss of majority support for the
Union would not have been actionable during the still-pending
extended certification year, see Auciello Iron Works, 517 U.S.
at 786; Brooks, 348 U.S. at 104; Chelsea Indus., 285 F.3d at
1075. The ALJ correctly noted as much in denying
intervention. See Order Denying Motion to Intervene at 2-3
(J.A. 69-70).
Nor could Lopez’s evidence have dissuaded the Board
from entering its remedial order that Chino bargain with the
Union. To the contrary, the Board’s order expressly
acknowledged the “temporary impact the affirmative
bargaining order will have on the rights of employees who
oppose continued union representation,” but found that impact
“outweigh[ed]” by (among other considerations) Chino’s
history of “serious violations” and the need to enforce the
certification-year bar to ensure employees sufficient time to
“fairly assess for themselves the Union’s effectiveness as a
bargaining representative.” Board Order at 2 (J.A. 2). Lopez
therefore has not shown prejudice from his inability to
participate in the proceedings. See Prairie State Generating
Co. LLC v. Sec’y of Labor, 792 F.3d 82, 94 (D.C. Cir. 2015).
28
Lopez further complains that the denial of intervention
was arbitrary, because the Board, in his view, failed to identify
and apply consistent standards to govern employees’ requests
to intervene in unfair labor practice proceedings against their
employers. We have no cause to resolve that contention
because, again, Lopez was not prejudiced by the denial of
intervention in any event.
Lopez’s claim that the denial of intervention violated his
due process rights also fails. Lopez argues that the Board’s
decision denying his motion to intervene deprived him, without
adequate process, of a constitutionally protected interest—
whether based in liberty or property—to be free of
representation by a union he believes has lost majority support.
But ample authority holds that the Board may—indeed, must—
balance competing interests in this context, including by
sometimes requiring dissenting employees to accept
representation by a duly elected union for a prescribed period
of time. See Commc’ns Workers of Am. v. Beck, 487 U.S. 735,
745 (1988); NLRB v. Gissel Packing Co., 395 U.S. at 613;
Franks Bros. Co. v. NLRB, 321 U.S. 702, 705-06 (1944);
Chelsea Indus., 285 F.3d at 1077.
Even assuming Lopez had a constitutionally cognizable
interest in bringing his decertification arguments before the
Board, he failed to explain why other processes available to
him under the Act were insufficient to vindicate his interests.
Specifically, he offers no persuasive explanation why Section
9(c) of the Act—which establishes a procedural mechanism for
employees like Lopez to cast off a minority union by presenting
a decertification petition directly to the Board—is inadequate
to vindicate his interests. See 29 U.S.C. § 159(c)(1) (providing
that “the Board shall investigate” any “petition . . . assert[ing]
that . . . [a] labor organization . . . is no longer a representative”
because it does not enjoy majority support); see id. § 159(a).
 29
Lopez contends that resort to Section 9(c) proceedings
might in practice prove “futile,” because resolution of the
pending unfair labor practice charges against Chino would
preclude the result he seeks under the Board’s so-called
“blocking charge” doctrine. Lopez Br. 13-14; see Peoples Gas
Sys., Inc. v. NLRB, 629 F.2d 35, 39 & n.5 (D.C. Cir. 1980). But
the authorities he cites suggest just the opposite: that a Section
9(c) petition could succeed notwithstanding an unresolved
unfair labor practice charge against Chino—so long as Lopez
could establish in those proceedings that an uncoerced majority
of the workforce supported decertification independent of the
employer’s alleged misconduct, or that the unfair labor practice
charges lacked merit. See St. Gobain Abrasives, Inc., 342
N.L.R.B. 434, 434-35 (2004); NLRB Casehandling Manual, Part
Two: Representation Proceedings §§ 11730,
11731.2 (Jan. 2017), https://www.nlrb.gov/sites/default/files/
attachments/basic-page/node-1727/CHM%20Part%20II%20
Jan%202017.pdf (NLRB Casehandling Manual).
Lopez further contends that he cannot file a decertification
petition with the Board while Chino’s case is pending, because
“it would be dismissed—there is no union to decertify” until
and unless Chino must recognize the Union. Lopez Reply Br.
13. He again cites nothing supporting that proposition; his own
authorities suggest otherwise. See, e.g., NLRB Casehandling
Manual at § 11730.3(b) (setting forth procedures for
concurrent handling of representation proceedings and
“recognition issues,” including “failure to recognize or
bargain”). Requiring Lopez to await the outcome here and
temporarily abide union representation before proceeding to
seek decertification is an “inevitable” consequence of
balancing the competing interests at stake. Chelsea Indus., 285
F.3d at 1077; see also Gilbert v. Homar, 520 U.S. 924, 930
(1997); Gissel Packing Co., 395 U.S. at 613; Franks Bros., 321
U.S. at 705-06.
30
At bottom, the procedures available to Lopez are not
constitutionally inadequate simply because he opposes the
substantive outcome they may produce. Congress and the
Board considered the interests of employees in Lopez’s
position and provided another procedure for them to be heard,
even if intervention is not appropriate, that proceeds via a
petition to the Board under Section 9(c). Lopez has given us
no sound reason to think that procedural design is
constitutionally deficient. We therefore hold that he had
available to him all the process he was due.
IV. Conclusion
For the foregoing reasons, we deny Chino’s petition for
review as to all aspects of the Board’s order save for its award
of litigation costs and expenses, which we vacate. We grant
the Board’s cross-application for enforcement with the same
limitation. We also deny Lopez’s petition for review.
So ordered.
MILLETT, Circuit Judge, concurring: I join the majority
opinion in full. I write separately only to express my concerns
about the Board’s continued failure to establish any
discernible, consistent standard for granting and denying
intervention in agency proceedings.
In this case, the Board just stated summarily that the denial
of Lopez’s motion to intervene fell “within established
precedent concerning decertification petitioners’ requests to
intervene in unfair labor practice proceedings.” Board Order
at 1 n.1. Tellingly, the Board did not cite to any cases that
might constitute such a coherent body of “established
precedent.” Nor am I aware of any. Claims for deference
through paeans to agency precedent only work if a principled
body of precedent actually exists.
Instead, the Board cited only to its generic intervention
rule, 29 C.F.R. § 102.29 (2016). Board Order at 1 n.1. The
problem, though, is that the cited regulation provides no
substantive standards or guidance at all on when intervention
is or is not proper in agency proceedings. Other than outlining
the mechanical steps that an intervention request goes through,
the rule says only that intervention “may” be permitted “to such
extent and upon such terms as [the ALJ or regional director]
deem[s] proper.” Id. That is it. Seems hard to imagine a more
amorphous and indeterminate standard. Contrast FED. R. CIV.
P. 24 (spelling out specific factors for courts to consider in
resolving motions to intervene).
The Board’s persistent failure to put any meat on the
regulation’s bare bones leaves individual intervention
decisions at risk of arbitrary and inconsistent resolution. As it
turns out, that failing is ultimately without consequence in this
particular case because Lopez’s claims on intervention pertain
to a legally foreclosed decertification petition. But it remains
incumbent on the Board to formulate objective and reliable
standards for intervention in its proceedings. The transparent,
2
consistent, and evenhanded application of identified and
reasoned factors is essential to fair process for all would-be
intervenors, regardless of on which side of a case they wish to
appear.