United States Court of Appeals, District of Columbia Circuit
April 4, 2017
Petition for Review, Cross-Application for Enforcement of an
Order of the National Labor Relations Board, and Application
for Enforcement of a Second Order.
C. McCormick argued the cause for petitioner. With him on the
briefs was Thomas C. Mugavero.
Michael R. Hickson, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Richard F. Griffin, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, Jennifer Abruzzo, Deputy General Counsel,
and Robert J. Englehart, Supervisory Attorney.
Before: Garland, Chief Judge, Griffith, Circuit Judge, and
Edwards, Senior Circuit Judge.
Garland, Chief Judge.
Technologies of America seeks review of orders and a
certification decision issued by the National Labor Relations
Board. Following a representation election, the Board
certified International Brotherhood of Teamsters, Local 14M
as the collective bargaining representative of a group of
Oberthur employees. The Board also found that the company
violated the National Labor Relations Act before the election
by restricting employee speech and freezing employee wage
benefits. In its petition for review, Oberthur challenges the
Board's findings of pre-election unfair labor practices
and raises objections to the representation election. For the
reasons set forth below, we deny Oberthur's petition for
review and grant the Board's applications for
manufactures credit cards, debit cards, governmental
identification cards, and related products at its facility in
Exton, Pennsylvania. In the spring of 2012, Teamsters'
Local 14M commenced an organizing campaign at the Exton
plant. During the campaign, the company banned all
union-related speech on the plant floor and put a freeze on
two longstanding employee wage benefit programs. The union
subsequently filed unfair labor practice charges against the
30, 2012, the union filed a petition with the Board seeking a
representation election. In early August, the parties reached
a Stipulated Election Agreement. The Agreement provided for a
secret-ballot election and defined the relevant bargaining
unit as covering "[a]ll full-time employees"
working in fifteen specified departments at the Exton plant.
Stipulated Election Agreement (Aug. 8, 2012) (J.A. 91). Under
the Agreement, the parties waived their rights to a hearing,
agreed that the Board's regional director, who approved
the agreement, would supervise the election, and agreed that
all post-election procedures would conform with the
Board's rules and regulations.
election took place on September 7, 2012. Oberthur declined
to challenge any ballots or otherwise contest the validity of
the representation election. As relevant here, however, the
union challenged the ballots cast by two engineers -- John
DiTore and Birendra Sahijwana -- on the ground that they
qualified as "professional employees" under
National Labor Relations Act (NLRA) § 9(b), 29 U.S.C.
§ 159(b), and were thus excluded from the unit. The two
ballots were impounded in accordance with Board regulations.
See 29 C.F.R. § 102.69(a). The final tally of
the non-impounded ballots showed that the union prevailed by
a narrow, two-vote margin of victory: 108 votes in favor to
106 votes against. Tally of Ballots (Sept. 7, 2012) (J.A.
94). The parties do not dispute that the two ballot
challenges at issue in this petition for review could be
determinative of the result of the representation
October 2012, the Regional Director consolidated the unfair
labor practice charges together with the challenges to the
representation election for a hearing before an
Administrative Law Judge (ALJ). The ALJ found that the
company violated Sections 8(a)(1) and (3) of the NLRA, 29
U.S.C. § 158(a)(1), (3), by restricting union-related
speech and by announcing and ultimately enacting a freeze on
employee wage benefits. The ALJ also recommended sustaining
the union's challenges to the ballots cast by DiTore and
Sahijwana upon finding that both engineers qualified as
"professional employees" under NLRA § 9(b), 29
U.S.C. § 159(b). Oberthur filed timely exceptions to the
ALJ's pre-election unfair labor practice findings and to
his decision to sustain the union's challenges to the
ballots cast by DiTore and Sahijwana. In addition, in its
exceptions to the ALJ's decision, the company raised a
new objection for the first time: that even if DiTore and
Sahijwana were professional employees, the election should
still be set aside on procedural grounds.
Board issued its opinion on August 27, 2015. With respect to
the pre-election unfair labor practice charges, the Board
adopted the ALJ's findings that the company violated the
NLRA by restricting union-related speech and freezing
employee wage benefits. Oberthur, 362 N.L.R.B. No.
198, at 1 (Aug. 27, 2015) (2015 Board Order). It directed
Oberthur to rescind its restriction on union-related speech
and make its employees whole for any losses stemming from the
freeze on wage benefits. Id. at 3-4. With respect to
the representation election, the Board adopted the ALJ's
recommendation to sustain the union's challenges to the
ballots cast by DiTore and Sahijwana. Id. at 2-3. It
further rejected as untimely and procedurally improper
Oberthur's alternative challenge to the validity of the
election, id. at 3, and certified the union as the
exclusive collective-bargaining representative for the
stipulated unit of Oberthur employees, id. at 4.
certification, Oberthur refused to bargain with the union. An
employer may, as Oberthur did here, "challenge a
certification decision indirectly by refusing to bargain with
the union and then raising its election objection in the
ensuing unfair labor practice proceedings." Canadian
Am. Oil Co. v. NLRB, 82 F.3d 469, 471 n.1 (D.C. Cir.
1996); see 29 U.S.C. § 160(f). On July 27,
2016, the Board found that Oberthur's refusal to bargain
violated NLRA § 8(a)(1) and (5), 29 U.S.C. §
158(a)(1) and (5). Oberthur Technologies of Am.
Corp., 364 N.L.R.B. No. 59, at 2-3 (July 27, 2016) (2016
Board Order). Oberthur now seeks review of both the 2015 and
2016 Board Orders. The NLRB applies for enforcement of both.
first address Oberthur's objection to the Board's
findings that it violated the NLRA by restricting employee
speech and freezing two longstanding employee wage benefit
programs in the lead-up to the September 2012 representation
election. 362 N.L.R.B. No. 198, at 1 & 1 nn.4-5 (2015
Board Order). This Court "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." Spurlino Materials, LLC v. NLRB, 805
F.3d 1131, 1136 (D.C. Cir. 2015) (quotation marks omitted);
see 29 U.S.C. ...