National Labor Relations Board v. Hqm of Bayside, LLC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HQM OF BAYSIDE, LLC,
Respondent. No. 06-2253 
UNITED FOOD & COMMERCIAL
WORKERS UNION, Local 400,
Intervenor. 
On Application for Enforcement of an Order
of the National Labor Relations Board.
(5-CA-30964)
Argued: December 5, 2007
Decided: March 10, 2008
Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Application for enforcement granted by published opinion. Chief
Judge Williams wrote the opinion, in which Judge Motz and Senior
Judge Hamilton joined.
COUNSEL
ARGUED: D. Patton Pelfrey, FROST, BROWN, TODD, Louisville,
Kentucky, for Respondent. Elizabeth A. Heaney, NATIONAL

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LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
Carey Robert Butsavage, BUTSAVAGE & ASSOCIATES, P.C.,
Washington, D.C., for Intervenor. ON BRIEF: John T. Lovett,
FROST, BROWN, TODD, Louisville, Kentucky, for Respondent.
Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Fred B.
Jacob, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Petitioner.
OPINION
WILLIAMS, Chief Judge:
After finding that HQM of Bayside ("Bayside") unlawfully with-
drew recognition from a union, the National Labor Relations Board
(the "Board") petitioned this court to enforce its order against Bay-
side. The Board maintains that because the union had not lost major-
ity support, Bayside’s unilateral withdrawal of recognition from (and
subsequent refusal to bargain with) the union violated Sections
8(a)(1) and (5) of the National Labor Relations Act (the "Act"), 29
U.S.C.A. § 158(a)(1) & (5) (West 1998 & Supp. 2007). Because we
conclude that substantial evidence supports the Board’s findings, we
grant the Board’s application for enforcement.
In addition, Bayside argues that the Board abused its discretion in
imposing an affirmative bargaining order. We lack jurisdiction to con-
sider this challenge, however, because Bayside failed to raise it before
the Board.
I.
Bayside owns and operates the Bayside Care Center, a nursing
home located in Lexington Park, Maryland. On October 20, 1998, the
Board certified the United Food & Commercial Workers, Local 400
(the "Union") as the exclusive collective bargaining representative for
a "unit" of employees consisting of:
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[a]ll full-time and regular part-time hourly employees
employed by [Bayside] at its Bayside Care Facility; but
excluding Registered Nurses, Licensed Practitioner Nurses,
business office clerical employees, managers, guards and
supervisors as defined by the [National Labor Relations
Act].
(J.A. at 110.) Initially, Bayside proved reluctant to bargain with the
Union, and, as a result, the Union filed a successful unfair labor prac-
tices charge. After the Union prevailed on the charge, on December
28, 2001, Bayside and the Union entered into a collective bargaining
agreement effective from December 1, 2001 until November 30,
2002.
In September 2002, roughly two months prior to the expiration of
the collective bargaining agreement, some of Bayside’s employees
circulated a "disaffection petition" stating as follows: "We the
employees of Bayside Care Center do not no [sic] longer want to be
represented by [the Union]." (J.A. at 111.) The petition garnered 34
signatures, reflecting a majority of the bargaining unit employees.
On September 30, employee Barbara Courtney (who had not
signed the disaffection petition) filed a decertification petition with
the Board, citing the disaffection petition in support of her request for
an election. The Board dismissed her decertification petition as
untimely.1
On October 30, 2002, three days after receiving a copy of the disaf-
fection petition, Bayside notified the Union that it believed the Union
no longer represented a majority of Bayside employees and would
withdraw recognition of the Union when the collective bargaining
agreement expired on December 1, 2002. Bayside did not send the
Union a copy of the disaffection petition along with the notice.
1In the healthcare industry, a decertification petition must be filed
more than 90 days, but less than 120 days, before the expiration of a
valid collective bargaining agreement of not more than three years dura-
tion. Trinity Lutheran Hosp., 218 N.L.R.B. 199 (1975).
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Shortly thereafter, in early November 2002, a petition entitled "We
the following employees of Bayside Care Center, Lexington Park,
Maryland, DO NOT wish to withdraw recognition and or representa-
tion of [the Union]" ("the Union’s petition") was circulated among the
employees. This petition also garnered 34 signatures. On November
26, 2002, the Union notified Bayside by letter that a majority of bar-
gaining unit employees had signed a petition stating that they desired
to maintain the Union as their bargaining representative. The Union’s
letter also indicated that it had submitted the petition to the Board.
The Union did not, however, attach a copy of its petition to the letter.
Undeterred, Bayside withdrew recognition of the Union on Decem-
ber 1, 2002, and has since refused to bargain with the Union.
In response, the Union filed a charge alleging, among other claims,
that Bayside unlawfully withdrew recognition from and refused to
bargain with the Union. Thereafter, the Board’s General Counsel
issued a complaint and notice of hearing.2
On October 14, 2003, an Administrative Law Judge ("ALJ") con-
ducted the hearing in Washington D.C. Bayside, the Union, and the
Board’s General Counsel had stipulated to most of the relevant facts.
Regarding the petitions and the employees who signed them, the par-
ties stipulated that: (1) Three of the 34 employees that signed the dis-
affection petition were no longer employed by Bayside on December
1, 2002 (meaning that, for purposes of this case, the disaffection peti-
tion had 31 valid signatures); (2) Twenty-eight of the 34 signatures
on the Union’s petition were valid;3 (3) Thirteen unit employees
2Bayside and the Union reached a non-Board settlement on all issues
raised in the charge, save the issues relating to the lawfulness of the with-
drawal of recognition and refusal to bargain. On October 14, 2003, the
Board conditionally approved dismissal of the portions of the charge
underlying the settlement, with the condition being the parties’ perfor-
mance of the undertakings in the private settlement agreement.
3Only 28 of the signatures on the Union’s petition were valid because
one employee signed the petition twice; two of the signatures belonged
to employees who did not qualify as part of the unit; and two of the sig-
natures belonged to employees who were no longer employed by Bay-
side on December 1, 2002.
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signed both the disaffection petition and the Union’s petition; and (4)
One of the 13 "cross-over signatures" was invalid because it belonged
to an employee that was no longer employed by Bayside as of
December 1, 2002. Thus, the only factual dispute involved the num-
ber of employees in the bargaining unit. The parties had stipulated
that the unit contained at least 58 employees, but the Board’s General
Counsel and the Union argued that three additional employees were
part of the unit. The ALJ agreed, finding that the total number of
employees in the bargaining unit was 61. (J.A. at 166.)
Applying Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717
(2001), the ALJ explained that Bayside could unilaterally withdraw
recognition of the Union without violating the Act only if it could
show that, at the time of the withdrawal, the Union had in fact lost
the support of a majority of the employees in the bargaining unit. The
ALJ found that Bayside had 31 valid signatures from unit employees
on the disaffection petition at the time it withdrew recognition. The
ALJ concluded, however, that Bayside was not entitled to rely on the
signatures of those 13 employees that also signed the Union’s petition
because those employees had "clearly manifest[ed] that [they] had
changed their sentiments about the Union." (J.A. at 166.) The ALJ
determined that, without the cross-over signatures, Bayside lacked
objective evidence that a majority of unit employees no longer sup-
ported the Union. Accordingly, the ALJ held Bayside in violation of
the Act and, as a remedy, imposed a cease-and-desist and affirmative
bargaining order. (J.A. at 167.)
Bayside filed exceptions with the Board to the ALJ’s decision. In
addition to 16 specific exceptions related to the ALJ’s factual findings
and legal conclusions, Bayside included generalized exceptions
objecting to the ALJ’s "Order" and "Appendix Notice to Employees"
insofar as those portions of the ALJ’s decision related to the ALJ’s
factual findings and legal conclusions. Of relevance to this appeal,
Bayside filed exceptions to "those portions of the [ALJ’s] ‘ORDER’
which relate to the [ALJ’s] findings and conclusions of law with
regard to any and all Section 8(a)(1) and (5) violations found against
[Bayside]" and to "those portions of the [ALJ’s] ‘ORDER’ which
relate to the [ALJ’s] findings and conclusions of law to which [Bay-
side] has excepted." (Supp. J.A. at 4.)
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The Board affirmed. Like the ALJ, the Board concluded that
because the cross-over signatures should be disregarded, the disaffec-
tion petition provided evidence that 18 unit employees did not support
the Union. In addition, the Board found that employee Courtney’s fil-
ing of the decertification petition evidenced her desire not to be repre-
sented by the Union. Thus, the Board concluded, Bayside had shown
that 19 unit employees no longer wished to be represented by the
Union on the date Bayside withdrew recognition. Because 19 is not
a majority of either 58 or 61, the Board found Bayside’s evidence
insufficient to satisfy its burden of proof.
In addition, the Board concluded that an affirmative bargaining
order was necessary to fully remedy the violation in this case. The
Board explained that, although it has held that such an order repre-
sents the traditional, appropriate remedy for a refusal to bargain, the
D.C. Circuit requires it to justify an affirmative bargaining order on
the facts of each case by applying a three-factor analysis.4 The Board
therefore conducted the analysis required by the D.C. Circuit and
found an affirmative bargaining order to be appropriate.
The Board petitioned for enforcement of its order. We have juris-
diction pursuant to 29 U.S.C.A. § 160(e) (West 1998 & Supp. 2007)
(providing that the Board shall have the power to petition the court
of appeals for the circuit in which the unfair labor practice occurred
for enforcement of its order(s)).
II.
A.
In considering a petition for review, we must treat the Board’s find-
ings of fact as conclusive if they are supported by substantial evi-
dence on the record considered as a whole. 29 U.S.C.A. § 160(f). The
4D.C. Circuit precedent requires that the Board’s analysis explicitly
balance three considerations: (1) the employee’s rights under the Act, (2)
whether other purposes of the Act override the employees’ right to
choose their bargaining representatives; and (3) whether alternative rem-
edies are adequate to remedy the violations. See, e.g., Vincent Industrial
Plastics, Inc. v. N.L.R.B., 209 F.3d 727, 738 (D.C. Cir. 2000).
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substantial evidence standard likewise governs our review of the
Board’s resolution of mixed questions of law and fact. See Sam’s
Club, a Div. of Wal-Mart Stores, Inc. v. N.L.R.B., 173 F.3d 233, 239
(4th Cir. 1999) ("When we review mixed questions, the Board’s
application of legitimate legal interpretations to the facts of a particu-
lar case should be upheld if they are supported by substantial evi-
dence based upon the record as a whole."). "Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Id. (internal quotation marks omitted). It
constitutes "more than a scintilla but less than a preponderance of evi-
dence." Id. (internal quotation marks omitted).
As we review the record for substantial evidence, we "must not
only consider the evidence used to support the Board’s factual conclu-
sion, but [we] also must take into account whatever in the record
fairly detracts from the Board’s factfinding." Id. (internal quotation
marks omitted). We will not, however, "displace the Board’s choice
between two fairly conflicting views" of the evidence, even if we
would "justifiably have made a different choice had the matter been
before [us] de novo." Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 488 (1951).
B.
The Board found Bayside in violation of Sections 8(a)(1) and (5)
of the Act. Section 8(a)(1) makes it an unfair labor practice to "inter-
fere with, restrain, or coerce employees in the exercise of [their rights
under the Act]," while Section 8(a)(5) makes it an unfair labor prac-
tice for an employer "to refuse to bargain collectively with the repre-
sentatives of his employees." 29 U.S.C.A. § 158(a)(1), (5).
The Act does not specify how a union’s majority support must be
determined. Accordingly, the Board has filled the gap in a manner
that seeks to "give effect to employees’ free choice of bargaining rep-
resentatives" and to give collective-bargaining relationships "a chance
to bear fruit" by preventing them from being subject to constant chal-
lenge. Levitz Furniture Co., 333 N.L.R.B. at 720. To that end, the
Board has long held that once the employees comprising a particular
bargaining unit have elected a union to represent them, that union
enjoys an irrebutable presumption of majority support during the term
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of a collective bargaining agreement that is three years or less in dura-
tion. The presumption becomes rebuttable after the expiration of such
an agreement. Id. & n.17; Auciello Iron Works, Inc. v. N.L.R.B., 517
U.S. 781, 786 (1996).
In Levitz Furniture Co., the Board established that an employer
may "rebut the continuing presumption of an incumbent union’s
majority status, and unilaterally withdraw recognition, only on a
showing that the union has, in fact, lost the support of a majority of
the employees in the bargaining unit."5 333 N.L.R.B. at 725. Thus, if
the employer withdraws recognition and the union contests the with-
drawal in an unfair labor practice proceeding, "the employer [must]
prove by a preponderance of the evidence that the union had, in fact,
lost majority support at the time the employer withdrew recognition."
Id. "If [the employer] fails to do so, it will not have rebutted the pre-
sumption of majority status, and the withdrawal of recognition will
violate Section 8(a)(5)." Id.
Levitz Furniture Co. stressed that "an employer with objective evi-
dence that the union has lost majority support — for example, a peti-
tion signed by a majority of the employees in the bargaining unit —
withdraws recognition at its peril." Id. It also emphasized that "Board-
conducted elections are the preferred way to resolve questions regard-
ing employees’ support for unions" and adopted a "good faith uncer-
tainty" standard for obtaining such an election, in part so that
employers faced with contradictory evidence could obtain elections.
Id. at 723, 728.
C.
Applying our deferential standard of review, we affirm the Board’s
decision. The Board reasonably rejected Bayside’s argument that the
disaffection petition satisfied its burden of proving an actual loss of
majority support "at the time [it] withdrew recognition," id. at 725
5Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717 (2001), over-
ruled a prior line of cases that permitted an employer to lawfully with-
draw recognition of a union on the basis of a good-faith doubt as to the
union’s continued majority status. See id. at 725. Bayside disputes only
the Board’s application of the Levitz standard, not its validity.
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(emphasis added), because many of the signatories evidenced a
change of heart, or, at the very least, an incompatible position, by also
signing the Union’s petition before Bayside withdrew recognition.
Finding no fault with the Board’s arithmetic, we therefore conclude
that substantial evidence supports the Board’s finding that Bayside
failed to rebut the Union’s presumption of majority support. Accord
Highlands Hosp. Corp. v. N.L.R.B., 508 F.3d 28, 32 (D.C. Cir. 2007)
(affirming the Board’s finding that a petition did not satisfy an
employer’s burden of proving an actual loss of majority support
because one signatory’s unequivocal post-petition demonstration of
support for the union invalidated her signature and, without that sig-
nature, the petition lacked support of a majority of bargaining unit
employees); see also Parkwood Dev. Center, Inc., 347 N.L.R.B. No.
95 at *2 (2006) (holding that the employer failed to meet its burden
of proof because "[a]t most, [the employer] had conflicting evidence
concerning employees’ support for the Union").
III.
There remains Bayside’s challenge to the affirmative bargaining
order. The Board and the Union contend that we lack jurisdiction to
address Bayside’s challenge because the company did not raise it
before the Board. Bayside counters that its exceptions and accompa-
nying brief adequately preserved the question for appeal.
Pursuant to Section 10(e) of the Act, "[n]o objection that has not
been urged before the Board . . . 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.A. § 160(e) (West
1998 & Supp. 2007). This statutory provision represents a jurisdic-
tional bar against judicial review of issues not raised before the
Board. See Woelke & Romero Framing, Inc. v. N.L.R.B., 456 U.S.
645, 665-66 (1982).
Bayside claims that it objected to the imposition of an affirmative
bargaining order through its exception to "those portions of the
[ALJ’s] ‘ORDER’ which relate to the [ALJ’s] findings and conclu-
sions of law with regard to any and all Section 8(a)(1) and (5) viola-
tions found against [Bayside]" and "to the . . . findings and
conclusions of law to which [Bayside] has excepted." (Supp. J.A. at
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4.) As further evidence of its compliance with § 10(e) of the Act,
Bayside points to a single sentence in its "Brief in Support of Excep-
tions to the Administrative Law Judge’s Decision, Order and Recom-
mendation, Appendix and Notice to Employees," stating that "the
[ALJ] erred in ruling that [Bayside] engaged in conduct in violation
of Sections 8(a)(1) and (5) of the Act and [o]rdering [Bayside] to rec-
ognize the Union and bargain collectively in good faith with the
Union." (J.A. at 176.)
Bayside’s generalized exceptions, however, do not satisfy § 10(e),
for they failed to provide the Board "adequate notice of the argument
[Bayside] seeks to advance on review." Highlands Hosp. Corp., 508
F.3d at 33 (internal quotation marks omitted). We have previously
held that "general catchall language" used in an exception objecting
to "each and every part of the remedy recommended by the [ALJ]"
is insufficient to set forth a valid exception that permits us to consider
on appeal an issue not argued before the Board. N.L.R.B. v. Daniel
Constr. Co., 731 F.2d 191, 198 (4th Cir. 1984) (internal quotation
marks omitted). Similarly, in Quazite Div. of Morrison Molded Fiber-
glass Co. v. N.L.R.B., 87 F.3d 493 (D.C. Cir. 1996), the D.C. Circuit
held that excepting to a remedy "in its entirety" was insufficient to
preserve an issue for appeal because the exception "[wa]s far too
broad to preserve a particular issue for appeal" and "merely reas-
sert[ed] that [the employer] did not violate the Act and therefore, that
no remedial order at all [wa]s necessary or proper." Id. at 497.
In objecting to those portions of the ALJ’s remedial order that
related to the ALJ’s factual findings and legal conclusions, Bayside
essentially asserted that, because the basis for the remedial order (the
finding that Bayside violated the Act) was unsound, so too was the
order imposing a remedy. Bayside’s exceptions did not assert any of
the grounds for invalidating the affirmative bargaining order that it
now seeks to raise before us. Likewise, in its brief in support of the
exceptions, Bayside raised two issues — (1) whether the ALJ erred
in finding that the bargaining unit had 61 members, and (2) whether
the ALJ erred in finding that Bayside violated the Act by withdrawing
recognition of the Union. The brief in support of exceptions did not
contain any arguments related to the appropriateness of the affirma-
tive bargaining order, nor did Bayside articulate any such arguments
at the hearing before the Board.
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In this respect, Bayside is like the employer in Daniel Constr. Co.,
urging this court that "general catchall language" suffices to permit
consideration of an issue not argued to the Board. Moreover, Bay-
side’s exceptions offered the Board less notice of the argument Bay-
side now seeks to advance than those recently deemed inadequate in
Highlands Hosp. Corp., 508 F.3d at 32-33. See id. (holding that the
court lacked jurisdiction to consider a challenge to an affirmative bar-
gaining order because the employer’s exceptions, which contained a
single reference to the "excessive breadth" of the ALJ’s multi-part
remedy, did not meet the requirements of § 160(e)). There, the
employer at least identified a specific ground for challenging the
remedial order — its alleged overbreadth. Here, in contrast, Bayside
never identified any basis for its exception to the remedy imposed
other than its insistence that it had not violated the Act.
In short, Bayside never fairly presented its challenge to the affirma-
tive bargaining order to the Board. This lack of notice deprived the
Board of the opportunity to factor Bayside’s contentions into its deci-
sion. See Local 900, Int’l Union of Elec. Radio and Mach. Workers
v. N.L.R.B., 727 F.2d 1184, 1191 (D.C. Cir. 1984) (explaining that the
"notice function [of § 160(e)] . . . ensures that the Board has the
opportunity to resolve all issues properly within its jurisdiction"). It
is thus irrelevant that, in imposing an affirmative bargaining order, the
Board sua sponte opted to apply the three-part analysis mandated by
the D.C. Circuit and to explain in detail the reasons it considered an
affirmative bargaining order necessary to remedy the violation in this
case. See Woelke, 456 U.S. at 66 (explaining that "[t]he § 10(e) bar
applies" to issues decided by the Board); Local 900, Int’l Union of
Elec. Radio and March Workers, 727 F.2d at 1193 ("the fact that the
Board has or has not discussed an issue raises no necessary inferences
with respect to section 10(e)"). We therefore conclude that § 10(e)
precludes our consideration of Bayside’s challenge to the affirmative
bargaining order.
IV.
In sum, we hold that substantial evidence supports the Board’s
finding that the Union had not lost majority support at the time Bay-
side withdrew recognition, and, as a result, Bayside’s unilateral with-
drawal of recognition and subsequent refusal to bargain with the
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Union violated Sections 8(a)(1) and (5) of the Act. Moreover, we lack
jurisdiction to address Bayside’s challenge to the remedy imposed.
Accordingly, the Board’s application for enforcement is hereby
GRANTED.
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