23-6305-ag NLRB v. Blue School

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-four.

PRESENT: DENNIS JACOBS, SARAH A. L. MERRIAM, Circuit Judges. LAWRENCE J. VILARDO, District Judge. * __________________________________________

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 23-6305-ag

BLUE SCHOOL,

Respondent. __________________________________________

* Judge Lawrence J. Vilardo of the United States District Court for the Western District of New York, sitting by designation. FOR PETITIONER: JARED H. ODESSKY (Elizabeth A. Heaney, Supervisory Attorney; Jennifer A. Abruzzo, General Counsel; Peter Sung Ohr, Deputy General Counsel; Ruth E. Burdick, Deputy Associate General Counsel; David Habenstreit, Assistant General Counsel, on the brief), National Labor Relations Board, Washington, D.C.

FOR RESPONDENT: Lawrence D. Levien, Ashton Hupman, Rosa T. Goodman, Littler Mendelson P.C., Washington, D.C.

On application for enforcement of an order of the National Labor Relations Board.

UPON DUE CONSIDERATION, the application for enforcement is GRANTED.

The National Labor Relations Board (“NLRB”) seeks enforcement of its

December 8, 2022, order directing respondent Blue School to recognize and bargain with

Local 2110, Technical, Office & Professional Union, UAW, AFL-CIO (the “Union”).

Blue School concedes that it refused to recognize or bargain with the Union but

challenges the election by which the Union was certified. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, which we reference only as necessary to explain our decision to grant the

application.

As an initial matter, Blue School argues that this Court does not have jurisdiction

over the NLRB’s application for enforcement because the NLRB severed the issue of

certain remedial relief for further consideration, and thus, according to Blue School, the

2 order the NLRB seeks to enforce here is not final. We disagree. We have jurisdiction to

review NLRB petitions for enforcement under Section 10(e) of the National Labor

Relations Act. See

(e) (“The Board shall have power to petition any court

of appeals of the United States . . . for the enforcement of [its] order[s].”). Like the other

Circuits to consider this issue, we conclude that the Board’s severance of a discrete

remedial issue does not impact our jurisdiction over the Board’s application for

enforcement. See N.L.R.B. v. Siren Retail Corp.,

(9th Cir. 2024);

Longmont United Hosp. v. N.L.R.B.,

(D.C. Cir. 2023); N.L.R.B. v.

United Scrap Metal PA, LLC,

(3d Cir. 2024). We find the reasoning in

those cases persuasive. “Whether the Board may . . . order an additional make-whole

remedy for [Blue School’s] refusal to bargain does not negate the reality that the decision

‘consummat[es]’ the Board’s final statement on the underlying violation and is one ‘from

which legal consequences’ – the requirement to bargain with the Union – ‘will flow’ if

enforced.” Siren Retail Corp.,

(second alteration in original) (quoting

Bennett v. Spear,

(1997)).

Having concluded that we have jurisdiction, we now turn to the merits of Blue

School’s arguments. Blue School’s refusal to bargain with the Union “constitutes a

violation of section 8(a)(1) and (5) of the Act,

(a)(1) & (5), unless [Blue

School] can shoulder the heavy burden of establishing that the Board abused its

discretion in certifying the election.” N.L.R.B. v. Newton-New Haven Co.,

(2d Cir. 1974) (citation and quotation marks omitted). Blue School argues that the

Board abused its discretion in certifying the election because the Regional Director erred

3 first by directing an immediate mail-ballot election, and second by overruling Blue

School’s objections without a post-election hearing.

Our review of NLRB decisions

is quite limited. We must enforce the Board’s order where its legal conclusions are reasonably based, and its factual findings are supported by substantial evidence on the record as a whole. As to legal conclusions, we must give the Board considerable deference and afford the Board a degree of legal leeway. And as to factual conclusions, remand is warranted if, after looking at the record as a whole, we are left with the impression that no rational trier of fact could reach the conclusion drawn by [the] Board.

HealthBridge Mgmt., LLC v. N.L.R.B.,

(2d Cir. 2018) (citations and

quotation marks omitted). “Congress has entrusted the Board with a wide degree of

discretion in establishing the procedure and safeguards necessary to insure the fair and

free choice of bargaining representatives by employees.” N.L.R.B. v. A. J. Tower Co.,

(1946). “To justify the setting aside of an election, the challenger must

come forward with evidence of actual prejudice resulting from the challenged

circumstances.” N.L.R.B. v. Arthur Sarnow Candy Co.,

(2d Cir. 1994)

(citation and quotation marks omitted). “The burden of setting aside an election is a

heavy one and falls upon the party attacking it.” Polymers, Inc. v. N.L.R.B.,

(2d Cir. 1969).

In this case, the broad latitude afforded the decisions of the Regional Director

defeats all of Blue School’s challenges. That is not to say that there are no legitimate

questions raised by the employer here. The Union filed its representation petition on June

7, 2021. A few weeks later, at the end of the school year, approximately 48 out of the

school’s 93 employees were terminated. The remaining eligible employees were able to

4 vote in the election over the summer and voted overwhelmingly to unionize – 24 votes in

favor and four against. Because the election took place over the summer, Blue School had

limited opportunity to communicate with the remaining employees about their options.

The new employees that joined the school in the fall 1 were bound by the vote, though

they had not had the opportunity to participate. In the end, one population of employees

made the showing of interest, a second population voted to join the union, and yet a third

was subject to the results of that election. In the end, any concerns raised by these events

are of little import because Blue School has ceased to exist and none of these populations

are employed there anymore. 2

Blue School has failed to meet its heavy burden. We conclude that the Board did

not abuse its discretion in certifying the election.

I. Immediate Mail-Ballot Election

Blue School raises two challenges to the Board’s decision to conduct an immediate

mail-ballot election. First, Blue School argues that the Board should have granted Blue

School’s request for an opportunity to contest the showing of interest. Second, Blue

School argues that the Board erred in affirming the Regional Director’s Decision and

Direction of Election ordering an immediate mail-ballot election, rather than deferring the

election, or conducting a manual, in-person election.

1 The record reflects that only seven new employees in the bargaining units covered by the vote were hired in the fall. 2 When questioned at oral argument about why the Board was pursuing this action even though the school had closed, counsel for the Board stated that providing notice of its action to the former employees furthers the Board’s mission of ensuring that workers are aware of their rights.

5 To start the election process to certify a union, a petition must first be filed

showing interest in the union from “a substantial number of [the] employees.”

(c)(1)(A). “[C]ourts have consistently held that ‘the validity of the showing of

interest is for administrative determination and may not be litigated by the parties’ at any

stage of the proceeding.” Wright Mem’l Hosp. v. N.L.R.B.,

(8th Cir.

1985) (quoting N.L.R.B. v. Air Control Prods.,

(5th Cir. 1964)); accord

N.L.R.B. v. Metro-Truck Body, Inc.,

(9th Cir. 1979) (collecting cases);

N.L.R.B. v. P.A.F. Equip. Co.,

(10th Cir. 1976). We agree that the

validity of the showing of interest is generally non-litigable because the ultimate question

of union support is determined by the actual representation election. See Wright Mem’l

Hosp.,

. While Regional Directors may conduct investigations into the

showing of interest where a party has submitted credible evidence of forgery, misconduct,

or fraud, Blue School did not submit any such evidence. See N.L.R.B. Casehandling

Manual Part Two: Representation Proceedings, §§11028.1, 11029.1, 11029.3 (Sept.

2020). Thus, the Board did not err in denying Blue School’s request for an opportunity to

contest the showing of interest.

After a petition is filed demonstrating sufficient interest in the union, the

applicable Board rules instruct Regional Directors to determine “the earliest date

practicable” to hold an election.

(b). The Regional Director may

exercise discretion to postpone an election, as relevant here, where workers are employed

seasonally or where current employees are not a substantial and representative

complement of the planned unit. See, e.g., Saltwater, Inc.,

, 344 (1997);

6 Gen. Cable Corp.,

, 251-52 (1968). The Board considers employees to

be seasonal when an employer hires them during one or more peak employment

“seasons” during the year but lays them off between their periods of work. See generally

Continental Nut Co.,

(1972). The Board has not set a threshold for

when an existing complement of employees is substantial and representative, but

precedent establishes that the standard is met when at least “30 percent of the eventual

employee complement is employed in 50 percent of the [anticipated] job classifications.”

Shares, Inc.,

, 455 n.2 (2004), enforced,

(7th Cir. 2006);

Custom Deliveries, Inc.,

, 1019 n.8 (1994).

No delay in the election was required here. All evidence indicated that faculty

maintained their employment throughout the year with little to no fluctuation – and thus

were not seasonal employees. Additionally, the Regional Director found that Blue

School’s then-current employees constituted at least 84 percent of the planned unit, and

Blue School never argued that it would create new job categories. Thus, the Regional

Director found that the current employees occupied 100 percent of the anticipated job

classifications. The Regional Director therefore reasonably determined that Blue School’s

then-current employees easily met the minimum threshold for a substantial and

representative complement of the planned unit, and the Board appropriately directed an

immediate election.

The Board also appropriately upheld the Regional Director’s decision to conduct

the election by mail. The Board applies two tests to determine whether a mail-ballot

election is appropriate: the traditional test and the Aspirus test. See San Diego Gas &

7 Elec.,

, 1144-45 (1998); Aspirus Keweenaw, 370 N.L.R.B. No. 45, slip

op. at 6-12,

(November 9, 2020). The Board applied both

in this case, and each provides an independent basis to affirm.

The Board’s traditional test calls for mail-ballot elections when, as relevant here,

employees are scattered over a wide geographic area or across different work schedules.

See San Diego Gas & Elec., 325 N.L.R.B. at 1144-45. Substantial evidence supported the

Regional Director’s determination that the scattering of employees during the summer

break presented a challenge to in-person voting. The Board thus appropriately upheld the

Regional Director’s decision to conduct a mail-ballot election. Because we find that

substantial evidence supported the Board’s decision to order a mail ballot election under

the traditional test, we do not consider the Board’s application of the Aspirus test.

II. Election Objection and Certification

Blue School next argues that the Board erred in overruling Blue School’s post-

election objection without a hearing.

The Board will set aside an election only where “conduct so interfered with the

necessary laboratory conditions as to prevent the employees’ expression of a free choice

in the election.” Dairyland USA Corp.,

, 313 (2006) (citation and

quotation marks omitted). Where, as here, “the claimed disruption is by nonparties

(employees),” the Board will decline to certify an election if the conduct “substantially

impaired the employees’ exercise of free choice.” Amalgamated Serv. & Allied Indus.

Joint Bd. v. N.L.R.B.,

, 230 (2d Cir. 1987) (citation and quotation marks

omitted). Blue School “was entitled to a hearing if by prima facie evidence, it

8 demonstrated the existence of substantial and material factual issues which, if resolved in

its favor, would require the setting aside of the representation election.” N.L.R.B. v. Nixon

Gear, Inc.,

(2d Cir. 1981) (citation and quotation marks omitted). To

receive a hearing, Blue School was first required to submit an offer of proof “identifying

each witness the party would call to testify . . . and summarizing each witness’s

testimony.”

(c).

Blue School’s offer of proof did not satisfy the threshold requirements for a

hearing because it neither indicated which employees would testify nor summarized the

anticipated testimony. See

(c). Furthermore, even if Blue School’s offer

of proof had been sufficient, the evidence proffered by Blue School fell short of

demonstrating substantial impairment of employees’ exercise of free choice; to the

contrary, it revealed that employees encouraged voting and generally supported the

Union. See Amalgamated Serv., 815 F.2d at 230.

In sum, we find no error in the Board’s actions. Accordingly, for the foregoing

reasons, the application for enforcement is GRANTED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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