Napleton 1050, Inc. v. Nat'l Labor Relations Bd.

976 F.3d 30

NAPLETON 1050, INC., d/b/a Napleton Cadillac of Libertyville, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 19-1025

C/w 19-1064

United States Court of Appeals, District of Columbia Circuit.

Argued December 2, 2019

Decided October 6, 2020

Rehearing En Banc Denied December 4, 2020

Tae Y. Kim argued the cause for petitioner. With him on the briefs was Daniel F. Lanciloti, Chicago, IL. James F. Hendricks Jr., Oak Brook, IL, entered an appearance.

Jared D. Cantor, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, David Habenstreit, Acting Deputy Associate General Counsel at the time the brief was filed, and Julie Brock Broido, Supervisory Attorney.

Before: Millett, Wilkins, and Rao, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Rao.

Millett, Circuit Judge:

The service technicians at Napleton Cadillac of Libertyville mounted a successful union drive in 2016 and went on strike in August 2017. The National Labor Relations Board found that Napleton Cadillac's response to both of those actions constituted discrimination against the employees’ rights to collective action under the National Labor Relations Act ("Act"), 29 U.S.C. §§ 151 et seq.

Napleton Cadillac petitions for review of the Board's decision. Its central objection is that, with respect to the adverse actions taken against two employees, its open intent to discriminate against employees for exercising their statutory right to unionize does not matter because Napleton Cadillac was intentionally punishing the entire workforce (including those two employees) for the vote to unionize, rather than retaliating against those employees because of their individual union activity.

We hold that the Board properly focused its analysis on the employer's discriminatory intent to punish its employees as a group for their known decision to unionize, rather than on the employer's knowledge of the targeted employees’ individual views about the union. Intentional discrimination against the statutorily protected collective actions of employees remains discrimination even when it takes the form of scapegoating.

I

A

The National Labor Relations Act makes it "the policy of the United States" to "encourag[e] the practice and procedure of collective bargaining[,]" and to "protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 U.S.C. § 151.

To those ends, Section 7 of the Act protects employees’ rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]" 29 U.S.C. § 157.

Section 8(a) of the Act enforces those rights by prohibiting employers from engaging in several types of unfair labor practices. 29 U.S.C. § 158(a). As relevant here, Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7.]" Id. § 158(a)(1). And Section 8(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization[.]" Id. § 158(a)(3).

B

Napleton Auto Group owns at least fourteen vehicle dealerships in Illinois and neighboring states. In June 2016, the company bought Weil Cadillac, a dealership in Libertyville, Illinois, and rebranded it as Napleton Cadillac of Libertyville.

At the time that Napleton Auto Group acquired Weil Cadillac, the dealership was not unionized. But six of Napleton Auto Group's other dealerships were. The Napleton Auto Group dealerships that employed those other unionized employees were all members of the New Car Dealer Committee ("Dealer Committee"), a management-side bargaining association comprising more than 100 dealerships in the Chicago area.

Napleton Cadillac retained most of Weil Cadillac's employees, including all twelve car-servicing employees, who were lube technicians, semi-skilled technicians, apprentices, and journeyman mechanics.

One of the journeyman mechanics was David Geisler, who had worked at the dealership for twenty-two years and was "a GM world-class technician[.]" Napleton 1050, Inc. , 367 N.L.R.B. No. 6, slip op. at 2 & n.5 (Sept. 28, 2018).

Another was Bill Russell, who had worked at the dealership for nearly thirty years but was on medical leave and receiving workers’ compensation at the time the dealership was acquired. Every month after the ownership change, Russell visited the dealership to provide a work status report from his doctor. He usually provided the reports to a human resources employee who reported to the office manager, Pam Griffin. On each visit, Russell also would stop to talk with the service manager, Walter "Scott" Inman, and discuss when he expected to be able to return to work. During Russell's June 2016 visit, Inman told him, "We're really busy. We could use you." Napleton , 367 N.L.R.B. No. 6, at 8. In July 2016, Inman again asked Russell when he could return to work.

This case arises out of two events at Napleton Cadillac: a union drive in 2016 and a strike in 2017.

In early August 2016, Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO ("Union") began a unionization drive at Napleton Cadillac. During the campaign, the employees neither openly supported nor discussed the Union at work.

Napleton Cadillac's management opposed unionization. As the Board's administrative law judge ("ALJ") recounted, Inman and Tony Renello, Napleton Auto Group's corporate manager, led "three captive-audience luncheon meetings" to "discourage employees from voting for the Union[,]" and Napleton sent employees a "lengthy letter from Inman just before the election urging [them] to vote no[.]" Napleton , 367 N.L.R.B. No. 6, at 7, 15.

During Russell's August 2016 visit—the first one after the unionization drive started—Inman said to him, "I don't know why you guys couldn't have waited to see how things played out before you bring the union in." Napleton , 367 N.L.R.B. No. 6, at 8. Inman and Russell then discussed when Russell might be able to come back to work. That same month, Russell attended a union organizing meeting. He later told Inman about his attendance there.

Inman brought up the Union again when Russell visited in September, asking, "Why couldn't you just wait and see how things played out?" Napleton , 367 N.L.R.B. No. 6, at 8. As Russell put it, Inman also said "that with the union coming in, people were going to get written up who were coming in late[;] if you punched in late, you would be written up[.]" Id.

Despite management's efforts, the Union won the representation election on October 18, 2016.

When Russell stopped by the dealership shortly after the election with an update from his doctor, Inman said to him, "Well, it looks like you guys had your way. You got the vote in. You got the union in." Napleton , 367 N.L.R.B. No. 6, at 8. Russell recalled: "And then [Inman] said to me * * * it was kind of shitty and sneaky for me to come in there and vote and not even say hi to him. I said I didn't want to make a big deal of it. I was just coming in to vote and leave. Then we discussed when I'd be coming back." Id.

Two days later, Napleton Cadillac sent Russell a letter terminating his employment.

Russell returned the next week with a truck and trailer to pick up his tools. While at the dealership, he spoke with Inman, who said "I'm sorry this happened." Napleton , 367 N.L.R.B. No. 6, at 9. During their conversation, Bill Oberg, another mechanic, walked by, and Inman said, "That's the guy who started all this." Id. Russell told Inman that "there were other people who got the union in here[,]" and that if Napleton Cadillac was "going after [Oberg], you're going after the wrong person." Id. Inman did not deny that "all this" meant the union drive. Instead, he asked, "Really?" to which Russell replied, "yes." Id.

About that same time, Napleton Cadillac began the process of laying off David Geisler, the twenty-two-year-veteran journeyman mechanic. On October 21, 2016—three days after the Union won the election—Michael Jopes, Napleton Auto Group's chief financial officer, called Napleton Cadillac's attorney James Hendricks and told him that "they had to lay off at least one technician" given the dealership's insufficient "productivity." Napleton , 367 N.L.R.B. No. 6, at 10.

On October 27, 2016—the same day that Russell was fired—Hendricks informed the Union that Napleton Cadillac was "laying off David Geisler, [the] lowest booking tech for the last 10 weeks." Napleton , 367 N.L.R.B. No. 6, at 10. Inman then called Geisler into his office and "told him he was being ‘laid off for lack of hours.’ " Id. Geisler testified that, at the end of that meeting, Inman said "he asked us not to vote that way." Id.

A few months later, Inman contacted Geisler to ask whether he "would entertain the idea of being rehired because business had increased." Napleton , 367 N.L.R.B. No. 6, at 10. Geisler declined.

Napleton Cadillac provided a competing version of the events that led to Russell's termination and Geisler's layoff. According to the dealership, Russell was never an employee of Napleton Cadillac, and Geisler's layoff was in the works before the union vote. The ALJ found those claims to be wholly lacking in credibility and made up. Napleton , 367 N.L.R.B. No. 6, at 15-18.

More specifically, with respect to Russell, the ALJ found that Napleton Cadillac's claim that it had never employed Russell "simply reek[ed] of fabrication." Napleton ,...