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Enterprise Leasing Co. of Florida v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

August 5, 2016

Enterprise Leasing Company of Florida, doing business as Alamo Rent-A-Car, Petitioner
National Labor Relations Board, Respondent

          Argued May 17, 2016

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          D. John Sauer argued the cause for petitioner. With him on the briefs was Daniel R. Begian.

          Greg Lauro, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

          Before: Griffith, Pillard and Wilkins, Circuit Judges.


          Pillard, Circuit Judge

         The National Labor Relations Board concluded that petitioner Enterprise Leasing Company of Florida (Enterprise, or the Company) committed several unfair labor practices in late 2009 and early 2010 at a Miami, Florida, car rental facility. Enterprise violated the National Labor Relations Act (the Act), the Board determined, by telling employees it was terminating short-term disability benefits on account of their union membership, encouraging an employee to circulate a petition to decertify the Union as its employees' bargaining representative, unilaterally terminating employees' short-term disability benefits, interfering with a union representative's contractual right of access to Enterprise's facility, unlawfully decertifying the Union as its employees' bargaining representative based on a petition tainted by unfair labor practices, and thereafter refusing to bargain with the Union or collect or remit union dues. See Enterprise Leasing Co. of Fla., 362 NLRB No. 135 (June 26, 2015). We hold that substantial record evidence supports each of the Board's findings and conclusions. We lack jurisdiction to consider the Company's additional claim that the Board's remedy was unlawfully punitive, because Enterprise failed to raise the argument before the Board. Accordingly, we deny its petition and grant the Board's cross-application for enforcement.

         I. Background

         A. Facts

         Enterprise is a national car rental company that operates a facility at Miami International Airport, where it rents cars under the Enterprise, National Car Rental, and Alamo Rent-A-Car (Alamo) brands.[1] Enterprise obtained the Alamo operation, among others, during its acquisition of Vanguard Car Rental, USA (Vanguard) in August 2007. At that time, Teamsters Local Union No. 769 (the Union) represented the employees of Alamo Miami (unit employees) in a wall-to-wall bargaining unit. Before the acquisition, the Union and Vanguard had negotiated a collective bargaining agreement for Alamo employees, which was effective from November 29, 2005, through January 2, 2010. In December 2009, after the acquisition, the Union and Enterprise agreed to extend the existing agreement through March 31, 2010, while negotiating a successor agreement.

         Enterprise provided benefits to unit employees under a Comprehensive Group Insurance Plan (the Group Plan), referenced in the collective bargaining agreement. Until August 2009, the Group Plan encompassed a subsidiary Vanguard Short-Term Disability Plan (the Vanguard Plan).

         Enterprise terminated the Vanguard Plan on August 1, 2009, eliminating the third-party administrator, as it streamlined its National and Alamo human-resources operations. Between that date and the end of 2009, Enterprise continued to provide short-term disability benefits to unit employees, but Enterprise administered those benefits on a self-insured basis instead of through the Vanguard Plan.

         Enterprise's provision of short-term disability benefits was short-lived, although the Company only belatedly informed its employees of the change. In previous years, Enterprise typically held a benefits open-enrollment period in October and November each year, but it did not do so in 2009 for the 2010 plan year. When Enterprise Union Steward Marjorie Wisecup asked Enterprise's Human Resource Manager Lissette Dow about the omission, Dow reviewed the 2010 employee-benefits package with Wisecup, but she did not mention that the Company had converted to a self-insured short-term disability benefits plan in anticipation of eliminating those benefits altogether at the end of 2009. Around the same time, Wisecup heard Dow tell other employees not to worry about enrollment, because benefits in 2010 would be the same as in 2009.

         It was not until late November or early December, after an open-enrollment period would have closed had it been offered, that Dow informed Wisecup that Enterprise would no longer provide short-term disability benefits to unit employees in 2010. When Wisecup asked why, Dow replied that the collective bargaining agreement did not specify short-term disability benefits; those benefits, she said, were not included in the Group Plan called for by the agreement. Because the agreement did not specify short-term disability benefits, Dow explained, the unit employees could not have them.

         In early December, Dow and Enterprise Airport Market Manager Bridget Long conducted several employee meetings to discuss Enterprise's elimination of short-term disability benefits. At one of the meetings, Long informed employees about the change and apologized for the Company's delay in announcing it. Dow acknowledged that when she had met with Wisecup earlier in the fall, she had known about Enterprise's plan to eliminate short-term disability benefits, but that she had not mentioned the change because she did not think it was a big deal. Another employee, Andy Felgentres, asked Long why the benefits were being eliminated, and Long responded, "because you're union, you can't have short-term disability." Enterprise Leasing Co. of Fla., 359 NLRB No. 149, at *8 (July 2, 2013). When Felgentres said that was discrimination, Long replied, "don't worry, Enterprise has very good lawyers." Id.

         At another meeting, Enterprise employee Wanda Rivera asked Dow if Enterprise was eliminating short-term disability benefits because of the union contract and whether the Company was eliminating the benefits at other locations. Dow responded that employees at non-union locations would retain their short-term disability benefits. Another employee, Sara Rivera, asked whether employees would still have such benefits if not for the Union, and Dow replied, "yes, " the reason the unionized employees would not get the benefits was "because [Enterprise] had to follow the union contract." Id. at 9. Dow repeated that at locations where there was no union, employees would keep short-term disability benefits.

         On January 1, 2010, Enterprise eliminated the unit employees' short-term disability benefits without notifying or bargaining with the Union.

         At around the same time, Cirilo Garcia, an Enterprise employee who was dissatisfied because of the elimination of unit employees' short-term disability benefits, began circulating to unit employees a petition to decertify the Union as their collective-bargaining representative.

         Shortly thereafter, on January 4, Union Business Representative Eddie Valero, along with two other Union agents, visited the Miami Alamo facility to investigate a report that the decertification petition was being circulated on company time. The then-effective collective bargaining agreement provided that "[a]fter making [their] presence known to a member of management, " authorized union representatives "shall be permitted to enter the premises of the Employer for the purpose of determining" compliance with the agreement. Id. at 12 (quoting Miami Alamo Collective Bargaining Agreement, J.A. 372). Accordingly, upon arrival, Valero attempted to notify a supervisor of his presence. Valero had made similar investigative visits in the past- unannounced until arrival-and had not experienced any problems.

         During the January 4 visit, however, Valero and his team ran into trouble. When they arrived, Dow came out of the building with her arms raised, screaming at Valero and demanding to know why he was there. Valero responded that he was conducting an investigation. Dow announced that she would follow him during the visit because she had orders from above. Although Valero told Dow that he would report her conduct to the Board if she interfered with the visit, Dow persisted, following Valero and his team into the building and, once inside, standing beside them for about thirty-five minutes while they sat on a bench. It was only after Valero called the Company's labor-relations coordinator to report the incident that Enterprise manager Long allowed the group to use the break room for their investigation, reminding them not to interrupt the workforce. Dow continued to follow Valero and his group throughout the visit, both outside and inside the building, and retreated only when they returned to the break room, although other managers periodically stopped in to monitor the group. After approximately twenty-five minutes, Valero and his group left the facility.

         Just over a week later, on January 13, Enterprise supervisors Larry Elsass and Rodolfo Browne spoke with Garcia on company property. Elsass and Browne asked Garcia how many signatures he had obtained on the decertification petition. At that point, only sixty-six of the unit's 159 employees had signed the petition. When Garcia reported on his progress, Browne said that number was not enough, and told Garcia to go back and get more. Garcia then arranged to secure additional signatures to push the number above the 50 percent mark.

         Enterprise withdrew recognition from the Union on January 19, based solely on the decertification petition that by then reflected verified signatures of a majority of unit employees.

         Later that month, Enterprise Station Manager Johnny Betancourt interrogated employees about, and solicited them to withdraw, their union membership. And, over the course of the following year, Enterprise made a series of changes to unit employees' terms and conditions of employment without notifying or bargaining with the Union. In February, the Company ceased deducting and remitting union dues for employees who had signed dues-checkoff authorizations, despite the requirement of the collective bargaining agreement (effective through the end of March) to deduct and remit those dues. The Company also made a variety of wage-and-benefits changes, and it declined to process an employee grievance.

         B. Decision Below

         Based on the foregoing conduct, between December 18, 2009, and February 16, 2011, the Union filed a series of unfair labor practice charges against Enterprise. On April 8, 2011, the NLRB's Acting General Counsel issued an amended, consolidated complaint alleging that Enterprise had committed ...

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