United States Court of Appeals, District of Columbia Circuit
Enterprise Leasing Company of Florida, doing business as Alamo Rent-A-Car, Petitioner
National Labor Relations Board, Respondent
May 17, 2016
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
John Sauer argued the cause for petitioner. With him on the
briefs was Daniel R. Begian.
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
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
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. 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.
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).
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.
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.
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.
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.
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.
January 1, 2010, Enterprise eliminated the unit
employees' short-term disability benefits without
notifying or bargaining with the Union.
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.
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.
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.
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.
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.
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
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