Equinox Holdings, Inc. v. NLRB

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 5, 2018 Decided March 6, 2018 No. 16-1427 EQUINOX HOLDINGS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 87, INTERVENOR Consolidated with 17-1013 On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board Kenneth F. Sparks argued the cause for petitioner. With him on the briefs was Mark L. Stolzenburg. David Casserly, 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, 2 Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Elizabeth A. Heaney, Supervisory Attorney. Hunter Pyle argued the cause and filed the brief for intervenor. Before: WILKINS, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge SILBERMAN. SILBERMAN, Senior Circuit Judge: Petitioner seeks review of a National Labor Relations Board determination that it violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with Service Employees International Union Local 87. Its defense is that the Board unreasonably discounted two threats that tainted the election, which the union won. The company claims union adherents told employees they risked deportation if they voted against the union and the union used an observer at one voting location who had recently been discharged for possession of a gun. We conclude, given our limited scope of review of Board representation determinations, that we cannot challenge the Board’s resolution of either issue. I. The union filed an election petition in May 2015 covering employees working at three gyms in San Francisco. The election was held, by consent, shortly thereafter. The union won 41 to 33. Equinox objected, which led to a hearing conducted, under the auspices of the Regional Director, by a Hearing Officer. 3 Although the company produced testimony that one of the employees had threatened to call ICE if the union lost, the Hearing Officer declined to credit the testimony. Indeed, there was no credited evidence presented that anyone representing the union had made an ICE-related threat. The Hearing Officer concluded that, at most, there were rumors amongst the employees concerning the possibility of ICE’s involvement. The employer’s second objection is based on a gun incident. Four days prior to the election, a Regional Maintenance Manager in the Market Street gym was informed by an employee that one Jared Quarles had brought a gun to work. He checked Quarles’ bag, and upon finding what he believed to be a gun, reported to the manager. Equinox’s Regional Vice President for the West Coast, Jack Gannon, was present at the facility. On advice from Equinox’s general counsel, Gannon verified the presence of the gun and then called 9-1-1 to alert the authorities. When the police arrived, they restrained Quarles with handcuffs and led him through the facility, passing other employees who worked there. Quarles responded by yelling profanities ...

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