                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        AUG 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

INTERNATIONAL ASSOCIATION OF                    No.    19-71501
MACHINISTS DISTRICT 751,
                                                NLRB Nos. 19-CA- 203455
                Petitioner,                               19-CA-203586

 v.
                                                MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,

                Respondent,

AIM AEROSPACE SUMNER, INC.,

                Intervenor.


AIM AEROSPACE SUMNER, INC.,                     No.    19-71766

                Petitioner,                     NLRB Nos. 19-CA-203455
                                                          19-CA-203586
 v.

NATIONAL LABOR RELATIONS
BOARD,

                Respondent,

INTERNATIONAL ASSOCIATION OF
MACHINISTS DISTRICT 751,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Intervenor.


NATIONAL LABOR RELATIONS                       No.   19-71804
BOARD,
                                               NLRB Nos. 19-CA-203455
                Petitioner,                              19-CA-203586

 v.

AIM AEROSPACE SUMNER, INC.,

                Respondent.

                     On Petition for Review of an Order of the
                         National Labor Relations Board

                        Argued and Submitted July 8, 2020
                              Seattle, Washington

Before: CLIFTON, D.M. FISHER,** and M. SMITH, Circuit Judges.

      The International Association of Machinists, District 751 (the Union)

petitions for review of an order by the National Labor Relations Board holding that

AIM Aerospace Sumner, Inc. did not violate the National Labor Relations Act

(NLRA) when it withdrew recognition from the Union. AIM petitions for review

of the portion of the Board’s order holding that AIM violated the NLRA when it

promoted employee Lori-Ann Downs-Haynes. The General Counsel of the



      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.

                                         2                                    19-71501
National Labor Relations Board files a cross-application for enforcement of the

order in its entirety. We have jurisdiction under 29 U.S.C. § 160(e) and (f), and we

enforce the order.

      We “uphold[] decisions of the [Board] ‘if its findings of fact are supported

by substantial evidence and if [it] correctly applied the law,’ and defer[] to any

‘reasonably defensible’ interpretation of the NLRA.” Retlaw Broad. Co. v. NLRB,

53 F.3d 1002, 1005 (9th Cir. 1995) (quoting NLRB v. Gen. Truck Drivers, Local

No. 315, 20 F.3d 1017, 1021 (9th Cir. 1994)); 29 U.S.C. § 160(e).

      The Board did not err in concluding that AIM committed an unfair labor

practice by transferring Downs-Haynes to a different position and raising her

wage. It is 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.” 29 U.S.C.

§ 158(a)(3). An employer’s motivation is assessed through a burden-shifting test.

Healthcare Emps. Union, Local 399 v. NLRB, 463 F.3d 909, 919 (9th Cir. 2006)

(citing Wright Line, 251 N.L.R.B. 1083, 1089 (1980)).

      At the first step of the test, the General Counsel met his burden to establish

AIM’s motivation by “showing that [1] [Downs-Haynes] was engaged in protected

activity, [2] [AIM] knew of such activity, and [3] [AIM] harbored anti-union

animus.” Frankl ex rel. NLRB v. HTH Corp., 693 F.3d 1051, 1062 (9th Cir. 2012).


                                          3                                    19-71501
The first two elements are undisputed. The Board’s finding that the third element

can be inferred is supported by substantial evidence, namely: the suspicious

timing; the fact that AIM did not consider any external candidates, including those

with more experience than Downs-Haynes; and the fact that the HR director’s

explanations for Downs-Haynes’ promotion were implausible. Remington Lodging

& Hosp., LLC, 363 N.L.R.B. No. 6 (Sept. 15, 2015).1

      At the second step of the test, “the burden shifts to the employer to

demonstrate that it would have taken the same action regardless of the employee’s

union activity.” Frankl, 693 F.3d at 1062. Here, the ALJ held that there were

“simply too many irregularities” surrounding the hiring to conclude that it was

“based on legitimate motives,” and this conclusion is supported by substantial

evidence. Therefore, AIM failed to carry its second-step burden. In sum, the Board

did not err in concluding that hiring Downs-Haynes for the receiving clerk position

violated the NLRA.

      The Board also did not err in concluding that AIM lawfully withdrew

recognition from the Union. “[E]mployers may not withdraw recognition in a

context of serious unremedied unfair labor practices tending to cause employees to


1
  No employee need be disadvantaged to show discrimination under 29 U.S.C.
§ 158(a)(3). See, e.g., Evergreen Am. Corp., 348 N.L.R.B. 178, 180 (2006) (across-
the-board benefits constituted NLRA discrimination); Flying Foods Grp., Inc., 345
N.L.R.B. 101, 104 (2005) (same). Title VII employment discrimination cases do
not illuminate the requirements for discrimination under the NLRA.

                                         4                                     19-71501
become disaffected from the union.” Frankl v. HTH Corp., 650 F.3d 1334, 1361

(9th Cir. 2011) (quoting Levitz Furniture Co. of the Pac., Inc., 333 N.L.R.B. 717,

717 n.1 (2001)). An employer may engage in two kinds of unfair practices: those

that are “distinct from any unlawful assistance . . . in the actual decertification

petition,” and those that are “directly related to an employee decertification effort,

such as actively soliciting, encouraging, promoting, or providing assistance in the

initiation, signing, or filing of [a] . . . petition.” SFO Good-Nite Inn, LLC, 357

N.L.R.B. 79, 79-80 (2011) (internal quotation marks and citations omitted). Where

the employer does not directly promote the petition, we apply a four-part causation

analysis to determine whether the employer’s unfair practices led to the petition’s

success. Id. at 79. We consider:

      (1) The length of time between the unfair labor practices and the
      withdrawal of recognition; (2) the nature of the illegal acts, including
      the possibility of their detrimental or lasting effect on employees;
      (3) any possible tendency to cause employee disaffection from the
      union; and (4) the effect of the unlawful conduct on employee morale,
      organizational activities, and membership in the union.

Master Slack Corp., 271 N.L.R.B. 78, 84 (1984). On the other hand, where the

employer directly interferes with a petition, it does not get the benefit of a multi-

factor analysis. Rather, we “presume[] that the employer’s unlawful meddling

tainted any resulting expression of employee disaffection.” SFO Good-Nite Inn,

357 N.L.R.B. at 80. This presumption derives from Hearst Corp., 281 N.L.R.B.

764, 765 (1986).


                                           5                                     19-71501
      Hearst’s presumption does not apply here.2 Although AIM promoted

Downs-Haynes during her signature-gathering effort, substantial evidence supports

the conclusion that AIM did not directly encourage the petition. See, e.g., SFO

Good-Nite Inn, 357 N.L.R.B. at 80 (direct encouragement consisted of

“attempt[ing] to coerce three . . . [employees] to sign . . . petitions and

threaten[ing] another employee with discipline for speaking against

decertification”). Therefore, the Master Slack factors apply.

      The Board did not err in its application of the Master Slack factors. While

the length of time between the unfair practice and withdrawal of recognition

weighs in favor of finding the petition to be tainted, the other three factors weigh

against any taint. The nature of the violation was, in the Board’s words, a “single

personnel action.” Downs-Haynes’ promotion was not akin to, for example, the

“serious and flagrant” violations in Master Slack, which “included interrogations,

threats to move or close the plant, threats of discharge, and discharges of 28

employees.” 271 N.L.R.B. at 79. The promotion would have had little tendency to



2
 The Union’s Hearst argument is not waived, because the Board majority and
dissent addressed the applicability of the Hearst presumption. “Ordinarily, when
an agency has actually addressed an issue, the policies underlying the exhaustion
doctrine . . . are satisfied.” Casino Pauma v. NLRB, 888 F.3d 1066, 1081 (9th Cir.
2018) (alteration in original) (quoting W. Radio Servs. Co. v. Qwest Corp., 530
F.3d 1186, 1203 (9th Cir. 2008)). If “the Board . . . got the gist of [an arguably
waived] argument,” we consider it to be preserved. Id. at 1080-81. Therefore, we
will deny as moot the Union’s motion to supplement the record on appeal.

                                            6                                    19-71501
cause employee disaffection from the union and little effect on morale and union

membership, given that other employees had no way of knowing how many

applicants there were or how qualified they were, and given that the only other

internal candidate had also signed the petition.

      AIM’s assistance to Downs-Haynes with the petition was permissible: it

consisted of objective facts provided in response to Downs-Haynes’ requests. E.

States Optical Co., 275 N.L.R.B. 371, 372 (1985). Nor did AIM’s promotion of

Downs-Haynes render its otherwise-permissible ministerial aid unlawful. Wire

Prods. Mfg. Corp., 326 N.L.R.B. 625, 635 (1998) (although employer committed

other NLRA violations, assistance with decertification petition was ministerial);

Ernst Home Centers, Inc., 308 N.L.R.B. 848, 848-50 (1992) (same).

      AFFIRMED.




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