10-3359-ag (L)
NLRB v. County Waste of Ulster, LLC

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 6th day of January, two thousand twelve.

Present: ROBERT D. SACK,
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                           Circuit Judges.
____________________________________________________________

NATIONAL LABOR RELATIONS BOARD,

              Petitioner-Cross-Respondent, and

LIUNA,

              Intervenor-Petitioner-Cross-Respondent,

                         - v. -                        Nos.   10-3359-ag (Lead)
                                                              10-3615-ag (XAP)

COUNTY WASTE OF ULSTER, LLC,

              Respondent/Cross-Petitioner.

____________________________________________________________

For Petitioner/Cross-Respondent:               AMY H. GINN, Attorney (Julie B. Broido,
                                               Supervisory Attorney, Lafe E. Solomon, Acting
                                               General Counsel, Celeste Mattina, Acting
                                               Deputy General Counsel, John H. Ferguson,
                                                 Associate General Counsel, Linda Dreeben,
                                                 Deputy Associate General Counsel, on the
                                                 brief), National Labor Relations Board,
                                                 Washington, D.C.

For Intervenor-Petitioner/Cross-Respondent:      TAMIR W. ROSENBLUM, Mason Tenders District
                                                 Council of Greater New York, New York, N.Y.
                                                 (Joseph J. Vitale, Cohen, Weiss and Simon
                                                 LLP, New York, N.Y. on the brief)

For Respondent/Cross-Petitioner:                 STUART WEINBERGER, Goldberg and
                                                 Weinberger LLP, New York, N.Y.


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

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for enforcement is GRANTED and the petition for review is

DENIED.

       Petitioner the National Labor Relations Board (the “Board”) petitions to enforce its

August 10, 2010 decision and order (the “August 2010 Decision”), concluding that County

Waste, LLC (“County Waste”) violated section 8(a)(2) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 158(a)(2), by allowing Local 124, to distribute a bonus to employees

when an election was pending. County Waste of Ulster, LLC, 355 N.L.R.B. No. 64 (2010).1 The

competing union, Local 108, Laborers International Union of North America (“Local 108”), was

granted permission to intervene. Respondent County Waste cross-petitions for review of the

August 2010 Decision. In its petition for review, County Waste asserts, inter alia, that

substantial evidence does not support the Board’s finding that County Waste permitted Local

       1
         On September 7, 2010, County Waste filed a motion for reconsideration, rehearing,
and/or reopening of the record. By order dated September 27, the Board denied the motion (the
“September 2010 Decision”). County Waste of Ulster, LLC, 355 N.L.R.B. No. 193 (2010).

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124 to distribute the bonus; that even if Local 124 distributed the bonus, this conduct would not

violate the NLRA; and, that the Board engaged in “sham” decisionmaking.2 We assume the

parties’ familiarity with the facts and procedural history of the case.

       County Waste first argues that the Administrative Law Judge’s (“ALJ”) finding that

County Waste allowed Local 124 to distribute the bonus was not supported by substantial

evidence. We disagree. This Court “will not reject factual findings unless no rational trier of

fact could have arrived at the Board’s conclusion.” NLRB v. Windsor Castle Health Care

Facilities, Inc., 13 F.3d 619, 623 (2d Cir. 1994). Here, the evidence in the record includes

County Waste’s general manager Ernie Palmer’s testimony that he had directed County Waste’s

dispatcher to let Local 124 distribute a few of the bonuses; a note from Local 124 to County

Waste’s employees that stated, “Enclosed please find your 2005 Holiday Bonus Check,” J.A. 86;

and the testimony of one of County Waste’s employees, Michael Schiavone, that Local 124 had

distributed the bonus. This Court cannot say that no rational trier of fact could have arrived at

the ALJ’s conclusion that County Waste allowed Local 124 to distribute the bonus.

       County Waste next contends that even if it had allowed Local 124 to distribute the bonus,

this would not have violated the NLRA. This argument too is unavailing. We “review[] the


       2
         The August 2010 Decision adopts the reasoning of an earlier decision entered by a two-
member panel of the Board on February 11, 2009, concerning the same claims (the “February
2009 Decision”). County Waste of Ulster, LLC, 353 N.L.R.B. No. 89 (2009). The February
2009 Decision was vacated by this Court in light of the Supreme Court’s holding in New Process
Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). County Waste of Ulster, LLC v. NLRB, 385 Fed.
Appx. 11 (2d Cir. 2010). County Waste contends that the Board erred by permitting the two
members who issued the February 2009 Decision to participate in the three-member panel that
considered this case on remand. We address this issue in a separate opinion, in which we
conclude that New Process Steel, 130 S. Ct. 2635, does not preclude the Board members who
entered the February 2009 Decision from participating in the panel that reviewed the case on
remand.

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Board’s legal conclusions to ensure they have a reasonable basis in law.” Long Island Head

Start Child Dev. Servs. v. NLRB, 460 F.3d 254, 257 (2d Cir. 2006). Here, the ALJ reasonably

concluded that, by allowing Local 124 to distribute the bonus, County Waste sought to influence

the election in violation of section 8(a)(2) of the NLRA. That Local 124 remained the collective

bargaining representative until December 2 does not change our analysis. As the ALJ

concluded, Local 124 lost the legal advantage of non-neutrality permitted by RCA del Caribe,

Inc., 262 N.L.R.B. 963, 965-66 (1982), as soon as it entered into a stipulated election agreement.

Therefore, permitting Local 124 to distribute a bonus right before an election is not a privileged

breach of neutrality.

       Finally, County Waste alleges that the Board’s review of its case prior to entering the

August 2010 Decision was cursory and therefore, inadequate. “‘The presumption of regularity

supports the official acts of public officers and, in the absence of clear evidence to the contrary,

courts presume that they have properly discharged their official duties.’” Nat’l Archives and

Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (quoting United States v. Chemical Found.,

Inc., 272 U.S. 1, 14-15 (1926)); see also J. Andrew Lange, Inc. v. FAA, 208 F.3d 389, 394 n.7

(2d Cir. 2000) (“Absent a showing to the contrary, it is presumed the agency considered all

evidence in the record when making its determination.”). Furthermore, federal courts are not to

probe the mental processes of agency decisionmakers because, “[j]ust as a judge cannot be

subjected to such a scrutiny, so the integrity of the administrative process must be equally

respected.” United States v. Morgan, 313 U.S. 409, 422 (1941) (internal citation omitted)

(finding that it was error to depose the Secretary of Agriculture regarding the process by which

he reached a decision).


                                                  4
       None of the evidence on which County Waste relies is sufficient to overcome the

presumption of regularity. First, County Waste emphasizes the short amount of time that elapsed

between the Board receiving the mandate and entering the August 2010 Decision. Speed,

however, is not an adequate basis to rebut the presumption of regularity. See Nat’l Nutritional

Ass’n v. FDA, 491 F.2d 1141, 1146 & n.6 (2d Cir. 1974) (rejecting claim that the presumption

of regularity was overcome because it was impossible for the FDA Commissioner to have

reviewed 1000 pages of exceptions filed to proposed regulations and twenty thousand additional

letters in thirteen days). Second, County Waste argues that the Board failed to adequately

address its August 9 letter, in which it objected to permitting Board members who authored an

earlier decision in this matter to participate in the review of the case on remand. But the August

10 Decision directly addressed this request when it explained that the two members who issued

the prior decision participated on the remand panel in accordance with the Board’s general

practice, which was designed to promote “administrative economy” by assigning the case on

remand to “the members who participated in the original decision.” County Waste of Ulster,

LLC, 355 N.L.R.B. No. 64, at 1 n.3 (2010). Finally, County Waste asserts that the Board must

not have reviewed its case since the August 2010 Decision fails to account for issues that were

remanded to the ALJ by an earlier Board decision. In its September 2010 Decision denying

County Waste’s motion for reconsideration, the Board squarely responded to this concern,

explaining that “the August 2010 decision left no doubt as to its adoption of the . . . severance

and remand of the separate 8(a)(1) issue.” County Waste of Ulster, LLC, 355 N.L.R.B. No. 193,

at 1 (2010). Nor does the fact that the Board did not reaffirm its order with respect to the

severed section 8(a)(1) issues, see County Waste of Ulster, LLC, 354 N.L.R.B. No. 54 (2009),


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until its denial of County Waste’s motion for reconsideration, rehearing, and/or reopening of the

record serve to rebut the presumption of regularity.

           We have considered all of Respondent/Cross-Petitioner’s arguments and, for the

reasons stated above, we GRANT the Board and Local 108’s petition to enforce and DENY

County Waste’s petition for review.


                                                       FOR THE COURT:
                                                       CATHERINE O’HAGAN WOLFE, CLERK




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