and 23-2561 NATIONAL LABOR RELATIONS BOARD v. United Scrap Metal Pa, LLC

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 23-1583, 23-1758, 23-2367, and 23-2561
_____________
NATIONAL LABOR RELATIONS BOARD,
Petitioner in Nos. 23-1583
and 23-2367
LABORERS INTERNATIONAL UNION OF NORTH
AMERICA LOCAL 57 (Intervenor)
v.
UNITED SCRAP METAL PA, LLC,
Petitioner in Nos. 23-1758
and 23-2561
_____________
On Applications for Enforcement and Cross-Petitions for
Review
of Orders of the National Labor Relations Board
(NLRB Case Nos. 04-CA-268183, 04-CA-269712,
04-RC-267642, and 04-CA-315904)
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 27, 2024

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Before: KRAUSE, RESTREPO, and MATEY, Circuit Judges
(Filed: September 16, 2024)
_________
Ruth E. Burdick
Milakshmi V. Rajapakse
David A. Seid
NATIONAL LABOR RELATIONS BOARD
1015 Half Street SE
Washington, D.C. 20570
Counsel for Petitioner
Mark E. Belland
David F. Watkins
O’B RIEN BELLAND & BUSHINSKY
509 S Lenola Road, Bldg. 6
Moorestown, N.J. 08057
Counsel for Intervenor
Christopher J. Murphy
MORGAN L EWIS & BOCKIUS
2222 Market Street
12th Floor
Philadelphia, PA 19103
Kelcey J. Phillips
M ORGAN L EWIS & BOCKIUS
1111 Pennsylvania Avenue NW, Ste. 800N
Washington, D.C. 20004
Counsel for Respondent
_________

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OPINION OF THE COURT
_________
RESTREPO, Circuit Judge.
The National Labor Relations Board (“Board”) applies
for enforcement of two of its orders, and United Scrap Metal
PA, LLC (“USM”) cross-petitions for review. In those orders,
the Board: (1) found that USM engaged in unfair labor
practices during a union organizing campaign and unlawfully
changed employees’ work schedules shortly after a unit of
employees elected Laborers’ International Union of North
America, Local 57, as its exclusive collective bargaining
representative; (2) overruled USM’s objections to the election
result and certified the union; and (3) found that USM
unlawfully refused to bargain with and provide information to
Local 57. For the following reasons, we will grant the Board’s
applications for enforcement and deny USM’s cross-petitions
for review.
I.
The Board had jurisdiction over this matter pursuant
to 29 U.S.C. §§ 159(b)–(c) and 29 U.S.C. §§ 160(a)–(c). We
have jurisdiction over the Board’s applications for enforcement
and USM’s cross-petitions for review pursuant to 29 U.S.C.
§ 159(d) and 29 U.S.C. §§ 160(e)–(f).
The Board severed and retained a remedial issue in this
case, which raises an issue of first impression for our Court as
to the finality of these orders under 29 U.S.C. §§ 160(e)–(f).

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Two sister courts have answered this question, holding that the
Board’s severance of a remedial issue for future consideration
“does not affect [a court’s] jurisdiction to . . . adjudicate issues
that the Board has resolved.” Longmont United Hosp. v. NLRB,
70 F.4th 573, 578 (D.C. Cir. 2023); see also NLRB v. Siren
Retail Corp., 99 F.4th 1118, 1123 (9th Cir. 2024) (“[W]e see
no reason to conclude that severing the Ex-Cell-O issue from
the other issues in the case renders the Board’s decision
nonfinal.”). Agreeing with the reasoning of those courts, we
hold that the Board’s orders here are final, and that we have
jurisdiction, because the issue of whether to adopt a new,
additional remedy for refusals to bargain “would [not] have
any effect on the Board’s conclusion regarding the underlying
charge.” Siren Retail Corp. 99 F.4th at 1123. Instead, the
orders represent the “consummation of the agency’s
decisionmaking process” and are therefore both final and
reviewable. Id. (quoting Bennett v. Spear, 520 U.S. 154, 178
(1997)).
When reviewing orders of the Board, “[w]e
‘exercise plenary review over questions of law and the
Board’s application of legal precepts’ and accept the Board’s
factual determinations if they are ‘supported by substantial
evidence.’” New Concepts for Living, Inc. v. NLRB, 94 F.4th
272, 280 (3d Cir. 2024) (quoting Spectacor Mgmt. Grp. v.
NLRB, 320 F.3d 385, 390 (3d Cir. 2003)). “Substantial
evidence requires ‘more than a scintilla[,]’ which means such
evidence that ‘a reasonable mind might accept as adequate to
support a conclusion.’” Id. (alteration in original) (quoting
Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 606
(3d Cir. 2016)).
II.

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A.
As an initial matter, USM has not challenged the finding
made by the administrative law judge (“ALJ”) that it violated
Section 8(a)(1) of the National Labor Relations Act (“NLRA”),
29 U.S.C. § 158(a)(1), in the lead-up to the election by
instructing employees not to accept Local 57’s organizing
material and by confiscating union shirts. Accordingly, the
Board is entitled to summary enforcement of those parts of its
February 8, 2023, order. See, e.g., NLRB v. Konig, 79 F.3d 354,
356 n.1 (3d Cir. 1996).
Moreover, substantial evidence supports the Board’s
finding that USM discriminatorily changed its employees’
work schedules after the representation election. Section
8(a)(3) of the NLRA prohibits an employer from taking
adverse employment action against an employee in retaliation
for union membership or activities. 29 U.S.C. § 158(a)(3). To
make out a claim under this section, “the employee must
establish that the protected conduct was a ‘substantial’ or
‘motivating’ factor [for the employer’s action]. Once this is
accomplished, the burden shifts to the employer to demonstrate
that it would have reached the same decision absent the
protected conduct.” 1621 Route 22 W. Operating Co., LLC v.
NLRB, 825 F.3d 128, 145–46 (3d Cir. 2016) (alteration in
original) (quoting Wright Line, a Div. of Wright Line, Inc., 251
NLRB 1083, 1087 (1980)).
It is undisputed that, about one hour after the election
results were announced, USM reduced the work hours of the
bargaining-unit employees by ending their shifts each weekday
at 3:00 p.m. instead of 5:00 p.m. and by eliminating Saturday

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overtime shifts. USM also concedes the evidence supports a
prima facie showing that the employees were engaging in
protected union activity and that USM was aware of and hostile
to that activity. The company’s main argument is that,
regardless of its employees’ union activity, it nevertheless
would have reduced work hours at that time due to the
economic impact of the COVID-19 pandemic—most notably
pointing to a November 16, 2020, emergency order from the
mayor of Philadelphia (which went into effect the same day as
the union election) that extended pandemic-related restrictions
on indoor and outdoor gatherings through the new year.
But the Board reasonably found that USM’s
justifications for eliminating overtime and Saturday shifts at
the time it did, even if facially legitimate, were not credible.
The company had refrained from cutting hours or overtime for
most of the pandemic up to that point (even as business levels
dropped), and the mayor’s order—which, at the time, was set
to last for under two months—did not so drastically alter the
state of play that USM inevitably would have made these
changes. Moreover, managers at USM were well aware that
employees in the bargaining unit were “very concerned about
[the] union coming in and how it may [a]ffect their
[overtime],” and the leaders discussed threatening the
elimination of benefits such as “[c]onsistent overtime
opportunities” if the union won the election. J.A. 1632; see also
1659 (“All of the aforementioned [including overtime] goes
away in a different work environment.”). Once the employees
voted for union representation, the company immediately
changed their work schedule. Accordingly, substantial
evidence supports the Board’s finding that neither the mayor’s
order nor the broader circumstances of the COVID-19
pandemic “would have moved [USM] to take the challenged

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action absent the protected conduct.” Chevron Mining, Inc. v.
NLRB, 684 F.3d 1318, 1327 (D.C. Cir. 2012) (citation
omitted).
B.
The Board also acted within its discretion in overruling
USM’s objections to the election of Local 57 and, in turn,
correctly found that USM’s refusal to bargain with or provide
information to the union violated Sections 8(a)(5) and (1) of
the NLRA.1 “[A]n otherwise valid Board order” certifying the
results of a representation election must be enforced unless the
employer proves “that there has been prejudice to the fairness
of the election.” NLRB v. Mattison Mach. Works, 365 U.S. 123,
124 (1961). We ask “whether substantial evidence supported
the Board’s determination that certain allegedly disruptive
conduct did not ‘destroy[] the laboratory conditions of the
election’ and ‘render[] a free expression of choice of
representation impossible.’” Advanced Disposal Servs. E., 820
F.3d at 597 (alterations in original) (quoting Zeiglers Refuse
Collectors, Inc. v. NLRB, 639 F.2d 1000, 1011 (3d Cir. 1981)).
Only two of USM’s objections are before us on appeal.
1 USM concedes that it refused to recognize Local 57
after the election to preserve its challenge to the Board’s
certification of the union. As such, the parties agree that if
Local 57 was properly certified, then USM violated Sections
8(a)(5) and (1) of the NLRA when it, among other things,
refused to bargain with the union and changed the employees’
work schedules without first providing Local 57 with notice
and an opportunity to bargain.

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First, USM argues that Osman Rivera Acosta, a pro-union
employee, affected the fairness of the election by threatening
another employee, Erik Larios, with bodily harm in the
presence of several other eligible voters after Mr. Larios voiced
support for USM during a company meeting. For one,
Mr. Rivera did not have actual or apparent authority to engage
in the allegedly objectionable conduct on behalf of Local 57;
though he allegedly referred to himself as the union’s “jefe,”
J.A. 1239, he never worked for or received payment from
Local 57. Thus, his conduct is best understood as a third-party
threat because he did not act as an agent of the union. See
Cornell Forge Co., 339 NLRB 733, 733–34 (2003); cf. Con-
way Freight, Inc. v. NLRB, 838 F.3d 534, 538 (5th Cir. 2016)
(“In any union election, it is very likely that pro-union
employees will make concerted efforts to persuade their
colleagues. Such attempts at persuasion do not make
employees agents of a union.”). Additionally, even assuming
that Mr. Rivera’s threat to Mr. Larios was grounded in his
support for Local 57,2 USM failed to show that anyone besides
Mr. Larios and one other employee heard the threat and that
the threat was disseminated. Accordingly, we cannot conclude
that Mr. Rivera’s alleged conduct “‘create[d] a general
atmosphere of fear and reprisal rendering a free election
impossible.’” Advanced Disposal Servs. E., 820 F.3d at 608
n.13 (quoting Robert Orr-Sysco Food Servs., LLC, 338 NLRB
614, 615 (2002)).
Second, USM maintains that a group of Local 57
representatives photographed USM employees who refused to
2 Notably, the Board found it “difficult to even decipher
whether [Mr. Rivera’s] threat to [Mr.] Larios was based upon
[u]nion support or general animosity.” J.A. 11.

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stop their cars to interact with them as they distributed union
literature outside the company’s Philadelphia facility. The
parties disagree as to whether this occurred, but the ALJ
ultimately credited testimony from two Local 57
representatives present in the group that day, both of whom
denied that the group photographed anyone. The ALJ regarded
the Local 57 agents as “strong and believable witnesses,” J.A.
12, and the Board affirmed the ALJ’s factual finding on that
basis. We give the Board’s credibility determinations
“great deference” and do not disturb them “in the absence of
any evidence indicating otherwise.” Atl. Limousine, Inc.
v. NLRB, 243 F.3d 711, 718–19 (3d Cir. 2001) (quoting NLRB
v. Lee Hotel Corp., 13 F.3d 1347, 1351 (9th Cir. 1994)). USM
has not demonstrated why either the Board or the ALJ erred in
crediting the union agents’ testimony over that of its own
witnesses, so we see no basis to depart from that conclusion.3
III.
For these reasons, we will grant the Board’s
applications for enforcement and deny USM’s cross-petitions
for review.
3 USM argues that we should reject this credibility
determination because the ALJ “did not adequately explain the
basis for his credibility assessments.” USM Opening Br. 31.
But “[i]t is well established that explicit credibility findings are
unnecessary when a judge has ‘implicitly resolved conflicts in
the testimony by accepting and relying on the testimony of
[one party’s] witnesses.’” Am. Coal Co., 337 NLRB 1044,
1044 n.2 (2002) (quoting Electri-Flex Co. v. NLRB, 570 F.2d
1327, 1331 (7th Cir. 1978)).

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