United States Court of Appeals, District of Columbia Circuit
February 5, 2018
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.
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, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Elizabeth A. Heaney, Supervisory Attorney.
Pyle argued the cause and filed the brief for intervenor.
Before: Wilkins, Circuit Judge, and Edwards and Silberman,
Senior Circuit Judges.
Silberman, Senior Circuit Judge
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.
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
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
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 t h e authorities.
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 about
Equinox. Upon closer inspection, the police realized that the
weapon they discovered was a replica airsoft gun that merely
resembled a firearm; the orange-colored tip required by
federal and California law had been removed. T h e y then
released Quarles from handcuffs and escorted him out of the
building. Several employees who had not witnessed this
incident later testified that they had heard about it from
their peers. Quarles was subsequently terminated.
days after the arrest, and the day before the election, the
union hired Quarles. He was paid to work in a phone bank,
making calls on behalf of the union in the final days of the
campaign. The union also chose him to serve as its election
observer at the Pine Street ...