United States Court of Appeals, District of Columbia Circuit
CC1 Limited Partnership, doing business as Coca ColaPuerto Rico Bottlers, Petitioner
National Labor Relations Board, Respondent
February 8, 2018
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
Néstor M. Méndez-Gómez argued the cause
for petitioner. With him on the briefs were María D.
Trelles Hernández and Jason R. Aguiló Suro.
Carlos Concepción entered an appearance.
Jeffrey W. Burritt, 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 Usha Dheenan, Supervisory Attorney.
Before: Rogers, Griffith, and Srinivasan, Circuit Judges.
GRIFFITH, CIRCUIT JUDGE
National Labor Relations Board ("Board") determined
that CC1 Limited Partnership ("CC1") unlawfully
fired several employees who had engaged in work stoppages.
Although we agree with the Board that there was substantial
evidence that one of the discharged employees played no part
in a work stoppage, we remand to the Board for further
explanation its conclusion that the later wildcat strike was
protected activity. We also dismiss additional claims CC1
makes but failed to properly preserve for our review.
operates a bottling plant under the name of Coca Cola Puerto
Rico Bottlers in Cayey, Puerto Rico. Its warehouse employees
are represented by the Union De Tronquistas De Puerto Rico,
Local 901, International Brotherhood of Teamsters (the
"Union"). Until October 2008, José
Adrián López was the Union's chief
negotiator with CC1 and the principal representative of the
employees. Employees Miguel Colón, Carlos Rivera,
Francisco Marrero, Romián Serrano, and Félix
Rivera were elected to participate in negotiations on the
Union's behalf as shop stewards. The
collective-bargaining agreement that had been in place
between CC1 and the Union since 2003 expired on July 31,
the afternoon of September 9, 2008, CC1 and López met
to negotiate a new agreement. López planned to share
the status of the negotiations at an 8:30 p.m. meeting in
CC1's cafeteria with CC1 employees who worked the late
shift. When López arrived at the plant that night, the
security guard tried to block his entrance. Over the
guard's protests, López entered the plant anyway
and held the meeting. During the meeting, a CC1 supervisor
interrupted López and told him to leave the plant.
López refused, and the two argued. Eventually, the
supervisor left the cafeteria to call security, and
López led the group of employees to the plant's
warehouse to continue the meeting. The shop stewards on site
at the time encouraged other employees to abandon their
workstations and follow López.
p.m., Colón arrived at the plant to attend the meeting
in the cafeteria with López. By that time, the meeting
had moved to the warehouse. By 9:00 p.m., Colón joined
the meeting at the warehouse, where he found López and
about ninety employees. Soon after, police called by
CC1's security came, and López told the employees
to return to work. All in all, the work stoppage caused by
López's meeting cost the company two hours of work
from the employees who attended.
next day, CC1 suspended Colón and the other shop
stewards. According to the letter each received from the
company, they were suspended for "invading private
property, encouraging others to abandon their job, verbally
abusing the supervisors and intentionally paralyzing the
production line" the night before. App'x 369. In
response, the Union called a meeting at which the CC1
employees unanimously agreed to strike unless management
agreed to three demands: (1) reinstate the suspended shop
stewards; (2) forgo filing any charges against the Union
based on the work stoppage; and (3) return to the table to
negotiate a new collective-bargaining agreement. The next
day, a Union officer requested strike assistance from
month later, the Union had not yet met with CC1 negotiators
or planned a strike. On October 9, Colón and the other
shop stewards circulated a flyer announcing a meeting on
October 12 to discuss a strike. But the meeting was not
authorized by the Union. Upon seeing the flyer, one Union
official asked Colón not to "divide the
membership." Another Union representative suggested to
him that only a strike would ensure reinstatement of the shop
stewards. On October 10, CC1 discharged the suspended shop
stewards. Two days later at the October 12 meeting called by
Colón and the other shop stewards, employees signed a
petition authorizing a strike unless CC1 agreed to the
Union's demands. But the Union had no part in the
meeting. No Union official attended, and the Union never
responded to Colón's list of employees who had
signed the strike petition.
October 14, the national headquarters approved the
Union's request to provide assistance in a strike. The
next day, the Union wrote CC1 to demand that negotiations
resume. CC1 agreed, but the Union never replied.
October 19, the shop stewards met at Colón's home
to prepare to strike. From October 20 until October 22, more
than 100 CC1 employees went on strike. Many of them used
picket signs and loudspeakers to protest the company's
treatment of López and the firing of the shop
stewards. They also ...