United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2012 Decided June 21, 2016

No. 11-1212

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

v.

SOUTHWEST REGIONAL COUNCIL OF CARPENTERS AND 

GARNER/MORRISON LLC,

PETITIONERS

Consolidated with 11-1445, 11-1446

On Petitions for Review and Cross-Application for 

Enforcement of Orders of the National Labor Relations Board

James A. Bowles argued the cause for petitioners. With 

him on the brief was Daniel M. Shanley.

Nina Schichor, Attorney, National Labor Relations Board, 

argued the cause for respondent. With her on the brief were 

John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Julie 

Broido, Supervisory Attorney. Jeffrey W. Burritt, Attorney, 

entered an appearance.
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Before: GRIFFITH, Circuit Judge, WILLIAMS and

SENTELLE, Senior Circuit Judges.

GRIFFITH, Circuit Judge: This matter comes before us on 

petitions for review and cross-application for enforcement of 

orders of the National Labor Relations Board finding that both 

the company and the union committed unfair labor practices. 

After oral argument, we held this case in abeyance pending the 

Supreme Court’s consideration of the validity of the 

President’s recess appointments to fill vacancies on the Board 

in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). Member 

Becker, who was on the Board panel in this case, had been 

appointed to the Board by the President during a 17-day 

intra-session recess of the Senate. Following the Supreme 

Court’s decision, this court held that Becker’s appointment 

was valid. See Mathew Enter. v. NLRB, 771 F.3d 812, 814 

(D.C. Cir. 2014). Following that decision, we removed this 

case from abeyance. We now hold that the Board’s orders

failed to provide a reasoned justification for departing from

precedent and we grant the petitions for review, vacate the 

orders, and remand.

I

Garner/Morrison, LLC (G/M) is a construction company

that provides drywall installation and painting services for 

office buildings and commercial construction sites. Founded in 

November 2003 by its current owners, Cliff Garner, his son 

Gary Travis Garner, and Chris Morrison, G/M hired its first 

employee, a carpenter, in December 2003 and immediately 

entered into a collective-bargaining agreement with the 

Southwest Regional Council of Carpenters (the Carpenters 

Union). The agreement established the Carpenters Union as the 

bargaining representative of any carpenter hired by G/M, as 

well as any painters or tapers the company employed unless 
3

they were covered by a separate agreement with the 

International Union of Painters and Allied Trades (the Painters 

Union).

In April 2004, G/M hired painters and tapers who were not 

already covered by a collective-bargaining agreement. In short 

order, G/M entered into an agreement with the Painters Union 

that covered those new hires. The agreements were set to last 

until March 31, 2007. As that date approached, G/M, which 

had grown dissatisfied with the Painters Union, began to 

explore whether the Carpenters Union would cover its painters 

and tapers. Representatives of the Carpenters Union told the 

management of G/M that once the company’s agreements with 

the Painters Union expired, the Carpenters Union, pursuant to 

its agreement with G/M, would automatically offer health and 

pension benefits to the newly hired painters and tapers. G/M 

decided to let its collective-bargaining agreements with the 

Painters Union expire and asked the Carpenters Union to meet

with the company’s painters and tapers.

The Carpenters Union scheduled a meeting for April 2, 

2007, after working hours, in a hotel conference room. The 

Union chose the time and place of the meeting and paid for the 

conference room. G/M encouraged painters and tapers to go to 

the meeting, but in no sense was their attendance mandatory.

All but one or two of the 25 or so painters and tapers at G/M 

attended. Also present were 15 or 16 representatives from the 

Carpenters Union, three employees from a health insurance 

company that worked with the Carpenters Union, the three 

owners of G/M, and one of their superintendents.

The conference room where the meeting was held was 

large—about 75 feet long by 50 feet wide. At the front of the 

room, several representatives of the Carpenters Union sat at a 

table. G/M’s three owners and a superintendent sat in the first 
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row of seats. The painters and tapers sat in rows behind them.

At two tables at the back of the room—some 65 feet away from 

the front table—sat other representatives of the Carpenters 

Union and employees of the health insurer.

As the meeting began, G/M owner Morrison told the 

painters and tapers to listen to the Carpenters Union’s

presentation, which the company thought was “a good deal.” It 

was the view of the company, he explained, that the Carpenters 

Union was a “better choice” for the employees than the 

Painters Union and “probably the way we want to go.”

Morrison’s comments endorsing the Carpenters Union took no 

more than a few minutes. Following his remarks, 

representatives of the Carpenters Union made their case for 

why the painters and tapers should join with them, highlighting

the insurance benefits provided by the Carpenters Union, as 

well as the wages the painters and tapers would receive if they 

joined. They also explained how to pay dues. Their 

presentation took about an hour, including time for questions 

and answers. Finally, they told the painters and tapers that there 

would be a sign-up in the back of the conference room. At that 

point, the painters and tapers went to the back of the room

where agents from the health insurance company gave them 

information on the benefits packages available through the 

Carpenters Union, and Carpenters Union representatives urged 

the employees to sign union authorization cards to signal that 

they wanted to “designate the [Carpenters] [U]nion as their 

collective-bargaining representative.” Pa. State Educ. 

Ass’n-NEA v. NLRB, 79 F.3d 139, 143 (D.C. Cir. 1996).

During this entire time, the G/M owners and 

superintendent stayed at the front of the room. They did not 

join their employees in the back of the room with the 

representatives of the Carpenters Union and the insurance 

company. From about 60 or 70 feet away, the owners said that 
5

they could see the employees’ movements in the back of the 

room, but they could not hear their conversations or see 

whether they were signing authorization cards. After the 

painters and tapers had spent several minutes with them in the 

back of the room, the representatives of the Carpenters Union

walked to the front of the room and gave Morrison and fellow 

owner Travis Garner signed union authorization cards from the 

majority of G/M’s painters and tapers. They asked for 

recognition of the Carpenters Union as the exclusive 

bargaining agent of G/M’s painters and tapers. See 29 U.S.C. 

§ 159(a). The owners of G/M signed an agreement on the spot. 

That very day, the Painters Union filed election petitions 

with the Board seeking to represent G/M’s painters and tapers

once again. The Painters Union faxed the petitions to G/M’s 

office at the same time representatives of the Carpenters Union

were meeting with G/M’s owners and employees in the 

conference room of the hotel. The G/M owners did not see the 

petitions until they returned from the meeting, where they had 

already signed an agreement that the Carpenters Union would

represent the painters and tapers.

The Painters Union filed an unfair labor practice charge 

with the Board, and the General Counsel issued a complaint

alleging that G/M violated section 8(a)(1) of the NLRA by

engaging in unlawful surveillance of the painters and tapers at 

the April 2 meeting. An employer’s surveillance of employees

is unlawful under section 8(a)(1) where it “interfere[s] with, 

restrain[s], or coerce[s] employees in the exercise” of their 

collective-bargaining rights. 29 U.S.C. § 158(a)(1); see also 

Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 266 (D.C. Cir. 

1993), amended, No. 91-1533, 1993 WL 444597 (D.C. Cir. 

Oct. 25, 1993). The complaint also alleged that G/M violated 

section 8(a)(2) of the NLRA, which prohibits an employer 

from unlawfully assisting a union, by being present at the 
6

meeting while the Carpenters Union collected authorization 

cards and unlawfully recognizing the Carpenters Union as the 

bargaining representative of the painters and tapers. See 29 

U.S.C. § 158(a)(2). Finally, the complaint alleged that the 

Carpenters Union improperly accepted G/M’s unlawful 

recognition and assistance. See id. § 158(b)(1)(A).

After a two-day hearing, the ALJ recommended 

dismissing the complaint. As to the allegation of unlawful 

surveillance, the ALJ found that the presence of the company’s

owners at the meeting “had no tendency whatsoever toward 

interfering with, restraining, or coercing the painters and tapers 

in the exercise of their rights” under section 8(a)(1). As to the 

section 8(a)(2) charge, the ALJ found “no evidence whatsoever 

of illegal assistance” by G/M because the Carpenters Union

paid for the hotel and ran the meeting. And given that G/M did 

not provide any illegal assistance, the ALJ concluded that the

Carpenters Union could not have unlawfully accepted such 

assistance under section 8(b)(1)(A). 

The Painters Union and the General Counsel filed 

exceptions to the ALJ’s decision. A two-member panel of the 

Board reversed the ALJ, concluding that G/M had engaged in 

unlawful surveillance and had provided unlawful assistance to 

the Carpenters Union, which the Carpenters Union unlawfully 

accepted. Garner/Morrison, LLC, 353 N.L.R.B. No. 78 (2009).

G/M and the Carpenters Union petitioned for review in this 

court. In light of the Supreme Court’s decision in New Process 

Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), which held that 

Board panels with only two members lack authority to issue 

decisions, we remanded the case to the Board for decision by a 

three-member panel.

On remand, a panel of Chairman Liebman and members 

Becker and Pearce unanimously adopted the Board’s previous 
7

decision, finding that the critical evidence that established a 

violation of section 8(a)(1) was the G/M owners’ “presen[ce]

in the room while the employees were solicited to sign the 

Carpenters’ documents and while employees responded to that 

solicitation by proceeding to the back of the room where 

documents were signed.” Garner/Morrison, LLC, 356

N.L.R.B. No. 163 (2011) (citing Morehead City Garment Co., 

94 N.L.R.B. No. 45 (1951)). The Board concluded that, “even 

assuming the [G/M] executives could not see the exact 

documents that were signed,” their presence “constituted 

unlawful surveillance for the purpose of influencing 

employees to switch their allegiance to the Carpenters.” Id.

And, due to “the unlawful surveillance that tainted acquisition 

of a majority” of employees supporting the Carpenters Union, 

the Board concluded that G/M unlawfully assisted the 

Carpenters Union, which unlawfully accepted that help. To 

remedy these unfair labor practices, the Board issued an order 

that G/M cease recognition of the Carpenters Union as the 

representative of the painters and tapers. Id.

G/M and the Carpenters Union filed a motion for 

reconsideration, arguing that the Board’s determination had 

ignored its holding in Coamo Knitting Mills, Inc., 150 

N.L.R.B. No. 35 (1964), which was on point and controlling. 

The Board thought otherwise, concluding that Coamo was a 

much different case.

G/M and the Carpenters Union petition for review and the 

Board cross-applies for enforcement of its orders. We have 

jurisdiction under 29 U.S.C. § 160(e), (f). 

II

We give “a very high degree of deference to 

administrative adjudications by the NLRB.” Bally’s Park 
8

Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011). But 

our deference is not absolute. We will overturn the Board if its 

“factual findings are not supported by substantial evidence,” or 

if it “acted arbitrarily or otherwise erred in applying 

established law to the facts of the case.” Comau, Inc. v. NLRB, 

671 F.3d 1232, 1236 (D.C. Cir. 2012). A decision of the Board 

that “departs from established precedent without a reasoned 

explanation” is arbitrary. Id. Of course, the Board need not 

address “every conceivably relevant line of precedent in [its] 

archives,” but it must discuss “precedent directly on point.” 

Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 

1161, 1164 (D.C. Cir. 2013).

G/M and the Carpenters Union argue that the Board’s 

decision was arbitrary and capricious because the Board did 

not provide a reasoned justification for its departure from 

Coamo Knitting Mills. We agree. 

In Coamo, the General Counsel alleged that the company 

had provided unlawful assistance and support to a union that 

the union unlawfully accepted. 150 N.L.R.B. No. 35 at 583, 

589. The charges stemmed in part from a meeting of the union 

and the company’s employees. The Board found that the day 

before the meeting, the company’s vice president urged his 

employees to join the union. At the meeting, the vice president

introduced the union representative, then left, but another 

member of management stayed. After a union representative 

made his pitch to the employees to join the union, his 

associates gave them authorization cards. Enough employees 

signed the authorization cards to gain majority support for the 

union. All this took place in the presence of a member of 

company management. Id. at 581-82, 586.

At the trial, the examiner (now called an ALJ) determined 

that the company and the union violated NLRA section 8, in 
9

part because the presence of management at the meeting

“necessarily had a coercive effect” on the employees. Id. at 

589. The Board, however, disagreed. The representative of 

management who stayed at the meeting testified that he could 

not see the employees signing cards. Another witness 

corroborated his testimony. Id. at 581-82. Further, company

management “made no attempt to ascertain which employees 

even attended the meeting.” Id. at 582. According to the Board, 

the “mere presence” of a member of management was not 

coercive and therefore did not violate section 8. Id. at 582-83.

Coamo closely resembles this case. In both, the union held 

a meeting for the company’s employees. In both, management 

made statements in support of the union. In both, management

was present while union representatives spoke to employees

about why they should join the union and urged the employees 

to sign union authorization cards. And in both, the signing of 

those cards led to majority support for the union. Importantly, 

in neither case did the Board conclude that the company 

representative(s) saw what the employees were signing. 

Not only are the facts in Coamo similar to the facts here, 

but the legal issues in Coamo mirror those here. In both cases, 

the Board examined whether the presence of management at a 

union meeting where employees signed authorization cards 

violated section 8(a)(1) and (a)(2). In both cases, the Board 

looked at whether that conduct resulted in the union accepting 

unlawful assistance under section 8(b)(1)(A).

The similarities between Coamo and the present case are

“significant enough” that the Board needed to provide a 

reasoned explanation why Coamo “does not apply, or why 

departure from [Coamo] is warranted.” Lone Mountain, 709 

F.3d at 1164. The Board attempted to distinguish this case 

from Coamo on the ground that Coamo did not involve a claim 
10

of unlawful surveillance. Although the Board in Coamo never 

used the phrase “unlawful surveillance,” that is a distinction 

without a difference. “Unlawful surveillance” is not a separate 

statutory violation or cause of action in the NLRA. Section 8 of 

the NLRA does not mention “unlawful surveillance”; instead it 

prohibits an employer from “interfer[ing] with, restrain[ing], 

or coerc[ing] employees in the exercise” of their protected 

rights, 29 U.S.C. § 158(a)(1), and from “dominat[ing] or 

interfer[ing] with the formation or administration of any labor 

organization,” id. § 158(a)(2). As used by the Board and this 

court, “unlawful surveillance” is simply shorthand for a type of 

conduct that “interferes with, restrains or coerces the employee 

in the exercise of protected organizational activities.” Gold 

Coast, 995 F.2d at 266. The Board evaluated nearly identical 

conduct and the same legal questions here and in Coamo. The 

only material difference was the result. Without any other 

justification for distinguishing Coamo, the Board’s decision 

cannot stand.

In its brief to this court, the Board offers new reasons for 

not following Coamo in this case. The Board contends that the 

facts here are “starkly different” from those in Coamo because 

G/M “corralled its employees to an off-site meeting” where all 

the G/M owners “could watch as the Carpenters solicited 

employees to sign cards.” Resp’t Br. at 29. Even if the Board 

had explained the relevance of these alleged factual 

differences, we cannot address this argument because it did not 

appear in the Board’s orders below. We “may consider only the 

Board’s own reasons, not the rationalizations of counsel.” 

Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1080 

(D.C. Cir. 1996) (citing SEC v. Chenery Corp., 318 U.S. 80, 95 

(1943)). The Board’s order denying reconsideration relies 

solely on the absence of a claim of unlawful surveillance in 

distinguishing Coamo, not on any factual differences between 

the cases. Accordingly, we “reject[ ] the temptation to supply 
11

reasons to support the Board’s decision that the Board itself has 

not offered.” Detroit Newspaper Agency v. NLRB, 435 F.3d 

302, 311 (D.C. Cir. 2006). We note, however, that nothing 

precludes the Board from making such a distinction on remand

if supported by the record. See Lone Mountain, 709 F.3d at 

1164.

G/M and the Carpenters Union also assert that the Board’s 

decision was not based on substantial evidence and the Board’s 

remedy was improper. Because we hold that the Board did not 

adequately distinguish Coamo and grant the petitions for 

review on that ground, we need not reach the remaining 

arguments.

III

We grant the petitions for review, deny the Board’s 

cross-application for enforcement, vacate the Board’s orders,

and remand.