United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2007 Decided April 11, 2008 

No. 07-1006 

PARKWOOD DEVELOPMENTAL CENTER, INC., 

PETITIONER

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL 

UNION, LOCAL 1996, 

INTERVENOR

Consolidated with 

07-1027 

On Petition for Review and Cross-Application for 

Enforcement 

of an Order of the National Labor Relations Board 

Charles P. Roberts, III argued the cause for petitioner. 

With him on the briefs was Clifford H. Nelson, Jr.
2 

William M. Bernstein, Senior Attorney, National Labor 

Relations Board, argued the cause for respondent. With him 

on the brief were Ronald E. Meisburg, General Counsel, John 

H. Ferguson, Associate General Counsel, Linda Dreeben, 

Assistant General Counsel, and Meredith L. Jason, 

Supervisory Attorney. 

James D. Fagan, Jr. was on the brief for intervenor 

United Food and Commercial Workers International Union, 

Local 1996. 

Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

GRIFFITH, Circuit Judge: Parkwood Developmental 

Center, Inc. (“Parkwood”) petitions for review of an order of 

the National Labor Relations Board (“Board”) that 

determined that the company unlawfully withdrew 

recognition from an incumbent union upon expiration of its 

collective bargaining agreement. The Board concluded that 

Parkwood had permissibly based its anticipatory withdrawal 

decision on an employees’ petition renouncing union 

representation, but then improperly ignored a counter-petition 

rescinding the renunciation. For the reasons set forth below, 

we deny Parkwood’s petition for review and grant the 

Board’s cross-application to enforce its order. 

I. 

Parkwood runs a home for the developmentally disabled 

in Valdosta, Georgia. Until 2003, the employees who worked 

at the home were represented by the United Food and 

Commercial Workers International Union, Local 1996 
3 

(“Union”). Parkwood and the Union were parties to a 

collective bargaining agreement (“CBA”) that was scheduled 

to expire March 8, 2003. 

On December 2, 2002 Parkwood was presented with a 

petition, signed by a majority of its employees at the home, 

announcing that they no longer wished to be represented by 

the Union. Believing that the Union no longer enjoyed 

majority support, Parkwood told the Union of the petition that 

same day and declared it would cease dealing with the Union 

upon expiration of the CBA. From that moment onward, 

Parkwood refused to negotiate with the Union for a successor 

agreement.1

On March 7, 2003, the day before expiration of the CBA, 

the Union presented to Parkwood a counter-petition, also 

signed by a majority of the employees at the home, declaring 

a renewed desire for Union representation and “revok[ing], 

rescind[ing] and cancel[ing]” the earlier petition. Parkwood 

was unmoved by this eleventh-hour show of support for the 

Union. When the CBA expired the next day, Parkwood 

refused to recognize the Union or bargain with it for a new 

agreement. 

The Union filed charges with the Board alleging, among 

other things, that Parkwood violated § 8(a)(5) of the National 

Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(5), by 

 

1

 Parkwood chose to rely upon the employees’ petition as its sole 

barometer of union support, and did not file with the Board a 

Representation Management petition (“RM petition”), 29 U.S.C. 

§ 159(c)(1)(B); 29 C.F.R. § 102.60(a). Parkwood was under no 

duty to file an RM petition, but had it done so the company could 

have secured a Board-administered, secret-ballot election to 

determine whether it had an obligation to bargain with the Union. 
4 

unlawfully withdrawing recognition from the Union.2 An 

administrative law judge (“ALJ”) found that Parkwood did 

not violate the NLRA by withdrawing recognition from the 

Union in response to the employees’ petition, notwithstanding 

their counter-petition to the contrary. Parkwood, the Union, 

and the General Counsel each filed exceptions to the ALJ’s 

decision. See 29 C.F.R. § 102.46(a)–(c) (establishing 

procedures for “exceptions”). Parkwood and the General 

Counsel then filed answering briefs responding to each 

other’s exceptions. See id. § 102.46(d) (establishing 

procedures for “answering briefs”). 

In its decision and order of August 22, 2006, the Board 

reversed the ALJ’s finding that the withdrawal of recognition 

had been lawful. Parkwood Developmental Ctr., Inc., 347 

N.L.R.B. No. 95, 2006 WL 2459498 (2006). Concluding that 

Parkwood had violated the NLRA by refusing to deal with the 

Union despite a counter-petition voicing majority support, id. 

slip op. at 2–3 (citing Levitz Furniture Co. of the Pacific, 333 

N.L.R.B. 717 (2001)), the Board imposed an affirmative 

bargaining order on the company. Parkwood filed a motion 

for reconsideration objecting to this remedy, which the Board 

denied as untimely. Parkwood petitions this court for review 

of the Board’s order and the denial of its motion for 

reconsideration. The Board cross-petitions for enforcement of 

its order, and the Union intervenes in support of the Board. 

 

2

 The Union also alleged violations of § 8(a)(1) of the NLRA, 29 

U.S.C. § 158(a)(1). The administrative law judge found, and the 

Board agreed, that Parkwood violated § 8(a)(1) and § 8(a)(5) by 

blaming the Union for a lack of salary raises, by prohibiting an 

employee from discussing Union business on company time, and 

by unilaterally changing employees’ health insurance benefits. 

Parkwood concedes that the Board is entitled to summary 

affirmance on these points. Parkwood’s Br. at 2 n.3. 
5 

II. 

We begin by considering Parkwood’s argument that the 

Board chose the wrong moment in time at which to measure 

employee support for the Union. “We will set aside the 

Board’s decision only if the Board acted arbitrarily or 

otherwise erred in applying established law to the facts at 

issue, or if its findings are not supported by substantial 

evidence.” Waterbury Hotel Mgmt., LLC v. NLRB, 314 F.3d 

645, 650 (D.C. Cir. 2003) (internal citation and quotation 

marks omitted). The Board’s decision survives this highly 

deferential standard of review. 

The Board determined that Parkwood violated § 8(a)(5) 

of the NLRA by withdrawing recognition from the Union 

without proving “actual loss” of majority support, as required 

by Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 717 

(2001). See id. at 725 (“If the union contests the withdrawal 

of recognition in an unfair labor practice proceeding, the 

employer will have to prove by a preponderance of the 

evidence that the union had, in fact, lost majority support at 

the time the employer withdrew recognition. If it fails to do 

so, it will not have rebutted the presumption of majority 

status, and the withdrawal of recognition will violate Section 

8(a)(5).”). In this case of contradictory petitions and counterpetitions, majority support among Parkwood’s employees 

depends on when one measures it. From December 2, 2002 

until March 6, 2003, the employees’ first petition made clear 

their lack of support for the Union. But after March 7, 2003, 

the date the Union presented the counter-petition, the 

objective evidence showed just the opposite. The Board 

measured employee support at the expiration of the CBA, on 

March 8, 2003, because that was the date on which 

Parkwood’s announced withdrawal of recognition was to take 

effect. See Parkwood Developmental Ctr., Inc., 347 N.L.R.B. 
6 

No. 95, slip op. at 2 & n.9 (2006) (noting that March 8, 2003 

was the earliest date lawfully to withdraw recognition 

because, under Auciello Iron Works, Inc. v. NLRB, 517 U.S. 

781, 786 (1996), “a union enjoys a conclusive presumption of 

majority status during the life of a collective-bargaining 

agreement (up to 3 years)”). 

Parkwood contends that the Board should have measured 

majority support on December 2, 2002, the date the company 

announced its intent to withdraw recognition in response to 

the employees’ petition, rather than on March 8, 2003. In 

support of this proposition, Parkwood makes three related 

arguments. First, it points to Board decisions suggesting that 

the earlier date was the proper moment at which to measure 

support for the Union. Second, it warns that by looking to the 

later date, the Board has destroyed the previously recognized 

right of anticipatory withdrawal. Third, it argues that the 

Board has ignored the so-called “open period.” We take the 

arguments in turn and reject each. 

A. 

Prior to Levitz, an employer could withdraw recognition 

from a union on the basis of good-faith doubt as to the 

union’s continued support among a majority of employees in 

the bargaining unit. See Levitz, 333 N.L.R.B. at 717 (citing 

Celanese Corp., 95 N.L.R.B. 664 (1951)). In applying this 

rule, the Board measured good-faith doubt at the time the 

employer announced it. See, e.g., Bridgestone/Firestone, Inc., 

331 N.L.R.B. 205, 209 (2000); Burger Pits, Inc., 273 

N.L.R.B. 1001, 1002 (1984), enforced sub nom. Hotel, Motel 

& Rest. Employees & Bartenders Union Local No. 19 v. 

NLRB, 785 F.2d 796 (9th Cir. 1986). Noting that the Board 

cannot ignore its own precedent, see Manhattan Ctr. Studios, 

Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006), Parkwood 
7 

argues that the Board was bound by pre-Levitz precedent to 

measure actual loss of majority support in the same way it 

once measured good-faith doubt, namely, on the day evidence 

of actual loss first came to light. 

This argument fails to account for Levitz, which 

explicitly overruled Celanese and removed good-faith doubt 

as a sufficient basis for withdrawing recognition from a 

union. 333 N.L.R.B. at 717. Levitz changed what the Board 

measures in scrutinizing a withdrawal of recognition, shifting 

from good-faith doubt to actual loss of majority support. 

Implicit in this decision is a corresponding change in how the 

Board will take its measurements. The Board’s pre-Levitz

decisions never addressed the issue presented by the facts in 

this case, so there was no binding precedent on this point 

from which it could depart. That the Board was not bound by 

its precedent to choose the earlier measuring point is apparent 

from our recent decision in Highlands Hospital Corp. v. 

NLRB, 508 F.3d 28 (D.C. Cir. 2007). In Highlands, we 

approved the Board’s decision to consider post-petition 

employee conduct in determining whether there was an actual 

loss of majority support. Id. at 31–32. We could not have so 

held if the Board’s precedent required it to measure actual 

loss in the same way it had once measured good-faith doubt. 

B. 

Parkwood next contends that the Board’s decision 

dispensed with the right of anticipatory withdrawal 

recognized in Abbey Medical/Abbey Rents, Inc., 264 N.L.R.B. 

969 (1982), enforced, 709 F.2d 1514 (Table) (9th Cir. 1983). 

In Abbey Medical, the Board described the employer’s power 

to effect “ ‘an anticipatory withdrawal of recognition’ in 

relation to a future contract,” which allows an employer to 

honor an existing CBA but question the union’s right to 
8 

bargain for a new agreement upon its expiration. 264 

N.L.R.B. at 969. To withdraw anticipatorily, an employer 

must “demonstrate that, on the date of withdrawal . . . the 

union in fact had lost its majority status, or [that the] 

withdrawal was predicated on a reasonable doubt based on 

objective considerations of the union’s majority status.” Id.

To avoid semantic confusion, anticipatory withdrawal must 

be distinguished from withdrawal of recognition. Anticipatory 

withdrawal occurs prior to expiration of a CBA and does not 

obviate the employer’s obligations under the existing 

agreement. Withdrawal of recognition occurs after expiration 

of a CBA, at which time the employer is free of contractual 

obligation. 

Parkwood took full advantage of Abbey Medical. During 

the period that began with the employees’ petition and ended 

with their counter-petition, Parkwood lawfully declined to 

bargain with the Union for a new CBA. Parkwood 

Developmental Ctr., Inc., 347 N.L.R.B. No. 95, slip op. at 2 

n.10 (2006); cf. Point Blank Body Armor, Inc., 312 N.L.R.B. 

1097, 1097 n.1 (1993) (holding employer violated the NLRA 

by negotiating new CBA after employees submitted petition 

disavowing incumbent union). But nothing in Abbey Medical

permitted Parkwood to ignore subsequent indicators of 

majority support in deciding whether to withdraw recognition. 

The counter-petition made clear that as of March 8, 2003, the 

expiration date of the CBA and the earliest moment at which 

Parkwood lawfully could withdraw recognition, the Union 

had not actually lost majority support. The counter-petition 

thus restored the presumption of majority support enjoyed by 

every union during the life of its CBA, up to three years. See 

Auciello, 517 U.S. at 786. The Board’s holding to this effect 

was reasonable and consistent with precedent, so we reject 

Parkwood’s argument that it was arbitrary and capricious. 
9 

C. 

Finally, Parkwood argues that the Board ignored the 

“open period,” during which the presumption of majority 

support for the union is relaxed and the Board accepts 

election petitions. See Donald Schriver, Inc. v. NLRB, 635 

F.2d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal 

‘contract-bar’ rules, an election petition for representative 

status may not be filed during the term of a collective 

bargaining agreement that has a duration of up to three years 

. . . except during an open period . . . prior to the expiration 

date of the contract.”). For a health care institution such as 

Parkwood, this period falls between 120 and 90 days prior to 

expiration of the CBA. Trinity Lutheran Hosp., 218 N.L.R.B. 

199, 199 (1975). Parkwood’s December 2, 2002 withdrawal 

statement fell within the open period, a fact the Board did not 

discuss in its order. Parkwood argues that the Board’s silence 

on this point rendered its order arbitrary and capricious by 

giving undue weight to the Union’s contractual presumption 

of majority support. We reject this argument. Neither the 

employer, nor the employees, nor a rival union filed an 

election petition, so the open period was irrelevant and the 

Board was right to ignore it. If Parkwood wanted to secure the 

benefit of the open period, it should have filed an RM petition 

during that time. Parkwood cites no authority for the 

proposition that proof of an actual loss of majority support 

under Levitz is somehow dependent upon the facts as they 

existed during the open period. The Board might one day 

make it so, but its decision not to do so in this case was 

neither arbitrary nor capricious. 

III. 

Alternatively, Parkwood argues that, even if the Board 

did not err in holding it had violated the NLRA by 
10 

withdrawing recognition from the Union, the Board, in 

ordering Parkwood to bargain with the Union, failed to 

comply with our decision in Vincent Industrial Plastics, Inc. 

v. NLRB, 209 F.3d 727 (D.C. Cir. 2000). In Vincent 

Industrial, we directed the Board to premise every bargaining 

order on an “explicit[] balanc[ing] [of] three considerations: 

(1) the employees’ Section 7 rights [29 U.S.C. § 157]; (2) 

whether other purposes of the [NLRA] override the rights of 

employees to choose their bargaining representatives; and (3) 

whether alternative remedies are adequate to remedy the 

violations of the [NLRA].” 209 F.3d at 734. Parkwood 

accuses the Board of ignoring Vincent Industrial and asks us 

to deny enforcement of the chosen remedy on the basis of this 

shortcoming. 

But we have no jurisdiction to entertain this claim. Our 

authority to consider Parkwood’s petition comes from the 

jurisdictional grant in § 10 of the NLRA. That portion of the 

statute limits our jurisdiction as follows: “No objection that 

has not been urged before the Board . . . shall be considered 

by the court, unless the failure or neglect to urge such 

objection shall be excused because of extraordinary 

circumstances.” 29 U.S.C. § 160(e); see also id. § 160(f) 

(incorporating § 160(e)’s jurisdictional constraint). The 

General Counsel requested a bargaining order in his 

exceptions to the ALJ’s findings. Parkwood forfeited its 

challenge to this remedy by failing to respond in its answering 

brief to the General Counsel’s request. To “urge[] before the 

Board” the arguments it would later have us review, id.

§ 160(e), a party must present those arguments in a 

procedurally valid way. Parkwood’s first opportunity to do so 

was in its answering brief, but it neglected to discuss remedial 

issues in that filing. By the time Parkwood objected to the 

bargaining order in a motion for reconsideration, it was too 

late. According to its regulations, the Board will only 
11 

entertain a motion for reconsideration in “extraordinary 

circumstances.” 29 C.F.R. § 102.48(d)(1). The Board found 

no such circumstances here, and we must defer to the Board’s 

interpretation of its own regulations because that 

interpretation is neither plainly erroneous nor inconsistent 

with the regulations. Long Island Care at Home, Ltd. v. Coke, 

127 S. Ct. 2339, 2349 (2007) (citing Auer v. Robbins, 519 

U.S. 452, 461 (1997)); Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410, 414 (1945). 

Parkwood should have opposed the General Counsel’s 

request for a bargaining order in the answering brief it filed in 

response to the General Counsel’s exceptions. Of course, 

Parkwood could not have faulted the Board’s reasoning in a 

filing that preceded the Board’s order. But Parkwood could 

have alerted the Board to the possibility that a bargaining 

order was unwarranted in this instance. Its failure to do so 

deprives us of jurisdiction to consider the remedial challenge. 

IV. 

We deny Parkwood’s petition for review and grant the 

Board’s cross-application to enforce its order. 

So ordered.