JUDGMENT
This cause was considered on a petition for review and cross-application for enforcement of an order of the National Labor Relations Board. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the following reasons, it is
ORDERED AND ADJUDGED that the petition for review in No. 20-1280 is hereby DENIED, and the Boards cross-application for enforcement in No. 20-1321 is GRANTED.
Petitioner is a New Jersey LLC providing long-term and post-hospital rehabilitation care. In 2012, Petitioners nonprofessional employees voted in favor of unionization, and the Board certified the election over the companys objections. Petitioner tested that certification by refusing to bargain. See Boire v. Greyhound Corp., 376 U.S. 473, 476–77, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). But the NLRB rejected the companys arguments and found it in violation of Section 8(a)(5) of the National Labor Relations Act. We granted enforcement of the Boards order. See 800 River Rd. Operating Co., LLC v. NLRB, 846 F.3d 378 (D.C. Cir. 2017).
Following that dispute, a new complaint was brought against Petitioner. According to the Boards General Counsel, the company unilaterally reduced the hours of 20 bargaining unit employees in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act. It is undisputed that an employer violates the NLRA if it makes a unilateral change to the status quo without first providing notice and the opportunity to bargain. See NLRB v. Katz, 369 U.S. 736, 742–43, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). According to the General Counsel, the employees in question generally accrued 40 hours per week before the unilateral reduction and 37.5 hours per week after. An ALJ agreed, finding that this was a material change in hours which required notice and an opportunity to bargain. See J.A. 208. The Board adopted the ALJs finding and held that the unilateral reduction in hours was unlawful. See 800 River Rd. Operating Co., LLC, 369 NLRB No. 109, at *1 n.1 (June 23, 2020).
1
Petitioner seeks review of the Boards decision; the Board filed a cross-application for enforcement.
Petitioners primary contention is that the Board erred when it adopted the ALJs finding that the status quo was a 40-hour workweek. The status quo, according to Petitioner, was “37.5 hours or more,” not 40. Petr’s Br. at 24, 26–27. Therefore, any supposed reduction to 37.5 hours per week was not a deviation from the norm. In Petitioners view, the agency reached the 40-hour determination by improperly discounting the testimony of Petitioners Vice President for Human Resources, Maureen Montegari, in favor of employee timesheets. Montegari testified that the full-time employees regularly worked 37.5 hours or more per week. Her testimony was supported by Petitioners “Wage & Benefit Summary”—a document provided to all employees—which states that employees must work at least 37.5 hours per week to receive full-time benefits.
This argument conflates the minimum for what is required to receive benefits with the normal practice for covered employees. E.g., Petr’s Br. at 25 (“[A] Full-Time employee was only required to regularly accumulate ․ 37.5 hours or more during a week.”) (emphasis altered).
2
The latter is the proper focus of the Boards inquiry. See Raytheon Network Centric Sys., 365 NLRB No. 161, at *6–8 (Dec. 15, 2017). Recognizing this flaw in Petitioners argument, the agency properly credited the probative value of time sheets reflecting actual hours instead of the required minimums.
Even if Petitioners evidentiary theory could be supported by the record, it was well within the Boards discretion to make a different finding. Our evidentiary review is limited to whether the Boards findings are supported by substantial evidence. 29 U.S.C. § 160(e), (f); Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22, 25 (D.C. Cir. 2011). To prevail on substantial evidence review, it is not sufficient for Petitioner to show that its theory is one interpretation of the record. Contra Petr’s Br. at 24 (arguing that its theory was “uncontroverted”). Rather, Petitioner bears the burden of demonstrating that the evidence is “so compelling that no reasonable factfinder could fail to find to the contrary.” Kiewit Power, 652 F.3d at 25 (quotations and citations omitted).
The Board stood on solid ground when it reached a different conclusion. Petitioner asserts that the agency “created [the] 40-hour workweek ‘status quo’ almost entirely out of whole cloth based on guesswork.”
3
Petr’s Br. at 30; see also Petr’s Br. at 25 (“The record is devoid of any witness testimony that the ‘status quo’․ was anything different than what was reflected in the Wage & Benefit Summary.”). Not so. See Respt Br. at 10–13. We have reviewed the record and conclude that it supports the 40-hour status quo. It is true, as Petitioner points out, that the timesheets fluctuate. But this variance around the mean was acknowledged by the agency, and it does not undermine the status quo finding.
Petitioners remaining assertions are also meritless. Petitioner complains that the agency “cited no case law as to how to legally define the ‘status quo.’ ” Petr’s Br. at 31. To be sure, an agency may not ignore relevant precedents that cut against its decision. See Frontier Pipeline Co. v. FERC, 452 F.3d 774, 781 (D.C. Cir. 2006). But an agency—like a court—need not support well-established propositions with case law. An agency must satisfy the APAs requirement of reasoned decision making, not the citation demands of a law review editor.
Nor is there any merit to the assertion that the Board insufficiently reviewed the ALJs decision. See Petr’s Br. at 39 (“[T]he Board merely rubber stamped ALJ Greens Decision in a footnote.”). Where the Board stands by an ALJs analysis, it is entirely proper for it to adopt that analysis as its own (or affirm it summarily). See, e.g., Ne. Broad., Inc. v. FCC, 400 F.2d 749, 759 (D.C. Cir. 1968). This practice is well established.
Last, Petitioner asserts that the NLRBs General Counsel changed the legal theory it advanced before the agency. But Petitioner does not explain what principle this violates, or how any such change created prejudice. Moreover, since this argument was not presented to the Board, it is not properly before us. See 29 U.S.C. § 160(e) (“No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court.”).
* * *
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41 (b); D.C. Cir. R. 41.
FOOTNOTES
1
. The Board agreed with Petitioner on a separate issue, overruling its precedent to hold that Sections 8(a)(5) and (1) of the Act do not impose a pre-discipline bargaining obligation. Id. at *11 (overruling Total Security Mgmt. Ill. 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016)). That issue is not before us.
2
. Petitioner similarly claims that since the Wage and Benefit Summary “contained no guarantee” of 40 hours, then 40 hours could not have been the status quo. Petr’s Br. at 24–25. That is a non sequitur.
3
. Petitioner argues that payroll records were formed after the collective bargaining agreement. Therefore, it was improper to rely on them in determining the “status quo.” See Petr’s Br. at 30, 33. This contention is meritless. The Board has established that the change in the current status quo is what matters, not a change from an earlier collective bargaining agreement. See Raytheon, 365 NLRB No. 161, at *6–8.
Per Curiam