Tracy Auto, Lp Dba Tracy Toyota v. National Labor Relations Board

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2025
• Docket: 23-1711
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 23-1689 BOARD, NLRB Nos. 32–CA–260614 and Petitioner, 32–CA–262291

v. MEMORANDUM* TRACY AUTO, L.P. d/b/a TRACY TOYOTA,

Respondent.

No. 23-1711 TRACY AUTO, L.P. d/b/a TRACY NLRB Nos. 32–CA–260614, 32– TOYOTA, CA–262291, and 32–RC–260453 Petitioner,

v. MEMORANDUM*

NATIONAL LABOR RELATIONS BOARD,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted August 23, 2024 Submission Vacated August 26, 2024 Resubmitted October 28, 2025 San Francisco, California

Before: BERZON, BRESS, and VANDYKE, Circuit Judges.

Petitioner National Labor Relations Board (“NLRB” or “Board”) is applying

to enforce a final order it issued against respondent Tracy Toyota (“Tracy”). Tracy

is cross-petitioning for review of that order, claiming that the NLRB erred in finding

numerous violations of the National Labor Relations Act (“NLRA” or “Act”), and

that union organizers themselves violated the Act. We have jurisdiction under 29

U.S.C. § 160(e) and (f), and we grant the Board’s petition and deny Tracy’s cross-

petition.

The NLRA gives the NLRB authority to “petition any court of appeals of the

United States … for the enforcement of … [an] order and for appropriate temporary

relief or restraining order.” 29 U.S.C. § 160(e). It also allows any person “aggrieved

by a final order of the Board granting or denying in whole or in part the relief

sought … [to] obtain a review of such order in any United States court of appeals in

the circuit wherein the unfair labor practice in question was alleged to have been

engaged in.” Id. § 160(f). When reviewing an NLRB order, courts look to whether

“on the record as a whole there is substantial evidence to support agency findings”

2 of fact. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491 (1951). A court

cannot “displace the Board’s choice between two fairly conflicting views, even

though the court would justifiably have made a different choice had the matter been

before it de novo.” Id. at 488.

The Hiring of Lopez and Spier

Tracy contends that there was not substantial evidence for the NLRB to find

that Steve Lopez and Josh Spier were hired before the commencement of the strike.

It asserts that the pre-strike complement of service department technicians was

seventeen, not nineteen, and therefore it did not violate the NLRA by failing to hire

two additional workers from the Laidlaw List after the end of the strike. There is,

however, substantial evidence to support the NLRB’s conclusion that there were

nineteen service department employees before the strike.

Under the NLRA, when a worker goes on strike, he does not lose his job, but

rather is entitled to reinstatement after the conclusion of the strike. See N.L.R.B v.

Fleetwood Trailer Co., 389 U.S. 375, 378 (1967). If the employee has made an

unconditional offer to return to work, but his former position has been filled by a

permanent replacement, he is entitled to a position only when one becomes available.

Sever v. N.L.R.B., 231 F.3d 1156, 1160 (9th Cir. 2000) (citing Laidlaw Corp. v.

N.L.R.B., 414 F.2d 99 (7th Cir. 1969)). In the meantime, he is placed on what is often

referred to as a “Laidlaw List.” Id. If a genuine vacancy opens up, that vacancy must

3 be filled with a worker off the Laidlaw List first. Pirelli Cable Corp., 331 N.L.R.B.

1538, 1540 (2000). The number of existing vacancies is determined against the

number of employees pre-strike, which includes individuals who have accepted a

job offer from the employer. See Solar Turbines Inc. v. Int’l Ass’n of Machinists &

Aerospace Workers, 302 N.L.R.B. 14, 15 (1991), enforced sub nom. Int’l Ass’n of

Machinists & Aerospace Workers v. N.L.R.B., 8 F.3d 27 (9th Cir. 1993) (unpublished

table decision).

Nothing in the record compels the conclusion that Lopez and Spier were hired

after the strike. As for Lopez, the Board found that he was highly credible in his

testimony that he interviewed and accepted a job on May 13th, two days before the

start of the strike. This was corroborated by his statement that he recorded the

interview date in his calendar. Although he may have been onboarded after the strike

began, there was sufficient evidence for the Board to credit Lopez’s testimony and

find that he was hired before the strike. While the HR manager testified that he did

not engage in certain onboarding procedures until after the start of the strike, the

Board was not required to credit the HR manager’s testimony over Lopez’s. All that

the HR manager established was that it would have been atypical for an offer to be

made before onboarding occurred, not that it could not have happened. All of this

constitutes substantial evidence for the Board’s finding that Lopez was hired before

4 the strike, and that Tracy violated the Act by not selecting someone off the Laidlaw

List to fill this spot after the unconditional offer to return to work.

There was also substantial evidence to conclude that Josh Spier was hired

before the strike. Although Spier testified that he did not recall his hiring date, the

Board credited his testimony from a pre-hearing affidavit in which he said that he

was interviewed and offered a job at the beginning of May and reached an agreement

as to salary a few days later. The Board also relied on the fact that Spier believed

he had the job and stopped looking for work. There is also evidence in the record

that Spier indicated he might back out of his initial technician job offer due to the

strike, and that in response, Tracy offered him a foreman position. From this the

Board concluded that Spier had accepted a position as a technician before the strike

and was subsequently offered the higher foreman position. The initial offer and

acceptance, the Board found, brought the complement of line technicians up to

nineteen. Additionally, although Tracy now contests this point before this court, it

appears that counsel for Tracy conceded this point before the ALJ. In its decision,

the Board noted that when counsel for Tracy was asked whether he was arguing that

Spier had “accepted an offer of employment and then unaccepted it because of things

that happened subsequently,” Tracy’s counsel stated “[e]xactly, and that’s what the

[documentary evidence] … bear[s] out specifically.” Consequently, the record does

not compel the conclusion that Spier accepted an offer only after the strike. The

5 NLRB had substantial evidence to conclude that the pre-strike complement of

service department employees was nineteen, and that Tracy violated the NLRA

when it failed to recall two additional workers.

Filling Openings After the Strike Ended

The NLRB also found that Tracy committed unfair labor practices by failing

to fill vacancies that arose after the strike with Laidlaw List workers. Laidlaw List

workers are only entitled to reinstatement to the workforce if, after they have made

an unconditional offer to return to work, a “genuine … vacancy” in the workforce

occurs. N.L.R.B. v. Delta-Macon Brick and Tile Co., Inc., 943 F.2d 567, 572 (5th

Cir. 1991). A genuine vacancy can occur when “the company expands its workforce

or discharges a particular employee, or when an employee quits or otherwise leaves

the company.” Id.; Pirelli Cable Corp., 331 N.L.R.B. at 1540 (cleaned up). This

also occurs when a permanent replacement hire leaves his job. Pirelli Cable Corp.,

331 N.L.R.B. at 1539–40. The Board had substantial evidence to conclude that two

genuine vacancies occurred in Tracy’s service department after the strike, and that

Tracy violated the NLRA by failing to recall Laidlaw List workers to fill those

positions.

The first vacancy occurred when a permanent replacement technician, Edgar

Sanchez, failed to show up for work. When he failed to report for duty, the position

became abandoned, and a genuine vacancy occurred. Tracy did not recall a Laidlaw

6 List worker, but instead demoted a currently working foreman to fill this position.

The second vacancy occurred when Spier quit his foreman job. Because he was an

employee who quit after the end of the strike, a Laidlaw vacancy occurred when he

left. Tracy attempted to promote a currently working technician to fill this opening.

Although the technician declined the job, Tracy was under an obligation to first offer

that position to a Laidlaw List worker. The NLRB had substantial evidence to

conclude that two Laidlaw vacancies arose, and that Tracy violated the Act, by not

offering those positions to Laidlaw List workers.

Supervisory Status of Foremen

Tracy, in its cross-petition, asserts that two shop foremen unlawfully engaged

in pro-union conduct. It alleges those foremen were supervisors under the Act, and

thus, by being involved in union efforts, they necessarily were “intimidating,

coercing[,] and interfering with employee free choice in the election.”

Workers classified as supervisors under the NLRA are excluded from its

protections. See N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 708 (2001).

To be classified as a supervisor, the employee must: (1) “hold the authority to engage

in [certain] … supervisory functions” listed in § 152(11), (2) exercise his authority

not merely in a routine or clerical way but instead with “independent judgment,” and

(3) hold his authority “in the interest of the employer.” Id. at 713. The NLRB’s

determination that the shop foremen were not supervisors, and therefore their

7 participation in pro-union activities did not taint the union election, is supported by

substantial evidence.

Specifically, the NLRB’s finding that foremen at Tracy do not exercise true

independent judgment is supported by substantial evidence. The majority of the work

done by foremen in directing technicians is dictated by the various automated systems

they use to determine which technician should be assigned to each job. The Board,

looking at the evidence in the record, concluded that work assignments at Tracy are

largely dictated by the times projects are due, technician availability, and

certification requirements. The Board also concluded that the “good” jobs and “bad”

jobs were assigned evenly among the workforce so as to fairly dispatch all the work.

They were not assigned as a reward or punishment. Finally, the Board also relied

on the fact that technicians could refuse to do a specific job. Overall, the record does

not compel different conclusions on each of these findings, or that the foremen

exercise significant independent judgment in assigning work or in any of their other

functions. Thus, there was substantial evidence supporting the NLRB’s conclusion

that there was no improper interference in the union election by statutory

supervisors.

Subpoenas

Tracy also challenges the NLRB’s holding that it unlawfully subpoenaed two

shop foremen for their communications with the NLRB. The NLRB found that a

8 subpoena requesting such information is inherently coercive. The only argument

Tracy makes on this point is that the subpoenas did not violate the Act because the

shop foremen are statutory supervisors and thus not protected by the NLRA. But as

just explained, the NLRB’s conclusion that Tracy foremen are not statutory

supervisors is supported by substantial evidence. Consequently, Tracy’s challenge

to the subpoenas fails.

Remedies Under Thryv

Finally, Tracy waived any challenge to the NLRB’s order of “make whole”

remedies by failing to object to the remedies before the NLRB. 29 U.S.C.A. § 160

(“No objection that has not been urged before the Board, its member, agent, or

agency, shall be considered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary circumstances.”); see also

Woelke & Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645, 665 (1982) (holding

that, if an employer “could have objected to the Board's decision in a petition for

reconsideration or rehearing,” the “failure to do so prevents consideration of the

question by the courts”).

The Board’s order is ENFORCED, and Tracy’s petition is DENIED.