41 F.4th 518
6th Cir.2022Background
- Bannum Place of Saginaw, LLC operates a federal prisoner reentry center under a detailed contract (Statement of Work) with the Federal Bureau of Prisons (BOP).
- In 2017 Bannum employees sought union representation; the Regional Director rejected Bannum’s contention that Bannum and the BOP were joint employers such that the Board lacked jurisdiction; Bannum did not seek Board review of that ruling.
- The Union won the election and was certified; Bannum allegedly interrogated employees about union support, threatened reprisals, and discharged supporters, prompting unfair-labor-practice charges.
- At the unfair-labor-practice proceeding an ALJ applied the Board’s rule against relitigation (29 C.F.R. §102.67(g)) to bar Bannum from reasserting the joint-employer jurisdictional argument and found Bannum committed unfair labor practices.
- The Board affirmed the ALJ, ordered remedies, and Bannum petitioned this Court for review; the Board cross-applied to enforce its order.
- The Sixth Circuit held Bannum’s jurisdictional challenge was barred by failure to exhaust Board review (and by not preserving objections), concluded Bannum is an "employer" under §2(2), and enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bannum could relitigate the joint-employer jurisdictional issue after failing to seek Board review of the Regional Director’s decision | Bannum: Rule against relitigation should not bar review here; jurisdictional challenges can be raised anytime | Board: Bannum waived the issue by not requesting Board review; administrative exhaustion and §102.67(g) bar relitigation | Court: Bannum failed to exhaust; §102.67(g) applies; relitigation barred and Board did not abuse discretion |
| Whether the representation and unfair-labor-practice proceedings were "related" so the no-relitigation rule applies | Bannum: Proceedings were not related, so rule shouldn’t apply | Board: Proceedings are related; Bannum did not preserve a relatedness objection before the Board | Court: Bannum failed to preserve the relatedness argument before the Board or show extraordinary circumstances; court will not consider it |
| Whether Bannum is exempt from NLRA coverage as a joint employer with the federal government under §2(2) | Bannum: Contract with BOP vests sufficient governmental control to make it a joint employer and thus exempt | Board: §2(2) lists specific government entities exempted; contractors are not exempt merely because government exercises control | Court: §2(2) exemption is narrow; contractors are not excluded on joint-employer theory; Bannum is an "employer" within §2(2) |
| Whether the Board’s remedial order should be enforced | Bannum: Denies the factual findings and credibility determinations | Board: Order is supported by record and entitled to enforcement | Court: Bannum’s challenge to findings was perfunctory and waived; enforcement granted |
Key Cases Cited
- Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536 (6th Cir. 2016) (standard of review and deference to Board factual findings)
- Ritz-Carlton Hotel Co. v. NLRB, 123 F.3d 760 (3d Cir. 1997) (history of Regional Director delegation and justification for no-relitigation rule)
- Pace Univ. v. NLRB, 514 F.3d 19 (D.C. Cir. 2008) (no-relitigation rule bars issues that could have been raised in the representation proceeding)
- Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971) (Board rulemaking and delegation after statutory amendment)
- Boire v. Greyhound Corp., 376 U.S. 473 (1964) (procedures for judicial review of representation elections)
- United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) (administrative objections must be timely raised)
- Pikeville United Methodist Hosp. v. United Steelworkers, 109 F.3d 1146 (6th Cir. 1997) (narrow reading of §2(2) exemptions and acceptance of Management Training interpretation)
- Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996) (exemptions from NLRA coverage are not to be expanded)
- Aramark Corp. v. NLRB, 179 F.3d 872 (10th Cir. 1999) (government contractor status does not itself exempt from NLRA under §2(2))
- NLRB v. Young Women’s Christian Ass’n, 192 F.3d 1111 (8th Cir. 1999) (same conclusion regarding government contractors)