BB & L, INC., Pеtitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 93-1479.
United States Court of Appeals, District of Columbia Circuit.
Argued March 3, 1995. Decided April 25, 1995.
52 F.3d 366
PPG argues, hоwever, that the Solicitor of Labor (representing OFCCP before the Secretary) “waived” his opportunity to establish jurisdiction over the Tipton plant through introduction of evidence as to the actual work performed there. Having relied on the regulation to establish jurisdiction, the Solicitor cannot seek to make out jurisdiction through new evidence. To permit him to do so would be “unfair” to PPG.
But there is no principle of administrative law that restricts an agency from reopening proceedings to take new evidence after the grounds upon which it relied are determined by a reviewing court to be invalid. Indeed, the Supreme Court has specifically indicated that a reopening is one of the courses an agency may follow after a reviewing court has determined that the agency‘s initial determination included an error of law. In NLRB v. Food Store Employees Union, 417 U.S. 1, 10-11 (1974), the Court reversed (this court) with instructions to remand to the Board so as to permit the Bоard to take “additional evidence ... to reframe its order.” 417 U.S. at 10. Similarly, in Fly v. Heitmeyer, 309 U.S. 146, 148 (1940), the Court dissolved a writ of mandamus issued by this court directing the FCC to restrict consideration of a license application on remand to the record originally before it. The Court noted that “the Commission‘s duty was to apply the statutory standard in deciding which of the applicants was to receive a permit after it fell into legal error as well as before,” and concluded that “[i]f, in the Commission‘s judgment, new evidence was necessary to discharge its duty, the fact of a previously erroneous denial should not ... bar it from access to the necessary evidence for correct judgment.” See also Havas v. Bowen, 804 F.2d 783, 785, 787 (2d Cir. 1986) (remanding where agency‘s legal error had foreclosed development of the record on secondary issue); Tackett v. Benefits Review Bd., 806 F.2d 640, 642 (6th Cir. 1986) (same).
Whether it is “unfair” in this case to permit OFCCP (or the Solicitor‘s lawyers) to reopen proceedings against PPG after all this time has passed is an issue tо be decided first by the Secretary—and to be brought to the district court, if at all, only on review under the APA. Cf. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 146 (1940) (“It is ... urged upon us that if all matters of administrative discretion remain open for determination on remand after reversal, a succession of single determinations upon single legal issues is possible with resulting delay and hardship to the applicant ... But courts are not charged with general guardianship against all potential mischief in the complicated tasks of governmеnt.“). Thus, the district court had no warrant to decide the “fairness” question before it had even been presented to the Secretary.
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Accordingly, we reverse the decision of the district court and remand with instructions to remand to the Department of Labor for further proceedings.
Joseph J. Jablonski, Jr., Atty., N.L.R.B., Washington, DC, argued the cause for the respondent. On brief were Linda R. Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Howard E. Perlstein, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, DC.
Before WILLIAMS, HENDERSON and TATEL, Circuit Judges.
Circuit Judge TATEL filed a separate opinion concurring in part and dissenting in part.
PER CURIAM:
BB & L, Inc. (B B & L) petitions for review of an order of the National Labor Relations Board (NLRB or Board) holding that B B & L violated sections 8(a)(1), (5) and 2(6), (7) of the National Labor Relations Act,
I.
In early May 1992, B B & L and the Union entered into a stipulated eleсtion agreement to determine whether the Union would represent B B & L‘s full-time and regular part-time Coraopolis truck drivers. The agreement provided for mail-in voting by eligible drivers employed during the payroll period ending May 2, 1992. Twelve ballots were cast and of the eleven counted six favored Union representation, while five opposed it. The twelfth ballot, submitted by Kenneth Musgrave, B B & L‘s sole part-time driver, was challenged by the Union on the ground that he worked so few hours in the quarter preceding the election that he lacked sufficient interest in the bargaining unit to vote in the representation election. Because Musgrave‘s vote could determine the election‘s outcome, the Board‘s regional director began an investigation of Musgrave‘s eligibility and referred the matter for hearing.
A hearing was held on July 28, 1992 and on September 10, 1992 the hearing officer issued
By order dated March 1, 1993, the Board adopted the hearing officer‘s recommendations and findings, while noting she had mischaracterized Board precedent as requiring that Musgrave average four hours of work per week in the quarter preceding the election rather than in the quarter preceding the eligibility date.1
Despite the certification order, B B & L rеfused to bargain with the Union, claiming the certification was invalid because Musgrave‘s ballot should have been counted. As a result, the Union filed an unfair labor practice charge against B B & L.2 In an order dated July 19, 1993 the Board granted summary judgment in the Union‘s favor, concluding that B B & L raised no new ground or special circumstance that warranted reexamination of the certification decision and that, because the Union had been properly certified, B B & L committеd an unfair labor practice by refusing to bargain with it. B B & L admits its refusal to bargain but petitions for review of the summary judgment on the ground that Musgrave‘s disqualification was arbitrary.
II.
The court has jurisdiction over B B & L‘s petition for review under
The Board has long applied a general rule that temporary, seasonal or contingent employees are not part of a unit comprised of regular and part-time employees, and therefore are not eligible to vote in a representation election, unless they average four or more hours of work per week during the quarter preceding the election eligibility date. See Saratoga County Chapter NYS-ARC, Inc., 314 N.L.R.B. 609, 609 (1994); Trump Taj Mahal Assocs., 306 N.L.R.B. 294, 296 (1992), enforced, 2 F.3d 35 (3d Cir. 1993); V.I.P. Movers, Inc., 232 N.L.R.B. 14, 14-15 (1977); Davison-Paxon Co., 185 N.L.R.B. 21 (1970); Allied Stores of Ohio, Inc., 175 N.L.R.B. 966, 969 (1969);
The four-hour formula is bаsed on the rational premise that employees who work fewer than four hours per week generally lack sufficient continuity and regularity of employment to establish community of interest with other unit employees. Trump Taj Mahal Assocs., 306 N.L.R.B. at 296; Saratoga, 314 N.L.R.B. at 609.3 Further, by circumscribing the period relevant to eligibility (namely, the last full quarter before the eligibility date), the formula makes a Board‘s eligibility determinations more predictable. On the other hand, while the Board has expressly found the formula a reliable test fоr on-call employees, Trump Taj Mahal, 306 N.L.R.B. at 295, it has also emphasized that “no single eligibility formula must be used in all cases, [although] the [four-hour] formula is the one most frequently used, absent a showing of special circumstances.” Saratoga, 314 N.L.R.B. at 609. Accordingly, the Board has “devised an inclusive—not exclusive—eligibility formula to permit optimum employee enfranchisement and free choice, without enfranchising individuals with no real continuing interest in the terms and conditions of employment offered by the emplоyer.” Trump Taj Mahal, 306 N.L.R.B. at 296. Pursuing its goal of reasonable inclusiveness, the Board has acknowledged an “obligation to tailor [its] general eligibility formulas to the particular facts of the case,” American Zoetrope Prods., Inc., 207 N.L.R.B. 621, 623 (1973), and has done so repeatedly with the four-hour formula.
For example, in Medion, Inc., 200 N.L.R.B. 1013 (1972), when confronted with an irregular pattern of employment, the Board formulated special eligibility requirements for film production employees. The Board declined to apply the four-hour rule and instead found eligible “all employees who were employed by the Employer on at least two productions for a minimum of 5 working days during the year preceding the [election decision].” Id. at 1014. The following year, the Board found even the Medion standard too rigorous for a unit of employees working primarily in television commercial production and modified it to require only that an employee had worked on two productions, regardless of the actual number of days worked. American Zoetrope Prods., Inc., 207 N.L.R.B. 621, 623 (1973). In both cases, the Board recognized its “responsibility to devise an eligibility formula which will protect and give full effect to the vоting rights of those employees who have a reasonable expectancy of further employment with the Employer.” Id. at 622; Medion, 200 N.L.R.B. at 1014.
More instructive here are Board decisions addressing the eligibility of newly hired employees and those on leave during the quarter preceding the eligibility date. In Stockham Valve & Fittings, Inc., 222 N.L.R.B. 217, 218-19 (1976), the Board found that employees hired less than one month before the election were eligible to vote based on the number of hours they had worked between their dates of hirе and the election. Later, in Pat‘s Blue Ribbons & Trophies, 286 N.L.R.B. 918 (1987), the Board found two employees eligible to vote despite not having averaged four hours of work per week during the quarter preceding the election. One employee, hired approximately one month before the end of the relevant quarter, was found eligible based in part on the fact that she worked 73 hours during that month. Id. at 918-19. The second employ-
Here, Musgrave was hired in August 1991 to replace Charles Troutman who had earlier announced his intent to retire before April 1, 1992 and who in fact retired on March 31, 1992. Troutman, an on-call driver, worked more than the requisite four-hour weekly average during each of the last two quarters before his retirement, including the first quarter of 1992. In the quarter after Troutman retired—the quarter during which the election took place—Musgrave too averaged more than four hours per week. In other words, Musgrave was hired to fill a position that consistently required more than the minimum four-hour weekly average during a given quarter and he met that minimum once his predecessor retired and he became, as intended, the terminal‘s sole on-call driver. Thus, there can be little question that Musgrave‘s employment was continuous and regular, in that it required more than four hours of work per week on average, and that Musgrave therefore shared a community of interest with the other Coraopolis drivers.4 It is only because he was hired in anticipation of Troutman‘s retirement—and consequently worked alongside Troutman until April 1—that he averaged fewer than four hours during the first quarter of 1992, the only period examined by the Board. This is precisely the kind of “special circumstance” that the Board has previously found requires flexible application of the four-hour formula, consistent with its stated goal of “permit[ting] optimum employee enfranchisement and free choice, without enfranchising individuals with no real continuing interest in the terms and conditions of emрloyment offered by the employer.” Trump Taj Mahal, 306 N.L.R.B. at 296. Had the Board followed precedent and projected Musgrave‘s quarterly work record based on the hours worked from that time until the election, as it has for other employees prevented from working their full normal hours during the relevant quarter, Musgrave would have been deemed eligible to vote under the Board‘s four-hour formula. The Board‘s failure to do so is inexplicable.5
In sum, the Board has deviated from its usual formula, which focuses on the employee‘s work pattern in the quarter preceding the eligibility date, in cases involving pregnant workers on leave, newly hired workers and workers in an industry with
So ordered.
TATEL, Circuit Judge, concurring in part and dissenting in part:
I agree that the Board failed to explain its decision adequately, and thus concur with the majority‘s denial of the Board‘s petition for enforcement. But because I think it is possible for the Board to set forth a rational and consistent explanation for not counting Musgrave‘s ballot, I would remand to the Board for further explanation.
The Board‘s main flaw was not that it improperly applied the law, but that it failed to explain why it did not follow the flexible approach it has taken in some past cases. As I read those cases, the Board has deviated from the four-hour rule in three specific circumstances: 1) where employment in the particular industry is by its nature sporadic, see Trump Taj Mahal Assocs., 306 N.L.R.B. 294, 296 (“Finally, the Board has been flexible in carrying out its responsibility to devise formulas suited to unique conditions in the entertainment industry, as in other specialized industries, to afford employees ... the optimum opportunity for meaningful representation.“), enforced, 2 F.3d 35 (3d Cir. 1993); American Zoetrope Prods., Inc., 207 N.L.R.B. 621 (1973); Medion, Inc., 200 N.L.R.B. 1013 (1972); 2) where individual employees have reduced their workload for personal reasons, e.g. maternity and other personal leave, and where those employees worked on a sufficiently regular basis both before and after their leave, see Northern Calif. Visiting Nurses Ass‘n, 299 N.L.R.B. 980, 980-81 (1990) (personal leave/vacation); Pat‘s Blue Ribbons, 286 N.L.R.B. 918, 919 (1987) (mаternity leave), and; 3) where the employees were new hires who began work prior to the eligibility date and where their work since being hired has been sufficiently regular. See Beverly Enters.—Mass., Inc., 310 N.L.R.B. 538, 538 n. 3 (1993); Pat‘s Blue Ribbons, 286 N.L.R.B. at 919; Stockham Valve & Fittings, Inc., 222 N.L.R.B. 217, 218-19 (1976).
The responsibility for deciding whether one of these exceptions applies, or a more general exception implicit in them, is the Board‘s, not ours. We should take that responsibility from the Board—that is, reverse without remanding—only if we are sure that no way exists for it to reasonably articulаte a basis for excluding Musgrave‘s ballot. This is not such a case.
The Board could reasonably find, for example, that the first two exceptions do not apply because B B & L‘s business is not sporadic, and because Musgrave‘s irregular work was not due to personal circumstances. As for the third exception, the Board could conclude that Musgrave was clearly not a “new hire” in the sense of Stockham Valve or Pat‘s Blue Ribbons since he was working for B B & L on a casual basis for seven months6
The majority points out that the Board “appears never to have used the period between a relevant change of circumstance and the eligibility date as a basis for excluding workers.” Maj. Op. at 371 n. 5 (emphasis omitted). This is true, but only because the “relevant change of circumstance” in Stockham Valve, Beverly Enterprises, and other “new hire” decisions has always involved an entirely new hire, never, as here, the evolution of a “casual” into a “part-time” employee. In these circumstances, the Board could reasonably conclude that it will nоt consider a continuing “casual” employee eligible to participate in the election, even if he has ostensibly changed jobs, unless a change in the hours or duties of that employee demonstrates that the employee has come to share the community of interest enjoyed by regular employees. This is at least one explanation that the Board could articulate on remand which would support its decision to exclude Musgrave‘s ballot and to which we could defer. By reversing without remanding, the majority precludes the Board from articulating this or other plausible explanations and substitutes the court‘s own judgment for the Board‘s expertise in the arena of representation. I think the better route—and one that best ensures that national labor policies and the certainty of the four-hour rule are advanced—is to remand this case to the Board so that it can better articulate how its eligibility rules apply to the unique circumstances of this case.