Pace University v. National Labor Relations BoardPace University v. National Labor Relations Board
Elizabeth A. Heaney, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Assistant General Counsel, and Fred B. Jacob, Supervisory Attorney.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
The petition for review filed by Pace University seeks to have the court hold that the National Labor Relations Board abused its discretion in applying its non-relitigation rule. Under that rule the Board has determined that only in limited circumstances will a party be permitted to reopen a representation issue during an unfair labor practice proceeding. Pace maintains that it did not raise an issue regarding the scope of the bargaining unit during the representation proceeding because it thought it had prevailed on the issue and only realized there was disagreement during collective bargaining negotiations with the duly elected Board-certified union. In applying the non-relitigation rule, however, the Board pointed to the record in the representation proceeding where Pace was repeatedly asked to state its position on the issue and declined to explain the nature of its concern, instead urging that its motion to dismiss the union’s certification petition be granted due to prejudicial timing.
In view of the Board’s reasonable determination of how it will conduct its proceedings, there was no abuse of discretion by the Board. The Board’s refusal to adopt an exception for claimed reliance upon a mistake of fact illustrates the principle behind the rule: On an issue of central importance in the representation proceeding, a party having reason, ability, and opportunity must make its position a matter of record. Otherwise, the rationale for the rule—the importance of the finality of Board-certified elections and avoidance of delay in enforcing their results—is compromised. Accordingly, we deny the petition
I.
The relevant facts are undisputed. In December 2003, the New York State United Teachers (“Union”) petitioned the Board for certification as the representative of adjunct and part-time faculty members (“adjuncts”) at Pace University, a private, nonprofit institution of higher education. The number of adjuncts varies during the calendar year, ranging from approximately 109 employed by Pace in the summer semester to 750 during the spring semester of the 2003-04 academic year, for example; they are employed by the semester, but are frequently reappointed and receive increased promotional, salary, and other benefits according to years of service. Pace filed a motion to dismiss the Union’s petition on the ground that it was filed at a prejudicial time in the academic year when few adjuncts were employed. Then, after a hearing in January 2004, Pace objected that the petitioned-for unit was unsupported by the evidence.
In response to Pace’s objection, the Regional Hearing Officer reopened the record and held a multi-day hearing in February 2004. During this hearing Pace did not contest the inclusion in the bargaining unit of adjuncts whom it subsequently sought, during the unfair labor practice proceeding, to exclude from the certified unit. The Regional Director denied Pace’s motion to dismiss and issued an Election Order defining the scope of the bargaining unit and the voter-eligibility criteria.1 The Board denied Pace’s request for review of the Election Order on the ground that the petition raised “no substantial issues warranting review” and finding without merit Pace’s claims of bias of the Regional Director and Hearing Officer. At this point, Pace had raised no objection regarding the adjuncts whom it sought to have excluded during the unfair labor practice proceeding.
In response to Pace’s letter seeking clarification of two footnotes in the Regional Director’s Election Order regarding which adjuncts would be eligible to vote at the election, the Regional Director issued an Amended Election Order, which read, in relevant part:
Included [in the bargaining unit]: All adjunct faculty members, part-time instructors, and all adjunct faculty members and part-time instructors who work in a non-supervisory dual capacity for the Employer, employed by the Employer.[ *]
[*] Eligible to vote in the election are those in this unit who have received appointments and teach or have taught at least 3 credit hours and/or 45 hours in any semester in any of two academic years during the three-year period commencing with the 2001-2002 academic years, including the current
academic year. Excluded: All other employees, including adjunct faculty and part-time instructors employed in the School of Law, all full-time faculty, casual employees,[*] independent contractors, guards and supervisors within the meaning of the Act.
[*] Casual employees ineligible to vote are those employed for less than 3 credit hours and/or 45 hours in a semester.
Pace did not seek Board review of the Amended Election Order.2
The Union won the election and in May 2004 the Board certified it as the representative of the adjuncts’ bargaining unit. Negotiations on a collective bargaining agreement between Pace and the Union commenced. A dispute arose in October 2004 about whether the bargaining unit included only those adjuncts eligible to vote. See supra note 2. In February 2006, the Union filed a petition for unit clarification. In response, the Regional Director stated that the unit included all adjuncts who teach at least 3 credit hours and/or 45 hours in one semester, regardless of their eligibility to vote. The Board denied Pace’s petition for review on the ground that it raised “no substantial issues warranting review” regarding clarification of the unit. Two Members of the Board noted that, although this was not the case to do so because the parties had not litigated the definition of “casual employee” and Pace had not previously challenged the scope of the unit with respect to adjuncts, the Board should reconcile its decisions on whether unit inclusion and voter eligibility must be coextensive.
When Pace refused to resume collective bargaining negotiations, the Board’s general counsel filed a complaint based on the Union’s unfair labor practice charge, and moved for summary judgment. In defense, Pace argued that the Board’s unit determination was invalid because it included adjuncts who were “casual employees” and ineligible to vote in the election. The Board, pursuant to its non-relitigation rule, refused to address the issue, observing that “[a]ll representation issues raised by [Pace] were or could have been litigated in the prior representation proceedings.” Pace Univ., 349 NLRB No. 10, Case 2-CA-37884, 2007 WL 185973, at *1 (Jan. 22, 2007) (“2007 Order”). The Board found that Pace’s refusal to bargain violated
II.
Pace contends that the Board abused its discretion in refusing to allow litigation of representation issues in the unfair labor practice proceeding. It also challenges the Board’s bargaining unit determination on several grounds, contending that: (1) the Board erred as a matter of law in basing its decision upon an inappropriate unit determination,
The Board has broad discretion to define the contours of an appropriate bargaining unit.
The Board has drawn a “well established” line between representation and unfair labor practice proceedings, requiring that any issues that may be presented during the representation proceeding must be offered there. Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1151-52 (D.C. Cir. 2000) (quoting Thomas-Davis Med. Ctrs. v. NLRB, 157 F.3d 909, 912 (D.C. Cir. 1998)); see Wackenhut Corp. v. NLRB, 178 F.3d 543, 552-53 (D.C. Cir. 1999); Westwood One Broad. Servs. Inc., 323 N.L.R.B. 1002, 1002 (1997);
ing
The purpose of the Board’s non-relitigation rule is to “estop relitigation in a related proceeding ... in accordance with the long-held objective of avoiding undue and unnecessary delay in representation elections.” ACWA I, 365 F.2d at 905. In effect, the rule safeguards the results of a representation proceeding from duplicative, collateral attack in a related unfair labor practice proceeding. See Westwood One, 323 N.L.R.B. at 1002; see also NLRB v. Mar Salle, Inc., 425 F.2d 566, 571-73 (D.C. Cir. 1970) (citing Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 158, 162 (1941)). Judicial enforcement of the rule in turn “protects the integrity of the administrative process by requiring a party to develop all arguments and present all available, relevant evidence at the representation proceeding,” rather than “remain silent” and “ultimately defeat unionization on ... grounds asserted for the first time in the ensuing unfair labor practice proceeding.” St. Anthony Hosp. Sys. v. NLRB, 655 F.2d 1028, 1030 (10th Cir. 1981); see also Mar Salle, Inc., 425 F.2d at 573. Such enforcement is consistent with the basic principle that “[s]imple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952).
The court will not disturb the Board’s application of its nonrelitigation rule absent an abuse of discretion. Alois Box Co., 216 F.3d at 78; Thomas-Davis, 157 F.3d at 912. The court has previously observed that it is “eminently reasonable” for the Board to deny a second round to a party who “had the opportunity to litigate all relevant issues previously,” where there is no “newly discovered or previously unavailable evidence.” Mar Salle, Inc., 425 F.2d at 572 & n. 10; see NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 709 (2001) (citing Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139-41 (1971); Pittsburgh Plate Glass Co., 313 U.S. at 161-62). By contrast, a party who does litigate an issue in the appropriate forum may receive review of representation issues in due course; the court generally will review a representation issue upon the filing of a petition from an unfair labor practice proceeding as long as a party litigated the issue during the representation proceeding and presented its arguments on the issue as a defense to an unfair labor practice charge. Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 987 (D.C. Cir. 2001). But in the absence of an abuse of discretion by the Board in applying the non-relitigation rule, a representation issue not previously litigated is not properly before the court upon a petition for review of an order in the unfair labor practice proceeding. Joseph T. Ryerson, 216 F.3d at 1152; see also
The record of the representation proceeding demonstrates that Pace had reason, ability, and opportunity to challenge the description of the unit but repeatedly declined to do so. The Regional Hearing Officer opened the February 2004 hearing on Pace’s objection to the Union’s proposed unit by discussing the dual objectives of the hearing—to determine the
Pace’s post-hearing letter seeking clarification of two footnotes in the Regional Director’s Election Order also failed to argue that adjuncts who are “casual employees” should be excluded from the bargaining unit. Although the letter stated that the footnote on “casual employees” did not make sense, Pace did not present argument on this issue nor offer an explanation of how this definition should be changed. Neither did Pace seek Board review of the Amended Election Order even though its treatment of “casual employees” is not the same as that Pace attempted to urge during the unfair labor practice proceeding.
A mere reference to a potential issue is not the same as litigating an issue by making an objection clear on the record of the representation proceeding so as to preserve the right to review by the Board and the court. See Alois Box Co., 216 F.3d at 78. Even assuming Pace’s fleeting reference to a general objection to the member-voter distinction sufficed to note the issue, this is not tantamount to litigating specific concerns as is contemplated by the non-relitigation rule. “[A]n implicit argument is hardly the same as giving notice so the Board has an opportunity to rule on the argument.” Joseph T. Ryerson, 216 F.3d at 1151; see also Family Serv. Agency S.F. v. NLRB, 163 F.3d 1369, 1380 (D.C. Cir. 1999). There were then-available arguments that Pace could have made that it now contends are dispositive, for example, in contending there is a lack of a community of interest between adjuncts who have served for longer than three credit hours in one as opposed to several academic years. It was Pace’s concern about the sufficiency of the evidence to support the Union’s proposed unit that was the occasion for the Hearing Officer to reopen the record and repeatedly attempt to discover the nature of Pace’s objection to treating unit membership and voter eligibility as separate issues. Yet, Pace declined, through self-described experienced counsel, to respond in a manner that would alert the Hearing Officer or the Regional Director to the substantive basis for its concern. Given the centrality of the issue of the scope of the bargaining unit, Pace could not stand mute under the circumstances.
To the extent Pace now contends that the Board was required to make an exception to its non-relitigation rule due to Pace’s reasonable reliance on an error in the Amended Election Order, there is neither an exception that would apply nor a basis for the exception it seeks. See Thomas-Davis, 157 F.3d at 912. Pace does not maintain there was either new evidence or new governing law. Instead, Pace suggests that there was no need to
While Pace had every right to pursue a strategy seeking dismissal of the petition, or the other relief sought by its several motions, once the Hearing Officer reopened the record to address Pace’s concerns about the unit and repeatedly inquired of its position, Pace took the risk that the Board would apply the non-relitigation rule if it did not present its position on the record. Pace does not suggest that the Hearing Officer or Regional Director acted contrary to Board procedures or rules in attempting to address Pace’s concerns about the description of the unit. The Board found no bias by the Regional Director or Hearing Officer against Pace, and Pace does not pursue that issue in its petition for review. Curiously, Pace never has explained to the court why more time or information about the number of adjuncts during a given semester would be needed to develop a legal argument that all members of the unit should be eligible to vote in the election. As the Regional Director found, Pace “has failed to identify any specific issue or unit contention that it was precluded from raising or litigating arising out of the fact that the adjunct faculty and part-time instructors had not yet begun to teach their classes for the Spring 2004 semester when the hearing commenced.” Even assuming that Pace’s contention in its reply brief, that it was not obligated to raise issues regarding the scope of the bargaining unit during the representation proceeding because the Board has the evidentiary burden on unit scope, is properly before the court, but see Students Against Genocide v. Dep’t of State, 257 F.3d 828, 834-35 (D.C. Cir. 2001), Pace’s reliance on Allen Health Care Servs., 332 N.L.R.B. 1308 (2000), would be misplaced as nothing in that decision eliminated a party’s obligation to present its objections to a proposed unit, notwithstanding the Board’s recognition of its obligation to develop an evidentiary record supporting a unit definition, id. at 1309.
The court need not reach Pace’s challenges to the Board’s adoption of a distinction between unit membership and voter eligibility. Because Pace failed to make known its objections to the scope of the proposed bargaining unit when it had reason, ability, and opportunity to do so during the representation proceeding, the Board did not abuse its discretion in applying the non-relitigation rule. Accordingly, we deny the petition for review and grant