Joseph T. Ryerson & Son, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2000 Decided July 7, 2000

No. 99-1327

Joseph T. Ryerson & Son, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

International Brotherhood of Teamsters,

AFL-CIO, Local 714 and

United Steelworkers of America, AFL-CIO,

Intervenors

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Stephen D. Erf argued the cause for petitioner. With him

on the briefs were Michael F. Rosenblum, Timothy S. Bishop

and Jeffrey W. Sarles.

Sonya Spielberg, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Leonard R. Page, General Counsel, Linda R. Sher,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Peter Winkler, Supervisory

Attorney.

David I. Goldman argued the cause for intervenors. With

him on the brief was Susan Brannigan.

Before: Silberman and Rogers, Circuit Judges and

Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Joseph T. Ryerson & Sons, Inc.

petitions for review of an order of the National Labor Rela-

tions Board that the company violated ss 8(a)(1) and (5) of

the National Labor Relations Act by refusing to bargain with

the certified representative of the bargaining unit, namely

with Local 714 of the International Brotherhood of Teamsters

("Teamsters") and the United Steelworkers of America

("Steelworkers"), which jointly petitioned to represent a bar-

gaining unit at four of the company's plants in Chicago,

Illinois. The company contends that the Board erred in

failing to set aside the election for three reasons: (1) the Act

does not authorize either joint election petitions or separate

administration by two unions of a collective bargaining agree-

ment; (2) there is not substantial evidence in the record to

support the Board's finding that the unions did not misrepre-

sent the intended nature of their joint representation to the

bargaining unit employees during the election campaign; and

(3) the hearing officer abused his discretion in denying the

company's subpoena for the unions' entire joint bargaining

agreement and other internal documents relating to the joint

petitions for representation, thereby denying the company a

full and fair hearing. Because the company failed to preserve

its statutory argument for review by the court, and because

we conclude that the company's other contentions are unper-

suasive, we deny the petition and grant the Board's cross-

application for enforcement of its order.

I.

Joseph T. Ryerson & Sons, Inc. operates four plants in

Chicago, Illinois--the 16th Street, 83rd Street, 103rd Street,

and 111th Street--known collectively as the "Chicago Com-

plex." After a number of unsuccessful attempts by the

Steelworkers--due, in part, to lack of support at the 16th and

83rd Street plants--to organize Ryerson production and

maintenance employees in Chicago, the Teamsters, in 1997,

began a campaign to represent production and maintenance

employees at the 16th and 83rd Street plants. After the

Teamsters filed a petition with the Board seeking certification

as the exclusive bargaining representative of the bargaining

unit at the 16th and 83rd Street plants, a struggle between

the Teamsters and Steelworkers ensued, resulting in the

Steelworkers' campaign to represent the employees at the

103rd and 111th Street plants. After the petitions for repre-

sentation of the 800 employees were consolidated for hearing,

the Steelworkers distributed a flyer at the 103rd Street and

111th Street plants stating that:

The workers at 103rd Street don't want to be represent-

ed by the Teamsters and have overwhelming[ly] signed

Steelworker cards ... The Teamsters are arguing for

one election including 83rd and 16th Street workers....

The Steelworkers are fighting to get an election for the

103rd Street workers.

Employees at the 16th and 83rd Street plants, without objec-

tion from the Teamsters, circulated a petition opposing the

Steelworkers: "We, the undersigned, DO NOT want the

Steelworkers to represent us. Rather than have them, we

will remain NON-UNION." (emphasis in original)

After failed attempts at mediation and on the eve of

arbitration, the unions agreed to file a joint petition for

certification. Following execution of a joint petition agree-

ment, the unions distributed flyers to the employees that set

out the first two paragraphs of the joint petition agreement:

At the National Relations Board hearing, the [Steelwork-

ers] and the [Teamsters] agree to engage in a joint

organizing/representa[ ]tion campaign at the Chicago

Complex of [the company] for a bargaining unit consist-

ing of all four facilities, including 16th Street, 83rd

Street, 103rd and 111th streets. This will involve an

amended representation petition to seek a joint certifica-

tion, unless otherwise agreed to by the [Teamsters] and

[Steelworkers].

Assuming that the campaign is successful, the union[s]

will jointly negotiate for a collective bargaining agree-

ment and will divide responsibility for administering the

contract as follows:

-16th and 83rd streets -- [Teamsters]

-103rd and 111th Streets -- [Steelworkers]

Dues and membership will follow the same lines.

No other portion of the joint petition agreement was divulged

to the employees. The unions circulated separate authoriza-

tion cards, and filed amended petitions to jointly petition to

represent "[a]ll full-time and regular part-time production

and maintenance employees" at the four Chicago Complex

plants.

During the election campaign, the Steelworkers distributed

literature and campaigned exclusively at 103rd and 111th

Streets, while the Teamsters distributed literature and cam-

paigned exclusively at 16th and 83rd Streets. Each union

held its own rallies. Organizers from both unions made

statements to employees that the unions would part ways

with respect to representation after the certification, dividing

the four plants between them for the election campaign and

thereafter for contract administration.1

On September 25, 1997, the unions won the election.2 The

company filed objections to the election, noting among other

__________

1 According to the Bureau of National Affairs, under the joint

representation agreement, the Teamsters will represent 525 em-

ployees at two plants and the Steelworkers will represent 275

employees at the other two Chicago Complex plants. See BNA

Daily Labor Report, Nov. 6, 1997, at A3.

2 Of the 820 employees eligible to vote in the election, 786

voted: 418 voted for the unions and 352 voted against the unions,

with 16 ballots challenged and one declared void.

things that the unions "stated [their] intention to negotiate as

separate unions in separate bargaining units, and not as a

joint bargaining representative" and "misrepresented how

bargaining and contract administration would occur if [they]

won the election." The company also served a subpoena on

the unions for "[a]ll documents relating to the joint represen-

tation arrangement" between the Teamsters and the Steel-

workers. The unions objected to the subpoena as seeking

irrelevant documents and as vague and unduly burdensome.

The hearing officer denied the subpoena except as to the first

two paragraphs of the joint petition agreement that had been

disclosed to the employees during the election campaign, on

the ground that the unions' internal communications were

irrelevant because they did not shed light on what the unions

had communicated to the employees during the election cam-

paign. Following a hearing over the course of several days,

the hearing officer found "no direct evidence that the [unions]

do not intend to bargain jointly," observing that the unions

had "consistently maintained that they would bargain jointly,

but administer the jointly-negotiated contract separately at

specific locations," and that there was no evidence "that the

[unions] misrepresented how bargaining and contract admin-

istration would occur if [they] won the election." The Board

adopted the hearing officer's findings and recommendations

in the unions' favor, and certified the unions as the exclusive

bargaining representative of the bargaining unit employees.

When the company subsequently refused to bargain, the

unions filed an unfair labor practice charge. The Board, in

response to the company's attack on the certification because

of the unions' conduct during the election campaign, ruled

that the company could not relitigate issues litigated in the

representation proceeding, and granted the General Counsel's

motion for summary judgment on the complaint charging the

company with violating ss 8(a)(1) and (5) of the Act. See

Joseph T. Ryerson & Sons, Inc. v. NLRB, 328 NLRB No. 168

(August 6, 1999). The company petitions for review of the

Board's unfair labor practice order, and the Board filed a

cross-application for enforcement of its order.

II.

In contending that the Board erred by failing to set aside

the election, the company makes three challenges. We ad-

dress each in turn.

A. Statutory challenge. The company contends that the

National Labor Relations Act does not authorize the Board

to certify more than one union as exclusive bargaining repre-

sentative, or to divide a bargaining unit for purposes of

contract administration.3 Specifically, the company makes

two statutory contentions. First, it maintains that the Board

acted contrary to the Act, which authorizes a union to be-

come the exclusive bargaining-unit representative only if it

obtains the support of a majority of the bargaining unit

employees, by certifying two unions, each of which garnered

only minority support, as the "exclusive representative" for

the company's single Chicago Complex bargaining unit. Sec-

ond, the company maintains that, even if the Act did permit

joint petitioning and representation, it does not permit the

unions to divide up a bargaining unit for purposes of bargain-

__________

3 While acknowledging that the court rejected a challenge to

joint petitioning in NLRB v. National Truck Rental Co., 239 F.2d

422 (D.C. Cir. 1986), the company maintains that the issue should

be revisited because the court's rationale is "obsolete and legally

invalid." To support its contention that the Board exceeded its

authority under the National Labor Relations Act, the company

cites cases for the propositions that (1) an exclusive collective

bargaining agent must enjoy the support of the majority of employ-

ees in the unit, see, e.g., Carothers v. Presser, 818 F.2d 926, 934

(D.C. Cir. 1987); Human Dev. Ass'n v. NLRB, 937 F.2d 657, 665

(D.C. Cir. 1991), and (2) contract bargaining and contract adminis-

tration are linked, such that allowing separate administration would

violate the Act. See, e.g., Air Line Pilots Ass'n, Int'l v. O'Neill, 499

U.S. 65, 77 (1991); United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 363 U.S. 574, 578, 581 (1960). The Board, in turn, cites

National Truck Rental as to joint representation, and cites several

Board decisions for the proposition that a bargaining unit may be

divided by unions for purposes of contract administration, Utility

Servs., Inc., 158 NLRB 592, 593 (1966); Swift & Co., 114 NLRB

159, 160 (1955).

ing, contract administration, and representation. As ex-

plained in its brief, in the company's view, the Board's

authorization for the unions to divide up the Chicago Com-

plex bargaining unit and administer the contract separately

rests on "a false dichotomy between contract bargaining and

contract administration" inasmuch as contract administration,

and in particular the processing of grievances, is "inextrica-

bly linked with collective bargaining." While the second

statutory contention poses a serious legal issue that the court

has not yet addressed, see supra note 3, a threshold issue is

whether these contentions are properly before the court.

The Board maintains that the company "waived" its statutory

contentions by failing to raise them in the representation

proceeding before the Board and waiting until its opposition

to the General Counsel's motion for summary judgment on

the unfair labor practice complaint to raise the issues for the

first time.

"It is well established that in the absence of newly discover-

ed evidence or other special circumstances requiring reexami-

nation of the decision in the representation proceeding, a

respondent is not entitled to relitigate in a subsequent refus-

al-to-bargain proceeding representation issues that were or

could have been litigated in the prior representation proceed-

ing." Thomas-Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909,

912 (D.C. Cir 1998) (quoting Westwood One Broad. Servs.,

Inc., 323 N.L.R.B. No. 175 (June 16, 1997) (citing Pittsburgh

Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941))). The

company, seeming to acknowledge the need to have raised its

statutory argument in the representation proceeding, at-

tempts to demonstrate that it did by pointing to various pages

in the record. The assertion that it raised the statutory

challenge in that proceeding is not borne out by the record.

Neither the company's citations to the record nor counsel's

response at oral argument demonstrates that the company

made its statutory argument during the representation pro-

ceeding.

Apparently aware of the weakness of its position, the

company falls back on its assertion that its statutory chal-

lenge was "implicit" in its argument that the unions' conduct

demonstrated that they intended to divide the bargaining unit

for separate representation. But the thrust of the company's

reliance on the unions' conduct was to show that the joint

representation agreement was a sham and the bargaining

unit employees were confused about what they were voting

for in the election, which is unrelated to the statutory chal-

lenge it raised in opposing summary judgment. Further-

more, as the Board stated in granting summary judgment on

the unfair labor practice charge, the company did not "offer

to adduce at a hearing any newly discovered and previously

unavailable evidence, nor [did] it allege any special circum-

stances that would require the Board to reexamine the deci-

sion made in the representation proceeding." Ryerson, 328

NLRB No. 168, at 1. In any event, an implicit argument is

hardly the same as giving notice so the Board has an opportu-

nity to rule on the argument. Cf. Alois Box Co. v. NLRB,

No. 99-1340, slip. op. at 13-14 (D.C. Cir. June 30, 2000).

Indeed, the record suggests that rather than being an implicit

argument in the company's arsenal attacking the election, the

statutory challenge was an afterthought, interposed as a new

argument aimed at avoiding summary judgment. This is

evident from the fact that the company did not file an

exception to the certification decision on statutory grounds

muchless thereafter raise a statutory challenge in its answer

to the unfair labor practice charge.

The company's explanation that it was unable to litigate its

statutory objections "with all of the information it needed" as

a result of the denial of its subpoena for the entire joint

representation agreement rings hollow. Even if access to the

entire agreement might possibly have strengthened a statuto-

ry challenge, cf. Construction & Gen. Laborers' Local Union

No. 190 v. NLRB, 998 F.2d 1064, 1066-67 (D.C. Cir. 1993),

the lack of such access did not preclude the company from

raising the statutory challenge, particularly as it was suggest-

ed by the evidence on which the company relies to show that

the unions did not intend to bargain jointly or to administer

the parties' contract jointly. See infra Part II(B). Had the

company made a statutory challenge during the representa-

tion proceeding, moreover, it might well have had a better

argument in favor of enforcing the subpoena. See infra Part

III(C).

The company's current contention that the Board failed in

its responsibility to ensure that "fundamental labor princi-

ples" are not violated, see Associated Milk Producers, Inc. v.

NLRB, 193 F.3d 539, 543 (D.C. Cir. 1999), misses the mark.

Although it is not entirely clear, the company appears to be

contending that the Board's responsibility to protect funda-

mental principles of labor law constitutes a "special circum-

stance" as would excuse the company's failure to raise its

statutory argument during the representation proceeding.

Were that the case, the Board's non-relitigation rule would be

seriously compromised, eviscerating the non-relitigation rule

for legal arguments having to do with the Board's authority

under the Act. On the other hand, to the extent the company

is suggesting that it is foreclosed from obtaining relief if its

suspicions about how the unions will conduct themselves are

confirmed, it is in error. Were the unions, for example, not

to engage jointly in the collective bargaining process or not to

engage in joint contract administration by taking divergent

grievance and arbitration positions, cf. International Bhd. of

Teamsters v. NLRB, 587 F.2d 1176, 1181 (D.C. Cir. 1978), the

company would not be without a remedy. The Board ac-

knowledged in the certification order that the company could

then file a petition to modify or revoke the unions certifica-

tion, or file a refusal to bargain charge, or, as the Board

acknowledged at oral argument, the company could simply

refuse to bargain with an inappropriate unit. See Utility

Servs., 158 N.L.R.B. 592, 593 (1966).

Because the company did not preserve its right to raise its

statutory contentions in appealing the Board's unfair labor

practice order, those contentions are not properly before the

court and we do not address them.

B. Misrepresentation challenge. Seeking to overturn

the election on other grounds, the company contends that the

Board's finding that the unions did not misrepresent to the

bargaining unit employees during the election campaign the

character of their proposed joint representation is unsupport-

ed by substantial evidence in the record. Because the unions

engaged in misrepresentation, the company maintains, the

Board erred in failing to set aside the result of the tainted

election. The company relies on evidence in the record that

certain individuals told bargaining unit employees that the

Steelworkers and Teamsters intended to bargain separately

and that this message was reinforced by the separate cam-

paigns waged by the unions. Specifically, the company relies

upon statements attributed to union officials such as "don't

worry about the Teamsters, we're gonna be Steelworkers

here," and the "Teamsters [are] going to be at 16th and 83rd

and we are not worried about what the Steelworkers are

going to do."

Obviously, the members of the bargaining unit must have

accurate information to inform their election decisions. See,

e.g., General Teamsters Local Union No. 174 v. NLRB, 723

F.2d 966, 972 (D.C. Cir. 1983); Automatic Heating & Serv.

Co., 194 N.L.R.B. 1065 (1972); Suburban Newspaper Pubs.,

Inc., 230 N.L.R.B. 1215, 1217 (1977). However, the problem

for the company's position is two-fold.

First, the Board's rejection of the company's contention is

well founded. The court must affirm the Board's decision if it

reasonably rests on factual findings supported by substantial

evidence. See Family Serv. Agency San Francisco v. NLRB,

163 F.3d 1369, 1377 (D.C. Cir. 1999); Amalgamated Clothing

& Textile Workers Union v. NLRB, 736 F.2d 1559, 1562-63

(D.C. Cir. 1984). The Board's finding that there were no

misrepresentations by the unions during the election cam-

paign rests on two grounds. First, the testimony of union

supporters and officials was clear about the unions' intention

to bargain jointly. Thus, Denise Williams, a Steelworkers

organizer, testified that she informed bargaining unit employ-

ees that the unions would bargain jointly. Likewise, Gerald

Jagodzinski, an organizer for Teamsters Local 714, testified

that he never told employees that the unions would bargain

separately. The Board also points to statements made by

Jagodzinski to a reporter that "the two unions plan to negoti-

ate a collective bargaining agreement" once they were certi-

fied. Second, the evidence showed that management from the

company distributed fliers during the election campaign in-

forming employees that the unions would bargain jointly, and

that no fewer than seven managers spoke directly to employ-

ees telling them they would be voting for both unions.

Viewed together, these grounds establish substantial evidence

to support the Board's finding that the members of the

bargaining unit had accurate data to inform their election

choices.4

Second, the evidence the company cites is insufficient to

rebut even the prima facie showing. See, e.g., Gene Fielder

Chevrolet Co., 245 N.L.R.B. 1075, 1076 n.3 (1979); Utility

Servs., Inc., 158 N.L.R.B. 592, 592 (1966); Florida Tile

Indus., Inc., 130 N.L.R.B. 897, 897 (1961). The statements

on which the company relies are consistent with the interpre-

tation that contract administration would be handled at the

separate plants while joint bargaining would occur in a joint

fashion. Administration without deviation at the separate

plants clearly would not be inconsistent with joint representa-

tion. Further, a number of the allegedly misleading state-

ments that the company claims were made by the unions

were in fact made by employees in the bargaining unit--John

Jeziorski, James Malizio, Ron Butler, John Grey, Jesus Go-

mez, Mike Ross--not union officials. Because the Board

reasonably found that the company did not show that these

employees were acting as agents of the unions when these

statements were made, it was justified in not attributing the

statements to the unions. See, e.g., Overnite Transp. Co. v.

NLRB, 140 F.3d 259, 266 (D.C. Cir. 1998); Amalgamated

Clothing, 736 F.2d at 1565.

__________

4 The cases on which the company relies are readily distin-

guishable. In Suburban Newspaper Publications, Inc., 230

N.L.R.B. 1215, 1217 (1977), the Board nullified an election because

"the employees were told [by the unions and their representatives]

there would be separate units represented by the respective labor

organizations, not merely serviced by them." Id. at 1217 n.5.

Likewise, in Automatic Heating & Service Co., 194 N.L.R.B. 1065

(1972), union officials admitted at the hearing that they had no

intention of jointly bargaining or representing all the bargaining

unit employees.

Thus, absent evidence that could rebut the substantial

evidence on which the Board relied in finding that the unions

did not misrepresent their intent to bargain jointly, the

company fails to show that the Board erred in refusing to set

aside the election for the alleged misrepresentation.

C. Subpoena challenge. Finally, the company contends

that it was denied a full and fair hearing because the hearing

officer denied the company's subpoena for the unions' entire

joint representation agreement and other internal union com-

munications about jointly representing the bargaining unit.

The company maintains that the entire agreement was "high-

ly relevant" and "central" to its argument that the unions did

not intend to bargain jointly and the joint representation

agreement was a sham. Reviewing the hearing officer's

partial denial of the company's subpoena for abuse of discre-

tion, we find none in view of the nature of the arguments that

the company presented during the representation proceeding.

See Perdue Farms, Inc., Cookin' Good v. NLRB, 144 F.3d

830, 834 (D.C. Cir. 1998).

The hearing officer partially denied the subpoena on the

ground that he found relevant only "whatever communica-

tions have been made to employees regarding the status of

the joint petitioners," observing that the company "will have

the right to file an unfair labor practice charge" if the unions

do not bargain jointly. Given the nature of the company's

challenge to the union election in the representation proceed-

ing, that the unions made misrepresentations to the bargain-

ing unit employees during the campaign, and given the histor-

ical antagonism that the company identified between the two

unions, the company's position that it was deprived of infor-

mation relevant to its reasonable suspicion is plausible, see

Surburban Newspapers, 230 N.L.R.B. at 1216, and the denial

of the subpoena is thus troubling. Placing a barrier in the

way of a party's ability to present its case would, if prejudi-

cial, be grounds for reversing the Board. Cf. Drukker Com-

munications, Inc. v. NLRB, 700 F.2d 727, 731, 734; (D.C.

Cir. 1983); Indiana Hosp., Inc. v. NLRB, 10 F.3d 151, 154

(3d Cir. 1993).

Nevertheless, under the abuse of discretion standard, we

conclude that it was still reasonable for the hearing officer to

find that the full joint petition agreement and like internal

communications had little relevance to the misrepresentation

issue. See NLRB v. Blackstone Mfg. Co., 123 F.2d 633, 635

(2d Cir. 1944); cf. Carothers v. Pressler, 818 F.2d 926, 934

(D.C. Cir. 1987) (observing that viewing Labor Management

Reporting and Disclosure Act as creating a substantive "right

of access" to a union's mailing list could subvert union's

legitimate role as bargaining representative). Because the

company has not shown that it was prejudiced by the Board's

denial of the subpoena inasmuch as it is not without a remedy

if the unions fail to bargain jointly, see supra Part III(A),

when a subpoena of the entire agreement would no longer be

premature and would arguably be enforceable, we conclude

that the reasons given by the hearing officer for partially

denying the subpoena fall within the alternatives available to

him in the exercise of reasoned discretion. See generally

Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.

1995).

Accordingly, because the company failed to preserve its

statutory challenge to the certification of the unions as the

exclusive representative for the bargaining unit, and because

the company's other contentions are unpersuasive, we deny

the petition for review and grant the Board's cross application

for enforcement of its order.