explaining that “in order to prevent the ‘sandbagging’ of another party, ‘we have generally held that issues not raised until the reply brief are waived’” (citation omitted)
How later courts described this case
- explaining that “in order to prevent the ‘sandbagging’ of another party, ‘we have generally held that issues not raised until the reply brief are waived’” (citation omitted)
- declining to consider an argument that was “included [in] a heading” but not discussed further because “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.”
- finding that a party had “forfeited any right to challenge” an issue it had not raised in its opening brief before the court
- “[W]e have generally held that issues not raised until the reply brief are waived.” (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2007 Decided October 30, 2007
No. 06-1162
NEW YORK REHABILITATION CARE MANAGEMENT, LLC AND
NEW YORK CENTER FOR REHABILITATION CARE, INC.,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
No. 06-1216
On Petition for Review and Cross-Application for
Enforcement of an Order
of the National Labor Relations Board
Morris Tuchman argued the cause and filed the briefs for
petitioner.
Usha Dheenan, 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, Aileen A. Armstrong, Deputy
Associate General Counsel at the time the brief was filed, and
Jill A. Griffin, Supervisory Attorney. Meredith L. Jason and
2
Ruth E. Burdick, Attorneys, entered an appearance.
Before: GINSBURG, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: New York Rehabilitation Care
Management, LLC and New York Center for Rehabilitation
Care, Inc. (together “the Company”) petition for review of a
decision and order of the National Labor Relations Board
finding that they violated Section 8(a)(5) and (1) of the National
Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(5), (1). The
principal issue is whether the Board abused its discretion in
vacating a union certification and ordering a new representation
election. The Company contends that the Board erred by
considering issues beyond the scope of a representation
proceeding. Under the unusual circumstances involved, we find
no abuse of discretion by the Board in revoking the union
certification and ordering a new election in a representation
proceeding notwithstanding the extant collective bargaining
agreement (“CBA”). Accordingly, because the Company’s
other defenses to its conceded refusal to bargain with the union
that prevailed in the second election fail, we deny the petition
and grant the Board’s cross application for enforcement of its
order.
I.
Prior to 2002, the Company operated Lyden Care Center
(“Lyden”), a 114-bed skilled nursing facility in New York City.
For more than twenty years, Local 1199, New York’s Health
and Human Service Employees’ Union, Service Employees
International Union (“Local 1199”) represented Lyden’s
employees.
3
On November 15, 2001, the Company submitted an
application to the New York Department of Health to open the
New York Center for Rehabilitation Care (“NY Center”), a new,
280-bed skilled nursing facility to be located a few blocks from
Lyden, stating that it intended to close Lyden and transfer its
patients to the new facility. The application stated that the
Company anticipated that NY Center would be at eighty percent
occupancy within twelve months. The Company estimated that
it would need approximately 300 on staff once NY Center
reached capacity. To effectuate this plan, the Company intended
to increase the number of staff as patients arrived, hoping to
transfer staff from Lyden to NY Center when Lyden closed.
When Local 1199 attempted to obtain information about NY
Center and any plan to transfer its member-employees to the
new facility, the Company provided none.
On January 25, 2002, Local 300S, Production, Service and
Sales District Council, United Food and Commercial Workers
Union (“Local 300S”) filed an election petition with the Board
to become the collective bargaining representative for
employees at NY Center. Neither the Company nor Local 300S
provided the Board with any information about Local 1199’s
interest in the election, notwithstanding Local 1199’s lengthy
representation of Lyden’s employees. Nor did they inform the
Board of the Company’s plan to expand significantly NY
Center’s workforce in the near future. Under the terms of a
stipulation between the Company and Local 300S, only those
employed at NY Center on January 12, 2002 would be eligible
to vote. As of that date, NY Center had forty-one employees,
thirty-seven of whom had worked less than eight hours. Despite
being a skilled nursing facility, only fourteen of the eligible
employees held jobs involving patient care, all fourteen of
whom stopped working at NY Center the week before the first
patient arrived. Following an election held on February 22,
2002, the Regional Director of the Board certified Local 300S
4
as the representative of NY Center employees. On April 26,
2002, three days before NY Center opened its doors, the
Company and Local 300S entered into a four-year CBA. Lyden
closed on October 9, 2002, transferring one hundred patients and
seventy-seven employees to NY Center, and by October 16,
2002, NY Center had more than 200 employees, only twelve of
whom had been eligible to vote in the February 22 election.
On October 25, 2002, Local 1199 filed a petition with the
Board to invalidate Local 300S’s certification and hold a new
election. The Board considered Local 1199’s petition in a
representation proceeding, rather than an unfair labor practice
proceeding. Following a four-day hearing, the Regional
Director found that: (1) the two entities petitioning for review
constitute a single employer under the Act, (2) the Company and
Local 300S had failed to notify the Board about Local 1199’s
interest in the representation election, and (3) the employees
voting in the February 22, 2002 election did not constitute a
“substantial and representative” complement of the “reasonably
foreseeable future workforce” of NY Center. The Regional
Director therefore revoked Local 300S’s certification because it
“was not the lawful . . . representative of NY Center’s
employees at any time” and “[t]o permit the election results to
stand would be contrary to the Act’s guarantee that employees
have the right, of their own choosing, to select or reject a
bargaining representative.” The Regional Director declined to
apply the contract bar doctrine and ordered NY Center to hold
a new election with both Local 300S and Local 1199 on the
ballot.
Local 1199 won the second election, held on March 11,
2004, by a vote of 200 to 5. According to an affidavit the
Company proffered to the Regional Director, Local 1199
representatives had stood at the entrance to NY Center on
election day, distributing hats, T-shirts, and pins to employees,
5
and providing coffee and food. The Company filed objections
to the election on March 23, 2004 based on Local 1199’s
electioneering, asking the Board to set it aside. The Regional
Director overruled the Company’s objections on May 20, 2004
and certified Local 1199 as the collective bargaining
representative of employees at NY Center. When the Company
appealed, the Board declined to review the Regional Director’s
determination, finding that the Company had raised “no
substantial issues” with respect to the election. NY Center
nonetheless refused to bargain with Local 1199. When Local
1199 complained, the Board commenced an unfair labor practice
proceeding. The Company conceded that it had refused to
bargain with Local 1199, but contended that Local 1199’s
certification was invalid. Prior to the Board’s decision, but after
the Company’s refusal to bargain, Local 1199 disaffiliated from
the AFL-CIO.
By decision and order of July 29, 2005, the Board granted
summary judgment, finding that the Company’s refusal to
bargain with Local 1199 violated Section 8(a)(5) and (1) of the
Act. The Board concluded that all issues raised by the Company
with respect to Local 1199’s certification were, or could have
been, raised in the underlying representation proceeding and that
the Company offered neither to adduce newly discovered
evidence nor to show any special circumstances that would
require the Board to reexamine its decision to certify Local
1199. Affirmatively, as a remedy for the violation, the Board
ordered the Company to bargain with Local 1199, to embody
any understanding reached in a signed agreement, and to post
copies of a remedial notice. The Board denied the Company’s
motion for reconsideration, which argued that an issue of fact
existed as to whether Local 1199, after its disaffiliation from the
AFL-CIO, remained the same union that employees had chosen
as their representative. The Company now petitions for review,
raising anew the objections it had raised to the representation
6
proceeding and the second election, and the unfair labor
practices proceeding. The Company, however, has not
challenged the Board’s determination that the two entities
petitioning for review constitute a single employer under the
Act.
II.
In addressing the Company’s several challenges to the
Board’s decision and order, the court does so cognizant that the
Board has “broad discretion ‘to assess the propriety and results
of representation elections,’” AOTOP, LLC v. NLRB, 331 F.3d
100, 103 (D.C. Cir. 2003) (quoting N. of Mkt. Senior Servs., Inc.
v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir. 2000)), and to
establish “procedure[s] and safeguards necessary to insure the
fair and free choice of bargaining representatives by
employees,” NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946).
“Our review of the Board’s factual conclusions is ‘highly
deferential,’” Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 834
(D.C. Cir. 1998) (quoting LCF, Inc. v. NLRB, 129 F.3d 1276,
1281 (D.C. Cir. 1997)), and its findings of fact are conclusive if
“supported by substantial evidence on the record considered as
a whole,” 29 U.S.C. § 160(e); see Perdue Farms, 144 F.3d at
834-35.
A.
The Company challenges the Board’s procedures in
ordering a new election, contending that the Board may impugn
a CBA only in an unfair labor practice proceeding and not in a
representation proceeding. The procedure followed by the
Board, the Company continues, improperly circumvented the
six-month statute of limitations applicable to unfair labor
practice proceedings. See 29 U.S.C. § 10(b). The Board
proceeded in two steps: First, the Board revoked Local 300S’s
certification because the union and the Company failed to notify
7
the Board of Local 1199’s interest and because a substantial and
representative complement of employees did not exist at the
time of the first election. Second, the Board ordered a new
election, declining to apply the contract bar doctrine because it
found that Local 300S had never been validly certified as the
representative of NY Center employees. We find that the Board
did not abuse its discretion by adjudicating these issues in a
representation proceeding.
The Board has stated that “unfair labor practice issues as
such” can only be adjudicated in an unfair labor practice
proceeding. All County Elec. Co., 332 N.L.R.B. 863, 863 (2000)
(emphasis added). Thus, in Texas Meat Packers, Inc., 130
N.L.R.B. 279 (1961), the Board concluded that it could not
properly consider in a representation proceeding an allegation
that an employer had committed an unfair labor practice under
Section 8(a)(3) of the Act. Here, however, the issues the Board
considered in revoking Local 300S’s certification were
fundamentally representation election issues, namely the
Company’s failure to notify the Board of Local 1199’s interest,
see U.S. Chaircraft, Inc., 132 N.L.R.B. 922 (1961), and the
premature election because a substantial and representative
complement of employees did not exist, see Gilmore Motors,
Inc., 121 N.L.R.B. 1672 (1958). The Company and Local 300S
invoked the Board’s election procedures to certify Local 300S
as the employees’ exclusive bargaining representative; the
Board could permissibly use the same proceedings to undo an
improper election. See A.J. Tower, 329 U.S. at 330.
Contrary to the Company’s position, the Board’s decision
not to apply the contract bar doctrine in a representation
proceeding is consistent with the Act and with Board precedent,
even though the Board relied upon facts beyond the four corners
of the CBA, namely the facts that justified revoking Local
300S’s certification. The Board has previously resolved the
8
applicability of the contract bar doctrine in representation
proceedings, see General Extrusion Co., 121 N.L.R.B. 1165
(1958), and doing so here did not resolve any unfair labor
practice issues. The Board’s Outline of Law and Procedure in
Representation Cases also makes clear that the Board may find
an exception to the contract bar doctrine in a representation case,
even on the basis of facts beyond the four corners of a contract.
NLRB, An Outline of Law & Procedure in Representation Cases
(“NLRB Outline of Law & Procedure”) ch. 9 (2005), available
at http://www.nlrb.gov/publications/manuals. Neither the
Outline nor General Extrusion, and certainly nothing in the Act,
requires that a union always pursue an unfair labor practice
charge in order to overcome a contract bar. See NLRB Outline
of Law & Procedure ch. 9, § 9-212; see also General Cable
Corp., 139 N.L.R.B. 1123 (1962).
The Company has cited no authority to the contrary.
Although the Company characterizes General Extrusion as “not
permit[ting] the litigation in a representation (contract bar) case
of the issue of whether a company is in normal operation,”
Petitioner’s Br. at 15, that decision does not announce such a
blanket rule. Further, General Extrusion considered the
circumstances under which the number of those employed at a
company at the time a CBA is entered into can justify ordering
a new election despite that CBA. 121 N.L.R.B. 1165, 1166-67.
Here, the Board considered the number of those employed at NY
Center at the time of the first election to determine whether to
revoke Local 300S’s certification. Its decision not to apply the
contract bar flowed from that revocation decision. As the Board
counsel correctly stated at oral argument, the circumstances of
this case are unusual and the Board’s action seems entirely
justified. We accordingly hold that the Board did not err
procedurally by deciding in a representation proceeding not to
apply the contract bar doctrine.
9
Although the Company also contends in its reply brief that
the Board offered an inadequate explanation for its decision not
to apply the contract bar doctrine, we decline to entertain this
contention; in order to prevent the “sandbagging” of another
party, “we have generally held that issues not raised until the
reply brief are waived.” See Bd. of Regents of the Univ. of
Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996). The
Company’s initial brief included a heading regarding whether
the Board adequately explained its decision, but its brief
addresses only the Board’s procedures. “It is not enough merely
to mention a possible argument in the most skeletal way, leaving
the court to do counsel’s work.” Schneider v. Kissinger, 412
F.3d 190, 200 n.1 (D.C. Cir. 2005) (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990)); see FED. R. APP. P.
28(a)(9).
B.
The Company’s other defenses to its conceded refusal to
bargain with Local 1199 also do not support granting the
Company’s petition.
The Company contends that the circumstances surrounding
the first election did not justify the revocation of Local 300S’s
certification. The record before the Board indicated two
independent grounds for the revocation: failure to give proper
notice and the absence of a substantial and representative
complement of employees at the time of the first election. As
the Board points out, by failing to address the failure to give
proper notice issue in its opening brief, the Company has
forfeited any right to challenge either the Board’s finding that it
failed to notify the Board of an interested party or the Board’s
conclusion that this warranted revocation of Local 300S’s
certification. See Bd. of Regents of the Univ. of Wash., 86 F.3d
at 1221.
10
The Company further contends that the Lyden employees
should have been accreted to Local 300S. According to Board
precedent, an accretion is defined “as ‘the addition of a
relatively small group of employees to an existing unit where
these additional employees share a sufficient community of
interest with the unit employees and have no separate identity.
The additional employees are then properly governed by the
unit’s choice of bargaining representatives.’” Safety Carrier,
Inc., 306 N.L.R.B. 960, 969 (1992) (quoting Safeway Stores,
Inc., 256 N.L.R.B. 918, 924 (1981)). The Board applies its
accretion doctrine “restrictively, so as not to tread too heavily on
the right of employees to choose their own collective bargaining
representative.” Local 627, Int’l Union of Operating Eng’rs v.
NLRB, 595 F.2d 844, 851 (D.C. Cir. 1979); see Passavant Ret.
& Health Ctr., Inc., 313 N.L.R.B. 1216, 1218 (1994). The
Company would have the Board foist a new representative,
Local 300S, on employees who have long been represented by
Local 1199 even though the Board has revoked its certification
for failure to notify the Board of Local 1199’s interest. The
Company has pointed to no authority requiring the accretion of
a smaller unit into a larger one once the Board has determined
that the larger unit lacks a representative, and, as explained, the
Company has not adequately challenged the underlying
revocation. Therefore, we find no abuse of discretion by the
Board in declining to apply the accretion doctrine.
The Company’s objection to the Board’s summary
disposition of its objections to the second election also lacks
persuasive force. A party seeking to overturn a Board-
administered election bears a heavy burden. See Kwik Care Ltd.
v. NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996). Board
regulations permit a Regional Director to dispose of objections
to an election without a hearing unless “the regional director
concludes [the objections] raise substantial and material factual
issues.” 29 C.F.R. § 102.69(d). Board precedent permits
11
electioneering on the day of a representation election so long as
it does not occur in a no-electioneering zone or while the
employees are standing in line to vote, and so long as it does not
substantially impair the employees’ free choice. See Overnite
Transp. Co. v. NLRB, 140 F.3d 259, 269-70 (D.C. Cir. 1998).
Absent evidence of a quid-pro-quo or coercive behavior, the
Board has concluded that the provision of food and campaign
propaganda does not taint an election. See id. at 269; NLRB v.
Coca-Cola Bottling Co., 132 F.3d 1001, 1005-06 (4th Cir.
1997); R.L. White Co., 262 N.L.R.B. 575, 576 (1982).
Here, the Company’s paltry evidentiary offering provides
an insufficient basis to show that the Board was required to hold
an evidentiary hearing. See Amalgamated Clothing Workers of
Am. v. NLRB, 424 F.2d 818, 828 (D.C. Cir. 1970); Boston
Insulated Wire & Cable Co., 259 N.L.R.B. 1118, 1118 n.3
(1982), enforced, 703 F.2d 876 (5th Cir. 1983). The Company’s
allegations involve conduct outside the polling area or any no-
electioneering zone and its evidence – a one-page affidavit by
one employee and a proffer of testimony by an unnamed second
– failed to provide details, including how many employees were
involved and what was said to them and did not allege that Local
1199 distributed paraphernalia or food as rewards. The Board
reasonably could conclude that such evidence does not raise
“substantial and material factual issues.” 29 C.F.R. § 102.69(d);
see AOTOP, 331 F.3d at 103. The cases cited by the Company
are distinguishable; for example, in Nathan Katz Realty, LLC v.
NLRB, 251 F.3d 981, 991-93 (D.C. Cir. 2001), union agents
were within a no-electioneering zone and employees had to pass
by in order to vote. In Owens-Illinois, Inc., 271 N.L.R.B. 1235,
1235-36 (1984), the gifts provided by the union had the
appearance of rewards for favorable votes in a close election. In
summarily rejecting the Company’s objections, then, the Board
acted both consistently with its precedent and reasonably.
12
Finally, the Company contends that the Board erred in
refusing to reconsider its decision that the Company had a duty
to bargain with Local 1199 after the union disaffiliated from the
AFL-CIO. According to the Company, the union’s disaffiliation
changed its identity so that new Local 1199 was not the Local
1199 that won the election. The court need not address this
issue because the Company does not challenge the alternative
ground on which the Board relied, namely that the disaffiliation
occurred after the Company refused to negotiate.
Accordingly, we deny the petition for review and grant the
Board’s application for enforcement of its order.