Pace University v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2007 Decided January 25, 2008

No. 07-1032

PACE UNIVERSITY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

No. 07-1054

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Terence M. O’Neil argued the cause for petitioner. On the

briefs was Raymond J. Pascucci.

Elizabeth A. Heaney, Attorney, National Labor Relations

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

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were Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Assistant General

Counsel, and Fred B. Jacob, Supervisory Attorney.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

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

3

enforcing their results – is compromised. Accordingly, we deny

the petition for review of the Board’s order that Pace unlawfully

refused to bargain with the certified union representative and

grant the Board’s cross-application for enforcement of its order.

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-

4

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

1

The Election Order read:

Included [in the bargaining unit]: All adjunct faculty

members, part-time instructors and all non-

supervisory employees who have dual capacity

functions who are employed by the Employer. [*]

[*] Eligible to vote in the election

are those in the unit . . . who have

received appointments and teach at

least 3 credit hours and/or 45 hours

in one semester in at least two of the

last three 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.

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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 year and ending with the 2003-2004

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.

Pace did not seek Board review of the Amended Election

Order.2

2

Although the Union’s initially proposed unit did not

mention “casual employees,” both the Election Order and Amended

Election Order did. The Election Order included a footnote stating

that “casual employees” were ineligible to vote; it defined “casual

employees” as “those employed for less than 3 credit hours and/or 45

hours in a semester.” This reflected the definition adopted by the

Hearing Officer in response to the Union’s amended definition of the

unit. The Amended Election Order, in referencing the definition in the

Election Order, stated that “casual employees” were “those adjunct

faculty and those part-time instructors who work less than 3 credit

6

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.

hours and/or 45 hours in a semester or otherwise fail to meet the

eligibility formula set forth above.” According to the Board, the new

(italicized) text was an “inadvertent” typographical error. Resp.’s Br.

at 20. In defining the unit and voter-eligibility criteria, the Amended

Election Order did not include a footnote on “casual employees.”

7

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 §§ 8(a)(1) and (5) of the National Labor Relations Act

(“the Act”), and issued a cease and desist order directing Pace

to bargain upon the Union’s request. Pace petitions for review.

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, contrary to the Act

and Board precedent, whereby the unit included members who

were ineligible to vote; (2) “casual employees” excluded from

the bargaining unit are those adjuncts who are ineligible to vote,

namely those who teach more than 3 credit hours and/or 45

hours in one semester, but have not done so for at least two of

the last three academic years; and (3) there was not substantial

evidence in the record that such adjuncts share a community of

interest with other adjuncts as would justify placing them in the

same bargaining unit. The Board seeks enforcement of its order

on both procedural and substantive grounds.

The Board has broad discretion to define the contours of an

appropriate bargaining unit. 29 U.S.C. § 159(b); Skyline

Distribs., Inc. v. NLRB, 99 F.3d 403, 406-07 (D.C. Cir. 1996).

Once a union is certified for a unit, the Act prohibits an

employer from refusing to bargain with the union. 29 U.S.C. §§

158(a)(1), (5); see Exxon Chem. Co. v. NLRB, 386 F.3d 1160,

1163-64 (D.C. Cir. 2004). The Board has authority under the

Act “to make, amend, and rescind . . . such rules and regulations

as may be necessary to carry out the provisions of this

subchapter.” 29 U.S.C. § 156. Under the Act and the Board’s

8

rules, the representation proceeding is the forum designed for

parties to contest the appropriateness of a bargaining unit. Id. §

159(b); 29 C.F.R. §§ 102.60-68.

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); 29 C.F.R. § 102.67(f).3 As a

refusal-to-bargain unfair labor practice proceeding addresses a

charge “based on the record made at the earlier representation

proceeding,” Amalgamated Clothing Workers of Am. v. NLRB

(ACWA I), 365 F.2d 898, 903 (D.C. Cir. 1966), “a party must

raise all of his available arguments in the representation

3

The Board’s regulations provide:

The parties may, at any time, waive their

right to request review [of a Regional

Director’s unit determination]. Failure to

request review shall preclude such parties

from relitigating, in any related subsequent

unfair labor practice proceeding, any issue

which was, or could have been, raised in the

representation proceeding. Denial of a

request for review shall constitute an

affirmance of the [R]egional [D]irector’s

action which shall also preclude relitigating

any such issues in any related subsequent

unfair labor practice proceeding.

29 C.F.R. § 102.67(f).

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proceeding rather than reserve them for an enforcement

proceeding,” Prairie Tank S., Inc. v. NLRB, 710 F.2d 1262, 1265

(7th Cir. 1983). There are only limited exceptions. See Thomas-

Davis, 157 F.3d at 912-13; Amalgamated Clothing Workers of

Am. v. NLRB (ACWA II), 424 F.2d 818, 829 (D.C. Cir. 1970);

Westwood One, 323 N.L.R.B. at 1002; see also 29 C.F.R. §

102.65(e). For example, relitigation is allowed if “newly

discovered evidence or other special circumstances requir[e]

reexamination of the decision in the representation proceeding,”

Joseph T. Ryerson, 216 F.3d at 1151; Soft Drink Workers Union

Local 812 v. NLRB, 937 F.2d 684, 688 (D.C. Cir. 1991), or if

there is “legal authority . . . that changed governing law,” Alois

Box Co., Inc. v. NLRB, 216 F.3d 69, 78 (D.C. Cir. 2000). Such

circumstances would arise, for example, where a new legal

argument is based on after-arising or after-discovered facts.

Prairie Tank, 710 F.2d at 1265. The rule thus requires litigation

of any unit issues that a party has reason, ability, and

opportunity to contest during the representation proceeding.

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

10

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 non-

relitigation 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 29 U.S.C. § 160(e).

11

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 scope of the

bargaining unit and the criteria for voter eligibility. Although

Pace disagreed with the Hearing Officer’s statement that these

were “two distinct issues” and requested a stay, the Hearing

Officer adopted the Union’s amended definitions of the unit and

voter eligibility, setting forth two separate categories. When

asked during the hearing on several occasions by the Hearing

Officer to identify its position on the issues, Pace stated only a

general objection that the issues were intertwined and sought to

have granted its pending motions to dismiss the certification

petition, for a stay and transfer of the case to the Board, and for

recusal and transfer to a different Region. Pace neither

explained how the issues of unit scope and voter eligibility were

intertwined nor presented the arguments it presents in its brief

to the court that the Act and Board precedent require all

members in the unit to be eligible to vote. By contrast, Pace

argued that law school adjuncts should not be included in the

bargaining unit, which led to a stipulation of the parties.

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.

12

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

litigate the “casual employees” definition or member-voter

13

distinction until the unfair labor practice proceeding because it

“believed the issue had been resolved in its favor.” Pet.’s Reply

Br. at 8-9. Pointing to a typographical error in a footnote in the

Amended Election Order, see supra note 2, as evidence on

which it could reasonably rely to believe it had received a

favorable scope-of-unit ruling, Pace maintains that the footnote

stated the status of the law on a member-voter distinction.

However, the typographical error appeared at that time only in

the narrative portion of the Amended Election Order, which

misquoted the previously-issued Election Order. Critically, the

error did not appear in the part of the Amended Election Order

defining the scope of the unit. Neither did it appear in the

Board’s posted pre-election notices. Any confusion arising from

the added text should have prompted experienced counsel to

seek clarification or to state Pace’s understanding on the record,

not wait to raise the issue long after the election had occurred

and the Board had certified the Union. As the Regional Director

pointed out in resolving the Union’s unit-clarification petition,

“[t]he fact that [Pace] never addressed that issue strongly

militates against accepting [its] position.” Counsel’s silence

suggests a realization that the added text was inconsequential.

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

14

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

Services, 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 the Board’s cross-application for enforcement

of its order.