Raven Services Corp. v. National Labor Relations Board

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-60976

RAVEN SERVICES CORPORATION,

d/b/a RAVEN GOVERNMENT SERVICES, INC.

Petitioner-Cross-Respondent,

VERSUS

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

Petition for Review and Cross Application for Enforcement of an

Order of the National Labor Relations Board

December 18, 2002

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This case involves a petition for review of a National Labor

Relations Board (NLRB) order by Raven Services Corporation (Raven)

and a cross-application by the NLRB for enforcement of its order.

The NLRB found Raven had committed unfair labor practices by: (a)

refusing to bargain with the International Union of Operating

1

Engineers, Local 351, AFL-CIO (Union)1 and refusing to provide the

Union with requested information in violation of National Labor

Relations Act (NLRA) § 8(a)(1) and (5) (29 U.S.C. § 158(a)(1) and

(5)); (b) unilaterally eliminating job classifications, changing

wage rates, and directly dealing with employees regarding these

changes in violation of NLRA § 8(a)(1) and (5); (c) withdrawing

recognition of the Union as exclusive collective bargaining agent

for the employees in violation of NLRA § 8(a)(1) and (5); and (d)

interrogating employees regarding Union activities without advising

them of their rights not to answer such questions, also in

violation of § 8(a)(1).

In its petition for review Raven only challenges the NLRB’s

finding that its unilateral elimination of job classifications and

reclassification of certain employees violated the NLRA. It argues

that this claim was improperly amended to the complaint after the

end of the trial, and therefore was not properly before the NLRB.

It also argues that even if the charge was properly in front of the

NLRB, it erred in its finding of an unfair labor practice, either

because Raven was entitled to make the unilateral changes under a

management rights clause imposed at an earlier impasse in

negotiations, or because it had a good faith belief that the Union

no longer represented the majority of workers, and hence did not

1

International Union of Operating Engineers, Local 826, AFL-CIO

and Local 351, AFL-CIO merged effective March 1, 1997 to form Local

351.

2

need to bargain with it. Raven finally argues that even if it

violated the NLRA, the NLRB’s imposition of backpay for those

workers affected by the unilateral change was either inappropriate

or improperly calculated. The NLRB cross-petitions for enforcement

of its entire order.

For the reasons below we grant the NLRB’s requested

enforcement order in full.

I. Factual and Procedural Background

Raven is a Virginia corporation with an office in Fort Worth,

Texas, where it is engaged in the business of providing maintenance

services for the United States Bureau of Engraving and Printing.

On December 24, 1992, the NLRB certified the Union as the exclusive

collective-bargaining representative of Raven’s service and

maintenance employees at the Fort Worth facility.

In 1993, the parties met in ten bargaining sessions in an

unsuccessful effort to negotiate a collective bargaining agreement.

Another attempt at collective bargaining in August 1994 also

failed. Following these failed negotiations, Raven declared

bargaining at an impasse, and unilaterally imposed the proposals it

had made in negotiations. These proposals included a management

rights clause that allowed the company to unilaterally layoff,

reclassify, demote or transfer its employees. An NLRB

Administrative Law Judge (ALJ) confirmed that bargaining was at an

impasse in a November 24, 1994 opinion, and held that Raven was

3

correct in implementing its pre-impasse proposals, including the

management rights clause.

In August 1996 the Union elected a new group chairman, Kenneth

Forge. Around that time several external events led the Union to

consider re-opening negotiations. First, Union members were aware

that the contract between Raven and the U.S. Bureau of Engraving

and Printing was to expire in September 1996, and rumors abounded

that under the renegotiated contract there would be classification

changes and wage cuts. Second, unit employees had not received a

pay increase in 3 years, and were hoping to achieve such an

increase in negotiations. Third, given that there had been no

negotiations since the August 1994 meetings, nearly 2 years

earlier, and no substantive progress on negotiations since the 1993

negotiations, the Union hoped a passage of time would result in

changed bargaining positions.

On September 20, 1996 the Union business representative and

president Barney Allen sent a letter to Raven requesting a date for

new negotiations, as well as information to aid the Union in those

negotiations. In two letters, dated September 30, 1996 and October

14, 1996 Raven’s attorney, Buddy David, refused to provide the

information requested in the September 20 letter or to set a date

for negotiations, referencing the earlier negotiating impasse.

Further, notwithstanding the September 20th letter, on October 1,

1996, Raven eliminated two classifications without any notice to or

consultation with the Union, laying off two employees and

4

reclassifying two employees within a lower wage category. In

another letter to the company dated October 22, 1996, Allen noted

the Union’s intent to develop new bargaining proposals, and

reiterated its demand for information to help it do so. In further

correspondence, the Union requested information and negotiations,

but Raven denied all requests.

On August 29, 1997 the Union filed an unfair labor practices

complaint against Raven with the NLRB. The case was tried in

September 1997 before an ALJ. At the close of argument, but before

findings were issued, the NLRB General Counsel amended the

complaint to add the charge alleging that Raven violated the NLRA

by making the October 1, 1996 changes. On December 11, 1997 the

ALJ issued his opinion finding Raven had committed several

violations of the NLRA, including a finding that the October 1

changes were illegal. Raven appealed the decision to the NLRB, and

on June 30, 2000 the NLRB affirmed the ALJ’s opinion in all

relevant parts, except that it changed the method of backpay

computation for employees affected by the unilateral changes from

the F.W. Woolworth, 90 N.L.R.B. 289 (1950), method prescribed by

the ALJ, to the Ogle Protection Service, 183 N.L.R.B. 682 (1970),

method.2 On May 2, 2001 the NLRB General Counsel filed a motion to

“clarify” or “modify” the earlier judgment to return the backpay

2

The Ogle backpay computation method allows the employer credit

for all interim earnings, while the F.W. Woolworth method excludes

interim earnings in each calendar quarter to the extent the interim

earnings exceed the backpay obligations for that quarter.

5

computation method to the Woolworth method. This motion was

granted on November 6, 2001, and Raven appealed the entire modified

order to this court.

II. Unilateral Classification Eliminations

A. Amendment of the Complaint

Raven first argues that the issue of whether the unilateral

classification changes violated the NLRA was not properly before

the NLRB, because the charge was not added to the complaint until

after the close of arguments. Raven claims the ALJ erred in

allowing this amendment, and that therefore this court should

dismiss that charge. Alternatively, petitioner argues that the

record should be reopened now to allow it to develop evidence in

its defense, and that therefore we should remand the case to the

NLRB.

We are not persuaded by Raven’s arguments. Section 10(b) of

the NLRA provides that an NLRB complaint “may be amended by the .

. . Board in its discretion at any time prior to the issuance of an

order based thereon.” 29 U.S.C. § 160(b). We have previously held

that “a complaint before the Board is not judged by rigid pleading

rules. A finding not based on a charge in the complaint will be

enforced if the issue was fully and fairly litigated at the

hearing.” Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir.

6

1982).3 The ALJ found the issue of the unilateral classifications

was fully and fairly litigated at trial, and that therefore a

finding on the issue of the unilateral classifications was

appropriate.

This ALJ determination, adopted by the NLRB, is supported by

substantial evidence.4 The original complaint charged Raven with

directly discussing the October 1 changes with employees in lieu of

bargaining with the Union. This charge should have put Raven on

notice that the NLRB considered petitioner’s failure to bargain

with the Union over those changes unlawful. Moreover, it was a

Raven witness, its senior vice president Robert C. Pittman, who

provided the NLRB with the facts it used to formulate the complaint

related to the October 1 changes. And once the charge was added

to the complaint, Raven did not ask to be allowed to present

witnesses on the new charge,5 nor did it offer any objection when

3

Raven incorrectly contends that NLRB v. Kanmak Mills, 200 F.2d

542 (3rd Cir. 1952), provides the standard for determining when an

amendment to an NLRB complaint should be allowed. This Third

Circuit case is not controlling and in conflict with our circuit

precedent.

4

We review NLRB mixed law-fact determinations under the

substantial evidence standard. NLRB v. United Ins. Co. of America,

390 U.S. 254, 260 (1968). Evidence to support a determination must

be more than a mere scintilla; rather, it must be such evidence as

a reasonable mind might accept as adequate to support a conclusion.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

5

The first request by Raven to be allowed to introduce more

evidence related to this charge came in a brief after the ALJ

closed the record with no objection from Raven.

7

the ALJ asked it whether he could close the record.6 Under such

circumstances Raven’s argument that the issue was not fully or

fairly litigated lacks substantiation and does not prevent a

reasonable contrary conclusion.

Likewise, Raven’s argument that we should remand this case to

the NLRB to allow for additional fact finding on this issue is

unpersuasive. Petitioner states that if it is allowed to introduce

new evidence, it would show that the government strongly influenced

its choice to eliminate job classifications in its contract

negotiations with Raven in September 1996. The NLRB’s Rules and

Regulations provide that such a motion must “state briefly the

additional evidence to be adduced, why it was not presented

previously, and that if addressed and credited, it would require a

different result.” 29 C.F.R. § 102.48(d)(1) (2002). The ALJ’s

found that Raven did not comply with this standard.

This finding is supported by substantial evidence on the

record. To begin with the motion failed to explain why the

evidence was not introduced before the record was closed. As noted

above, Raven had the opportunity to introduce evidence into the

6

The ALJ’s report details the efforts of the ALJ to ensure that

Raven had adequate opportunity to introduce evidence related to

October 1 changes. After the amendment to the complaint the ALJ

decided to forego a planned bench ruling on the case in the

interest of giving Raven time to “fully brief” the new charges.

But at no time between the amendment and the closing of the record

did Raven seek to present evidence on the new charge. Further,

before closing the record the ALJ asked Raven whether there was

anything further before the record was closed. Raven’s counsel

responded, “Nothing from us.”

8

record relating to the October 1 changes after the complaint was

amended to add the new charge but before the record was closed.

Raven failed to do so, and the motion provided no reasons for this

failure. Further, the motion failed to explain why the evidence

Raven sought to introduce would be outcome determinative. Raven’s

motion did not give an adequate explanation why evidence that a

government contract mandated the classification elimination would

have relieved Raven of its obligation to discuss the changes with

the Union. Accordingly, the ALJ did not err in refusing to reopen

the record, and we will not disturb that decision here.

B. Impasse

Raven next argues that even if its unilateral elimination of

job classifications was properly in front of the NLRB, those cuts

did not violate the NLRA. Rather, petitioner claims it acted

legally pursuant to a management rights clause implemented during

the impasse in negotiations reached in 1994.

There is no dispute in this case that Raven and the Union were

at impasse in 1994, and that Raven was at that time justified in

implementing its pre-impasse proposals. See Gulf States Mfg v.

NLRB, 704 F.2d 1390, 1398n.4 (5th Cir. 1983) (explaining that

employers may unilaterally implement negotiating proposals at

impasse). It is also not disputed here that these proposals

included a management rights clause that would allow for the

unilateral changes complained of here. We have previously held

9

that such clauses may be implemented at impasse. NLRB v.

Intracoastal Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961).7

The issue, instead, is whether the parties were still at

impasse on October 1, 1996, and therefore whether Raven could still

act pursuant to the management rights clause and forego its NLRA

obligation to bargain with the Union over the changes.8 Impasses

cannot continue forever, as they are by definition temporary. See

Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412

7

At oral argument the attorney for the NLRB suggested that we

should reconsider this rule, and defer to the NLRB’s determination

that management rights clauses cannot be implemented at impasse.

This argument was not briefed, however, and is not properly before

us. L & A Contracting Co. v. Southern Concrete Servs., 17 F.3d

106, 113 (5th Cir. 1994).

8

The ALJ concluded that the changes could not be made pursuant to

the management rights clause because there was no “clear and

express waiver” by the Union of its right to bargain on these

changes. The NLRB argues that we should uphold this conclusion.

Where the NLRB applies an incorrect legal standard, however, we

cannot enforce its order. Ford Motor Co. v. NLRB, 441 U.S. 488,

496-97 (1979). Here, the ALJ made such a mistake, as he confused

waiver doctrine with impasse doctrine.

The waiver doctrine allows a union to explicitly forego its NLRA

bargaining rights in a collective bargaining agreement. Where an

employer claims it is acting unilaterally pursuant to such an

agreement, the correct inquiry is whether the union in fact waived

its right of negotiation. NLRB v. McClatchy Newspapers, Inc., 964

F.2d 1153, 1157 (D.C. Cir. 1992) (Edwards, J., concurring). Where,

as here, the terms were imposed because there is no agreement,

however, there is by definition no waiver. And requiring a waiver

would defeat the purpose of the impasse theory, which is to

temporarily suspend the duty of an employer and union to bargain

over a subject where negotiations prove fruitless. Id. at 1158,

1164. Thus, to the extent that the ALJ and NLRB required Raven to

obtain a waiver from the Union before acting under the management

rights clause implemented at impasse, such a requirement has no

reasonable basis in law.

10

(1982) (defining impasse as a “temporary deadlock or hiatus in

negotiations”). “Anything that creates a new possibility of

fruitful discussion (even if it does not create a likelihood of

agreement) breaks an impasse: a strike may . . . so may bargaining

concessions, implied or explicit . . . the mere passage of time may

also be relevant.” Gulf States Mfg., 704 F.2d at 1399.

Because the ALJ erroneously based his determination that the

October 1 changes were illegal on the waiver theory, he never had

to rule on whether the 1994 impasse was still in existence on

October 1, 1996.9 The factual findings of the ALJ, however,

clearly reflect that the impasse was broken prior to the October 1

changes. Two reasons counsel this ruling. First, “it is well

settled that a failure to supply information relevant and necessary

for bargaining constitutes a failure to bargain in good faith and

precludes a finding of a genuine impasse.” New Associates d/b/a

Hospitality Care Ctr., 307 N.L.R.B. 1131, 1135-36 (1992). See also

Olivetti Office U.S.A. Inc. v. NLRB, 926 F.2d 181, 188-89 (2nd Cir.

1991) (noting that bargaining in good faith requirement of impasse

9

Raven argues that the ALJ in fact held that the impasse was

broken on October 22, 1996 by a Union letter indicating it was

interested in formulating new proposals to break deadlock. While

the ALJ certainly states that there was no impasse after October

22, he does not rule that there was a valid impasse prior to that

date. The ALJ writes that his focus on the October 22 letter is

“assuming there was a valid impasse” on October 22. Under the

ALJ’s erroneous application of the waiver theory it was irrelevant

whether the impasse broke prior to October 22, and thus we do not

read the ALJ’s opinion as having make a determination on that

issue.

11

cannot be met where employer refuses to furnish information on

union request). Here, the Union’s September 20 letter requested

information from Raven regarding currently available employee

benefit plans, job classifications, pay rates, and work schedules.

This information was “relevant and necessary” for bargaining

purposes. When Raven refused to provide that information in its

September 30 letter, it could no longer be said that a genuine

impasse still existed, as Raven was artificially perpetuating

deadlock. Thus, by at least September 30 the impasse had ceased to

exist.10

Second, application of the Gulf States test for determining

when impasse is broken makes clear that there was no impasse in

negotiations at the time of the October 1 changes, as several

factors suggested the possibility of “fruitful negotiations.” As

noted above, the Union had elected a new unit head in August 1996.

Such a change in key Union personnel suggests the possibility of a

changed Union approach to the negotiations. Airflow Research &

Mfg. Corp., 320 N.L.R.B. 861, 862 (1996). Further, by Raven’s own

10

The ALJ had concluded that on or about October 14 Raven

violated the NLRA by refusing to provide the Union with

information it requested for formulating bargaining proposals.

Upon review of the record, however, it is clear that Raven sent the

Union two substantially identical letters in response to the

Union’s September 20 letter. These letters, sent on September 30

and October 14, refused to provide the Union with the requested

information as a consequence of the earlier impasse. Thus, to the

extent that the ALJ’s finding was that October 14 was earliest date

of Raven’s failure to provide information offense, that

determination is not supported by substantial evidence on the

record.

12

admission the coming change in government contracts at the end of

September 1996 created changed economic circumstances in terms of

Raven’s contract cost obligations. These changed economic

circumstances altered the backdrop against which negotiations would

be conducted, and offered the possibility of productive bargaining.

Finally, as we noted in Gulf States Manufacturing, the mere passage

of time can suggest that new negotiations should be had. Gulf

States Mfg., 704 F.2d at 1399. Raven had declared an impasse more

than two years before the October 1, 1996 changes,11 and given this

time, along with the other foregoing factors, we conclude that an

impasse no longer existed on October 1, 1996.

Because the bargaining impasse between Raven and the Union had

ceased or been broken before October 1, Raven could not have

validly made the classification eliminations pursuant to the prior

unilaterally implemented management rights clause. The duty to

bargain resumes on the break or cessation of impasse. See Charles

D. Bonnano Linen Serv., 454 U.S. at 412 (upholding Hi-Way

Billboards, Inc., 206 N.L.R.B. 22, 23 (1973), rule holding that

impasse temporarily suspends, not permanently breaks, the duty to

bargain). Accordingly, the NLRA’s bargaining requirement was

applicable, and Raven’s failure to bargain was a violation of that

act.

11

Raven declared an impasse after a failed bargaining meeting in

August 1994, and an NLRB ALJ confirmed that bargaining was at an

impasse in a November 1994 opinion.

13

C. Union Majority Status

Raven argues in the alternative that its unilateral

elimination of job classifications was proper because it acted in

the good faith belief that the Union no longer enjoyed the support

of the majority of its members. When an employer has such a good

faith belief it may withdraw recognition from a union and refuse to

bargain with it. Allentown Mack Sales & Servs., Inc. v. NLRB, 522

U.S. 359, 359 (1998). To determine whether an employer in fact

holds such a belief, we apply a two part test in which the employer

bears the burden of proof. NLRB v. Curtin Matheson Scientific,

Inc., 494 U.S. 775, 787 (1990). First, we ask whether at the time

of its refusal to recognize a union, the employer had a “reasonable

uncertainty” about whether the union enjoyed the continuing support

of its members. Allentown Mack, 522 U.S. at 367, 371. These

doubts must be supported by objective evidence external to the

employer’s subjective impressions. Id. at 368n.2. Second, we

consider whether the employer’s uncertainty is held in good faith

(i.e., is it “genuine”?). Id. at 371. To be held in good faith

the doubt must arise in a context free of unfair employer labor

practices that could have reasonably tended to contribute to

employee dissatisfaction with its union. United Supermarkets, Inc.

v. NLRB, 862 F.2d 549, 554n.6 (5th Cir. 1989).

The ALJ concluded that Raven had not met the first prong of

this test, concluding it had failed to point to sufficient evidence

14

on which it could have based a good faith doubt of the Union’s

majority status on October 1, 1996. The ALJ also held that the

Raven had failed to demonstrate that its doubts were held in good

faith, as they were reached in the context of wide ranging unfair

labor practices that undermined Union support among employees. We

review these determinations under the substantial evidence

standard. Allentown Mack, 522 U.S. at 366. Put another way, we

must consider whether a reasonable fact-finder could have found

that Raven lacked a “genuine, reasonable uncertainty” about the

Union’s majority status. Id. at 367. We conclude that a

reasonable fact-finder could make such a determination.

First, we agree with the ALJ that Raven has failed to point to

sufficient evidence on which it could have based a good faith

belief that the Union lacked majority status in October 1996. In

its brief Raven cites five pieces of evidence that it relied upon

to question the Union’s majority. It noted: (1) lack of real

efforts by the Union to obtain an agreement; (2) the Union’s

inability or refusal to formulate proposals to break the impasse;

(3) Union inactivity from January to September 1996, including the

failure of the Union to provide Raven with a list of stewards; (4)

substantial workforce turnover from the certification of the Union

in December 1992 to October 1996; and (5) a rumor that a

decertification petition was circulated by an employee in January

or February 1996.

Raven’s actions were principally the reason for the Union’s

15

inability to formulate proposals that resulted in an agreement. By

refusing to give the Union the materials it requested in its

September 20 letter, Raven denied the Union the information it

needed to formulate new proposals. As for the remaining evidence,

after considering it as a whole we believe that a reasonable fact

finder could conclude that Raven did not have “reasonable

uncertainty” as to the Union’s status. Contrary to Raven’s claims,

there was at least some activity by the Union of which petitioner

was aware in 1996, including the election of Kenneth Forge as Union

steward. The workforce turnover that Raven notes was insufficient

to establish good faith doubt of majority status, unless there was

some reason to believe that the new workers were less likely to

support the Union. NLRB v. A.W. Thompson, Inc., 525 F.2d 870, 871-

72 (5th Cir. 1976). Raven offers no evidence to support such a

conclusion. And Raven’s information concerning the decertification

petition was a scant rumor at best. Raven made no attempt to

substantiate the hearsay information until September 1997, nearly

a year after the October 1, 1996 unilateral changes.

Unsubstantiated rumors of a decertification petition, even combined

with workforce turnover and limited activity by the Union over a 9

month span, do not constitute sufficient grounds for reasonable

uncertainty over the Union’s majority status. Cf. Allied Indus.

Workers v. NLRB, 476 F.2d 868, 881-82 (D.C. Cir. 1973) (noting that

“naked information” regarding the filing of a decertification

petition without information regarding the number of signatories is

16

insufficient to create good faith doubt of union majority status,

even with additional evidence present).

Even assuming arguendo that Raven had reasonable uncertainty

about the Union’s majority status, we agree with the NLRB’s

conclusion that this belief was not held in good faith. Raven did

not inform the Union that it doubted its majority status until July

1997, nine months after it made the October 1, 1996 changes

unilaterally. Given this time lag, Raven’s claim that it genuinely

doubted the Union’s majority status in October 1996 appears more as

a post hoc rationalization for unilateral action, than a real

reflection of its beliefs. Moreover, the doubts Raven claimed to

have had on October 1, 1996 were rendered suspect by its refusal of

the Union’s September 20, 1996 request for information necessary or

useful to the formulation of bargaining proposals. Raven’s

unlawful refusal of information itself threatened to undermine

support for the Union among workers by rendering futile the Union’s

attempts to formulate a new bargaining proposal. It is exactly

this kind of coercive anti-union employer practice that we have

previously held prevents an employer from establishing good faith

doubt as to a union’s majority status. United Supermarkets, 862

F.2d at 553n.6.

Thus, the NLRB’s determination that Raven lacked good faith

doubt as to the Union’s majority status entitling it to act

unilaterally in making the October changes is supported by

substantial evidence on the record. We therefore conclude the NLRB

17

did not err in finding that Raven’s unilateral October 1, 1996

changes constituted an unfair labor practice.

D. Backpay Remedy

In its final ground of error Raven argues that even if it

acted improperly in its October 1 changes, the NLRB erred in

ordering backpay for the affected workers, or at the least in using

the F.W. Woolworth, 90 N.L.R.B. 289 (1950), method of backpay

calculation rather than the Ogle Protection Services, 183 N.L.R.B.

682 (1970), method. We find neither argument persuasive.

Raven claims the October 1 layoffs could not have been avoided

through bargaining with the Union because the government required

the company to take the actions in question in order to cut labor

costs to meet the demands of a new contract. “ [ A ] b a c k p a y o r

restitution order will not be enforced where the result of the

enforcement would be to put the worker in better position than he

would have been without the violation.” Gulf States Mfg., 704 F.2d

at 1400-01. This rule applies where a company proves, “layoffs

would have occurred when and as they did even if there had been

bargaining.” Id.

Unfortunately for Raven it never made this argument to the ALJ

or the NLRB. Therefore, this court lacks jurisdiction, absent

extraordinary circumstances, to consider this argument on appeal.

Detroit Edison Co. v. NLRB, 440 U.S. 301, 311n.10 (1979) (“[NLRA]

Section 10(e) precludes a reviewing court from considering an

18

objection that was not urged before the Board.”). Raven argues

that because it lacked notice of the classification issue before

the close of evidence, it lacked the opportunity to make this

argument to the ALJ. As we noted above, however, not only was

Raven on notice that the NLRB found the October 1 changes

problematic, but it was given adequate opportunity to respond to

the charge before the close of evidence. Under such circumstances,

no extraordinary explanation for failure to exhaust this argument

exists.

Raven next argues that the NLRB erred when it granted the

General Counsel’s Motion to Reconsider its holding as to the

appropriate back pay computation method to be used in this case.

Raven urges this court to find that the motion, filed as a § 102.49

Motion for Clarification or Modification, was actually a Motion for

Reconsideration and thus was not timely filed under Section

102.48(d) of the Board’s Rules and Regulations.12

Section 102.48(d)(2) of the Board’s Rules and Regulations

provides that a party’s request for reconsideration, rehearing, or

reopening of the record must generally be filed within 28 days of

the Board’s decision. Section 102.49 states:

12

As explained above the ALJ originally recommended backpay be

computed according to the F.W. Woolworth method of backpay

calculation. The NLRB’s original order, filed on June 30, 2000

changed the method of calculation to the method set out in Ogle

Protection Service. The NLRB General Counsel then filed a motion

to clarify or modify its earlier order on May 2, 2001 to return the

backpay computation to the F.W. Woolworth method, which the NLRB

granted.

19

Within the limitations of the provisions of section 10(c)

of the Act, and §§ 102.48, until a transcript of the

record in a case shall have been filed in a court, within

the meaning of section 10 of the Act, the Board may at

any time upon reasonable notice modify or set aside, in

whole or in part, any findings of fact, conclusions of

law, or order made or issued by it. Thereafter, the Board

may proceed pursuant to §§ 102.50, insofar as applicable.

29 C.F.R. § 102.49 (2002) (emphasis added). Raven argues that

because § 102.49 makes no provisions for motions, the General

Counsel’s motion here must have been made pursuant to § 102.48(d).

Cf. NLRB v. Selvin, 527 F.2d 1273, 1276 (9th Cir. 1975) (holding

that motions made by parties to reopen record must be made within

the parameters of § 102.48(d), rather than § 102.49). Because the

motion here was filed 11 months after the original opinion, Raven

reasons that it was untimely under § 102.48(d)(2) and should not

have been considered.

In rejecting this argument the NLRB cited Dorsey Trailers, 322

N.L.R.B. 181 (1996), in which it denied an identical argument.

There the NLRB reasoned that if it had the power under § 102.49 to

modify its order sua sponte any time before the matter was filed

with the circuit court, it could not lose that power simply because

the General Counsel filed a motion for the change that he was not

mandated to file. Cases like Selvin were inapposite, the NLRB

concluded, because they dealt with a party’s attempt to get an

aspect of a decision reconsidered, rather than the General Counsel.

We need not address the merits of Dorsey Trailers because,

assuming arguendo that the General Counsel’s motion was a §

20

102.48(d) motion, it was within the NLRB’s discretion to accept

that motion beyond the 28 day deadline. In NLRB v. U.S.A. Polymer

Corp., 272 F.3d 289, 296 (5th Cir. 2001), we explained that the

NLRB can, at its discretion, disregard the 28 day deadline of §

102.48(d)(2), and consider motions filed after the deadline. Thus,

even if the motion here was filed pursuant to § 102.48(d), the NLRB

was acting within its authority to consider the motion. Raven’s

point of error has no merit.

III. Enforcement Order

The NLRB cross-petitions for enforcement of its order pursuant

to 29 U.S.C. § 160(e). An order issued by the NLRB does not have

the effect of law, and the NLRB has no authority to compel

compliance or punish noncompliance. The NLRB is thus generally

entitled to an enforcement order to bar the continuation or

resumption of unfair labor practices. NLRB v. Mexia Textile Mills,

Inc., 339 U.S. 563, 567-68 (1950).

Except for the objections discussed and denied above, Raven

does not contest the NLRB’s findings. Rather, it argues that

enforcement is not warranted because the uncontested charges are

all moot. The U.S. Supreme Court has recognized that an

enforcement may become moot if a party can show “there is no

reasonable expectation that the wrong will be repeated.” NLRB v.

Raytheon Co., 398 U.S. 25, 27 (1970) (citing NLRB v. Jones &

Laughlin Steele Corp., 331 U.S. 416, 428 (1947), and United States

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v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). Here, Raven makes

two arguments why an enforcement order is moot.

First, it argues that the order is moot pursuant to our

decision in Cagle’s, Inc. v. NLRB,588 F.2d 943 (5th Cir. 1979). In

Cagle’s this court held that an agreement between an employer and

union can be the basis of a conclusion that there is no “reasonable

expectation the wrong will be repeated.” Cagle’s, 588 F.2d at 951.

Raven argues that an agreement between it and the Union made after

the NLRB’s order render all but the direct dealing with employee

charge moot, as the agreement ensures there is no reasonable

expectation that the other transgressions will be repeated. There

is no evidence of such an agreement in the record, however. As

Raven as petitioner bears the burden of introducing evidence that

shows an enforcement order request is moot, NLRB v. CJC Holdings,

Inc., 97 F.3d 114, 116 (5th Cir. 1996), the absence of evidence of

the agreement in the record means its Cagle’s argument fails.

Second, Raven argues that it is in substantial compliance with

the orders, and that the fact that no new complaints have been

filed since 1996, shows it will not violate orders in the future.

However, “compliance with an order of the Board does not render the

cause moot, depriving the Board of its opportunity to secure

enforcement from an appropriate court.” Mexia Textile Mills Inc.,

399 U.S. at 567. Accordingly, Raven’s compliance cannot prevent us

from granting the NLRB’s requested order, and we conclude such an

order is warranted.

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IV. Conclusion

Because we find petitioner Raven Services’ grounds for review

lack merit, its petition for review is DENIED. Cross-petitioner

NLRB’s motion for an enforcement order is GRANTED in full.

PETITION FOR REVIEW DENIED; ENFORCEMENT ORDER GRANTED.

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