MI Comm Svcs v. NLRB

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$*5,&8/785$/ ,03/(0(17  implemented by a centralized agency. Specifically, the Court

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interpretation of the federal statute by the centralized

,QWHUYHQRUV 1 expert agency created by Congress not only demands that

the NLRB’s primary jurisdiction be protected, it also

forecloses overlapping state enforcement of the

2Q3HWLWLRQVIRU5HYLHZDQG&URVV$SSOLFDWLRQIRU prohibitions in § 8 of the Act [29 U.S.C. § 158] . . . as

(QIRUFHPHQWRIDQ2UGHURIWKH well as state interference with the exercise of rights

1DWLRQDO/DERU5HODWLRQV%RDUG protected by § 7 of the Act [29 U.S.C. § 157].

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Id. at 528 (citations and footnotes omitted). See also NLRB

$UJXHG-XO\ v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940) ("The

control of the election proceedings, and the determination of

'HFLGHGDQG)LOHG2FWREHU the steps necessary to conduct that election fairly were

matters which Congress entrusted to the Board alone.")

%HIRUH6,/(5&2/(DQG&/$<&LUFXLW-XGJHV Further, we note that the extension of comity to the MERC-

conducted elections involving SLS would appear to be

BBBBBBBBBBBBBBBBB inconsistent with the Board’s own policy. See Doctor’s

&2816(/ Osteopathic Hosp., 242 NLRB 447, 449 (1979), aff’d 624

F.2d 1089 (3d Cir. 1980) (noting that "it is only where the

$5*8('  *UHJRU\ - %DWRU %$725  %(5/,1 state agency’s procedure is clearly repugnant to the Act that

%LUPLQJKDP0LFKLJDQIRU3HWLWLRQHUVDQG6XPPHU¶V/LYLQJ we will refuse comity"). Accordingly, we deny AFSCME’s

6\VWHPV ,QF  5LFKDUG $ &RKHQ 1$7,21$/ /$%25 petition for review.

5(/$7,216 %2$5' 2)),&( 2) 7+( *(1(5$/

&2816(/:DVKLQJWRQ'&IRU5HVSRQGHQW0DUJDUHW$ CONCLUSION

0F&DQQ :DVKLQJWRQ '& IRU $PHULFDQ )HGHUDWLRQ RI

6WDWH &RXQW\  0XQLFLSDO (PSOR\HHV $)6&0( $)/ For the foregoing reasons, we DENY the petitions for

&,221%5,()*UHJRU\-%DWRU%$725 %(5/,1 review by MCS in Case No. 00-2192 and AFSCME in Case

%LUPLQJKDP$ODEDPDIRU3HWLWLRQHUVDQG6XPPHU¶V/LYLQJ No. 00-2451, and ENFORCE the Board’s order in Case No.

6\VWHPV ,QF 'DQLHO $ *ZLQQ %$725  %(5/,1 00-2440 finding that it is supported by substantial evidence

%LUPLQJKDP0LFKLJDQ5RGJHU:HEE'HWURLW0LFKLJDQIRU on the record.

3HWLWLRQHUV  5LFKDUG $ &RKHQ 1$7,21$/ /$%25

5(/$7,216 %2$5' 2)),&( 2) 7+( *(1(5$/

&2816(/ :DVKLQJWRQ '& $LOHHQ $ $UPVWURQJ

1$7,21$//$%255(/$7,216%2$5'$33(//$7(

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"Want of jurisdiction of the subject matter cannot be 0DUJDUHW $ 0F&DQQ :DVKLQJWRQ '& IRU $PHULFDQ

waived; that jurisdiction of the subject matter cannot be )HGHUDWLRQ RI 6WDWH &RXQW\  0XQLFLSDO (PSOR\HHV

supplied by the consent of the parties; and that objection $)6&0($)/&,2&DWKHULQH-7UDIWRQ$662&,$7(

to lack of such jurisdiction may be interposed or noticed *(1(5$/&2816(/,17(51$7,21$/81,218$:

at any stage of the action." 1A Barron and Holtzoff, Fed. 'HWURLW 0LFKLJDQ *HRUJH % :DVKLQJWRQ 6&+())

Practice and Procedure, § 370b (Wright ed., 1960). :$6+,1*721 'HWURLW 0LFKLJDQ /DZUHQFH 5 :HEE

'HWURLW0LFKLJDQ'DQLHO$*ZLQQ%$725 %(5/,1

353 F.2d 366, 369 (6th Cir. 1965). Thus, the Board was free %LUPLQJKDP0LFKLJDQIRU,QWHUYHQRUV

to exercise its discretion and assume jurisdiction at any time.

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In this case, the Board, after issuing Management Training,

had exclusive jurisdiction to direct or supervise the elections. 23,1,21

See Sears, Roebuck & Co. v. Carpenter’s Dist. Council (San BBBBBBBBBBBBBBBBB

Diego), 436 U.S. 180, 202 (1978) ("The primary-jurisdiction

rationale unquestionably requires that when the same &/$<&LUFXLW-XGJH0LFKLJDQ&RPPXQLW\6HUYLFHV,QF

controversy may be presented to the state court or the NLRB, DQGWZHQW\HLJKWRWKHUQRQSURILWFRUSRUDWLRQVFROOHFWLYHO\

it must be presented to the Board.") As Intervenor SLS ³0&6´ ZKLFK DUH OLFHQVHG E\ WKH 6WDWH RI 0LFKLJDQ WR

rightly argues, quoting from San Diego Building Trades SURYLGHUHVLGHQWLDOFDUHIRUGHYHORSPHQWDOO\GLVDEOHGDGXOWV

Council v. Garmon, 359 U.S. 236, 246 (1959), state LQDUHVLGHQWLDOVHWWLQJDSSHDOLQ&DVH1Rfrom the

jurisdiction is displaced if conduct is "arguably within the final decision and order entered by the National Labor

compass of § 7 or § 8 of the Act." Given that the elections Relations Board ("the NLRB" or "the Board") in Summer’s

were "arguably within the compass of § 7 or § 8 of the Act," Living Systems, Inc., 2000 WL 1460041 (NLRB 2000)

the elections conducted by MERC should be void. See Mass. (unpublished) in which the NLRB declined to set aside union

Labor Relations Comm’n v. Blue Hill Spring Water Co., 414 representation elections and held that MCS engaged in unfair

N.E.2d 351 (Mass. Ct. App. 1980) (recognizing that labor practices under §§ 7 and 8(a)(1) and (5) of the National

proceedings in the Massachusetts Labor Relations Committee Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1) and

would be void if the Board had asserted jurisdiction of an (5) ("the Act") by refusing to bargain collectively with the

unfair labor practice complaint). American Federation of State, County & Municipal

Employees, AFL-CIO ("AFSCME"), and the International

Because MERC did not have jurisdiction to conduct the Union, United Automobile, Aerospace and Agricultural

elections involving SLS after the issuance of Management Implement Workers of America, AFL-CIO ("UAW"),

Training, the Board properly refused to extend comity to (collectively, "the Unions"), after the unions won the

these MERC-conducted elections. As pointed out by SLS, elections. In Case No. 00-2440, the NLRB has cross-

extending comity in this case would directly violate the intent petitioned for enforcement of the order; the Unions have

of Congress to vest exclusive jurisdiction with the Board and intervened in support of the NLRB’s cross-petition. In Case

subvert the goal announced in New York Telephone Co. v. No. 00-2451, AFSCME seeks review of the NLRB’s decision

New York State Dept. of Labor, 440 U.S. 519 (1979) of and order in Summer’s Living Systems dismissing unfair labor

promoting a unified nationwide scheme of labor law practice allegations against Summer’s Living Systems, Inc.

and eight other employers (collectively "SLS") that own

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residential care facilities. SLS has intervened in opposition concerning assertion of that oversight." Pikeville, 109 F.3d at

to AFSCME’s petition. 1152 (internal citations and quotation marks omitted).

In Summer’s Living Systems, the Board issued a decision In determining whether the Board had jurisdiction, this

and order affirming the decision made by the administrative Court in Pikeville set forth the following standard: "Under a

law judge ("ALJ") to extend comity to the union Management Training Corp. analysis, the jurisdiction of the

representation elections conducted by the Michigan Employee NLRB over [an employer] is established simply by the

Relations Commission ("MERC") in thirty residential care minimal showing that the [employer] both "meets the

facilities owned by MCS that took place before Management definition of ‘employer’ under Section 2(2) of the Act," and

Training Corp., 317 NLRB 1355 (1995) was decided, but not "meets the applicable monetary jurisdictional standards." Id.

to extend comity to the MERC-conducted elections in the Under this test, the Board properly had jurisdiction over SLS.

residential care facilities owned by SLS that took place after

Management Training was decided on the ground that MERC In this regard, there is no merit to AFSCME’s claim that

lacked jurisdiction to conduct those union representation SLS waived the jurisdictional issue by failing to raise it

elections. In Management Training, the Board, overruling the before the MERC elections were held or before the Board in

jurisdictional test set forth in 5HV&DUH,QF1/5% Summer’s Living Systems, Inc. As the Intervenors SLS point

decided that it had MXULVGLFWLRQRYHUDQHPSOR\HUZLWK out, their failure to contest the jurisdiction of the MERC at the

FORVHWLHVWRDQH[HPSWJRYHUQPHQWDOHQWLW\DVGHILQHGXQGHU time of the elections does not prevent the Board from

86&† Accordingly, the Board upheld the unfair concluding that the MERC lacked jurisdiction to conduct the

labor practice complaints filed against MCS, but dismissed elections after Management Training. As this Court noted in

those filed against SLS. For the reasons set forth below, we NLRB v. Ferraro’s Bakery, Inc.:

DENY the petitions for review by MCS in Case No. 00-2192

and by AFSCME in Case No. 00-2451, and ENFORCE the The Board concedes that the question of its statutory

Board’s order in Case No. 00-2440. jurisdiction may be raised at any time despite failure to

raise this issue before the Board in a timely fashion.

BACKGROUND Failure to file exceptions does not confer jurisdiction on

the Board if the order is beyond the scope of its statutory

The present case concerns a dispute between a group of authority. As said in N.L.R.B. v. Cheney California

Michigan non-profit corporations operating group homes Lumber Company, 327 U.S. 385, 388, 66 S. Ct. 533, 554,

providing residential care and services to individuals with 90 L.Ed. 739:

disabilities (collectively "the Employers") and the Unions

representing their employees regarding the employees’ rights "Since the court is ordering entry of a decree, it

to choose union representation under § 7 of the Act. The need not render such a decree if the Board has

State of Michigan Department of Mental Health ("MDMH") patently traveled outside the orbit of its authority so

funds the Employers’ operations through annual contracts that that there is, legally speaking, no order to enforce."

establish defined limits upon wages and benefits that the

Employers may pay. In 1985, the Unions began organizing It is elementary that:

efforts at the Employers’ residential care facilities, with

AFSCME filing several election petitions with the Board’s

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1995); NLRB v. Winco Petroleum Co., 668 F.2d 973, 982 (8th regional office in Detroit, Michigan, seeking to represent the

Cir. 1982). As stated in Fall River, the appropriate inquiry is employees of the Employers operating under contracts with

whether any changes have occurred such that "if [the MDMH. In CK Homes, Inc. v. AFSCME, an unpublished

employees’] legitimate expectations in continued decision of the NLRB Seventh Region Director, decided

representation by their union are thwarted, their February 14, 1986 (Case No. 7-RM-1275) and Residential

dissatisfaction may lead to labor unrest." Fall River, 482 U.S. Systems v. UAW, an unpublished decision of the NLRB

at 43-44. Further, as the Board points out, to allow new Seventh Region Director, decided April 7, 1988 (Case No.

elections in this case would permit MCS "to exploit the No. 7-RC-18529), the Board, relying primarily upon Res-

heightened insecurities among employees" to the detriment of Care Inc., 280 NLRB 670 (1980), dismissed AFSCME’s

the Act’s fundamental policy of favoring "industrial peace." petitions, citing lack of subject-matter jurisdiction under the

In any event, it is well recognized that the employees have the Act on the basis that the State of Michigan was an exempt

statutorily-protected right of relieving themselves of union governmental entity.

representation if they so desire. See Auciello Iron Works, Inc.

v. NLRB, 517 U.S. 781, 790 (1996)(observing that the union Thereafter, on January 28, 1988, AFSCME filed petitions

was "subject to a decertification petition from the workers if with MERC seeking to represent the employees of the

they want to file one"); Franks Bros. Co. v. NLRB, 321 U.S. Employers’ separate units, naming MDMH and the group

702, 704-06 (1944). Thus, if the employees are not well- home providers as joint employers. MDMH opposed the

served by union representation, they can pursue petitions naming it as a joint employer, claiming that

decertification petitions. MERC’s jurisdiction over each private employer was

preempted as a matter of federal labor policy. After finding

Accordingly, we find that the Board did not err in that the named employers were joint employers, MERC

extending comity to the MERC-conducted elections held asserted jurisdiction over MDMH under the Michigan Public

before the issuance of Management Training. We thus deny Employment Relations Act ("PERA"), Mich. Comp. Laws

MCS’ petition for review. Ann. §§ 423.201423.216, and over the group home

providers under the Michigan Labor Mediation Act

Case No. 00-2451: AFSCME’s Petition ("MLMA"), Mich. Comp. Laws Ann. §§ 423.1423.30. In

asserting jurisdiction, MERC relied upon the Board’s refusal

On the other hand, contrary to AFSCME’s claim, the Board to assert jurisdiction over the group home providers under the

did not err in declining to extend comity to the MERC- Act and the decision of the Michigan Civil Service

conducted elections after Management Training was decided Commission not to classify the employees of the group homes

on the basis that MERC lacked jurisdiction to hold these as state civil service employees. See AFSCME v. La. Homes,

elections. In reviewing this claim, we note that the NLRB Inc./Mich. Dep’t of Mental Health, MERC Case No. R88 C-

"has discretion whether to exercise jurisdiction." Pikeville, 112, 1989 MERC Lab Op 51, 1990 MERC Lab Op 491, aff’d,

109 F.3d at 1152 (quoting Crestline Memorial Hosp. Ass'n, AFSCME v. La. Homes, 480 N.W.2d 280 (Mich. Ct. App.

Inc. v. NLRB, 668 F.2d 243, 244 (6th Cir.1982)). "Thus, 1991), appeal denied, 487 N.W.2d 410 (Mich. 1992),

absent a showing that [the Board] acted unfairly and caused vacated, 503 N.W.2d 442 (Mich. 1992), reaff’d on remand,

substantial prejudice to the affected employer, a reviewing 511 N.W.2d 696 (Mich. Ct. App. 1994), appeal denied, 521

court should not disturb the NLRB’s discretionary decision N.W.2d 607 (Mich. 1994), cert. denied sub. nom., Mich.

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Dep’t of Mental Health v. Louisiana Homes, Inc., 513 U.S. Here, the Board reasonably rejected as speculative the

1077 (1995) ("Louisiana Homes"). claim of MCS that the contracts between MCS and MDMH

legally preclude MCS and their employees from bargaining

MERC then directed and conducted elections involving the about improved wages, benefits, staffing levels and the like.

joint employers, as authorized by PERA. After elections were Even though the contracts with MDMH set the wages,

conducted on April 20, 1989, the ballots were impounded, but benefits and staffing levels for which MCS will be

eventually counted by MERC on June 29, 1990. The Unions reimbursed during the contracts’ annual term, these contracts

won each election.$VDFRQVHTXHQFH0(5&FHUWLILHGWKH do not prevent the employers from agreeing to increase such

EDUJDLQLQJUHSUHVHQWDWLYHVJLYLQJXQLWHPSOR\HHVEDUJDLQLQJ terms during collective bargaining with their employees.

ULJKWVZLWKUHVSHFWWR0'0+DQGWKHLUSULYDWHHPSOR\HUVDV Thus, there is no credible evidence that MCS’ employees

MRLQW HPSOR\HUV  0'0+ KRZHYHU UHIXVHG WR KRQRU would have rejected union representation had they known

0(5&¶V FHUWLILFDWLRQV DQG FKDOOHQJHG WKHP LQ VWDWH FRXUW that MDMH would not be present at the bargaining table.

VHHNLQJ MXGLFLDO UHYLHZ RI WKH 0(5&¶V DVVHUWLRQ RI

MXULVGLFWLRQE\FODLPLQJWKDWLWZDVQRWDMRLQWHPSOR\HURIWKH As the Board perceptively points out, the only real change

VXEMHFWXQLW HPSOR\HHV DQG FRQWHQGLQJ WKDW WKH $FW in the employees’ situation resulting from the Board’s

SUHHPSWHGVWDWHODZ0(5&¶VDVVHUWLRQRIMXULVGLFWLRQZDV recognition of the MERC-conducted elections held before the

HYHQWXDOO\ XSKHOG RQ DSSHOODWH UHYLHZ LQ WKH /RXLVLDQD issuance of Management Training is that MCS’ employees

+RPHV litigation. Throughout the appellate proceedings, the are now authorized to strike. As the Board notes, the

Employers took the same position as AFSCME, that they and employees were prohibited from striking against an exempt

MDMH were joint employers subject to MERC’s jurisdiction governmental entity under PERA. However, under the

which was not preempted by the Act. During this time, Board’s jurisdiction, the employees are permitted to strike,

however, no bargaining in the certified units took place thus strengthening their ability to enforce their bargaining

because the Employers were unwilling to participate in demands. Given that the employees were given authorization

bargaining if MDMH was also not a participant. to strike, the Board correctly reasons that it is unlikely that

the changed circumstance occasioned by the Board’s

After the United States Supreme Court denied MDMH’s jurisdiction of this matter would cause the employees to

petition for a writ of certiorari in the Louisiana Homes case abandon union representation. Because it is not very likely

on January 9, 1995, bargaining eventually commenced, but that the absence of the MDMH at the bargaining table would

did not last long. In mid-1995, the Board announced a have affected employee views and attitudes about union

change in policy in Management Training, overruling the test representation, there was no support for nullifying the

stated in Res-Care and declaring that it had jurisdiction over elections upon the basis of a changed circumstance.

private employers under contract with exempt state agencies.

In light of the Board’s decision in Management Training, Consequently, MCS cannot repudiate its bargaining

MDMH petitioned the Michigan Court of Appeals to obligations. As the Board makes clear, the situation in this

reconsider and reverse its previous decision finding that case is similar to one in a successorship context in which new

owners cannot repudiate an existing bargaining obligation on

the ground of changed circumstances. See Fall River Dyeing



$ ZRQ DOO WKH HOHFWLRQV H[FHSW IRU RQH WKDW ZDV ZRQ E\ WKH & Finishing Corp. v. NLRB, 482 U.S. 27, 38, 47 (1987);

8$: ARMCO, Inc. v. NLRB, 832 F.2d 358, 362-63 (6th Cir.

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that MERC conducted the elections, it was the case that MERC’s jurisdiction was not preempted as a matter of federal

MDMH was considered to be a joint employer. However, as labor policy. Thereafter, on January 26, 1996, the Michigan

Intervenor AFSCME states, "everyone knew, or should have Court of Appeals, in reliance upon Management Training,

known, that the status of the state as employer under PERA vacated MERC’s decisions requiring the Employers and

was subject to vigorous litigation." AFSCME Br. at 22. MDMH to bargain with the Unions in all the adult residential

Thus, contrary to MCS’ unsupported assertion, there is no care cases before MERC, concluding that MERC’s

indication that the MERC-conducted elections at the time jurisdiction was preempted as a matter of federal labor policy.

"denied employees a free and fair choice based upon the AFSCME v. Mental Health Dep’t., 545 N.W.2d 363 (Mich.

truth;" nor is there any basis to believe that "the complexity Ct. App. 1996).7KXVWKH0LFKLJDQ&RXUWRI$SSHDOVKHOG

of the interrelationships between the State of Michigan WKDWWKHDGXOWUHVLGHQWLDOFDUHSURYLGHUVWKDWFRQWUDFWHGZLWK

Department of Mental Health, the state judiciary, the MERC, 0'0+ZHUHSURSHUO\XQGHUWKHMXULVGLFWLRQRIWKH%RDUG

the Board, and the parties to the election robbed employees $VDUHVXOW0'0+DQGWKH(PSOR\HUVZHUHUHOLHYHGRIDQ\

and Employers of a clear understanding as to the impact of GXW\ WR EDUJDLQ XQGHU VWDWH ODZ  7KHUHDIWHU WKH 0LFKLJDQ

the union elections." MCS Br. at 18. Because there was no &RXUW RI $SSHDOV LQ DQ RUGHU HQWHUHG RQ 0DUFK  

misrepresentation concerning MDMH’s status as a joint GHQLHG $)6&0(¶V PRWLRQ IRU UHKHDULQJ EXW JUDQWHG LWV

employer, there is no basis to set aside the elections. PRWLRQIRUDVWD\

Nevertheless, MCS’ real complaint is whether the changed ,QWKHPHDQWLPHDIWHUWKH%RDUG¶VGHFLVLRQLQ0DQDJHPHQW

circumstance of MDMH not being at the bargaining table 7UDLQLQJEXWEHIRUHWKH0LFKLJDQ&RXUWRI$SSHDOVUXOHGRQ

called into question whether the election results reflected the WKHIHGHUDOSUHHPSWLRQLVVXHLQ$)6&0(Y0HQWDO+HDOWK

desires of their employees to be represented by the Unions. 'HS¶WAFSCME proceeded with elections that previously had

Thus, MCS claims: been directed by MERC, though not yet conducted.

AFSCME won those union representation elections involving

Had employees known in the present case that the State the employees of units of Summer’s Living Systems, Inc. and

of Michigan would ultimately not participate in eight other employers ("SLS"). However, following the

collective bargaining, the result of the election could Michigan Court of Appeals’ decision in AFSCME v. Mental

easily have been different. Without the Health Dep’t vacating MERC’s certifications on preemption

misrepresentation regarding the state’s involvement, grounds, the State of Michigan refused to bargain with the

employees could have weighed the extraction of union Unions. When the Unions requested that the Employers

dues out of modest earnings against the improbability of continue to bargain under the Act without MDMH’s

the union securing higher wages or different working participation, the Employers refused, claiming that the

conditions. changed circumstancethe absence of MDMH from the

MCS Br. at 22-23. According to MCS, the elections should

be invalidated because "[i]t is doubtful that employees would 

have voted for a decrease in their wages to finance a union $IWHU WKH GHFLVLRQ LQ AFSCME v. Mental Health Dep’t, 545 N.W.2d

dues deduction, in light of the improbability of wage 363 (Mich. Ct. App. 1996), WKH 0LFKLJDQ OHJLVODWXUH DPHQGHG 3(5$ DW

0LFK &RPS /DZV $QQ † H WR GHILQH HPSOR\HHV ZKR ZRUNHG

increases at the bargaining table." MCS Br. at 27. IRU D SULYDWH HQWLW\ XQGHU FRQWUDFW ZLWK WKH 6WDWH DV SULYDWH VHFWRU

HPSOR\HHV DQG WKHUHIRUH QRW SURWHFWHG E\ 3(5$

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bargaining processundermined the efficacy of MERC’s 1979); accord Lincoln Park Zoological Soc’y v. NLRB, 116

elections as a basis for requiring the Employers to bargain as F.3d 216, 219-20 (7th Cir. 1997) (extending comity to

a matter of federal labor policy. Thus, all collective voluntary recognition of the union where, pursuant to the state

bargaining came to a halt. The Unions contacted the Board public employee relations act, the employer has the initial

on March 18, 1996, formally demanding bargaining by the chance to refuse to recognize a union and the employees had

Employers. a right to decertify the union but failed to exercise it). Thus,

based upon the criteria set forth in Standby One Associates,

Thereafter, the Unions filed unfair labor practice charges the Board properly extended comity to the MERC-conducted

with the Board against thirty-eight of the group home elections.

providers contracted by MDMH, alleging refusal to bargain

under the Act as the sole employers of employees in the There is no merit to MCS’ claim that the MERC-conducted

subject units.Based upon the charges filed by the Unions, elections should be set aside based upon the alleged

the Board issued a series of consolidated unfair labor practice misrepresentation that MDMH was a joint employer in these

complaints alleging that the refusal to bargain violated proceedings. According to MCS, the alleged

§ 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5). misrepresentation concerning MDMH’s role affected the free

After hearings in Detroit, Michigan on January 29 and 30, and fair conduct of the elections. Specifically, MCS contends

1997, the administrative law judge ("ALJ") issued a decision that the Board applied the wrong legal standard in evaluating

in which he found it appropriate to extend comity to the the facts. In support of their claim of misrepresentation, MCS

elections that MERC had conducted when MERC properly relies upon the five-factor test announced in Mitchellace, Inc.

had jurisdiction over the private employers.7KXVWKH$/- v. NLRB, 90 F.3d 1150, 1155 (6th Cir. 1996). As this Court

IRXQG WKDW 0&6 violated § 8(a)(1) and (5) of the Act, 29 stated in NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742

U.S.C. § 158(a)(1) and (5) by refusing to recognize and (6th Cir. 1999): "These factors include: (1) the timing of the

bargain with the Unions.,QVRKROGLQJWKH$/-UHMHFWHGWKH misrepresentation; (2) whether the employer was aware of the

(PSOR\HUV¶DUJXPHQWWKDWWKHDEVHQFHRI0'0+IURPWKH situation and had an opportunity to respond; (3) the extent of

EDUJDLQLQJ WDEOH UHSUHVHQWHG D FKDQJHG FLUFXPVWDQFH WKDW the misrepresentation; (4) whether the source of the

SUHYHQWHG WKH %RDUG IURP H[WHQGLQJ FRPLW\ WR WKH 0(5& misrepresentation was identified; and (5) whether there is

HOHFWLRQVDVDPDWWHURIIHGHUDOODERUSROLF\+RZHYHUZLWK evidence that employees ‘actually were affected’ by the

misrepresentation." Id. at 747 (citing Mitchellace, 90 F.3d at

1155). In Gormac, this Court added that "another factor that



plays a part in our analysis is the closeness of the election."

,Q WKLV FDVH WKHUH DUH WKLUW\HLJKW JURXS KRPH SURYLGHUV DQG IRUW\ 190 F.3d at 747 (citing NLRB v. Hub Plastics, 52 F.3d 608,

XQLWV DW LVVXH 7ZR SURYLGHUV $OWHUQDWLYH 6HUYLFHV DQG &DUVRQ¶V $)& 613 (6th Cir. 1995)).

KHOG HOHFWLRQV ERWK EHIRUH DQG DIWHU -XO\   WKXV DFFRXQWLQJ IRU WKH

GLIIHUHQFH EHWZHHQ WKH QXPEHU RI SURYLGHUV DQG VXEMHFW XQLWV

What is wrong with this line of attack is that there was no

 misrepresentation that supports setting aside the elections.

7KH $/-¶V GHFLVLRQ LV DWWDFKHG WR 6XPPHU¶V /LYLQJ 6\VWHPV 6HH

 :/  DW  Specifically, there was no evidence in the record that MCS’

employees were misled by the status of MDMH at the time of

 the elections, even though MCS had every opportunity to

([FHSW IRU RQH LQVWDQFH DOO WKH XQIDLU ODERU SUDFWLFHV LQYROYHG WKH

AFSCME. present such evidence during these proceedings. At the time

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In this case, the Board, adopting the ALJ’s findings, UHJDUGWRSLS, the ALJ held that its employees had voted in

properly extended comity to the MERC elections conducted elections conducted by MERC after the Board’s announced

before the issuance of Management Training. Specifically, change in policy preempted MERC’s jurisdiction. Thus, the

the Board, citing Standby One Associates, 274 NLRB 952 ALJ dismissed the unfair labor practice allegations as to SLS,

(1985), found that (1) the state-conducted elections reflect[ed] finding that the principles of comity should not be applied to

the true desires of the affected employees; (2) there was no the MERC-conducted elections due to MERC’s lack of

showing of election irregularities; and (3) there was no jurisdiction.

substantial deviation from due process requirements."

Summer’s Living Sys., Inc., 2000 WL 1460041, at *3. First, In its decision issued on September 25, 2000, the Board

it would appear that the state-conducted elections reflected affirmed the ALJ’s decision to extend comity to the MERC

the true desires of the affected employees. As pointed out by elections that took place before Management Training was

Intervenor AFSCME, eighty-five percent of the employees in decided on July 28, 1995, but not to extend comity to the

the thirty subject units voted in favor of union representation. MERC elections that took place after Management Training

Moreover, in nine of the units, there were zero votes cast was decided "when [MERC] did not have jurisdiction."

against union representation. There was also no showing of Summer’s Living Systems, Inc., 2000 WL 1460041. In its

election irregularities. As Intervenor AFSCME notes, no decision, the Board, citing Standby One Associates, 274

objections were filed in these elections. Afterwards, there NLRB 952 (1985), found that the ALJ correctly applied the

was no decertification petition or challenge to the MERC Board’s comity policy and adopted the findings of the ALJ as

elections. Id. to MCS that "(1) the state-conducted elections reflect the true

desires of the affected employees; (2) there was no showing

There was also no apparent deviation from due process of election irregularities; and (3) there was no substantial

requirements. In particular, there was testimony that state- deviation from due process requirements." Summer’s Living

election procedures are as rigorous as the Board’s. While Systems, Inc., 2000 WL 1460041, at *3. The Board further

MCS suggests that "[t]he State of Michigan’s extensive found that "for the reasons stated by the [ALJ] . . . the

involvement in the election process painted the proceedings removal of joint employer DMH from the bargaining table is

with the authority of state government," MCS Br. at 20, there not such an unusual circumstance as to relieve [MCS] from

is no credible evidence that the elections did not accord with their bargaining obligation." Id. Accordingly, the Board,

due process. with minor modifications not pertinent to the present appeals,

upheld the unfair labor practice complaints filed against

Moreover, the Board properly found that the MERC- MCS, but dismissed the unfair labor practice complaints

conducted elections were consistent with the policies and against SLS.

procedures of the Act. As the Board points out, it has been its

longstanding policy to recognize as binding the results of In its appeal in Case No. 00-2192, MCS contends that the

state-conducted elections "provided that the state proceedings representation elections should be invalidated because the

reflect the true desires of the affected employees, election elections were conducted under the misrepresentation that the

irregularities are not involved, and there has been no State of Michigan was a joint employer. According to MCS,

substantial deviation from due process requirements." "the post-election departure of the State of Michigan from its

Allegheny Gen. Hosp., 230 NLRB 954, 955 (1977), role as co-employer was a material change in circumstances

enforcement denied on other grounds, 608 F.2d 965 (3d Cir. that so radically affected relationships at the bargaining table

 0LFK&RPPXQLW\6HUYV 1RV 1RV 0LFK&RPPXQLW\6HUYV 

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that the employees lacked any knowledge of the true context declares not how a case shall be decided but how it

in which their votes for unionization were cast." MCS Br. at may with propriety be decided.

7-8. In Case No. 00-2440, the NRLB cross-petitions for

enforcement of its order. On the other hand, AFSCME in its The statement, however, was made in a far different

appeal in Case No. 00-2451 argues that the Board erred in not context, namely, the extent to which one federal court of

extending comity to the elections that MERC conducted after appeals should feel itself bound by the decision of

Management Training was decided. another with respect to the validity and scope of a patent.

Both courts were governed by the same law and the

DISCUSSION statement was made in deprecating the appellant's claim

that the second court of appeals had given insufficient

Before addressing the merits of the Board’s decisions to weight to "comity". More enlightening for this case,

extend comity to the MERC-conducted elections before the although not dispositive, is this court's recent statement

date on which Management Training was decided, but not to in NLRB v. St. Luke's Hospital, 551 F.2d 476 (2d Cir.

those conducted after Management Training was issued, it is 1976). There we upheld a finding that an employer had

useful to consider the key decisions culminating in the engaged in an unfair labor practice by enforcing the

Board’s change of policy articulated in Management Training union security clause in a collective bargaining

regarding its jurisdiction over certain private employers with agreement with a union certified by the SLRB to

contractual relationships with exempt governmental entities. represent a unit which could not have been approved by

Initially, in National Transportation Service, Inc. v. Truck the NLRB because of the "professional" proviso in

Drivers & Helpers of America, Local Union 728, 240 NLRB § 9(b)(1). Rejecting the employer's claim to comity,

565 (1979), the NLRB set forth a test for determining whether Chief Judge Kaufman said, id. at 482 (citations omitted):

it would exercise jurisdiction over employers with close ties

to an exempt entity: Arrangements resulting from state agency

proceedings should generally be respected if

[I]n this and future cases involving a determination consistent with federal policies. "Comity" in this

whether the Board should assert jurisdiction [over an sense reflects the desirability of supporting settled

employer with close ties to an exempt entity], we shall relationships in the absence of compelling

determine whether the employer itself meets the countervailing reasons. It is clear, however, that the

definition of "employer" in [29 U.S.C. 152(2)],DQGLI NLRB is not required to defer to state proceedings

where federal policy would be undermined.

 We would strengthen the last sentence to say "is not

6HFWLRQ  SURYLGHV

required or permitted."

 7KH WHUP HPSOR\HU LQFOXGHV DQ\ SHUVRQ DFWLQJ DV DQ DJHQW

RI DQ HPSOR\HU GLUHFWO\ RU LQGLUHFWO\ EXW VKDOO QRW LQFOXGH WKH 566 F.2d 833, 841-42 (2d Cir. 1977). Thus, as understood by

8QLWHG 6WDWHV RU DQ\ ZKROO\ RZQHG *RYHUQPHQW FRUSRUDWLRQ RU the Second Circuit in Long Island College Hospital, "comity"

DQ\ )HGHUDO 5HVHUYH %DQN RU DQ\ 6WDWH RU SROLWLFDO VXEGLYLVLRQ refers to a rule of convenience or expediency whereby the

WKHUHRI RU DQ\ SHUVRQ VXEMHFW WR WKH 5DLOZD\ /DERU $FW >

Board sustains settled issues or relationships, so long as

86&$ †  HW VHT@ DV DPHQGHG IURP WLPH WR WLPH RU DQ\

ODERU RUJDQL]DWLRQ RWKHU WKDQ ZKHQ DFWLQJ DV DQ HPSOR\HU RU

federal policy is not undermined.

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explained by the Supreme Court in Hilton v. Guyot, 159 U.S. VRGHWHUPLQHZKHWKHUWKHHPSOR\HUKDVVXIILFLHQWFRQWURO

113 (1895), RYHU WKH HPSOR\PHQW FRQGLWLRQV RI LWV HPSOR\HHV WR

HQDEOH LW WR EDUJDLQ ZLWK D ODERU RUJDQL]DWLRQ DV WKHLU

"Comity" in the legal sense, is neither a matter of UHSUHVHQWDWLYH

absolute obligation, on the one hand, nor of mere

courtesy and good will, upon the other. But it is the 2QFHLWLVGHWHUPLQHGWKDWWKHHPSOR\HUFDQHQJDJH

recognition which one nation allows within its territory LQPHDQLQJIXOFROOHFWLYHEDUJDLQLQJZLWKUHSUHVHQWDWLYHV

to the legislative, executive, or judicial acts of another RILWVHPSOR\HHVMXULVGLFWLRQZLOOEHHVWDEOLVKHG

nation, having due regard both to international duty and

convenience, and to the rights of its own citizens, or of 1DW¶O7UDQVS6HUY,QF1/5%DW7KHUHDIWHULQ&.

other persons who are under the protection of its laws. +RPHV ,QF Y $)6&0( DQ XQSXEOLVKHG GHFLVLRQ RI WKH

1/5%6HYHQWK5HJLRQ'LUHFWRUGHFLGHG)HEUXDU\

Id. at 163-64. By extension, the rule of comity also applies to &DVH 1R 50 WKH UHJLRQDO GLUHFWRU KHOG WKDW WKH

the recognition of federal and state courts of their respective 1/5%ZRXOGQRWDVVHUWMXULVGLFWLRQRYHUDQHPSOR\HUZKLFK

judgments in our federal system of governance. See Ruhrgas ZDV D QRQSURILW 0LFKLJDQ FRUSRUDWLRQ SURYLGHU RI JURXS

AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999)("Most KRPHV IRU PHQWDOO\ GLVDEOHG SHUVRQV DQG ZKLFK KDG

essentially, federal and state courts are complementary FRQWUDFWHG ZLWK WKH 0'0+ WR SURYLGH VHUYLFHV WR WKHVH

systems for administering justice in our Nation. Cooperation SHUVRQV  $SSO\LQJ 1DWLRQDO 7UDQVSRUWDWLRQ WKH GLUHFWRU

and comity, not competition and conflict, are essential to the IRXQGDVIROORZV

federal design.") However, "comity," in this sense, is not

limited to the recognition of judicial acts. See Calderon v. 7KXV WKH (PSOR\HU PD\ EH FRQVLGHUHG WR EH

Thompson, 523 U.S. 538, 552 (1998) ("Comity is not limited WDQWDPRXQWWRDQDGPLQLVWUDWLYHDUPRIWKHJRYHUQPHQW

to the judicial branch of a state government.") As used in the DQGQRWZLWKLQWKHGHILQLWLRQRI>86&@,Q

present context, "comity" refers to the Board’s recognition of DGGLWLRQ WKH FRQWURO SRVVHVVHG DQG H[HUFLVHG RYHU WKH

state agency proceedings. This use of "comity" was cogently (PSOR\HU

VRSHUDWLRQVE\WKH6WDWHRI0LFKLJDQPDNHV

explained by the Second Circuit in Long Island College PHDQLQJIXO FROOHFWLYH EDUJDLQLQJ LPSRVVLEOH   

$FFRUGLQJO\DVWKH%RDUGGRHVQRWKDYHMXULVGLFWLRQRYHU

Hospital v. NLRB, as follows: WKHHPSOR\HU,VKDOOGLVPLVVWKHSHWLWLRQ

"Comity" is a notion of highly uncertain content. The &.+RPHVDW$-$DWResidential Sys. v. UAW, an

Board refers us to the statement in Mast, Foos & Co. v. unpublished decision of the NLRB Seventh Region Director,

Stover Mfg. Co., 177 U.S. 485, 488-89, 20 S.Ct. 708, decided April 7, 1988 (Case No. No. 7-RC-18529) (J.A. at

710, 44 L.Ed. 856 (1900), that 274-82).

Comity is not a rule of law, but one of practice,

convenience and expediency . . . (which) has a

substantial value in securing uniformity of decision, DQ\RQH DFWLQJ LQ WKH FDSDFLW\ RI RIILFHU RU DJHQW RI VXFK ODERU

and discouraging repeated litigation of the same RUJDQL]DWLRQ

question . . . its obligation is not imperative. . . .

 86& †  HPSKDVLV DGGHG 6HH 3LNHYLOOH 8QLWHG 0HWKRGLVW

Comity persuades; but it does not command. It +RVS Y 86:  )G   WK &LU 

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Subsequently, in Res-Care, Inc., 280 NLRB 670 (1986), the U.S.C. 152(2) ] of the Act, and whether such employer

NLRB reaffirmed the basic test set forth in National meets the applicable monetary jurisdictional standards.

Transportation, but clarified the latter prong of that test:

0JPW7UDLQLQJ317 NLRB at 1358. See Pikeville United

In applying [the National Transportation] test, however, Methodist Hosp. v. USW, 109 F.3d 1146 (6th Cir. 1997)

we will examine closely not only the control over (holding that, under Management Training, the NLRB’s

essential terms and conditions of employment retained by jurisdiction was established over a hospital by showing that

the employer, but also the scope and degree of control the hospital was an "employer" as defined by the NLRA, even

exercised by the exempt entity over the employer's labor though the hospital was subject to some local governmental

relations, to determine whether the employer in issue is control); Aramack Corp. v. NLRB, 179 F.3d 872 (10th Cir.

capable of engaging in meaningful collective bargaining. 1999).

Res-Care, 280 NLRB at 672. On July 28, 1995, the NLRB Case No. 00-2192: MCS’ Petition

issued its decision in Management Training, overruling the

Res-Care test and expanding its jurisdiction to include certain In this case, we review de novo the Board’s legal

private employers who have close ties to exempt conclusions regarding whether comity should be extended to

governmental entities: the MERC-conducted elections held before and after the

issuance of Management Training, and its findings of fact

In Res-Care, the Board held that, in deciding whether it under the substantial evidence standard. Harborside

would assert jurisdiction over an employer with close ties Healthcare, Inc. v. NLRB, 230 F.3d 206, 208-09 (6th Cir.

to an exempt government entity, it would examine the 2000); United Parcel Serv., Inc. v. NLRB, 228 F.3d 772, 774-

control over essential terms and conditions of 75 (6th Cir. 2000).

employment retained by both the employer and the

exempt entity to determine whether the employer in issue As a legal doctrine, comity originally emerged in the

is capable of engaging in meaningful collective context of international law to reflect the recognition by one

bargaining. 280 NLRB at 672. After careful state or nation of the laws, policies and judicial acts of

consideration of Res-Care and its progeny and for the another. See BLACK’S LAW DICTIONARY, 261-62 (7th ed.

reasons set forth below, we have decided that the test set 1999) ("The comity principle is most accurately characterized

forth in Res-Care is unworkable and unrealistic. Rather, as a golden rule among nationsthat each must give the

we think that whether there are sufficient employment respect to the laws, policies and interests of others that it

matters over which unions and employers can bargain is would have others give to its own in the same or similar

a question better left to the parties at the bargaining table circumstances.")(quoting Thomas Buergenthal & Harold G.

and, ultimately, to the employee voters in each case. Maier, Public Int’l Law in a Nutshell 178 (2d ed. 1990)). As

***

[I]n determining whether the Board should assert 

jurisdiction, the Board will only consider whether the $V SRLQWHG RXW LQ 0DQDJHPHQW 7UDLQLQJ ³6HF  H[FOXGHV IURP

WKH WHUP µHPSOR\HU¶ ERWK )HGHUDO DQG VWDWH JRYHUQPHQWDO HQWLWLHV DV ZHOO

employer meets the definition of "employer" under [29 DV µSROLWLFDO VXEGLYLVLRQV WKHUHRI¶´  1/5% DW  Q