# Beverly Enterprises, Inc. v. National Labor Relations Board > Court of Appeals for the Second Circuit · March 9, 1998 · 139 F.3d 135 URL: https://www.frixlaw.com/law-library/cases/6965331 ## Case - **Full name:** BEVERLY ENTERPRISES, INC., Beverly Health and Rehabilitation Services, Inc., Beverly Enterprises—Connecticut, Inc. d/b/a Greenwood Health Center, Petitioners-Cross-Respondents v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 9, 1998 - **Citations:** 139 F.3d 135 - **Precedential status:** Published - **Opinion:** Concurrence by Griesa - **Judges:** Griesa, Leval, Miner - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6965331 ## Opinion text GRIESA, District Judge, concurring: I concur in Judge Miner’s opinion with the following'comments. I. Section A, of the Discussion concludes with the statement that Greenwood concealed benefits from employees with the purpose of saving on labor costs. I wish to add >that, whatever one thinks of this tactic, it occurred prior to the organizational campaign. The issue here is whether there was an unfair labor practice in connection with that campaign. Our holding is that the there was not. The statute surely does not require continued concealment of the facts. II. My other comment relates to the question of remedy. The NLRB- found that certain unfair labor practices tainted the representation election. It issued two kinds of di *145 reetives. First, it directed that petitioner cease and desist from the unfair practices and that it post notices describing the NLRB findings and agreeing to refrain from such practices. Second, the NLRB directed that a second election be held. The weight of authority in the judicial decisions is to the effect that the first directive constitutes a final order that can be reviewed by a court of appeals under § 10(f) of the NLRA, 29 U.S.C. § 160 (f), but that the second is a non-final and non-reviewable order. This circuit has already ruled in accordance with this line of authority. NLRB v. Monroe Tube Co., 545 F.2d 1320 (2d Cir.1976); Bonwit Teller, Inc. v. NLRB, 197 F.2d 640 , 642 n. 1 (2d Cir.1952). Other cases to the same effect include, e.g., NLRB v. Pizza Crust Co. of Penn., Inc., 862 F.2d 49, 50 (3d Cir.1988); Graham Architectural Products Corp. v. NLRB, 697 F.2d 534 (3d Cir.1983), reh’g en banc denied, 706 F.2d 441 (1983); NLRB v. Intertherm, Inc., 596 F.2d 267, 278 (8th Cir.1979); Raley’s, Inc. v. NLRB, 725 F.2d 1204, 1205 (9th Cir.1984) (en banc). These circuit cases interpret both the statute and the following Supreme Court decisions as requiring such a ruling. Boire v. Greyhound Corp., 376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964); AFL v. NLRB, 308 U.S. 401 , 60 S.Ct. 300 , 84 L.Ed. 347 (1940). There is a serious practical problem in applying this rule. In eases such as the present one, the new representation election has been ordered by the NLRB solely because of a finding of unfair labor practices tainting the first election. Where a court of appeals strikes down the finding of unfair labor practices, this removes the only possible lawful basis for ordering a new election. However, according to the rule described above, the court of appeals cannot set aside the order of a new election concurrently with invalidating the finding of unfair labor practices. There is a path to judicial review of the election order, although it is aptly described as “circuitous.” If, after a ruling such as the one in the present case striking down the unfair labor practice findings, the NLRB should persist in ordering the new election, the employer would be required to allow such election. Should the union win and be certified as the bargaining representative, the employer could refuse to bargain with the union, thus bringing before the NLRB the question .of whether such refusal is an unfair labor practice. If the NLRB enters an order against the employer on this ground, this would be a final order subject to court of appeals reviéw under § 10(f). In seeking such review, the employer can raise any objections to the election, including the contention that the direction to hold the rerun was invalid. Graham, 697 F.2d at 543 n. 12. However, there should surely be a solution short of this wasteful exercise. In this connection, a most useful reference is the Graham ease decided by the Third Circuit. Following the panel decision, which declined to strike down the NLRB’s order of a new election, the employer petitioned for rehearing en bane. Out of the ten judges hearing the petition, four voted to grant rehearing, taking the view that the ordained procedure to obtain review of the election order is an extended and expensive exercise serving no useful purpose. Graham Architectural Products Corp. v. NLRB, 706 F.2d 441, 442 (3d Cir.1983). Two other judges, although they were unwilling to vote for rehearing, responded to the employer’s objection to an “unnecessary” election. ... we are simply declining to review an interlocutory election order, in accordance with the statutory scheme enacted by Congress. We expect that the Board will now proceed to reconsider its election order in light of our holdings on the unfair labor practices, and if the election is indeed “unnecessary” the Board no doubt will vacate the election order..... This fear that the Board may act irrationally and arbitrarily is not a sound basis for us to interfere with the Board’s primary authority in election matters and exercise jurisdiction over an interlocutory order. 706 F.2d at 441 . I believe that the above comment is eminently sound. Since the election order in the present case is non-final, it is still before the NLRB for appropriate action, including cancellation. I assume that the NLRB will view *146 the matter fairly in light of the fact that the basis for the order of a new election — i.e., the finding of unfair labor practices — has been taken away. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6965331. Public record. Not legal advice.