Opposition Brief — New Medico Neurologic Center of Michigan, Inc. v. National Labor Relations Board

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FILED

No.1 May 22 1992

@xuoe oF Lie CLERK

In the Supreme Court of the Unite States

OCTOBER TERM, 1991

\

New Mepico HEALTH CARE CENTER OF

MICHIGAN, INC., PETITIONER

U.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

JERRY M. HUNTER Washington, D.C. 205380

General Counsel (202) 514-2217

NORTON J. COME

Deputy Associate

General Counsel

LINDA SHER

Assistant General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

Before petitioner took over its predecessor’s opera-

tions and hired virtually all of its predecessor’s work-

force, the National Labor Relations Board (Board)

held an election in which the employees of petitioner’s

predecessor selected the Union as their exclusive col-

lective-bargaining representative. Because the Board

had to resolve challenges to some of the ballots cast

in the election, however, the Union was not certified

until after petitioner assumed its predecessor’s oper-

ations.

1. Did the Board correctly rule that petitioner, as

the successor to the previous employer, violated Sec-

tion 8(a)(5) and (1) of the National Labor Rela-

tions Act, 29 U.S.C. 158(a) (5) and (1), by refusing

to bargain with the Union?

2. Was petitioner entitled to litigate the successor-

ship issue before an administrative law judge in an

unfair labor practice proceeding after already liti-

gating the issue before a hearing officer in the prior

representation proceeding?

(1)

TABLE OF CONTENTS

Page

ERS RISER TET ALSO ORE SLOT ES 1

SRA a OR Ae EE Ca 2

aL a 2

ie UE Sa REPEC ee no ae re 7

8! a ee ene 17

TABLE OF AUTHORITIES

Cases:

Adair Standish Corp., 290 N.L.R.B. 317 (1988) .... 11

Amalgamated Clothing Workers of America V.

NLRB, 365 F.2d 898 (D.C. Cir. 1966)... 13

Bundy Corp., 292 N.L.R.B. 671 (1989) ........... 9

Fall River Dyeing & Finishing Corp. v. NLRB,

UN ances cenanintiemmsnussioionns 4,7, 8,10

Fall River Savings Bank v. NLRB, 649 F.2d 50

I Dee et 12, 16

Foothill Electric Corp., 120 N.L.R.B. 1350

eh An eI eae ee 12,14

Heights Funeral Home, Inc. v. NLRB, 385 F.2d

ROU PEIN 5... <cnnencencendnsentesempsenuchhnansokens 13

Honda of America Mfg., Inc., 259 N.L.R.B. 389

EE ae ogee a eae eee 10, 11

Howard Plating Indus., 230 N.L.R.B. 178 (1977)... 9

International Ladies’ Garment Workers’ Union v.

Quality Mfg. Co., 420 U.S. 276 (1975) _........... 16

Laney & Duke Storage Warehouse Co., 151

N.L.R.B. 248 (1965), enforced, 369 F.2d 859

I LE a Se 11

Lawrence Typographical Union v. McCulloch, 349

We WUE ie, GRR, ROOD socnnnvecceccsnvccinecoarcnincasencse 14

Magnesium Casting Co. v. NLRB, 401 U.S. 1387

REN AEE Ad eT 12,16

Mike O’Connor Chevrolet-Buick-GMC Co., 209

N.L.R.B. 701 (1974), enforcement denied on

other grounds, 512 F.2d 684 (8th Cir. 1975) .... 9

NLRB V. Allied Products Corp., 548 F.2d 644 (6th

Cir. 1977)

IV

Cases—Continued :

NLRB vy. Burns International Security Services,

I Se Be, | ee NE

NLRB vy. Dillon Stores, 643 F.2d 687 (10th Cir.

EEN ciciadsGia ae aiececkanedisinen a commieiaiins iceuacae manana

Pittsburgh Plate Glass Uo. v. NLRB, 313 U.S. 146

fe STONE Ree ue am PF u nN OC Cn Mas nUE LONE Meee Dee Ee

Retail Clerks Union, Local 1401 v. NLRB, 463

ae We Cs CG BUD occcticceeerceccenn

Riverside Press, Inc. V. NLRB, 415 F.2d 281 (5th

Cir. 1969), cert. denied, 397 U.S. 912 (1970) -....

Rock Hill Telephone Co. v. NLRB, 605 F.2d 139

ST a ees

Sahara Datsun, Inc. v. NLRB, 811 F.2d 1317 (9th

Ne a narod g onsite a cantante ieeetenenanaeioes

Serv-U-Stores, 234 N.L.R.B. 1143 (1978) ..-...........

Sundstrand Heat Transfer, Inc. v. NLRB, 538

if 8 By, Be Se. | SReeeemmemenreCnronn

Universal Camera Corp. vV. NLRB, 340 U.S. 474

I cI ae ee

Woelke & Romero Framing, Inc. Vv. NLRB, 456

SE GUE II sickdus crock catcamineiancenuesideieseemiosisioaciet

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et

seq.:

DER Uren SURED oo oe

SOte) (53, oe Ui. Bete) CE) ........ 2.02...

§ 8(a) (5), 29 U.S.C. 158 (a) (5) -............... 6, 11,

eg Me Ws POND seen ces tac eccecavendesacaretas

Miscellaneous:

PRT ane a ae ERR:

Page

13-14

12, 16

15, 16

15, 16

Iu the Supreme Cort of the United States

OCTOBER TERM, 1991

No. 91-1525

_ New Mepico HEALTH CARE CENTER OF

MICHIGAN, INC., PETITIONER

Ve

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App.

A1-A12, is unpublished, but the judgment is noted

at 951 F.2d 350 (Table). The decision and certifica-

tion of representative issued by the National Labor

Relations Board (Board) in the underlying represen-

tation proceeding, Pet. App. A13-A15, is unreported.

The Board’s decision and order in the unfair labor

practice proceeding, Pet. App. A16-A24, is reported

at 299 N.L.R.B. No. 50.

(1)

2

JURISDICTION

The decision and judgment of the court of appeals

was filed on December 20, 1991. The petition for a

writ of certiorari was filed on March 19, 1992. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Prior to March 1, 1989, Greenbriar Care Center

(Greenbriar) operated a nursing care facility at

premises leased from Health and Rehabilitation Prop-

erties Trust (HRPT). On December 15, 1988, the

American Federation of State, County, and Municipal

Employees, AFL-CIO (Union) filed a petition with

the Board seeking certification as the collective bar-

gaining representative of a bargaining unit which

included various classes of Greenbriar employees. In

early January 1989, Greenbriar and the Union stipu-

lated to a consent election; and on February 17, 1989,

the Board conducted the election. Pet. App. A3,

A25-A26. In that election, 41 employees voted in

favor of the Union, 37 voted against it, and ten bal-

lots challenged by the Union were not counted. Pet.

App. A26-A27. Because the ten challenged and un-

counted ballots could determine the election’s outcome,

the Board was required to resolve the challenges.

Sometime before the election, however, Greenbriar

failed to meet its lease obligations to HRPT. As a

result, in late January 1989, an official of HRPT

contacted petitioner, New Medico Health Care Center

of Michigan, Inc., to inquire whether it was inter-

ested in operating the Greenbriar facility. Pet. App.

A3. On February 17, 1989—the day of the election—

petitioner agreed to lease the facility for a three-year

term beginning March 1, 1989. Ten days after the

election, on February 27, 1989, petitioner sent letters

3

to Greenbriar employees notifying them that it was

going to assume Greenbriar’s lease. The letter en-

couraged Greenbriar employees to apply for positions

with petitioner and informed them that petitioner

would consider years of service with Greenbriar in

establishing wages, which were to be higher than

Greenbriar’s. Petitioner also noted in its letter that

those it hired would receive credit for seniority ac-

cumulated at Greenbriar. Pet. App. A3. In addition,

petitioner referred to the February 17 election, stat-

ing that it would prefer not to deal with a union but,

if one were certified, petitioner would bargain in good

faith. 7d. at A88-A359 n.17.

On March 1, 1989, petitioner began operating the

former Greenbriar facility... However, it denied that

it was a successor to Greenbriar and, consequently,

disputed whether it succeeded to any of Greenbriar’s

obligations to the Union. Accordingly, the Board’s

Regional Director ordered a Hearing Officer to take

testimony and resolve factual disputes concerning two

questions: (1) whether the challenged ballots should

count in the election; and (2) whether petitioner was

Greenbriar’s successor and therefore succeeded to any

bargaining obligation imposed on Greenbriar as a

result of the election. Pet. App. A28-A29.

2. After taking testimony, the Hearing Officer

recommended that the Board certify the Union as the

bargaining representative of the various classes of

petitioner’s employees. On the successorship issue,

the Hearing Officer found that ‘a substantial conti-

nuity of the employing enterprise,” within the mean-

1 Petitioner learned of the election prior to the March 1

closing date and could have cancelled its agreement but, be-

cause of its past relationship with HRPT, did not. Pet. App.

A3s.

4

ing of NLRB v. Burns International Security Services,

Inc., 406 U.S. 272 (1972), existed between petitioner

and Greenbriar. Pet. App. A35-A36. Rejecting peti-

tioner’s argument that its planned upgrade of the

facility and creation of a traumatic head injury re-

habilitation unit would change the nature ci the

enterprise, the Hearing Officer found that petitioner

operates a nursing care center as did its prede-

cessor, Greenbriar. It commenced operation with-

out hiatus in the same facility, utilizing a virtu-

ally identical workforce, holding the same or

similar jobs, under the same or similar working

conditions, working under the same supervisors

and with the same non-unit employees, caring for

the same patients, with at least some of the same

equipment. Unit employees worked one day for

Greenbriar, the next for [petitioner]. Job appli-

cations and W-4 forms for [petitioner] were not

filled-out until several days after the takeover.

Time worked for Greenbriar was credited as time

worked for [petitioner] for certain wage and

benefit purposes. It is difficult to imagine a

greater degree of continuity.

Id. at A36-A37. Applying the Board’s “substantial

and representative complement” test—endorsed by

this Court in Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27, 28 (1987)—the Hearing Offi-

cert further found that petitioner had hired a sub-

stantial and representative complement of employees

as of March 1, 1989, the day it commenced operating

the former Greenbriar facility. Pet. App. A388.

Petitioner contended before the Hearing Officer, as

it does in its petition, that it had no obligation to

bargain with the Union because the Union had not

been recognized by Greenbriar or certified by the

Board prior to March 1, 1989, the date it took over

ee

a

5

the facility. The Hearing Officer rejected that argu-

ment, reasoning that, had the “challenged ballots not

been determinative, and had [the Union] received

a majority of the ballots cast, [petitioner], as a suc-

cessor, would have been obligated on March 1[, 1989, ]

to bargain with [the Union]. It would * * * go con-

trary to the purposes and policies of the Act, to find

that[,] because of determinative challenges [to cer-

tain ballots,] no obligation exists [even though it

turns out that the Union] receive[d] a majority of

the votes.” Id. at A42.

The Hearing Officer then turned to the challenged

ballots. He found that, after all challenges were re-

solved, the Union had maintained an election victory.’

Accordingly, the Hearing Officer recommended that

the Board find petitioner a successor to Greenbriar

and certify the Union as the exclusive collective-

bargaining representative of the employees in the

bargaining unit. Pet. App. A69.

2 Prior to the hearing, the parties agreed that five of the

ten challenged ballots should be opened and counted. The

corrected tally of ballots showed 43 votes for and 40 votes

against the Union. The remaining five ballots were challenged

by the Union on the ground that the individuals were super-

visors within the meaning of Section 2(11) of the Act, 29

U.S.C. 152(11). Pet. App. A27-A28. During the hearing,

petitioner, Greenbriar, and the Union stipulated that two of

the remaining five ballots be opened and counted and two

remain sealed and uncounted, leaving only one ballot in dis-

pute. Jd. at A43. That ballot was cast by Susan Griffin, whom

the Hearing Officer ultimately found to be a supervisor; he

therefore recommended that the challenge be sustained. /d.

at A68. Since the two ballots which petitioner and the Union

had stipulated should be opened and counted were no longer

determinative (as the Union held a 3-vote lead), the Hearing

Officer recommended that they not be opened. Jd. at A69.

6

3. On March 1, 1990, the Board issued a decision

adopting the Hearing Officer’s findings and recom-

mendations and certified the Union. Pet. App. A13-

A15.* When petitioner refused to bargain, the Union

filed an unfair labor practice charge. The Board’s

General Counsel issued a complaint and moved for

summary judgment on the ground that all issues rele-

vant to the unfair labor practice charge were, or could

have been, litigated in the representation proceeding.

The Board granted summary judgment, finding that

petitioner violated Section 8(a)(5) and (1) of the

Act, 29 U.S.C. 158(a)(5) and (1), and ordered pe-

titioner to bargain with the Union. Pet. App. A16-

A24,

4. The court of appeals enforced the Board’s order

in an unpublished per curiam opinion. Pet. App.

Al-Ai2. The court held that substantial evidence

supported the Board’s finding of “substantial con-

tinuity” betwen the enterprises operated by Green-

briar and petitioner. 7d. at A7. It also rejected peti-

tioner’s contention that the successorship determina-

tion should have been made as of the date the Board

certified the Union and not the date petitioner began

operating the former Greenbriar facility. Finding

“no cases that address the situation at bar,” id. at

A8, the court followed the Board’s reasoning. It

explained:

Clearly, the successorship issue would have been

determined as of March 1, 1989, had the chal-

lenged votes not been determinative. We can

think of no reason why the result should be dif-

3 The Board’s decision named Greenbriar as the employer

in its description of the appropriate bargaining unit. Pet.

App. Al4. The Board subsequently corrected this inadvertent

error. Jd. at A76-A77; id. at Al19 n.4.

7

ferent because it took more than a year to resolve

the election. Any other position only encourages

new owners to circumvent [their] obligations by

filing challenges to certification. By the time

these challenges are resolved, the bargaining unit

may no longer represent ‘‘a substantial and rep-

resentative complement” of employees.

Id. at A8.

The court also rejected petitioner’s claim that it

was entitled to litigate the successorship issue before

an administrative law judge. Pet. App. A8-A9. The

court explained that petitioner’s liability in the unfair

labor practice proceeding turned on its successorship

status, an issue that was appropriately and previ-

ously resolved in the representation proceeding. Jd.

at AQ.*

ARGUMENT

In NLRB v. Burns International Security Services,

Inc., 406 U.S. 272 (1972), this Court concluded that

imposing a bargaining obligation on a new employer

is appropriate when the new employer maintains sub-

stantial continuity in the operation of its predeces-

sor’s business so that “the bargaining unit remains

unchanged” and “fa majority of [the successor’s] em-

ployees * * * were employed by the preceding em-

ployer.” Id. at 279, 281. In Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27 (1987), this

Court reiterated that, “[i]f the new employer makes

a conscious decision to maintain generally the same

business and to hire a majority of its employees

from the predecesscr, then the bargaining obligation

of [Section] 8(a)(5) is activiated.” Jd. at 41. The

* The court also upheld the Board’s finding that Griffin was

a supervisor. Pet. App. A9-A12. Petitioner does not seek

further review of this finding.

8

Court went on to state that Burns had approved “the

approach taken by the Board and accepted by courts

with respect to determining whether a new company

was indeed the successor to the old,” and that this

approach “is primarily factual in nature and is based

upon the totality of the circumstances of a given

situation.” Jd. at 43. In this case, the Board, upheld

by the court of appeals, found that petitioner sub-

stantially continued the operations of Greenbriar and

hired a majority of its workforce. Accordingly, it

held that petitioner succeeded to Greenbriar’s bar-

gaining obligations. Because that determination is

both correct and consistent with the decisions of this

Court, the courts of appeals, and Board precedent,

further review is unwarranted.

1. Petitioner contends that because there was no

certified or recognized bargaining relationship be-

tween the Union and Greenbriar on March 1, 1989,

the day petitioner began operating the facility, Burns

and Fall River are not applicable here. Pet. 14-18,

21. It is true, as petitioner notes, Pet. 14-18, that

the union in Burns had been certified before—just

before—the new employer assumed its predecessor’s

operations. But in Fall River, the Court made clear

that Burns was “not limited to a situation where the

union in question has been recently certified.” 482

U.S. at 41. Rather, it applies “even if [the] union

* * * has not been certified just before the transition

in employers,” as long as there is a presumption that

the Union is or remains the employees’ bargaining

representative. Jd. at 37, 41.

Here, there was such a presumption. Under con-

sistent Board precedent, an employer’s obligation to

bargain is established as of the date of an election

in which a majority of the bargaining-unit employees

9

vote for union representation, regardless of when the

union receives Board certification. See Howard Plat-

ing Indus., 230 N.L.R.B. 178, 179 (1977). Thus, the

Board has long held that:

[A]bsent compelling economic considerations

for doing so, an employer acts at its peril in

making changes in terms and conditions of em-

ployment during the period that objections to an

election are pending and the final determination

has not yet been made. * * * Such changes have

the effect of bypassing, undercutting, and under-

mining the union’s status as the statutory repre-

sentative of the employees in the event a certifi-

cation is issued.

Mike O'Connor Chevrolet-Buick-GMC Co., 209

N.L.R.B. 701, 703 (1974), enforcement denied on

other grounds, 512 F.2d 684 (8th Cir. 1975) (foot-

note omitted). Regardless of the pendency of such

objections, as of the date of the election, “the [u]nion

[becomes] the statutory collective-bargaining repre-

sentative of the employees * * *. From that moment

forward it [is] entitled to notice and an opportunity

to bargain collectively over [any changes in terms and

conditions of employment] that might be effectuated

thereafter.” Aundy Corp., 292 N.L.R.B. 671, 677

(1989). An employer is obligated to give the union

notice and the opportunity to bargain because of the

“presumptive status of the [u]nion as collective bar-

gaining representative during the interim.” Sund-

strand Heat Transfer, Inc. v. NLRB, 538 F.2d 1257,

1259 (7th Cir. 1976). Accord NLRB vy. Allied Prod-

ucts Corp., 548 F.2d 644, 653 (6th Cir. 1977). As

a result, Greenbriar’s bargaining obligation com-

menced on February 17, 1989, when a majority of

its employees voted for union representation; peti-

10

tioner succeeded to that obligation when it became

Greenbriar’s successor on March 1, 1989.

2. Petitioner also contends, Pet. 21-23, that its

successorship status should have been determined as

of March 7, 1990, the date the Union made a bar-

gaining demand on it, rather than as of March 1,

1989, the date on which petitioner assumed Green-

briar’s operations.° Ordinarily, ‘“[t]he successor’s

duty to bargain * * * is triggered only when the

union has made a bargaining demand.” Fall River,

482 U.S. at 52. But an employer’s decision to contest

the union’s certification at a Board representation

proceeding is, in effect, a rejection of a bargaining

demand. See Honda of America Mfg., Inc., 259

N.L.R.B. 389, 390 & n.3 (1981). In such circum-

stances, there is no need for the union to make a

“demand” for recognition: The employer is already

aware that the union seeks to maintain its repre-

sentative status by reason of the union’s continuation

of proceedings before the Board; and the employer’s

decision to contest the union’s certification, in turn,

provides the union with notice that the employer will

not bargain with it until its status is resolved. Set-

tled Board law has long so held, Honda of America

Mfg., Inc., supra, and petitioner offers no compelling

reason why the law should be otherwise.°

5 According to petitioner’s projections at the hearing, the

predecessor’s workforce might be only a minority of its work-

force by March 1990; in addition, by then its operations may

have changed sufficiently to preclude a substantial continuity

finding.

®The Board has similarly held that, whether or not the

union has requested bargaining, an employer commits an

unfair labor practice by making unilateral changes in terms

and conditions of employment during the pendency of election

objections if the union is later certified. See Laney & Duke

11

By litigating the successorship issue and the chal-

lenged ballots, petitioner here sent the Union a clear

signal that, pending final resolution of those matters,

it would not honor a request for recognition or bar-

gaining. Similarly, by continuing its bid for recogni-

tion, the Union made it obvious that it sought to

retain its representative status. Because those actions

were the equivalent of a demand for bargaining and

rejection of that demand, the appropriate date for

assessing petitioner’s successorship was the date peti-

tioner took over Greenbriar’s operations, March 1,

1989. See Honda of America Mfg., Inc., supra. The

Board and the court of appeals were correct to so

hold.

3. Petitioner’s final contention—that an Adminis-

trative Law Judge, rather than a Hearing Officer,

should have resolved the successorship issue, Pet. 24-

28—is both meritless and jurisdictionally barred.

In general, an employer cannot obtain direct court

review of a Board decision certifying a union as the

bargaining representative of its employees. If the

employer believes that the Board’s decision in the

representation proceeding is erroneous and the union’s

resulting certification invalid, it must test the deci-

sion by refusing to bargain with the union. That re-

fusal, in turn, will draw an unfair labor practice

charge from the union which may form the basis of

a complaint by the Board’s General Counsel. If the

Board finds that the refusal to bargain violates Sec-

tion 8(a)(5) and orders the employer to bargain,

then the employer may obtain court review of both

the order in the unfair labor practice proceeding and

Storage Warehouse Co., 151 N.L.R.B. 248, 266-267 (1965),

enforced in relevant part, 369 F.2d 859 (5th Cir. 1966). See

also Adair Standish Corp., 290 N.L.R.B. 317, 329 (1988).

12

the decision to certify the union in the underlying

representation proceeding. In such circumstances, the

unfair labor practice proceeding under Section

8(a) (5) and the prior representation proceeding “are

really one.” Pittsburgh Plate Glass Co. v. NLRB,

313 U.S. 146, 158 (1941). As a result, issues which

were or could have been litigated in the representa-

tion proceeding cannot be litigated in the unfair labor

practice proceeding. See id. at 161-162. Accord

Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141

(1971); Fall River Savings Bank v. NLRB, 649 F.2d

50, 58-59 (1st Cir. 1981) ; Retail Clerks Union, Local

1401 v. NLRB, 463 F.2d 316, 322-825 (D.C. Cir.

1972). This makes sense: Where the employer has

already had the opportunity to litigate an issue in

the representation proceeding, there is no reason to

permit relitigation of the issue in the subsequent un-

fair labor practice proceeding.

Here, petitioner litigated the successorship issue in

the representation proceeding and put its arguments

concerning the finding of successorship before the

Board in its exceptions to the Hearing Officer’s find-

ings and recommendations. It lost. It then sought to

put those same arguments before an Administrative

Law Judge and the Board in the unfair labor prac-

tice proceeding. Because petitioner’s arguments had

already been rejected once, there was no reason for

further proceedings and the Board granted summary

judgment against petitioner. Petitioner’s only re-

course was to the courts; it had no right to relitigate

the issues before the Board.

Petitioner does not disagree with “the general

principle that, where representation case findings

are ‘related’ to subsequent unfair labor practice pro-

ceedings, such findings may not be relitigated in an

unfair labor practice hearing [before an adminis-

13

trative law judge].” Pet. 24. However, it asserts

that the principle is inapplicable here. Petitioner is

mistaken. In Amalgamated Clothing Workers of

America v. NLRB, 365 F.2d 898, 902-905 (1966),

the Court of Appeals for the District of Columbia

Circuit explained that findings made in a representa-

tion proceeding may not be relitigated in a “related”

unfair labor practice proceeding if the employer’s

defense to the unfair labor practice charge is simply

a challenge to the result of the representation pro-

ceeding. In other words, where the employer defends

against the unfair labor practice charge by disputing

the validity of the union’s certification, the Board

will not hear the employer’s challenge. However,

where the defense to the unfair labor practice charge

is independent of the validity of the union’s certifica-

tion, the issue may be litigated in the unfair labor

practice proceeding.’ The Board adopted the Court

of Appeals for the District of Columbia Circuit’s in-

terpretation in Serv-U-Stores, 234 N.L.R.B. 1143

(1978), and the courts of appeals have agreed with

it consistently ever since. See, e.g., Sahara Datsun,

Inc. v. NLRB, 811 F.2d 1317, 1321 (9th Cir. 1987) ;

NLRB y. Dillon Stores, 643 F.2d 687, 690 (10th

* For example, where the issue of an individual’s super-

visory status pertains to whether he or she was properly in-

cluded in the unit for purposes of determining whether the

union won an election, the issue cannot be relitigated. How-

ever, the issue of supervisory status may be relitigated where

it is relevant to a determination of whether an employer un-

lawfully discharged an individual for engaging in protected

activity, e.g., Heights Funeral Home, Inc. v. NLRB, 385 F.2d

879 (5th Cir. 1967), or whether an alleged supervisor unlaw-

fully interfered with employees’ protected activities, e.g.,

Amalgamated Clothing Workers v. NLRB, 365 F.2d 898, 902,

905 (D.C. Cir. 1966).

14

Cir. 1981); Rock Hill Telephone Co. v. NLRB, 605

F.2d 139, 143 (4th Cir. 1979); Riverside Press, Ine.

v. NLRB, 415 F.2d 281, 284-285 (5th Cir. 1969),

cert. denied, 397 U.S. 912 (1970).°

In this case, neither the unfair labor practice

charge nor petitioner’s defense to it was independent

of the Union’s certification; instead, petitioner de-

fended against the charge by challenging the certifi-

cation decision made in the representation proceeding.

Petitioner concedes as much, admitting that it re-

fused to bargain with the Union because “‘it believed

the [Union’s] certification by the Board to be in

error.” Pet. 11. Even the theory petitioner asserted

—that certification of the Union as the bargaining

representative of its employees was improper because

petitioner did not succeed to Greenbriar’s bargaining

obligation—was the same theory petitioner advanced

in the representation proceeding. As the court of ap-

peals correctly noted, Pet. App. AQ, petitioner’s “‘lia-

bility for [Section 8(a)(5)] violations depend[ed]

on whether the election yield[ed] Certification.” Be-

cause petitioner had already litigated the successor-

§In Foothill Electric Corp., 120 N.L.R.B. 1350 (1958), Pet.

28, the Board allowed the union to litigate the validity of a

contractual union-security clause in a representation proceed-

ing because it was material to the union’s claim that it was

properly elected as the employees’ bargaining representative

—i.e., to whether the Board’s contract bar rules precluded the

holding of an election at that time. In Lawrence Typographi-

cal Union V. McCulloch, 349 F.2d 704 (D.C. Cir. 1965), Pet.

28, the court held that a district court had no jurisdiction to

enjoin a decertification petition on an allegation that the

Board had improperly refused to admit evidence pertaining

to a related unfair labor practice complaint in the decertifica-

tion proceeding. Neither case supports petitioner’s contention

that the Board was precluded from determining the successor-

ship issue here in the representation proceeding.

15

ship issue in the representation proceeding, the Board’s

refusal to permit its relitigation in the unfair labor

practice proceeding was undeniably correct.”

In any event, review of this issue is jurisdiction-

ally barred. Under Section 10(e) of the Act, 29

U.S.C. 160(e), the courts lack jurisdiction to consider

any issue not urged before the Board. Woelke ¢:

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-

666 (1982) ; International Ladies’ Garment Workers’

® Petitioner’s argument that the Board violated the proce-

dures in its Casehandling Manual, Pet. 26-28, is simply wrong.

Section 11420.1 of the Manual, on which petitioner relies, Pet.

26-27, applies to independent unfair labor practice claims

which are pending during the representation proceeding. As

explained above, the unfair labor practice claim here and

petitioner’s defense to it were not independent of the repre-

sentation proceeding; instead, petitioner defended against the

unfair labor practice charge by challenging the result of the

representation proceeding, the Union’s certification. In any

event, nothing contrary to the Manual, even as misconstrued

by petitioner, happened here. Contrary to petitioner’s asser-

tion, Pet. 28, the Hearing Officer never “found” that petitioner

participated in an unfair labor practice. See Pet. App. A25-

A70. Nor did he recommend that the Board do so. Jd. at A68-

A69. In fact, no unfair labor practice determination was

made until five months after the Board had adopted the Hear-

ing Officer’s findings and recommendations on the representa-

tion issue. See Pet. App. A13-A15 (Decision dated March 1,

1990, adopting the Hearing Officer’s findings and recommen-

dations and certifying the Union) ; Pet. App. A16-A24 (De-

cision and Order, dated August 9, 1990, finding that petitioner

committed an unfair labor practice by refusing to bargain

with the employees’ duly certified representative). And then,

the unfair labor practice decision was made by the Board on

a motion for summary judgment, not by a Hearing Officer.

That was the appropriate procedure, as no facts were in dis-

pute: The Board had already held the Union properly certi-

fied in a prior proceeding, and petitioner had conceded that

it had refused to negotiate with the Union.

a

16

Union v. Quality Mfg. Co., 420 U.S. 276, 281 n.3

(1975). Petitioner could have objected to having the

Hearing Officer resolve the successorship issue when

petitioner filed its exceptions to the Hearing Officer’s

findings and recommendation with the Board. See

p. 12, supra. It did not. Consequently, petitioner was

also barred from raising the issue in the unfair labor

practice proceeding. See Magnesium Casting Co., 401

U.S. at 141; Fall River Savings Bank, 649 F.2d at

58-59; Retail Clerks Union, Local 1401, 463 F.2d at

322-325. Because petitioner failed to timely bring

before the Board its objection to having a Hearing

Officer resolve the successorship issue, the courts lack

jurisdiction to hear it. Woelke & Romero Framing,

Inc., supra; International Ladies’ Garment Workers’

Union, supra.”

10 Section 10(e) provides that “[n]o objection that has not

been urged before the Board * * * shall be considered by the

court, unless the failure or neglect to urge such objection shall

be excused because of extraordinary circumstances.” Peti-

tioner offers no excuse for its failure to timely raise the

issue before the Board, no less the “extraordinary circum-

stances” required by the statute. Although the Board raised

Section 10(e) below, see Board C.A. Br. 19 n.6, the court of

appeals never addressed the 10(e) issue, addressing the

merits instead.

11 While not stated in its questions presented for review,

petitioner asserts that, in fact, it is not a successor to Green-

briar because “there was not a substantial continuity of the

same operations.” Pet. 19. Petitioner refers to its plan to

“radically redesign[], remodel[], and reconstruct[]” the

Greenbiar facility, ibid., and to hire additional workers into

new job classifications, Pet. 20. The Board, however, found,

and the court of appeals agreed, that petitioner’s changes,

both implemented and projected, “are not so substantial so

as to change the nature of the enterprise.” Pet. App. A9,

A40. To the extent that petitioner may be understood to chal-

17

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JERRY M. HUNTER

General Counsel

NORTON J. COME

Deputy Associate

General Counsel

LINDA SHER

Assistant General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

May 1992

lenge this finding, the issue is fact-bound and does not war-

rant further review. See Universal Camera Corp. Vv. NLRB,

340 U.S. 474, 490-491 (1951).

SY UV. S. GOVERNMENT PRINTING OFFICE; 1992 312324 45439