Nathan Katz Realty v. Nat'l Labor Relations Bd.

• Citation: 251 F.3d 981
• Decision Date: 12 June 2001
• Docket Number: No. 00-1238,00-1238
• Parties: (D.C. Cir. 2001) Nathan Katz Realty, LLC, et al., Petitioners v. National Labor Relations Board, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 981

251 F.3d 981 (D.C. Cir. 2001)

Nathan Katz Realty, LLC, et al., Petitioners v. National Labor Relations Board, Respondent

No. 00-1238

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 6, 2001

Decide June 12, 2001

[Copyrighted Material Omitted]

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

G. Peter Clark argued the cause and filed the briefs for petitioners.

Ruth Burdick, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the briefs were Leonard R. Page, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.

Before: Williams, Sentelle and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Nathan Katz Realty, LLC manages thirty apartment buildings in Queens, New York. After Local 32B-32J, Service Employees International Union, AFL-CIO ("the Union") petitioned to organize Katz's service employees, a National Labor Relations Board ("NLRB") Regional Director determined that the employees constituted two separate units and ordered that the two elections be held on the same day at different times. The Director also found that the superintendents in Katz's buildings were not supervisors under the National Labor Relations Act ("NLRA").

In one of the two elections, the employees voted to be represented by the Union. Following the election, Katz filed several objections, contending inter alia that (1) agents of the Union had improperly interfered with the election by being present in a no-electioneering zone directly outside the entrance of the election site, and (2) the Regional Director erred in deciding not to count the ballots from the first election until after the second election was completed. The Regional Director overruled Katz's objections, and his decision was affirmed by the Board.

When Katz refused to bargain with the Union, the Board's General Counsel filed a complaint alleging that Katz's refusal was an unfair labor practice that violated 8(a)(5) and (1) of the NLRA. 29 U.S.C. 155(a)(5), (1). Katz responded to the complaint by renewing its earlier objections, incorporating them by reference in a letter to the Board. The Board ultimately ruled that Katz had engaged in unfair labor practices and ordered it to bargain with the Union. See Nathan Katz Realty LLC, 331 N.L.R.B. No. 22 (May 23, 2000).

Katz petitions us to review the Board's decision, again arguing that its superintendents are supervisors, the Union's agents engaged in improper conduct during the election, and the Director erred by refusing to count the first ballots before the second election began. In a cross-application for enforcement of its order, the Board contends that these issues are not properly before us because Katz failed to preserve them in the underlying representation case.

For reasons more fully set out below, we conclude that Katz properly preserved all of the issues it raises in its petition. Furthermore, we hold that the Board failed to provide a reasoned basis for concluding that the Union's agents did not interfere with the election and for deciding to delay tallying the ballots cast in the first election. Accordingly, we grant Katz's petition in part and remand the case for further proceedings.

I. BACKGROUND

In the spring of 1999, the Union petitioned the NLRB seeking an election among Katz's superintendents and porters to permit the Union to become their bargaining representative. Following a hearing, the NLRB Regional Director found that the employees of all the buildings but one constituted an appropriate unit ("multi-site unit"). The employees of the other building comprised a separate unit ("Sima unit"). The Regional Director scheduled the two units' representation elections for the same day, with the Sima election in the morning and the multi-site election in the afternoon.

In his Decision and Direction for Election, the Director concluded that the buildings' superintendents were not supervisors under the NLRA. See 29 U.S.C. 152(11). Specifically, the Director determined that "[a]t most, superintendents possess some low-level authority to assign and oversee the porters, but without using independent judgment and without exercising any real supervisory authority over their employment status." Nathan Katz Realty, LLC, No. 29-RC9265, slip op. at 19 (July 1, 1999). The superintendents therefore were included in the units. Katz challenged this ruling, but the Board summarily affirmed it. See Nathan Katz Realty, LLC, No. 29-RC-9265 (July 26, 1999).

Two and a half weeks before the elections, the Union requested that the Regional Director not count the ballots from the Sima election until the voting in the multi-site election was over. Although Katz objected, the Regional Director granted the Union's request, asserting that "[t]o count the ballots in both units simultaneously guarantees that neither party will enjoy an unfair advantage over the other based on the result of the election in the SIMA unit." Letter from Alvin Blyer, Regional Director, NLRB, to G. Peter Clark, Counsel for Nathan Katz Realty, LLC (July 16, 1999).

On the day of the elections, the two employees composing the Sima unit voted against the Union, but the Union succeeded in the multi-site election, receiving 21 of 40 employee votes. Following the elections, Katz filed three objections: (1) Union agents interfered with the elections by stationing themselves in a no-electioneering zone during the voting; (2) the Union provided a substantial benefit to Katz's employees by providing them with cellular phones during the period leading up to the elections; and (3) the Director interfered with the multi-site election by refusing to count the Sima ballots until after the multi-site election. The Director dismissed objection number three and most of the allegations in objection number one without a hearing. Their dismissal was summarily affirmed by the Board. See Nathan Katz Realty, LLC, No. 29-RC-9265 (Oct. 1, 1999). The Director later dismissed objection number two and the remaining allegation in objection number one.

After the Union was certified, it sought to bargain with Katz, but Katz refused. The NLRB General Counsel filed a complaint alleging that Katz's refusal constituted an unfair labor practice. When the General Counsel filed a motion for summary judgment, the Board issued a notice to show cause to Katz. After Katz responded to the notice, the Board found that Katz had engaged in unfair labor practices in violation of 8(a)(5) and (1) of the NLRA. See Nathan Katz Realty LLC, 331 N.L.R.B. No. 22 (May 23, 2000).

Katz petitions this Court for review of the Board's unfair labor practice decision. In its petition, Katz reasserts its arguments that (1) the buildings' superintendents are supervisors as defined by the NLRA, (2) the Union's agents interfered with the elections through their presence in a noelectioneering zone during the voting, and (3) the Regional Director interfered with the multi-site election by refusing to count the Sima ballots until after both elections were completed. The Board filed a cross-application for enforcement of its order.

II. ANALYSIS

A. Jurisdiction

The Board contends that the issues raised by Katz are not properly before the Court. Specifically, the Board argues that Katz did not explicitly preserve the issues it had presented in the underlying representation proceeding in accordance with 10(e) of the NLRA. 29 U.S.C. 160(e). In its response to the Board's notice to show cause in the unfair labor practice proceeding, Katz wrote that it

relies upon its Answer to the Complaint in Case 29-CA23280, the entire record in the related representation case, Case 29-RC-9265, including the September 21, 1999 Request for Review on the Acting Regional Director's Supplemental Decision On Objections On Behalf Of Nathan Katz Realty, LLC, and the transcripts and records of the proceedings before the hearing officers on the petition and on the election objections, in opposition to General Counsel's Motion for Summary Judgment in the above-referenced cases.

Letter from G. Peter Clark, Counsel for Nathan Katz Realty, LLC, to John J. Toner, Executive Secretary, NLRB (Apr. 18, 2000). The Board suggests that this statement was insufficient to provide it with adequate notice that Katz intended to pursue specific issues in its petition for review.

Section 10(e) provides that "[n]o objection, that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. 160(e). Accordingly, a "Court of Appeals lacks jurisdiction to review objections that were not urged before the Board." Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982). The critical inquiry in evaluating the Court's jurisdiction to review an objection is "whether the Board received adequate notice of the basis for the objection." Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999) (internal quotation omitted).

Under the Board's regulations, once a party litigates an issue in a representation proceeding, it is prohibited from relitigating those same issues in a subsequent unfair labor practice proceeding. See 29 C.F.R. 102.67(f); see also Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1151 (D.C. Cir. 2000). In light of the no-relitigation rule, Katz contends that its statement provided the Board with sufficient notice that it intended to raise the same issues in its petition for review that it previously had raised in the representation proceeding. Katz claims that forcing a party to reargue its representation and election challenges would serve no legitimate purpose.

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