Human Development Ass'n v. N.L.R.B.
| Decision Date | 09 July 1991 |
| Docket Number | No. 89-1551,89-1551 |
| Citation | 290 U.S.App.D.C. 339,937 F.2d 657 |
| Parties | 137 L.R.R.M. (BNA) 2761, 290 U.S.App.D.C. 339, 60 USLW 2068, 119 Lab.Cas. P 10,875 HUMAN DEVELOPMENT ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, District 6, International Union of Industrial, Service, Transport and Health Employees, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Martin Gringer, Melville, N.Y., for petitioner.
Jonathan Walters, Philadelphia, Pa., for intervenor.
Scott D. MacDonald, Attorney, N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate General Counsel, and Peter Winkler, Supervisory Atty., N.L.R.B., were on the brief, Washington, D.C., for respondent. Marion L. Griffin also entered an appearance, Washington, D.C., for respondent.
John Hogrogian and Michael Adler were on the brief, New York City, for amicus curiae urging that the petition for review be denied.
Before EDWARDS, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
Human Development Association (HDA), a home health care provider, recognized District 6 * as the collective bargaining representative of its home attendant employees. The National Labor Relations Board found, however, that District 6 did not have the support of a majority of the home attendants when HDA recognized it, and therefore held that HDA engaged in an unfair labor practice in violation of Secs. 8(a)(1) and 8(a)(2) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1)-(2). Those sections forbid an employer respectively (1) to interfere with the exercise of employees' right to organize or refrain from organizing, and (2) to provide financial or other support to a labor organization. The NLRB also concluded that, by entering into a collective bargaining agreement with District 6 and by enforcing the union security clause of that agreement, HDA violated Secs. 8(a)(1), 8(a)(2), and 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(1)-(3). The relevant parts of Sec. 8(a)(3) forbid an employer to discriminate in the terms and conditions of employment for the purpose of encouraging membership in a labor organization (apart from a union security clause in an agreement with a legitimate collective bargaining agent).
HDA petitions for review of the Board's order, claiming that the Board erred in finding that District 6 did not have majority support when HDA recognized it. First, HDA argues that the Board can no longer apply its dual card doctrine, under which the Board did not count as District 6 supporters six HDA employees who signed cards both for District 6 and for another union. Second, HDA challenges the Board's decision to reject as evidence of timely support photostatic copies of union cards that were signed after HDA recognized District 6. HDA claims that this decision is not supported by substantial evidence.
Because of a clerical error, the Board did not serve District 6 with an unfair labor practice complaint within the limitations period. District 6 participated in the Board proceedings, however, as "Party to the Contract"; it intervenes here in support of the Employer, and puts forth the additional argument that the Board improperly asserted jurisdiction over HDA.
We hold that the Board's assertion of jurisdiction was proper, and accept its reaffirmation of the dual card doctrine. We do not reach the other arguments presented because, even if successful, they would not be sufficient to sustain the claim that District 6 enjoyed majority support when HDA recognized it. Consequently, we deny the petition for review and grant the Board's cross-petition for enforcement of its order.
The New York City Human Resources Administration (City) contracts with HDA to provide home care attendants for Medicaid recipients. The City pays HDA a gross amount per hour of care, and requires that HDA employees be covered by the City's employee health benefit plan. HDA hires and supervises its home attendants without day-to-day interference from the City.
In the first half of 1981, four different unions mounted campaigns to organize the home attendants working for HDA. In April, two unions no longer involved in this case filed and then withdrew a joint petition for a Board-certified representation election. A third union, District 1199, National Union of Hospital and Health Care Employees, conducted a mail campaign, which it supplemented with personal solicitations outside the HDA office and employee meetings at various sites off the premises. The fourth union, District 6, campaigned entirely by mail.
Believing that it had the support of a majority of the home attendants, District 1199 began in late May or early June to telephone the director of HDA in order to initiate collective bargaining. The director did not return those calls and, when eventually reached, refused to discuss District 1199's demand for collective bargaining. HDA officials instead hastened to meet with District 6, and on June 11 conducted a count of that Union's authorization cards. The count failed to show a District 6 majority, so HDA and District 6 conducted another card count on June 22. On the second try District 6 appeared to have the barest majority, 91 cards in a bargaining unit that, according to a stipulation by the Employer and the Union, consisted of 181 employees. HDA immediately recognized District 6 as the collective bargaining representative of the home attendants, and two days later signed a collective bargaining agreement containing a union security clause.
District 1199 finally demanded recognition by letter on June 29, but HDA officials refused to meet with that union. Although it never petitioned the Board for a representation election, District 1199 did charge HDA and District 6 with unfair labor practices in connection with the events of June 1981. As noted above, District 6 was not timely served with the charge.
After a 15-day hearing, an administrative law judge found that HDA had committed unfair labor practices by recognizing District 6 when that Union did not represent a majority of the home attendants, by entering into a collective bargaining agreement with the minority Union, and by enforcing the union security clause in the agreement. In finding that HDA did not represent a majority of the home attendants as of June 22, the ALJ applied the Board's dual card doctrine, subtracting from the total number of District 6 authorization cards signed by the recognition date all cards signed by employees who had also signed District 1199 authorization cards. See, e.g., Crest Containers Corp., 223 N.L.R.B. 739, 741-42 (1976); Harry Stein (Ace Sample Card Co.), 46 N.L.R.B. 129, 130-31 (1942). This left District 6 with 94 timely cards out of a bargaining unit that the ALJ determined to number 188. On remand from the Board to reconsider the question of the Board's jurisdiction in light of its intervening decision in Res-Care, Inc., 280 N.L.R.B. 670 (1986), the ALJ found that the assertion of jurisdiction remained proper.
The Board affirmed the ALJ's decision both as to jurisdiction and on the merits. Human Dev. Ass'n, 293 N.L.R.B. No. 140 (May 22, 1989). The Board also found that photocopies of five authorization cards signed after June 22, 1981 did not demonstrate that the signers supported District 6 on or before that date; those employees thus could not be counted in the number of District 6 supporters as of the time that HDA recognized that Union.
The Board ordered HDA not to recognize District 6 as the representative of the home attendants unless and until that Union won a Board-certified election. The Board also ordered HDA to reimburse with interest all Union dues and initiation fees paid by or withheld from employees as a result of the union security clause, except for payments by employees who signed District 6 authorization cards before the Employer's unlawful recognition forced them to join the Union.
HDA is unquestionably an "employer" within the statutory jurisdiction of the Board. See NLRA Sec. 2(2), 29 U.S.C. Sec. 152(2). Based upon the exclusion of "any State or political subdivision thereof" from the definition of an employer, however, the Board may exercise its discretion, with respect to a particular bargaining unit, not to assert jurisdiction over a statutory employer that provides services exclusively to an exempt government entity. Res-Care, Inc., 280 N.L.R.B. 670 (1986); see also Long Stretch Youth Home, Inc., 280 N.L.R.B. 678 (1986). In deciding whether to assert jurisdiction, the Board examines "not only the control over essential terms and conditions of employment retained by the employer, but also the A reviewing court will not disturb the Board's discretionary decision to assert its jurisdiction "absent a showing that [the Board] acted unfairly and caused substantial prejudice to the affected employer." NLRB v. Parents & Friends of the Specialized Living Center, 879 F.2d 1442, 1448 (7th Cir.1989). The Board nevertheless is "bound by its own rules until it changes them, including the rules that it has adopted in order to channel what would otherwise be an essentially unreviewable discretion in the deployment of its limited prosecutorial resources." NLRB v. Kemmerer Village, Inc., 907 F.2d 661, 663-64 (7th Cir.1990) (citations omitted). Cf. Hicks v. NLRB, 880 F.2d 1396 (D.C.Cir.1989) ().
scope and degree of control exercised by the exempt entity over the employer's labor relations, to determine whether the employer in issue is capable of engaging in meaningful collective bargaining." Res-Care, 280 N.L.R.B. at 672. The employer bears the burden of...
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