KBI Sec. Service, Inc. v. N.L.R.B.
| Decision Date | 01 July 1996 |
| Docket Number | Nos. 1708,1771,D,s. 1708 |
| Citation | 91 F.3d 291 |
| Parties | 152 L.R.R.M. (BNA) 2947, 132 Lab.Cas. P 11,618 KBI SECURITY SERVICE, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, ockets 95-4142(L), 95-4176(XAP). |
| Court | U.S. Court of Appeals — Second Circuit |
Ronald Cohen, Ingber & Ingber, New York City, for Petitioner Cross-Respondent KBI Security Service.
John D. Burgoyne, Washington, D.C. (Frederick L. Feinstein, Linda Sher, Aileen A. Armstrong, National Labor Relations Board), for Respondent Cross-Petitioner National Labor Relations Board.
Before: NEWMAN, Chief Judge, JACOBS and CABRANES, Circuit Judges.
KBI Security Service, Inc. ("KBI") petitions for review of a decision and order of the National Labor Relations Board (the "Board") affirming an administrative law judge's findings that (i) KBI supervisors uttered coercive remarks to employees while questioning them about their union activities, in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (the "Act"); and (ii) KBI otherwise interrogated employees and discharged two of them by reason of their union activity, in violation of section 8(a)(1), (3) and (4) of the Act. The Board cross-petitions for enforcement of its order which, among other things, requires KBI to reinstate the two discharged employees.
Because KBI filed no exceptions to the Board's finding that KBI supervisors interrogated employees about union membership, we lack jurisdiction to review that portion of the Board's decision. And because KBI filed no answer to the complaint that alleged KBI's retaliatory discharge of the two employees, we affirm the Board's decision deeming those allegations true. But because the record discloses the likelihood that one or both of the discharged employees committed theft, we are convinced that the Board's order is insufficiently "tailored to the unfair labor practice it is intended to redress," Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900, 104 S.Ct. 2803, 2813, 81 L.Ed.2d 732 (1984), and would place an undue burden on the employer if enforced. Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 & n.
10, 85 S.Ct. 398, 405-06 & n. 10, 13 L.Ed.2d 233 (1964). We therefore decline to enforce the portion of the order that requires the two employees to be reinstated and awarded backpay, and remand to the Board for a further determination as to the appropriate remedy.
KBI is in the business of providing security guards for commercial clients. In November 1993, several employees at KBI's branch office in Bridgeport, Connecticut engaged in organizing activities with the goal of becoming represented by the International Union, United Plant Guard Workers of America (the "Union"). On December 17, 1993, the Union filed an election petition with the Board's regional office in Hartford. KBI's response to the union organizing activity resulted in the filing of two unfair labor practice complaints.
The May complaint. On May 25, 1994, the Board's regional office issued a complaint (the "May complaint") alleging that KBI interrogated several employees in violation of section 8(a)(1) of the Act. Specifically, the complaint alleged that in late December 1994, supervisors Angel Rivera and Kenneth Cruzado, 1 acting at the direction of the owner of KBI, interrogated KBI employees about their union membership, sympathies and activities. On June 22, 1994, Anthony Netto, the Bridgeport branch manager, filed an answer denying the allegations set forth in the complaint. Netto is not a lawyer.
The September complaint. On August 4, 1994, the Union filed additional charges against KBI with the Board's regional office, asserting that KBI discharged two employees because of their union activities. The regional office forwarded those charges to KBI by letter dated August 5, 1994, and solicited KBI's response. In a letter to the regional office dated August 30, Netto responded that the Union's charges were "totally false."
On September 28, 1994, the regional office issued a second complaint (the "September complaint"), alleging that (i) KBI again interrogated its employees about their union activity and engaged in other coercive activity; and (ii) KBI "refused to recall" two employees, Hector Rosenthal and Orlando Febus, in retaliation for their organizing activities and for their participation in an ongoing investigation of KBI that was being conducted by the Board. The September complaint made clear that the Board's rules and regulations required KBI to file an answer with the regional office within 14 days "and that, unless [KBI] does so, all the allegations in the complaint shall be considered to be admitted to be true and shall be so found by the Board." KBI failed to file an answer within the time allowed. Prior to the scheduled hearing date, the regional office contacted Netto by telephone and "indicated to him that [an] answer was required under the rules." Netto retorted that he had "already responded to everything, and did not intend to file an answer."
The ALJ's Conclusions. On November 9 and 10, 1994, Administrative Law Judge Stephen J. Gross (the "ALJ") conducted a hearing on the unfair labor practices alleged in both complaints. At the outset, the General Counsel's office moved that the allegations of the September complaint be deemed admitted in view of KBI's failure to file an answer. KBI--still appearing by branch manager Netto--contended that Netto's August 30 letter to the Board's regional office was a sufficient answer to that complaint. The ALJ reserved decision and heard evidence concerning the allegations in both complaints.
Of relevance to this appeal, KBI presented evidence that Rosenthal or Febus, or both of them, committed theft while on assignment to a Saturn automobile dealership. Documentary evidence was presented that $133 in phone calls were made at the Saturn dealership during an evening when Rosenthal and Febus were on duty. In addition, two witnesses testified that the Saturn dealership was robbed on several evenings when Rosenthal or Febus was on duty. Because there was no evidence of forced entry, some suspicion focused on the KBI guards. As a result In an order dated November 28, 1994, the ALJ deemed admitted the allegations in the September complaint by reason of KBI's default. On April 20, 1995, after further briefing by the parties, the ALJ issued a decision and recommended order finding that KBI committed the unfair labor practices alleged in both complaints. With respect to the May complaint, the ALJ determined that KBI had interrogated its employees regarding their participation in protected activity, in violation of section 8(a)(1) of the Act. With respect to the September complaint, the ALJ affirmed his November 28, 1994 decision deeming the allegations therein admitted, and accordingly determined that KBI had engaged in coercive activity and had illegally terminated Rosenthal and Febus, in violation of section 8(a)(1), (3) and (4) of the Act. Among other forms of relief, the ALJ ordered KBI to reinstate Rosenthal and Febus.
of these thefts, KBI contended that the Saturn dealership terminated its security relationship with KBI.
In a two-page letter addressed to the ALJ dated May 16, 1995, KBI set forth its objections to the ALJ's decision. It appears that that letter was filed with the Board as a formal statement of exceptions to the ALJ's order and recommendation. On August 9, 1995, a three-member panel of the National Labor Relations Board adopted the ALJ's recommended order in its entirety.
KBI failed to file exceptions with the Board challenging the ALJ's determination that KBI impermissibly interrogated several employees about their union activity. For that reason, the Board contends that we lack jurisdiction to review that determination. We agree.
Section 10(e) of the Act grants this Court jurisdiction to hear petitions from the Board and from parties aggrieved by the Board's determinations. See 29 U.S.C. § 160(e). Section 10(e) states in relevant part:
No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the [appellate] court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.
Id. Under the Board's regulations, "[n]o matter not included in exceptions or cross-exceptions may thereafter be urged before the Board, or in any further proceeding." 29 C.F.R. § 102.46(g) (1996). It is well-established that a party's failure to raise an issue before the Board "prevents consideration of the question by the courts." Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982); see also National Maritime Union v. NLRB, 867 F.2d 767, 775 (2d Cir.1989) (). In a two-page letter dated May 16, 1995, KBI set forth its exceptions to the ALJ's decision. That letter takes exception to particular findings by reference to specific pages and lines of the ALJ's decision. However, none of these exceptions references the portion of the ALJ's opinion that finds KBI liable for illegally interrogating its employees. The Board was therefore correct in finding that "[t]here are no exceptions to the judge's disposition of issues presented in Case 34-CA-6495." 2 In addition, KBI points to no "extraordinary circumstance" that might excuse its failure to take exception to that portion of the ALJ's opinion. Accordingly, we lack jurisdiction to review the Board's finding that KBI impermissibly interrogated its employees.
With respect to the termination of Rosenthal and Febus as alleged in the...
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