N.L.R.B. v. Selvin
| Decision Date | 06 October 1975 |
| Docket Number | No. 74-1102,74-1102 |
| Citation | 527 F.2d 1273 |
| Parties | 90 L.R.R.M. (BNA) 2829, 77 Lab.Cas. P 11,118 NATIONAL LABOR RELATIONS BOARD Petitioner, v. Mrs. Gladys SELVIN, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before TRASK and WALLACE, Circuit Judges, and KELLEHER, * District Judge.
Pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), the National Labor Relations Board ('the Board') seeks enforcement of its order, issued on August 13, 1973, against Mrs. Gladys Selvin ('Selvin').
On December 12, 1972, the Wholesale Delivery Drivers and Salesmen, Local Union No. 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ('Local 848') filed a complaint with the NLRB charging West Coast Liquidators, Inc., and Selvin, West Coast's collective bargaining agent, with unfair labor practices. Thereafter, both West Coast and Selvin were found to have violated Section 8(a)(5) and (1) of the National Labor Relations Act. 205 NLRB No. 88.
The facts as found by the Board and uncontroverted here are as follows:
On October 16, 1972, Local 848 was certified as the collective bargaining representative for a unit of employees at West Coast's warehouse. Thereafter respondent Selvin, West Coast's collective bargaining agent, agreed with the Local 848's president, Joe Ruiz, to meet on November 1, 1972, at her office-residence-apartment.
Three negotiation sessions were held at her apartment. The meeting room in her apartment had no tables, and each time the Union representatives came for a bargaining session, TV trays were set up and they were served tea.
At each of the three meetings, Selvin continually avoided discussion of any of the Union's proposals. The testimony before the Administrative Law Judge discloses that at each meeting Local 848 was prepared and attempted to engage in collective bargaining, while Selvin insisted on talking about unrelated subjects and summarily rejected virtually all Local 848's proposals without presenting any counter-proposals.
Respondent Selvin at the end of the third meeting boasted to Union representatives that in the 'last 10 or 12 years, none of her clients have signed a contract,' and that a business agent 'from one of the other locals . . . had met with her 12 or 14 times . . . and then stopped coming. . . .' Thereafter no further negotiations were held. Local 848 filed its complaint with the Board on December 12, 1972.
On the basis of the foregoing facts, the Administrative Law Judge and the Board found that Selvin and West Coast violated Section 8(a)(5) and (1) of the Act by failing and refusing, on and after October 16, 1972, to bargain in good faith with Local 848.
Additionally, the Administrative Law Judge and the Board, taking official notice of prior Board decisions and orders which evidence a long pattern of bad-faith bargaining by Selvin, found respondent to have demonstrated such a proclivity to violate the Act as to justify a broad remedial order. 1
Accordingly, the Board, adopting the recommended order of the Administrative Law Judge, (1) ordered West Coast to cease and desist from (a) refusing to bargain in good faith with petitioner Union, and (b) in any manner interfering with, restraining or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act; and (2) ordered Selvin to cease and desist from (a) refusing to bargain in good faith with petitioner Union, (b) '(r) efusing to bargain in good faith with any labor organization when she is an agent for any employer . . .,' and (c) 'in any manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act.' Affirmative orders were also entered (1) requiring West Coast and Selvin to bargain upon request in good faith with Local 848 and (2) requiring Selvin to '(b)argain in good faith with any labor organization when she is an agent for any employer subject to the jurisdiction of the Board. . . .' (Emphasis added.)
Because West Coast has voluntarily complied with the Board's order, the Board is seeking here to enforce its order only as to Selvin.
Threshold to consideration of respondent Selvin's objections to the Board's application for an enforcement order is the question of her right to raise them now before this Court.
Section 10(e) of the Act (29 U.S.C. § 160(e)) provides in part:
'No objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objections shall be excused because of extraordinary circumstances.'
As the Supreme Court in NLRB v. Cheney California Lumber Co., 327 U.S. 385, 389, 66 S.Ct. 553, 555, 90 L.Ed. 739 (1946), in a case involving an application by the Board for enforcement of a broad order against an employer, held:
'(J)ustification of such an order, which necessarily involves consideration of the facts which are the foundation of the order, is not open for review by a court if no prior objection has been urged before the case gets into court and there is a total want of extraordinary circumstances to excuse 'the failure or neglect to urge such objection."
In 1961 the Supreme Court, explaining Cheney, in NLRB v. Ochoa Fertilizer Corp., et al., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312 (1961), stated:
'(w)hen the Board has not 'patently traveled outside the orbit of its authority,' National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739 (footnote omitted), our cases have uniformly held that in the absence of a showing within the statutory exception of 'extraordinary circumstances' the failure or neglect of the respondent to urge an objection in the Board's proceedings forecloses judicial consideration of the objection in enforcement proceedings.'
In accordance with Cheney and Ochoa, we have consistently refused, absent extraordinary circumstances, to consider here any argument not previously advanced before the Board. NLRB v. Pacific Electrical Contractors' Association, 478 F.2d 853 (9th Cir. 1973); Buckley v. NLRB, 432 F.2d 409 (9th Cir. 1970); NLRB v. Jan Power, Inc., 421 F.2d 1058 (9th Cir. 1970).
Respondent's objections to the Board's order now urged upon the Court were first made before the Board on March 18, 1974, in a motion to reopen the proceedings to permit the Board's order to be modified or set aside; this was some seven months after the Board issued its order and some two months after the Board filed its application for enforcement with this Court on January 21, 1974. That motion was properly denied by the Board as untimely because it was not made within the time period provided for in 29 C.F.R. § 102.48(d)(2)-twenty days from the date of service of the order unless the Board otherwise permits.
Respondent's argument that 29 C.F.R. § 102.49 permits the filing of objections with the Board up to the time of the filing of the transcript of the record in the Court of Appeals is also without merit. Section 102.49 says nothing more than that the Board may modify or set aside its findings of fact, conclusions of law or order prior to the filing of a transcript of the record in a court. As noted above, the time requirements for the filing of a motion to reopen the record are controlled by § 102.48(d)(2), not § 102.49. That time requirement was not met; to find otherwise would make meaningless the time requirements for the filing of exceptions to Administrative Law Judge's decisions and objections to the Board's final determination.
Furthermore, the record before us contains no showing of extraordinary circumstances which might excuse this failure. Thus respondent is precluded from raising before this Court the objections to the Board's order that she now urges because they were not in her exceptions to the Administrative Law Judge's decision, nor were they properly put before the Board by the untimely motion to reopen the proceedings.
The only remaining question to decide is whether the Board by its broad remedial order 'patently traveled outside the orbit of its authority.'
When the NLRB applies to the Court of Appeals for enforcement of an order, the Board's findings must be sustained on appeal if supported by substantial evidence in the record considered as a whole. 29 U.S.C. § 160(e). Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Here, we find that there was substantial evidence in the record to support the Board's finding that Selvin violated Sections 8(a)(5) and (1) in dealing with Local 848. We further find that there was substantial evidence in the record to...
To continue reading
Request your trial
-
N.L.R.B. v. Ramona's Mexican Food Products, Inc.
...is accorded great deference. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953).' NLRB v. Selvin, 527 F.2d 1273, at 1276, 1277 (9th Cir. 1975). We have made an exhaustive review of the record, and while we have refrained from a detailed repetition of the Law Judg......
-
N.L.R.B. v. Process and Pollution Control Co., Subsidiary of Mapco, Inc.
...of his conduct in the past. NLRB v. Express Publishing Co., 312 U.S. 426, 437, 61 S.Ct. 693, 85 L.Ed. 930. See also NLRB v. Selvin, 527 F.2d 1273, 1277 (9th Cir.); Hodgson v. Corning Glass Works, 474 F.2d 226, 227 (2d Cir.); Morgan Precision Parts v. NLRB, 444 F.2d 1210, 1215 (5th Cir.). Th......
-
N.L.R.B. v. Pacific Grinding Wheel Co., Inc.
...these conclusions, we must summarily grant enforcement of the order as it relates to these issues. 29 U.S.C. § 160(e); NLRB v. Selvin, 527 F.2d 1273, 1276 (9th Cir. 1975). However, the Administrative Law Judge rejected several charges made against the company. He found that the failure to p......
-
N.L.R.B. v. Southwest Sec. Equipment Corp.
...NLRB v. STR, Inc., 549 F.2d 641, 642 (9th Cir.1977) (complete failure to file exceptions held insufficient); NLRB v. Selvin, 527 F.2d 1273, 1276 (9th Cir.1975) (exceptions filed 7 months after filing deadline had passed held insufficient); NLRB v. International Association of Bridge Workers......