N.L.R.B. v. Children's Baptist Home of Southern California

• Decision Date: 09 June 1978
• Docket Number: No. 76-3724,76-3724
• Citation: 576 F.2d 256
• Parties: 98 L.R.R.M. (BNA) 3003, 84 Lab.Cas. P 10,692 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHILDREN'S BAPTIST HOME OF SOUTHERN CALIFORNIA, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 256

576 F.2d 256

98 L.R.R.M. (BNA) 3003, 84 Lab.Cas. P 10,692

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHILDREN'S BAPTIST HOME OF SOUTHERN CALIFORNIA, Respondent.

No. 76-3724.

United States Court of Appeals, Ninth Circuit.

June 9, 1978.

Christine W. Peterson (argued), Washington, D. C., for petitioner.

Jeffrey C. Freedman (argued), of Goldstein, Freedman, Ownbey & Klepetar, Los Angeles, Cal., for respondent.

Petition to Review a Decision of the National Labor Relations Board.

Before WALLACE and SNEED, Circuit Judges, and EAST, ^* District judge.

WALLACE, Circuit Judge:

The National Labor Relations Board seeks enforcement of a bargaining order entered against the Children's Baptist Home of Southern California. This case presents unique issues concerning the Board's procedure and the exercise of its discretionary jurisdiction. We grant enforcement.

I

In November 1973, the American Federation of State, County and Municipal Employees (the Union) petitioned the National Labor Relations Board for certification as the collective bargaining representative of various employees of the Children's Baptist Home of Southern California (the Home), a resident care center for emotionally disturbed children. In response to the petition, the Board conducted a hearing in order to determine whether or not it had jurisdiction over the matter and, if so, to create a factual record to aid the Board in the discharge of its duties. See National Labor Relations Act (NLRA) § 9(c), 29 U.S.C. § 159(c).

As a result of the hearing, the Board, acting through its regional director, concluded that the labor dispute satisfied the Board's statutory jurisdiction in that it presented a question "affecting commerce." NLRA § 9(c), 29 U.S.C. § 159(c). In addition, the regional director concluded that even though the Board had not established specific discretionary jurisdictional standards for non-profit institutions for emotionally disturbed children, it would be appropriate to exercise such jurisdiction over the Home. ¹ The regional director's determination was based largely on the fact that the Board had recently asserted jurisdiction over two institutions of similar character and size. See Jewish Orphan's Home, 191 N.L.R.B. 32 (1971); Children's Village, Inc., 186 N.L.R.B. 953 (1970). Finally, the regional director ordered a representation election to be conducted among the Home's employees. The Home did not file a request for review of the regional director's decision to assert jurisdiction.

In January 1974, the election was held and the Union captured a majority of the eligible employees. The Home countered by filing objections to the election based on alleged misrepresentations by the Union. The regional director conducted an investigation of the Home's objections and issued a report in which he recommended that a hearing be held on one of the objections and that the others be rejected.

In April 1974, the Home filed exceptions to the regional director's report in which it reasserted its objections. In June 1974, before the Board ruled on its exceptions, the Home filed an amendment to its exceptions in which it challenged for the first time the regional director's assertion of discretionary jurisdiction. The Home's challenge was based on the Board's May 24, 1974 decision in Ming Quong Children's Center, 210 N.L.R.B. 899 (1974), in which the Board overruled Jewish Orphan's Home and Children's Village, Inc., and announced a policy of declining jurisdiction over non-profit child care centers.

In the meantime, on April 16, 1974, the Union initiated an unfair labor practice case, alleging that the Home had illegally discharged 13 employees because of their protected concerted activity.

On December 5, 1974, the Board rejected the Home's jurisdictional challenges advanced in its amended exceptions. 215 N.L.R.B. 306 (1974). The Board's refusal to apply its recently announced Ming Quong rule to this case was premised on two considerations. First, the Board observed that the Home had failed to file a timely request for review of the regional director's decision to assert jurisdiction. See 29 C.F.R. § 102.67(b). More significantly, the Board viewed the jurisdictional question in light of the total facts including the companion unfair labor practice case and concluded that to withdraw its jurisdiction "would leave the employees open to alleged employer retaliation which they had justifiably believed would not result from their protected concerted activities (and) would deprive the employees of the fruits of union representation and collective bargaining which they had justifiably believed would result from their protected concerted activities." 215 N.L.R.B. at 307.

Following a subsequent round of proceedings in which the Home's election objections were overruled, ² the Union was certified on November 7, 1975 as the collective bargaining representative for certain of the Home's employees. Shortly thereafter, the Union formally requested the Home to begin negotiations. The Home promptly rejected the bargaining request, and has continued to do so.

In March 1976, the Union brought unfair labor practice charges against the Home, challenging its refusal to meet and bargain as a violation of sections 8(a)(5) and (1) of the Act. 29 U.S.C. § 158(a)(5), (1). Because the Home's answer to the unfair labor practice complaint was essentially a reassertion of its jurisdictional challenge, the General Counsel moved for summary judgment. The Home countered with a cross motion for summary judgment which relied exclusively on the Ming Quong jurisdictional argument.

On September 20, 1976, the Board granted the General Counsel's motion for summary judgment, holding that the Home's refusal to bargain was a violation of sections 8(a)(5) and (1). 226 N.L.R.B. 6 (1976). The Board's rejection of the Home's jurisdictional argument was based on two grounds. First, the Home's argument could not prevail because of the rule that "in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding." 226 N.L.R.B. at 7. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161-62, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); NLRB v. Decoto Aircraft, Inc., 512 F.2d 758, 761 (9th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975); 29 C.F.R. § 102.67(f). Since the Home had fully litigated its jurisdictional claim in the underlying representation case, it was therefore not entitled to do so again in the instant unfair labor practice case. The Board's second basis for granting summary judgment against the Home was that it had recently overruled Ming Quong and returned to its original jurisdictional policy, thereby negating the logical force of the Home's jurisdictional argument. See Rhode Island Catholic Orphan Asylum (St. Aloysius Home), 224 N.L.R.B. 1344 (1976).

The case is now before us on the Board's application for enforcement of its remedial order entered in connection with its grant of the General Counsel's motion for summary judgment. The Home first resists the Board's application on the grounds that (1) the Board's use of its quasi-adjudicatory powers to set jurisdictional policy was an abuse of discretion and (2) the retroactive application of St. Aloysius Home to this case constituted a denial of statutory and due process rights. We disagree.

II

The National Labor Relations Board is congressionally endowed with both quasi-adjudicatory and quasi-legislative powers. Therefore, "the Board is not precluded from announcing new principles in an adjudicative proceeding and . . . the choice between rulemaking and adjudication lies in the first instance within the Board's discretion." NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1771, 40 L.Ed.2d 134 (1974). With respect to the type of decision challenged in this case, the Act expressly empowers the Board to use either its adjudicatory or rulemaking procedure to establish discretionary jurisdictional standards. NLRA § 14(c)(1), 29 U.S.C. § 164(c)(1). The choice of procedure is committed to the Board's discretion. Id.

The thrust of the Home's argument is that the Board abused this discretion by twice reversing its jurisdictional policy vis-a-vis institutions such as the Home within three years. Periodic changes in public policy by executive branch officers, however, are an inherent aspect of a democratic political system. With respect to our national labor policy, some degree of change is essential to keep that policy responsive to the problems of complex industrial life. As the Supreme Court has observed,

(t)he use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board's earlier decisions (freeze) the development of . . . important aspect(s) of the national labor law would misconceive the nature of administrative decision-making. " 'Cumulative experience' begets understanding and insight by which judgments . . . are validated or qualified or invalidated. . . ."

The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-66, 95 S.Ct. 959, 967-68, 43 L.Ed.2d 171 (1975).

Although the Board's discretion in selecting the process for establishing elements of our evolving labor policy is broad, it is not boundless. Thus, "there may be situations where the Board's reliance on adjudication (as opposed to rulemaking) would amount to an abuse of discretion . . . ." NLRB v. Bell Aerospace Co., supra, 416 U.S. at 294, 94 S.Ct. at 1771. See generally Silverman, The Case for the National Labor Relations Board's Use of Rulemaking in Asserting Jurisdiction, 25 Lab.L.J. 607 (1974). We believe, however, that one alleging that the Board has abused its...