N.L.R.B. v. Twin City Hosp. Corp.
| Decision Date | 31 August 1993 |
| Docket Number | 92-5375,Nos. 92-5255,s. 92-5255 |
| Citation | 1993 WL 337562,9 F.3d 108 |
| Parties | 145 L.R.R.M. (BNA) 2768 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. The TWIN CITY HOSPITAL CORPORATION, Respondent-Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KENNEDY and SILER, Circuit Judges, and BERTELSMAN, Chief District Judge. *
In this appeal, the National Labor Relations Board seeks enforcement of an order directing The Twin City Hospital Corporation, an Ohio entity, to bargain with a certified unit of its nonprofessional employees. The Hospital cross-petitions for review, claiming that the order is invalid. For reasons stated herein, we enforce the Board's order and deny the Hospital's cross-petition.
In 1987, the Aluminum, Brick and Glass Workers, International Union, AFL-CIO filed petitions with the Board seeking to represent groups of professional 1 and nonprofessional employees at the Hospital. Though the Hospital objected to the constitution of these groups, the Board conducted elections for both employee classifications. Both voted in favor of representation: the professionals 18-13 and the nonprofessionals 48-40.
Despite certification of the Union as representative of both groups, the Hospital refused to bargain, continuing to maintain that certain employees ( registered nurses, medical technologists (MTs), and medical lab technologists (MLTs)) should not have been included within the "professional" bargaining unit. The Hospital's refusal to bargain precipitated an unfair labor practice proceeding and ultimately an order to bargain from the Board. In the first appearance of this case on appeal, a panel of this court refused to enforce the Board's bargaining order based on the lack of sufficient record support for classifying the MTs and MLTs (which numbered six) within the "professional" category. See Twin City Hosp. Corp. v. NLRB, 889 F.2d 1557, 1564 (6th Cir.1989).
On remand, the Board addressed the panel's concerns by reopening the unfair labor practice case and referring it to an ALJ for the purpose of gathering more evidence on the proper characterization of MTs and MLTs. Evaluating this expanded record, the Board determined that it originally had misclassified the subject employees. As a result, the Board removed the MTs and MLTs from the group of professional employees and restarted the representation process for that classification. However, the Board summarily affirmed its prior bargaining order with respect to the nonprofessionals. In a brief textual and footnote discussion, the Board stated:
We affirm our decision ordering bargaining in the nonprofessional unit. (footnote 10)
(Text of footnote 10:
The tally of votes in the nonprofessional unit election resulted in 48 votes for and 40 votes against representation, with no challenged ballots. Even if all six technologists' votes were included in that tally, they could not alter the results.
We are mindful of the fact that the [Hospital] is being required to bargain with a unit which now includes [MTs and MLTs], classifications that were not previously part of the unit when the election was conducted to determine whether the nonprofessionals wanted union representation. The scope of the unit, however, has not changed because the overall classification of technicals was originally included.) (citation omitted))
The Board now seeks enforcement of its order, and the Hospital cross-petitions for review.
The Hospital admits its refusal to bargain with the nonprofessional employees. However, it claims that such refusal is excused because the Board's bargaining order is invalid. As a threshold question, the issue of whether the Hospital waived its chance to challenge the bargaining order arises.
Section 10(e) of the National Labor Relations Act regulates review and enforcement of Board decisions. Among many other things, that section provides:
No 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. Sec. 160(e) (codification of Act). To the Board, Sec. 10(e) bars the Hospital's appeal of the bargaining order. The Hospital maintains that it complied with Sec. 10(e), preserving review.
The law of Sec. 10(e) waiver is fairly clear. If the Board sua sponte resolves an issue, and the adversely affected party fails thereafter to file some form of exception with the Board, Sec. 10(e) bars review of the issue. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982); Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302, 306 (6th Cir.1989); Southern Moldings, Inc. v. NLRB, 728 F.2d 805, 806 (6th Cir.1984) (en banc). An issue is considered raised, and a Board action thus not sua sponte, if the Board received sufficient notice of the issue prior to rendering a decision. To wit:
The "specificity required for a claim to escape the bar imposed by Sec. 10(e) is that which will 'apprise the Board of an intention to bring up the question,' "....
....
... [T]he main function of section 10(e) is to allow the Board to consider an issue in the first instance.
NLRB v. United States Postal Serv., 833 F.2d 1195, 1202-03 (6th Cir.1987) (citations omitted). Thus, directing the Board's attention to an issue preserves review. Notably, if consideration of an issue becomes a necessary incident to a case before the Board, review of that issue will lie even in the absence of explicit argumentation. See id. (distinguishing situation where party attempts to present new, independent issue on appeal, which Sec. 10(e) bars, from situation where party attempts to present "necessarily consider[ed]," dependent issue, which Sec. 10(e) does not bar); NLRB v. Watson-Rummell Elec. Co., 815 F.2d 29, 31 (6th Cir.1987) ().
The parties present no real quarrel with the foregoing principles. Rather, they disagree about the result dictated by these principles. The context below is important. As noted, after the Sixth Circuit remanded the Board's first petition for enforcement, the Board reopened the case to re-evaluate the appropriate classification for MTs and MLTs. An ALJ conducted a hearing and both sides filed post-hearing briefs to guide the Board's decisional process. To the Hospital, various actions in that process expressly signalled to the Board that the nonprofessional group certification was in issue. Specifically, the Hospital refers to the following:
1) In its post-hearing brief, the Hospital explicitly requested "conduct of a new election" if the Board reclassified the subject employees, see JA 169;
2) At the hearing, the Hospital indicated its potential disagreement with an ALJ remark endorsing the continued valid status of the nonprofessional group, see JA 234-35;
3) After remand from the Sixth Circuit, the Hospital requested new plenary representation proceedings, instead of an expanded unfair labor practice proceeding, see JA 155-56;
4) In the Union's post-hearing brief, it explicitly argued that reclassification of the MTs and MLTs could not affect the nonprofessional group status, see JA 200 & 202.
To the Hospital, these remarks, singly and together, served to place the issue of the nonprofessional group certification "before the Board," and thus preserved it for appellate review. In any event, the Hospital views the nonprofessional group status as so intertwined with the professional that the issue should have been obvious to the Board.
The Board quarrels with the Hospital's factual recitation. To the Board, none of the evidence the Hospital cites presented the disputed issue. Rather, the Board maintains that it sua sponte discussed the effects of reclassification on the nonprofessional employee group. The Board rejects the Hospital's notice arguments as dependent on equivocal, generalized statements insufficient to preserve review under Sec. 10(e).
This court clearly has jurisdiction to review the merits of the bargaining order. The standard for preserving an issue under Sec. 10(e) requires only that the Board's attention be directed to the issue. In this case, all parties recognized a question regarding the validity of the nonprofessional group certification. Moreover, it was an issue that clearly begged resolution. After all, for the employees in contention, inclusion within one group meant exclusion from the other. Thus, the Hospital's efforts to move the MTs and MLTs from professional to mutually exclusive nonprofessional status necessarily signified a challenge to the validity of both groups' certifications. It would be unreasonable to think that the Hospital was requesting invalidation of the professional employee group (after removing the six employees at issue) but not invalidation of the similarly affected nonprofessional employee group (after adding the six employees at issue). The issue inhered in the legal situation presented. As such, and especially given the parties' repeated references to the issue before the Board, Sec. 10(e) presents no bar to review.
Aside from an introductory procedural argument, 2 the Hospital offers two theories attacking the Board's bargaining order. The Hospital's central contention is that the change in the nonprofessional unit wrought by addition of the six MTs and MLTs voids the prior election result. The Hospital offers the following analysis: 1) a bargaining vote is valid only if voters make an informed choice; 2) a significant post-election change in a...
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