N.L.R.B. v. International Health Care, Inc.

• Decision Date: 21 March 1990
• Docket Number: No. 89-5158,89-5158
• Parties: 134 L.R.R.M. (BNA) 2048, 114 Lab.Cas. P 12,035 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL HEALTH CARE, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 501

898 F.2d 501

134 L.R.R.M. (BNA) 2048, 114 Lab.Cas. P 12,035

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL HEALTH CARE, INC., Respondent.

No. 89-5158.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1990.

Decided March 21, 1990.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, John Burgoyne (argued), N.L.R.B. Office of the General Counsel, Washington, D.C., Bernard Gottfried, Regional Director, N.L.R.B., Patrick V. McNamara, Detroit, Mich., for petitioner.

Donna R. Nuyen (argued), Keller, Thomas, Schwarze, Schwarze, DuBay & Katz, Detroit, Mich., for respondent.

Before JONES and MILBURN, Circuit Judges; and RUBIN, Chief District Judge. ^*

MILBURN, Circuit Judge.

Petitioner NLRB seeks enforcement of its order that respondent International Health Care Management, Inc., d/b/a Cambridge West, Inc. ("Cambridge West"), bargain with Local 79 of the Service Employees International Union, AFL-CIO ("Union"), and otherwise cease and desist from unfair labor practice in violation of section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5). Cambridge West opposes enforcement raising improper certification as a defense. For the reasons that follow, we enforce the Board's order.

I.

A.

On June 19, 1987, the Union filed a representation petition with the Board's Detroit Regional Office seeking certification as collective bargaining representative of a unit composed of the registered nurses ("RNs") and licensed practical nurses ("LPNs") employed by Cambridge West. Cambridge West opposed the petition on the basis that the RNs and LPNs were supervisors within the meaning of section 2(11) of the Act, 29 U.S.C. Sec. 152(11), and, therefore, were not eligible for union representation. ¹

After a hearing, the regional director issued a decision on August 17, 1987, in which he found that the RNs and LPNs were employees and not supervisors. Accordingly, he directed an election. He also informed Cambridge West that under section 102.67 of the Board's Rules and Regulations, ² review of his decision could be had through the National Labor Relations Board in Washington, D. C., but only if the request was received in Washington by August 31, 1987.

The election was held on September 18, 1987, and the nurses voted to be represented by the union. Cambridge West did not file a request for review with the Board in Washington; however, on September 25, 1987, Cambridge West filed an "Objection to Election and/or Motion for Reconsideration of Decision and Direction of Election" with the regional director. Cambridge West argued that the director's decision of August 17 was erroneous because the RNs and LPNs were, in fact, supervisors under our decision in NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.1987). ³ Trying to excuse its untimeliness, Cambridge West asserted that it did not become aware of Beacon Light until the day after the election was held.

On October 1, 1987, the director issued a "Supplemental Decision and Certification of Representative" in which he rejected the objections, denied the motion for reconsideration, and certified that for purposes of collective bargaining, the Union was the exclusive representative of the RNs and LPNs employed by Cambridge West. The director rejected the objections as an improper attempt to "relitigate unit issues already fully considered." He denied the motion for reconsideration as untimely under "Section 102.67 of the Board's Rules and Regulations."

On October 14, 1987, Cambridge West finally sought review by the Board. Cambridge West asserted the same grounds as it relied upon in its earlier objections to the regional director. On November 25, 1987, a three-member panel of the Board issued an order denying Cambridge West's request for review "as it raise[d] no substantial issues warranting review."

B.

On March 18, 1988, the Union filed an unfair labor practice charge against Cambridge West alleging that "[s]ince on or about January 27, 1988, and continuing to date, the employer has refused to bargain in good faith with the Union." On April 20, 1988, the regional director for Region 7 of the NLRB issued a complaint and notice of hearing alleging that Cambridge West's refusal to bargain was a violation of section 8(a)(5) of the Act, 29 U.S.C. Sec. 158(a)(5). Cambridge West filed an answer and amended answer, the gist of which was to admit its refusal to bargain but to deny that the Union had been properly certified.

On May 25, 1988, counsel for the General Counsel of the NLRB moved to transfer the case to the Board in Washington, D.C., and for summary judgment. On June 7, 1988, the Board issued an order transferring the proceeding to itself in Washington, D. C., and a notice to show cause why summary judgment should not be granted.

In a response dated June 20, 1988, Cambridge West maintained that summary judgment was not appropriate as there was an issue of material fact as to whether the RNs and LPNs were properly certified as a bargaining unit. On August 31, 1988, the Board issued a decision and an order in which it granted summary judgment in favor of the General Counsel. Regarding Cambridge West's argument that the RNs and LPNs did not constitute a representable class, the Board held that "all representation issues raised by the [employer] were or could have been litigated in the prior representation proceeding." The Board ordered Cambridge West to bargain with the union and otherwise cease and desist from unfair labor practices. The Board timely seeks enforcement of its order, and Cambridge West raises improper certification as a defense.

The principal issue presented in this appeal is whether or not Cambridge West waived its right to challenge the regional director's finding that the RNs and LPNs were employees rather than supervisors by failing to timely seek review by the Board of the regional director's August 17, 1987, decision. ⁴

II.

It appears to be well settled law in this circuit and several others that a reviewing court will not hear, in an unfair labor practice proceeding, an employer's arguments that he refused to bargain with a board-certified collective bargaining representative on the ground that the representative was erroneously certified where the employer failed to timely avail himself of the administrative remedy of seeking review of the certification with the NLRB. Keco Industries, Inc. v. NLRB, 458 F.2d 1356, 1357 (6th Cir.1972) ("failure to seek review of the Regional Director's Supplemental Decision and Certification of Representative precludes judicial review of that determination"); MPC Cash-Way Lumber Co. v. NLRB, 452 F.2d 1197, 1198 (6th Cir.1971) ("failure to seek a preelection review of the Board's unit placement determination precludes judicial review of that determination"); NLRB v. Rod-Ric Corp., 428 F.2d 948, 950 (5th Cir.1970), cert. denied, 401 U.S. 937, 91 S.Ct. 922, 28 L.Ed.2d 216 (1971); NLRB v. Louisiana Indus., Inc., 414 F.2d 227, 228 (5th Cir.1969) (per curiam), cert. denied, 396 U.S. 1039, 90 S.Ct. 686, 24 L.Ed.2d 683 (1970) ("The employer's failure to appeal the ruling of the Regional Director prior to an election was a waiver of this point, and he may not raise the same issue as a defense to an unfair labor practice charge arising from his refusal to bargain with the successful union."); NLRB v. Thompson Transport Co., 406 F.2d 698, 701-02 (10th Cir.1969) ("Company's failure to exhaust administrative procedures [by appealing to the Board the director's disposition of challenged ballots] precludes review of that issue in this court."); NLRB v. Rexall Chem. Co., 370 F.2d 363, 365 (1st Cir.1967) ("We think judicial review of the [employer's] grounds for refusing to bargain with the Union is precluded by its failure to exhaust an available administrative remedy, [i.e., appeal to the Board]."); NLRB v. Delsea Iron Works, Inc., 334 F.2d 67, 71 (3d Cir.1964) (since employer had notice that it could have appealed regional director's granting of an election but did not, it "must be deemed to have relinquished any right it might have had to object to the ... procedure.").

As our cases of Keco and Cash-Way recite very few facts, it is difficult, if not impossible, to perform a factual comparison. However, both Keco and Cash-Way relied upon NLRB v. Rod-Ric Corp., 428 F.2d 948 (5th Cir.1970), which is, in principle, indistinguishable from this case. In Rod-Ric, the Regional Director had issued a "Decision and Direction of Election" in which he used a formula to select the eligible voters. The employer, Rod-Ric, did not challenge the Decision and Direction of Election. Id. at 949-50. An election was held, and the union won. Rod-Ric filed eighteen objections which were overruled by the Regional Director in a "Supplemental Decision and Certification." One of the eighteen objections concerned the formula used for computing eligible voters. Rod-Ric sought review by the Board of the overruling of that specific objection. Id. at 950.

Following certification, Rod-Ric refused to bargain, and unfair labor practice charges followed. Id. A trial examiner granted judgment on the pleadings, and the Board affirmed. Specifically, the Board held that Rod-Ric had waived its right to argue that the formula caused improper certification by its failure to seek review of the "Decision and Direction of Election" (wherein the formula was first determined) pursuant to section 102.67 of the Board's Rules and Regulations. The Fifth Circuit agreed. Id. at 950-51.

Cambridge West tries to avoid the result compelled by the above cases by reliance upon NLRB v. United States Postal Service, 833 F.2d 1195 (6th Cir.1987). In effect, Cambridge West is arguing that its untimeliness should be excused because the Board was "apprised" of the issue. At the outset, we note that Postal Service addressed the issue of jurisdiction. Rod-Ric was not founded upon a lack of jurisdiction but upon considerations of...