N.L.R.B. v. Imperial House Condominium, Inc.

• Citation: 831 F.2d 999
• Decision Date: 06 November 1987
• Docket Number: No. 86-5756,86-5756
• Parties: 126 L.R.R.M. (BNA) 2988, 56 USLW 2286, 107 Lab.Cas. P 10,201, 9 Employee Benefits Ca 1277 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IMPERIAL HOUSE CONDOMINIUM, INC., Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 999

831 F.2d 999

126 L.R.R.M. (BNA) 2988, 56 USLW 2286,

107 Lab.Cas. P 10,201,

9 Employee Benefits Ca 1277

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IMPERIAL HOUSE CONDOMINIUM, INC., Respondent.

No. 86-5756.

United States Court of Appeals, Eleventh Circuit.

Nov. 6, 1987.

Elliot Moore, Deputy Associate Gen. Counsel, Peter Winkler, Patrick Szymanski, N.L.R.B., Washington, D.C., for petitioner.

Richard I. Manas, Manas & Marcus, P.A., Miami, Fla., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before JOHNSON and EDMONDSON, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

This case is before the Court on the application of the National Labor Relations Board ("the Board") for enforcement of an order issued by the Board requiring Respondent, Imperial House Condominium, Inc. ("Respondent" or "the Condominium") to cease and desist from engaging in unfair labor practices and requiring Respondent to bargain in good faith with its employees regarding terms and conditions of employment. In defense of its actions, the Condominium makes three arguments: first, the Board's decision and order is not final because the Board wrongfully denied Respondent's Imperial House Condominium is a residential condominium consisting of 126 apartment units, 7 domestic units, 42 cabana units and 10 boat slip units. Each unit is owned in fee simple with an undivided interest in the building's common areas, such as elevators and hallways. Unit owners are members of the condominium association which is organized as a nonprofit corporation under Florida law. The association membership elects, from its members, a board of directors responsible for the condominium's management. For example, the board of directors has authority to make necessary contracts, to hire employees, and to assess fees from the unit-owner members for condominium maintenance, taxes and insurance.

motion for reconsideration; second, the Board wrongfully asserted jurisdiction over the Condominium; third, assuming the previous issues are resolved against the Condominium, the Board's decision to issue an order is not supported by substantial evidence. For the reasons set forth below, we are unpersuaded by these arguments. Accordingly, we will enforce the Board's order.

During 1980, the year in which the NLRB first asserted jurisdiction in this case, the condominium association's gross annual income was $800,386.00, derived almost exclusively from the assessment of fees. Its expenditures totaled $882,751.00, which included the purchase of utilities from Peoples Gas System in the sum of $39,427.00; Florida Power and Light, $189,790.00; and Southern Bell Telephone Co., $10,476.00. Also, $168,050.00 was paid to various companies for maintenance, repair, and supplies, including $8,480.62 to Otis Elevator. The Condominium spent $26,339.00 for insurance, including $2,074.23 to the Equitable Insurance Co. The parties stipulated that Peoples Gas System, Florida Power and Light, Southern Bell, Ohio Elevator and Equitable Insurance Co. are engaged in interstate commerce. Imperial House Condominium, Inc., 279 NLRB No. 154, 122 LRRM 1289 (1986). The Condominium's payroll-related expenditures, including salaries and wages, social security and unemployment taxes, health and welfare fund payments, and worker's compensation insurance payments amounted to $345,982.00.

Before it was converted into condominiums in March of 1973, Imperial House was operated as an apartment complex. During this period, its employees were represented by the Hotel Employees Local 255. Since the conversion, the employees have continued to be represented by various bargaining agents--the most recent of which is the Hotel Employees Local 355 (the "Union"). The Union's bargaining unit consists of housekeepers, elevator operators, doormen, parking attendants, maintenance personnel and all other employees except those classified as "executives, department heads, managerial employees, guards and supervisors as defined in the [National Labor Relations] Act."

On June 30, 1979, the last effective collective bargaining agreement between the Condominium and Local 355 expired. Prior to this date, Union officials had contacted the Condominium's board of directors to schedule negotiations for a new agreement; but it was not until August 17, 1979, that the first and only bargaining session occurred. Afterwards, several meeting were scheduled; but the parties did not meet again until October 10, 1980, when the Condominium withdrew recognition of the Union.

Nevertheless, between August 17, 1979 and October 10, 1980, the Condominium continued to comply with the expired agreement and, in particular, continued to make the required monthly payments to the Hotel Employees Insurance Fund (HEIF). In mid-August of 1979, the Condominium received a letter from Local 355 concerning the HEIF. The letter stated that as a result of the fund trustees' actions, "the Union and most of the principal hotels and restaurants have formed a new Trust Fund to provide medical and dental benefits." The letter then instructed the Condominium to make no further payments to HEIF, but to make future checks payable to the new Hotel Industry Pension Fund instead. On August 29, 1979, the Condominium informed the union that it On October 10, 1980, the last face-to-face meeting took place between the Condominium board of directors and the Union. At this time, the Condominium refused to bargain with the Union; the Condominium claimed it doubted whether the Union still represented a majority of the employees. This claim was precipitated by the fact that several employees--expressing dissatisfaction with the representation the Union was providing--had recently resigned from the Union.

would make no contributions to either fund. Rather, the Condominium would implement its own plan that provided a higher level of benefits than those provided under the old fund.

Thereafter, the Union filed an unfair labor practice charge. A complaint was issued, and an Administrative Law Judge (ALJ) rendered a decision against the Condominium on December 28, 1981. An appeal to the Board was taken; and the case remained under consideration by the Board from January 28, 1982, until May 30, 1986, when the Board issued a cease and desist order by substantially adopting the ALJ's earlier decision. On June 2, 1986, this order was mailed "Return Receipt Requested" to the Condominium. A motion for reconsideration was sent by the Condominium by courier to the Board on Saturday, June 28, and was received on Monday, June 30, 1986. On July 3, 1986, the Board's Executive Secretary, citing then effective 29 C.F.R. sec. 102.48(d)(2) (1985), ¹ rejected the motion for reconsideration because it was untimely submitted. The Board, on September 8, 1986, sought enforcement of its order by this Court.

I. The Board's Decision Was a Final Order.

Initially, we must determine whether the Board's order is final. If so, then the Board's application for enforcement is properly before us, pursuant to the 29 U.S.C. sec. 160(e). See American Fed'n of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940) (only final orders of the Board are subject to review by the Courts). If, however, the order is not final, this court is without jurisdiction. This determination hinges upon whether the Condominium filed timely exceptions to the Board's order. We conclude that the Board's decision is final because the Condominium's motion for reconsideration was too late.

When the Board rendered its order against Imperial House Condominium, Inc. on March 30, 1986, the Board's procedures required that all post-decision motions be filed within twenty days of service of the Board's order, otherwise, they were deemed to have been waived. See 29 C.F.R. secs. 102.48(a), (d)(2). ² The regulations also provided that, "[t]he date of service shall be the day when the matter served is deposited in the United States mail...." 29 C.F.R. sec. 102.113(a) (1985). Where service was perfected by mail an additional three days are added to the twenty-day period in which a party is required to file objections or exceptions. 29 C.F.R. sec. 102.114 (1985).

The regulatory language is clear and unequivocal. A copy of the Board's decision and order was deposited with the United States Postal Service on June 2, 1986. ³ This means that the Condominium had twenty-three days or until June 25 in which to file its motion. The motion for reconsideration was sent by courier to the Board on June 28, 1986, a Saturday, and received by the Board on Monday, June 30, 1986. As such, the Board's Executive Secretary properly rejected Respondent's motion and declined to submit it to the Board because it was untimely. ⁴ Our conclusion is consistent with NLRB v. Preston H. Haskell Co., 616 F.2d 136 (5th Cir.1980), ⁵ in which charges filed by NLRB pursuant to 29 C.F.R. sec. 102.113(a) were determined to have been "served on the mailing date" even though they had been sent by registered mail. Id. at 139 & n. 9. See generally NLRB v. Local 264, Laborers' International Union of North America, 529 F.2d 778, 781-85 (8th Cir.1976) (determining that NLRB rule prescribing date of mailing as date of service is a valid and reasonable exercise of Board's authority). Thus, the Board's order is final for appeal purposes.

II. The Board Properly Asserted Jurisdiction over Imperial House Condominium, Inc.

The Condominium submits that it is not an employer engaged in commerce within the meaning of sections 2(6) and (7) of the Act, 29 U.S.C. secs. 152(6), (7) (1984). ⁶ Accordingly, the Condominium contends that its activities are beyond the scope of the When the National Labor Relation Act was passed, Congress intended to grant the Board, pursuant to the Commerce Clause, the broadest possible jurisdiction permitted by the Constitution. See NLRB v. Reliance Fuel Oil Corp., 371 U.S....