Nat'l Labor Relations Bd. v. Contemporary Cars, Inc.
| Decision Date | 27 January 2012 |
| Docket Number | No. 10–13920.,10–13920. |
| Citation | 192 L.R.R.M. (BNA) 2577,23 Fla. L. Weekly Fed. C 713,667 F.3d 1364,162 Lab.Cas. P 10443 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner,International Association of Machinists and Aerospace Workers, Intervenor, v. CONTEMPORARY CARS, INC., d.b.a. Mercedes–Benz of Orlando, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Julie Brock Broido, Linda Dreeben, Christopher Young, NLRB, Washington, DC, for Petitioner.
David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, Alameda, CA, for Intervenor.
James Michael Walters, Brian Matthew Herman, Douglas R. Sullenberger, Fisher & Phillips, LLP, Atlanta, GA, Steven Mark Bernstein, Fisher & Phillips, LLP, Tampa, FL, for Respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before HULL, MARCUS and BLACK, Circuit Judges.
Petitioner National Labor Relations Board (the Board or NLRB) seeks enforcement of its order against Respondent Contemporary Cars, Inc. (Contemporary). See 355 NLRB No. 113 (2010). Because we conclude that (1) we lack jurisdiction to consider Contemporary's due process challenge and (2) the Board's bargaining-unit determination is supported by substantial evidence, we grant the Board's petition.
On October 3, 2008, the International Association of Machinists and Aerospace Workers (the Union) filed a petition with the Board seeking certification as the representative of Mercedes–Benz service technicians employed at Contemporary. The Board's Regional Director held a hearing, determined the proposed bargaining unit was appropriate under two different theories, and directed that an election occur. Contemporary requested that the Board review the Regional Director's decision regarding the bargaining unit. Despite only having two members, the Board summarily denied the request. Members of the bargaining unit voted in favor of representation by the Union, and the Regional Director certified the Union. To preserve its right to challenge the validity of the bargaining-unit determination in a court of appeals, Contemporary refused to bargain. The Union filed an unfair labor practice charge with the Board. Contemporary conceded the violation, and on August 28, 2009, the two-member Board issued an order finding Contemporary in violation of the National Labor Relations Act (the Act). See 354 NLRB No. 72 (2009).
On September 3, 2009, Contemporary filed a petition for review of the NLRB's order with the United States Court of Appeals for the District of Columbia Circuit, seeking review of the bargaining-unit determination. The NLRB filed a cross-petition seeking enforcement. The D.C. Circuit granted Contemporary's motion to hold the case in abeyance pending the Supreme Court's decision in New Process Steel, L.P. v. NLRB, –––– U.S. ––––, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010). On June 17, 2010, the Supreme Court held the Act requires that the Board render decisions with a minimum of three members. Id. at 2645.
On August 17, 2010, the NLRB issued an order setting aside its previous two-member decision to “take further action as appropriate.”1 355 NLRB No. 113 (2010). On August 23, 2010, the original two members plus an obligatory third member issued a new order, again affirming the Regional Director's bargaining-unit decision. Id. The August 23 order incorporated by reference the two-member order, and found Contemporary in violation of the Act. On August 25, 2010, the NLRB filed a petition for enforcement of its order with this Court.2
Contemporary argues that the NLRB's decision-making procedures post- New Process Steel violated due process. Section 10(e) of the Act proscribes judicial review of any question not raised before the Board, except upon a showing of extraordinary circumstances. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982); NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347–48, 7 L.Ed.2d 312 (1961). This procedural bar extends to procedural and due process objections. Goya Foods of Fla., 525 F.3d 1117, 1127 n. 13 (11th Cir.2008); Ala. Roofing & Metal Co. v. NLRB, 331 F.2d 965, 967 (5th Cir.1964)3; N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C.Cir.2011).
Contemporary contends § 10(e)'s exception for “extraordinary circumstances” applies for two reasons. First, Contemporary claims its due process argument could only be made to a court of appeals. Ample precedent belies this argument.
In United States v. L.A. Tucker Truck Lines, Inc., the Supreme Court applied a procedural bar similar to § 10(e) to a due process challenge. 344 U.S. 33, 36–37 & n. 6, 73 S.Ct. 67, 68–69 & n. 6, 97 L.Ed. 54 (1952). The appellee alleged that the Interstate Commerce Commission (ICC) referred his case to a hearing examiner that had not been appointed pursuant to the Administrative Procedure Act. Id. at 35, 73 S.Ct. at 68. The appellee failed to raise that objection to the ICC, but rather raised it for the first time during judicial review. Id. Although no statutory procedural bar existed, the Court found that precedent and similar statutes (including § 10(e) of the Act) required “objections to the proceedings of an administrative agency be made while [the agency] has opportunity for correction in order to raise issues reviewable by the courts.” Id. at 37, 73 S.Ct. at 69. Because the appellee's objection was not timely, it was procedurally barred.
In Goya Foods of Florida, we applied § 10(e) to bar a due process objection. 525 F.3d at 1127 n. 13. Goya argued that the Board violated its due process right to full and fair notice by deciding issues not alleged in the complaint. We found that Goya's failure to object to the alleged due process violation before the Board prevented consideration of it by this Court. Id.
Finally, in Alabama Roofing & Metal Co., the former Fifth Circuit applied § 10(e) to bar a due process objection. 331 F.2d at 967. Alabama Roofing alleged the Board erred by not rejecting the trial examiner's “obviously” biased and prejudiced findings. Because the allegation of bias was raised for the first time before the Fifth Circuit, the court found the statutory bar precluded review. Id. L.A. Tucker Truck Lines, Inc., Goya Foods of Florida, and Alabama Roofing & Metal Co. all involved new allegations of due process deprivations which were found procedurally barred. There is no support for Contemporary's argument that its due process challenge could only be made to a court of appeals.
Second, Contemporary contends extraordinary circumstances exist because a motion for reconsideration raising its due process argument would have been futile. This Court has discussed futility under § 10(e) in only one case. NLRB v. Robin Am. Corp., 667 F.2d 1170, 1171 (5th Cir. Unit B 1982). In Robin American, the Board requested enforcement of an order that required Robin American to notify and bargain with its employees' union prior to closing any department of its manufacturing facilities. Because “the Fifth Circuit had imposed a (general) duty to bargain over [all] partial closing decisions,” Robin American did not object to the breadth of this order. Robin Am. Corp., 667 F.2d at 1171 (internal quotations omitted). In First National Maintenance Corp. v. NLRB, the Supreme Court overruled the Fifth Circuit, finding that a refusal to bargain over an economically-motivated closing decision would not violate the Act. 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981). Following First National, Robin American objected for the first time to the breadth of the Board's order. We held that because the Board's order was fully in accord with Fifth Circuit precedent at the time it was issued, any objection to the Board would have been “futile, if not frivolous.” Robin Am. Corp., 667 F.2d at 1171. The futility of objecting to the Board's order based on binding circuit precedent presented an extraordinary circumstance warranting relief from the statute's procedural bar.
Robin American is not controlling in this case because no binding precedent foreclosed Contemporary from making its due process objection to the Board in a motion for reconsideration. See Woelke & Romero Framing, Inc., 456 U.S. at 666, 102 S.Ct. 2071. Robin American establishes, however, that the status of the law at the time the omitted objection could have been filed with the Board is important to determining futility.
Two circuits have recognized additional instances that establish futility. In Kitchen Fresh, Inc. v. NLRB, the United States Court of Appeals for the Sixth Circuit found the extraordinary circumstance of futility. 716 F.2d 351 (6th Cir.1983). However, the court observed that “only when the Board has unequivocally rejected a party's position by expressly refusing to follow the authority or line of authorities relied upon by that party” would a failure to object be excused as futile. Id. at 358 n. 13. The Sixth Circuit distinguished prior instances when the Board “had simply not considered the question,” finding retrospectively “fruitless” motions distinct from futile motions. Id.
In W&M Properties of Connecticut, Inc. v. NLRB, the United States Court of Appeals for the District of Columbia Circuit refused to find futility. 514 F.3d 1341, 1346 (D.C.Cir.2008). The court found that only “patent futility” would excuse a failure to object to the Board. Patent futility could be established only by “pointing to instances in which the agency had already rejected [the] contested argument in other proceedings.” Id. The court held that “an assessment of the Board's likely disposition, relying on highly subjective indicia ... is insufficient to prove patent futility because it does not show that a motion for reconsideration was ‘clearly doomed’ by the agency's rejection of identical arguments.” Id.
Robin American, Kitchen Fresh, and W&M Properties highlight that the futility of...
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