Pace University v. N.L.R.B.

• Decision Date: 25 January 2008
• Docket Number: No. 07-1054.,No. 07-1032.,07-1032.,07-1054.
• Citation: 514 F.3d 19
• Parties: PACE UNIVERSITY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

514 F.3d 19

PACE UNIVERSITY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 07-1032.

No. 07-1054.

United States Court of Appeals, District of Columbia Circuit.

Argued December 10, 2007.

Decided January 25, 2008.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Terence M. O'Neil argued the cause for petitioner. On the briefs was Raymond J. Pascucci.

Elizabeth A. Heaney, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Assistant General Counsel, and Fred B. Jacob, Supervisory Attorney.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The petition for review filed by Pace University seeks to have the court hold that the National Labor Relations Board abused its discretion in applying its nonrelitigation rule. Under that rule the Board has determined that only in limited circumstances will a party be permitted to reopen a representation issue during an unfair labor practice proceeding. Pace maintains that it did not raise an issue regarding the scope of the bargaining unit during the representation proceeding because it thought it had prevailed on the issue and only realized there was disagreement during collective bargaining negotiations with the duly elected Board-certified union. In applying the non-relitigation rule, however, the Board pointed to the record in the representation proceeding where Pace was repeatedly asked to state its position on the issue and declined to explain the nature of its concern, instead urging that its motion to dismiss the union's certification petition be granted due to prejudicial timing.

In view of the Board's reasonable determination of how it will conduct its proceedings, there was no abuse of discretion by the Board. The Board's refusal to adopt an exception for claimed reliance upon a mistake of fact illustrates the principle behind the rule: On an issue of central importance in the representation proceeding, a party having reason, ability, and opportunity must make its position a matter of record. Otherwise, the rationale for the rule—the importance of the finality of Board-certified elections and avoidance of delay in enforcing their results—is compromised. Accordingly, we deny the petition for review of the Board's order that Pace unlawfully refused to bargain with the certified union representative and grant the Board's cross-application for enforcement of its order.

I.

The relevant facts are undisputed. In December 2003, the New York State United Teachers ("Union") petitioned the Board for certification as the representative of adjunct and part-time faculty members ("adjuncts") at Pace University, a private, nonprofit institution of higher education. The number of adjuncts varies during the calendar year, ranging from approximately 109 employed by Pace in the summer semester to 750 during the spring semester of the 2003-04 academic year, for example; they are employed by the semester, but are frequently reappointed and receive increased promotional, salary, and other benefits according to years of service. Pace filed a motion to dismiss the Union's petition on the ground that it was filed at a prejudicial time in the academic year when few adjuncts were employed. Then, after a hearing in January 2004, Pace objected that the petitioned-for unit was unsupported by the evidence.

In response to Pace's objection, the Regional Hearing Officer reopened the record and held a multi-day hearing in February 2004. During this hearing Pace did not contest the inclusion in the bargaining unit of adjuncts whom it subsequently sought, during the unfair labor practice proceeding, to exclude from the certified unit. The Regional Director denied Pace's motion to dismiss and issued an Election Order defining the scope of the bargaining unit and the voter-eligibility criteria.¹ The Board denied Pace's request for review of the Election Order on the ground that the petition raised "no substantial issues warranting review" and finding without merit Pace's claims of bias of the Regional Director and Hearing Officer. At this point, Pace had raised no objection regarding the adjuncts whom it sought to have excluded during the unfair labor practice proceeding.

In response to Pace's letter seeking clarification of two footnotes in the Regional Director's Election Order regarding which adjuncts would be eligible to vote at the election, the Regional Director issued an Amended Election Order, which read, in relevant part:

Included [in the bargaining unit]: All adjunct faculty members, part-time instructors, and all adjunct faculty members and part-time instructors who work in a non-supervisory, dual capacity for the Employer, employed by the Employer.^*

^* Eligible to vote in the election are those in this unit who have received appointments and teach or have taught at least 3 credit hours and/or 45 hours in any semester in any of two academic years during the three-year period commencing with the 2001-2002 academic year and ending with the 2003-2004 academic year.

Excluded: All other employees, including adjunct faculty and part-time instructors employed in the School of Law, all full-time faculty, casual employees, independent contractors, guards and supervisors within the meaning of the Act.

Pace did not seek Board review of the Amended Election Order.²

The Union won the election and in May 2004 the Board certified it as the representative of the adjuncts' bargaining unit. Negotiations on a collective bargaining agreement between Pace and the Union commenced. A dispute arose in October 2004 about whether the bargaining unit included only those adjuncts eligible to vote. See supra note 2. In February 2006, the Union filed a petition for unit clarification. In response, the Regional Director stated that the unit included all adjuncts who teach at least 3 credit hours and/or 45 hours in one semester, regardless of their eligibility to vote. The Board denied Pace's petition for review on the ground that it raised "no substantial issues warranting review" regarding clarification of the unit. Two Members of the Board noted that, although this was not the case to do so because the parties had not litigated the definition of "casual employee" and Pace had not previously challenged the scope of the unit with respect to adjuncts, the Board should reconcile its decisions on whether unit inclusion and voter eligibility must be coextensive.

When Pace refused to resume collective bargaining negotiations, the Board's general counsel filed a complaint based on the Union's unfair labor practice charge, and moved for summary judgment. In defense, Pace argued that the Board's unit determination was invalid because it included adjuncts who were "casual employees" and ineligible to vote in the election. The. Board, pursuant to its non-relitigation rule, refused to address the issue, observing that "[a]ll representation issues raised by [Pace] were or could have been litigated in the prior representation proceedings." Pace Univ., 349 NLRB No. 10, Case 2-CA-37884, 2007 WL 185973, at *1 (Jan. 22, 2007) ("2007 Order"). The Board found that Pace's refusal to bargain violated §§ 8(a)(1) and (5) of the National Labor Relations Act ("the Act"), and issued a cease and desist order directing Pace to bargain upon the Union's request. Pace petitions for review.

II.

Pace contends that the Board abused its discretion in refusing to allow litigation of representation issues in the unfair labor practice proceeding. It also challenges the Board's bargaining unit determination on several grounds, contending that: (1) the Board erred as a matter of law in basing its decision upon an inappropriate unit determination contrary to the Act and Board precedent, whereby the unit included members who were ineligible to vote; (2) "casual employees" excluded from the bargaining unit are those adjuncts who are ineligible to vote, namely those who teach more than 3 credit hours and/or 45 hours in one semester, but have not done so for at least two of the last three academic years; and (3) there was not substantial evidence in the record that such adjuncts share a community of interest with other adjuncts as would justify placing them in the same bargaining unit. The Board seeks enforcement of its order on both procedural and substantive grounds.

The Board has broad discretion to define the contours of an appropriate bargaining unit. 29 U.S.C. § 159(b); Skyline Distribs., Inc. v. NLRB, 99 F.3d 403, 406-07 (D.C.Cir.1996). Once a union is certified for a unit, the Act prohibits an employer from refusing to bargain with the union. 29 U.S.C. §§ 158(a)(1), (5); see Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1163-64 (D.C.Cir.2004). The Board has authority under the Act "to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this subchapter." 29 U.S.C. § 156. Under the Act and the Board's rules, the representation proceeding is the forum designed for parties to contest the appropriateness of a bargaining unit. Id. § 159(b); 29 C.F.R. §§ 102.60-68.

The Board has drawn a "well established" line between representation and unfair labor practice proceedings, requiring that any issues that may be presented during the representation proceeding must be offered there. Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1151-52 (D.C.Cir.2000) (quoting Thomas-Davis Med. Ctrs. v. NLRB, 157 F.3d 909, 912 (D.C.Cir.1998)); see Wackenhut Corp. v. NLRB, 178 F.3d 543, 552-53 (D.C.Cir.1999); Westwood One Broad. Servs. Inc., 323 N.L.R.B. 1002, 1002 (1997); 29 C.F.R. § 102.67(f).³ As a refusal-to-bargain unfair labor practice proceeding addresses a charge "based on the record made at the earlier...