W & M Properties of Conn., Inc. v. N.L.R.B.
| Citation | 514 F.3d 1341 |
| Decision Date | 08 February 2008 |
| Docket Number | No. 06-1395.,No. 06-1365.,06-1365.,06-1395. |
| Parties | W & M PROPERTIES OF CONNECTICUT, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Jeffrey J. Barham, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Assistant General Counsel, and Julie B. Broido, Senior Attorney.
Before: BROWN and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
In this case, the National Labor Relations Board determined that an employer's decision not to retain employees of a newly acquired business was unlawfully animated by a desire to avoid dealing with a labor union, in violation of the National Labor Relations Act. Because the Board's order is a product of reasoned decisionmaking and is supported by substantial evidence in the record, we deny the employer's petition for review and grant the Board's cross-application for enforcement,
I.
W & M Properties of Connecticut, Inc. ("W & M") is a real estate management and marketing firm. In 2001, W & M expanded its portfolio of managed commercial properties by purchasing from TrizecHahn Corporation an 800,000-squarefoot office complex called First Stamford Place. Prior to W & M's purchase, maintenance at First Stamford Place had been provided by a seven-person engineering staff employed by TrizecHahn. These TrizecHahn engineers were union members, having elected as their representative the International Union of Operating Engineers, Local 30, AFL-CIO ("Local 30").
Beginning in September 2000, W & M conducted due diligence to determine what improvements would be necessary to bring the property up to its standards. After touring First Stamford Place and settling upon a staffing model, W & M Senior Vice President Richard Heller conducted a series of job interviews to hire the necessary engineers. TrizecHahn employees participated in this process, as did outside applicants. The union membership of the TrizecHahn engineers did not go unnoticed. One W & M interviewer made clear to a job applicant that First Stamford Place would not have a unionized workforce, and several TrizecHahn employees were questioned about their union membership.
W & M offered jobs to two of the TrizecHahn engineers, Hector Benitez and Omar Perez, but not to the others, Liam McGoohan, Stephen Bonos, Richard Stofko, Henry Cassidy, and Paul Schmitt. Benitez accepted the offer and Perez declined. W & M filled the remaining positions with four outside applicants and one employee transferred from another W & M property, for a total of six engineers. The reconstituted engineering staff of First Stamford Place lacked a majority of union workers, with Benitez as the lone union member. As a result, W & M refused to bargain with Local 30 and made certain unilateral changes to the working environment at First Stamford Place.
Local 30 filed a charge with the National Labor Relations Board ("Board"), alleging violations of the National Labor Relations Act ("NLRA").1 An administrative law judge was assigned to determine whether W & M had violated § 8(a)(1), § 8(a)(3), or § 8(a)(5) of the NLRA by interfering with the employees' right to unionize, failing to hire the union employees, and refusing to bargain with the union. W & M argued that its refusal to hire McGoohan, Bonos, Stofko, and Cassidy was motivated by its determination, on the basis of subjective and objective evaluations, that those engineers were unsuitable for the task of maintaining First Stamford Place according to W & M's standards.
The administrative law judge ruled against W & M, finding that anti-union animus motivated its hiring decisions. W & M filed exceptions. The Board adopted most of the administrative law judge's findings in an order dated September 20, 2006. As a remedy, the Board ordered W & M to bargain with Local 30, hire and make whole McGoohan, Bonos, Stofko, and Cassidy, and make whole other employees aggrieved by the unilateral changes to working conditions at First Stamford Place. W & M did not file a, motion for reconsideration with the Board, opting instead to go straight to court. W & M petitions for review of the Board's order and the Board cross-applies for enforcement of its order.
II.
Before discussing the merits of W & M's petition, we must first address a jurisdictional bar to our consideration of one of its arguments. Section 10 of the NLRA, which creates and limits our jurisdiction to review the Board's orders, provides: "No objection that has not been urged before the Board ... 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. § 160(e); see also id. 160(f) (incorporating subsection (e)'s jurisdictional constraint). We are therefore powerless, in the absence of "extraordinary circumstances," to consider arguments not made to the Board.
W & M claims for the first time in its opening brief that the Board's chosen remedy was unlawfully punitive. This argument was not made to the Board and so comes too late. See. Quazite Div. of Morrison Molded Fiberglass Co. v. NLRB, 87 F.3d 493, 497 (D.C.Cir.1996). If aggrieved by the Board's remedy, W & M should have filed a motion for reconsideration pursuant to the Board's rules and regulations. See, e.g., Int'l Ladies' Garment Workers' Union v. Quality Mfg. Co., 420 U.S. 276, 281 n. 3, 95 S.Ct. 972, 43 L.Ed.2d 189 (1975); United Food & Commercial Workers Union Local 204 v. NLRB, 506 F.3d 1078, 1087 (D.C.Cir.2007); Cobb Mech. Contractors v. NLRB, 295 F.3d 1370, 1377-78 (D.C.Cir.2002); Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1101-02 (D.C.Cir.2001); Glaziers' Local. No. 558 v. NLRB, 408 F.2d 197, 202-03 (D.C.Cir.1969); see also 29 C.F.R. § 102.48(d)(1) (). Such a motion would have given the Board notice of W & M's objection, Local 900, Int'l Union of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1192 & n. 8 (D.C.Cir.1984), and an opportunity to fix its supposed mistake, see Elastic Stop Nut Div. of Harvard Indus. v. NLRB, 921 F.2d 1275, 1284 (D.C.Cir.1990). "[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts." United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
By failing to file a motion for re§ consideration, W & M waived its challenge to the Board's remedy and deprived us of jurisdiction to consider it. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982). Contrary to W & M's suggestion, there are no "extraordinary circumstances" excusing this error under § 10 of the NLRA. W & M argues that its failure to file should be forgiven because a motion for reconsideration would have been futile in light of the new remedial framework announced in Planned Building Services, Inc., 347 N.L.R.B. No. 64, 2006 WL 2206975 (2006). W & M relies on NLRB v. FLRA, a case in which we entertained an argument that had not been urged before the Federal Labor Relations Authority ("Authority") by taking a rather broad view of "extraordinary circumstances" in the waiver provision of the Federal Labor Relations Act. See 2 F.3d 1190, 1195-96 (D.C.Cir.1993) (per curiam) ( 5 U.S.C. § 7123(c)). W & M's argument under NLRB v. FLRA fails.
The "extraordinary circumstances" we found in NLRB v. FLRA consisted of the "patent futility" of filing a motion for reconsideration in that case. Id. at 1196. The petitioner in NLRB v. FLRA established patent futility by pointing to instances in which the agency had already rejected its contested argument in other proceedings. See id. By contrast, W & M offers nothing but its own forecast regarding how the Board might view its argument in light of the recently decided adverse precedent in Planned, Building. W & M claims that, "[g]iven the Board's fanfare in unveiling [a new remedial standard] just seven weeks before the decision under review here, it is manifestly clear it would have been a useless exercise for W & M to seek reconsideration by the Board in this case." Reply Br. at 11. Such an assessment of the Board's likely disposition, relying on highly subjective indicia such as "the Board's fanfare," 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. See Ga. State Chapter Ass'n of Civilian Technicians v. FLRA, 184 F.3d 889, 892 (D.C.Cir.1999). As we have noted, "the requirement that a litigant present such a petition is ordinarily not excused simply because the [agency] was unlikely to have granted it." Id. (citation and internal quotation marks omitted). Given W & M's failure to urge its remedial challenge before the Board and its inability to establish "extraordinary circumstances" justifying this mistake, we conclude that the argument is waived and that we therefore lack jurisdiction to consider it.
III.
Turning to the merits that we may properly consider, W & M levels two charges against the Board's order: first, that the Board impermissibly departed from precedent in analyzing the decision not to hire Trizeehahn's union member employees; and second, that the findings of labor violations lack the support of substantial evidence in the record. "We will set aside...
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