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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2384
UNION DE LA CONSTRUCCION
DE CONCRETO Y EQUIPO PESADO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
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Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and McAuliffe,* District Judge.
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Marcos A. Ramirez Lavandero with whom Pedro J. Salicrup was on
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brief for petitioner.
Martin M. Eskenazi, Attorney, with whom Jerry M. Hunter, General
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Counsel, Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E.
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Karatinos, Acting Associate General Counsel, Margery E. Lieber,
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Assistant General Counsel for Special Litigation, and Eric G.
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Moskowitz, Deputy Assistant General Counsel for Special Litigation,
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National Labor Relations Board, were on brief for respondent.
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November 12, 1993
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*Of the District of New Hampshire, sitting by designation.
BREYER, Chief Judge. The Union de la Construccion
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de Concreto y Equipo Pesado (the "Construction Workers")
asks us to review a National Labor Relations Board
determination finding both 1) that Empresas Inabon, Inc.
(the "Company") committed an "unfair labor practice" in
refusing to bargain with the Construction Workers; and 2)
that, currently, a different union, the Congreso de Uniones
Industriales de Puerto Rico (the "Industrial Workers"), not
the Construction Workers, represents the Company's
employees. We agree with the Board that this petition, in
essence, asks us to review a Board "representation"
decision; that we lack jurisdiction to review such a
decision; and, that we must, therefore, dismiss this
petition.
I.
Background
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In the spring of 1991, the Construction Workers
represented the Company's employees under a contract due to
expire in June. In April, the Industrial Workers asked the
National Labor Relations Board to hold an election so that
the Company's employees could choose between the two unions.
In May, the Company decided that, pending the outcome of the
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election, it would not bargain with the Construction Workers
over a new contract.
The NLRB's Regional Director scheduled an election
for mid-June. Before the election, the Construction
Workers, objecting to the Company's refusal to bargain,
filed an unfair labor practice complaint. National Labor
Relations Act (NLRA) 8(a)(1), (5), 29 U.S.C. 158(a)(1),
(5). The Industrial Workers won the June election by a vote
of 30 to 6. The Construction Workers subsequently filed
objections to the election. 29 C.F.R. 102.69. They said
that the Company's refusal to bargain with them in May had
improperly biased the employees against them and that the
election should be set aside.
The NLRB's Regional Director consolidated the
unfair labor practice proceeding with the representation
proceeding. Ultimately, an Administrative Law Judge found
in the Construction Workers' favor on the unfair labor
practice issue. See RCA Del Caribe, Inc., 262 NLRB 963
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(1982) (the filing of an election petition does not excuse
an employer from continuing to bargain with the currently
certified collective bargaining representative). But, he
found in the Industrial Workers' favor on the second issue.
That is to say, he decided that the refusal to bargain had
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not affected the outcome of the election; that the election,
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therefore, was valid; and that, consequently, the Industrial
Workers, not the Construction Workers, represented the
Company's employees. He issued a recommended order that, in
essence, told the Company not to commit similar "unfair
labor practices" in the future, that is, it told the Company
that it should not again, under similar circumstances,
refuse to bargain with "an incumbent union." The order also
told the Company to post notices saying that it would not
refuse to do so. But, the order did not tell the Company to
bargain with the Construction Workers, for, after all, in
the ALJ's view, the Construction Workers no longer
represented the employees.
The Construction Workers appealed the ALJ's
determinations to the Board. The Board affirmed the ALJ and
issued the ALJ's order; it also certified the Industrial
Workers as the collective bargaining representative of the
Company's employees. The Construction Workers now petition
this court for review of the Board's decision. The Board
asks us to dismiss the petition, and we shall do so because,
as the Board points out, we lack the legal power to review
what is, in essence, a Board decision about which union
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represents the Company's employees. See American Federation
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of Labor v. NLRB, 308 U.S. 401, 405-11 (1940).
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II.
Analysis
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The Board is clearly right in pointing out that we
lack the legal power to review directly an NLRB
determination about which union represents a group of
employees. American Federation of Labor, 308 U.S. at 409
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(NLRA 10 authorizes judicial review of NLRA 8 "unfair
labor practice" determinations, but it does not authorize
judicial review of NLRA 9 "representation"
determinations); Boire v. Greyhound Corp., 376 U.S. 473,
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476-77 (1964); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
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146, 154 (1941); S.D. Warren Co. v. NLRB, 353 F.2d 494, 496
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(1st Cir. 1965), cert. denied, 383 U.S. 958 (1966). To
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obtain judicial review of a 9 "representation" decision,
an objecting firm, or a "losing" union, must take a
roundabout, "back door" route. It must transform the
"representation" determination into an "unfair labor
practice" determination. It can do so by 1) engaging in an
activity (typically, refusing to bargain or picketing) that
amounts to an unfair labor practice if, but only if, the
Board's 9 decision is proper; 2) making certain that the
Board then finds that it has engaged in an unfair labor
practice; and, then, 3) petitioning a court to set aside the
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"unfair labor practice" determination on the ground that the
underlying "representation" determination is improper.
Boire, 376 U.S. at 476-77; American Federation of Labor, 308
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U.S. at 410 n.3; United Federation of College Teachers,
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Local 1460 v. Miller, 479 F.2d 1074, 1078-79 (2d Cir. 1973);
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Lawrence Typographical Union v. McCulloch, 349 F.2d 704, 708
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(D.C. Cir. 1965); see also NLRB v. Union Nacional de
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Trabajadores, 540 F.2d 1, 12-13 (1st Cir. 1976), cert.
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denied, 429 U.S. 1039 (1977). The Construction Workers have
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not tried to take this route directly here, though they
believe they can construct a kind of analogy that will lead
to review.
The Construction Workers find an analogy by asking
us to review the Board's decision not to issue a certain
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kind of order to cure the "unfair labor practice," namely,
an order requiring the Company to bargain with them in the
future. They believe the Board would have issued such an
order had it not thought the order pointless; and, it would
not have thought the order pointless had it set aside the
election results in the Industrial Workers favor. The
Construction Workers hope, in this way, to obtain our review
of the "representation proceeding" results through the back
door, that is, by obtaining review of the "unfair labor
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practice" order that is necessarily founded upon a
particular "representation" proceeding outcome. See NLRA
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9(d), 29 U.S.C. 159(d) (permitting court review of
representation proceeding results when "an order of the
Board" in an unfair labor practice proceeding "is based in
whole or in part" upon the results of an earlier
representation proceeding); Boire, 376 U.S. at 477; American
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Federation of Labor, 308 U.S. at 405-11.
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The problem for the Construction Workers, however,
is that they did not tell the Board that they wanted it to
review the scope of the ALJ's "unfair labor practice" order.
Rather, when they asked the Board to review the ALJ's
decision, they told it that they objected:
to the ALJ's finding that directing an
election, notwithstanding the pending of
an 8(a)(5) unfair labor practice charge,
does not affect the laboratory condition
required by law before the holding of an
election
and
to the ALJ's finding that the Region's
decision not to block the holding of the
election did not affect its result since
the employees were able to freely
exercise their right to choose in the
said election.
Petitioner's Appendix at 57-58.
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The Board, reading these objections, could
reasonably believe that the Construction Workers were
satisfied with the "unfair labor practice" results, and that
they wanted the Board to review only the "representation"
results. They might have thought that the Construction
Workers were conceding that, if the election was proper, a
bargaining order would not be appropriate. See Celebrity
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Inc., 284 NLRB 688 (1987); Len Martin Corp., 282 NLRB 482
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(1986). Irrespective of what the Construction Workers
actually did want, they did not raise before the Board the
objection to the "unfair labor practice" order that they
seek to raise here. We therefore cannot consider it. NLRA
10(e), 29 U.S.C. 160(e); Woelke & Romero Framing, Inc.
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v. NLRB, 456 U.S. 645, 665-66 (1982); Detroit Edison Co. v.
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NLRB, 440 U.S. 301, 311 & n.10 (1979); El Gran Combo de
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Puerto Rico v. NLRB, 853 F.2d 996, 1001 (1st Cir. 1988).
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We add that the Construction Workers do not point
to any special circumstance that could excuse their failure
to raise the point before the Board, nor do they raise any
particularly strong claim on the merits, nor do we see any
obvious error in the ALJ's decision of the representation of
the matter.
For these reasons, the petition for review is
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Dismissed.
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Document Info
Docket Number： 92-2384
Filed Date： 11/12/1993
Precedential Status： Precedential
Modified Date： 9/21/2015