Union De La v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: November 12, 1993
• Docket: 92-2384
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-2384

                              UNION DE LA CONSTRUCCION 
                             DE CONCRETO Y EQUIPO PESADO,
                                     Petitioner,

                                          v.

                           NATIONAL LABOR RELATIONS BOARD,
                                     Respondent.

                                 ____________________

                        ON PETITION FOR REVIEW OF AN ORDER OF
                          THE NATIONAL LABOR RELATIONS BOARD
                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Aldrich, Senior Circuit Judge,
                                     ____________________
                           and McAuliffe,* District Judge.
                                           ______________

                                 ____________________

            Marcos A.  Ramirez Lavandero with  whom Pedro J.  Salicrup was  on
            ____________________________            __________________
        brief for petitioner.
            Martin M. Eskenazi, Attorney, with whom  Jerry M. Hunter,  General
            __________________                       _______________
        Counsel, Yvonne T.  Dixon, Acting Deputy General  Counsel, Nicholas E.
                 ________________                                  ___________
        Karatinos,  Acting  Associate  General  Counsel,  Margery  E.  Lieber,
        _________                                         ___________________
        Assistant   General  Counsel  for  Special  Litigation,  and  Eric  G.
                                                                      ________
        Moskowitz, Deputy  Assistant General  Counsel for  Special Litigation,
        _________
        National Labor Relations Board, were on brief for respondent.

____________________

                                  November 12, 1993
                                 ____________________

        _____________________

        *Of the District of New Hampshire, sitting by designation.

BREYER, Chief Judge.  The Union de la Construccion
                               ___________

             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
                                      __________

                       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
                                ___ ______________________

             (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,
             ___

             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
                                                  ___ ___________________

             of Labor v. NLRB, 308 U.S. 401, 405-11 (1940).
             ________    ____

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II.

                                       Analysis
                                       ________

                       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
                         _____________________________

             (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,
                               _____     _______________

             476-77 (1964); Pittsburgh Plate Glass  Co. v. NLRB, 313 U.S.
                            ___________________________    ____

             146, 154 (1941); S.D. Warren Co. v. NLRB,  353 F.2d 494, 496
                              _______________    ____

             (1st  Cir. 1965),  cert. denied,  383 U.S.  958 (1966).   To
                                ____________

             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
             _____                      ____________________________

             U.S.  at 410  n.3; United  Federation  of College  Teachers,
                                _________________________________________

             Local 1460 v. Miller, 479 F.2d 1074, 1078-79 (2d Cir. 1973);
             __________    ______

             Lawrence Typographical Union v. McCulloch, 349 F.2d 704, 708
             ____________________________    _________

             (D.C.  Cir.  1965);  see  also  NLRB  v. Union  Nacional  de
                                  _________  ____     ___________________

             Trabajadores,  540  F.2d  1, 12-13  (1st  Cir.  1976), cert.
             ____________                                           _____

             denied, 429 U.S. 1039 (1977).  The Construction Workers have
             ______

             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
                                                 ___

             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  
                                                               ___

             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
                                         _____                   ________

             Federation of Labor, 308 U.S. at 405-11.
             ___________________

                       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
                                                            ___ _________

             Inc., 284  NLRB 688 (1987);  Len Martin Corp., 282  NLRB 482
             ____                         ________________

             (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.
                                           ______________________________

             v. NLRB, 456 U.S. 645,  665-66 (1982); Detroit Edison Co. v.
                ____                                __________________

             NLRB, 440  U.S. 301, 311  & n.10  (1979); El  Gran Combo  de
             ____                                      __________________

             Puerto Rico v. NLRB, 853 F.2d 996, 1001 (1st Cir. 1988).
             ___________    ____

                       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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