United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2000 Decided July 7, 2000
No. 99-1327
Joseph T. Ryerson & Son, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Brotherhood of Teamsters,
AFL-CIO, Local 714 and
United Steelworkers of America, AFL-CIO,
Intervenors
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Stephen D. Erf argued the cause for petitioner. With him
on the briefs were Michael F. Rosenblum, Timothy S. Bishop
and Jeffrey W. Sarles.
Sonya Spielberg, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, Linda R. Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Peter Winkler, Supervisory
Attorney.
David I. Goldman argued the cause for intervenors. With
him on the brief was Susan Brannigan.
Before: Silberman and Rogers, Circuit Judges and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Joseph T. Ryerson & Sons, Inc.
petitions for review of an order of the National Labor Rela-
tions Board that the company violated ss 8(a)(1) and (5) of
the National Labor Relations Act by refusing to bargain with
the certified representative of the bargaining unit, namely
with Local 714 of the International Brotherhood of Teamsters
("Teamsters") and the United Steelworkers of America
("Steelworkers"), which jointly petitioned to represent a bar-
gaining unit at four of the company's plants in Chicago,
Illinois. The company contends that the Board erred in
failing to set aside the election for three reasons: (1) the Act
does not authorize either joint election petitions or separate
administration by two unions of a collective bargaining agree-
ment; (2) there is not substantial evidence in the record to
support the Board's finding that the unions did not misrepre-
sent the intended nature of their joint representation to the
bargaining unit employees during the election campaign; and
(3) the hearing officer abused his discretion in denying the
company's subpoena for the unions' entire joint bargaining
agreement and other internal documents relating to the joint
petitions for representation, thereby denying the company a
full and fair hearing. Because the company failed to preserve
its statutory argument for review by the court, and because
we conclude that the company's other contentions are unper-
suasive, we deny the petition and grant the Board's cross-
application for enforcement of its order.
I.
Joseph T. Ryerson & Sons, Inc. operates four plants in
Chicago, Illinois--the 16th Street, 83rd Street, 103rd Street,
and 111th Street--known collectively as the "Chicago Com-
plex." After a number of unsuccessful attempts by the
Steelworkers--due, in part, to lack of support at the 16th and
83rd Street plants--to organize Ryerson production and
maintenance employees in Chicago, the Teamsters, in 1997,
began a campaign to represent production and maintenance
employees at the 16th and 83rd Street plants. After the
Teamsters filed a petition with the Board seeking certification
as the exclusive bargaining representative of the bargaining
unit at the 16th and 83rd Street plants, a struggle between
the Teamsters and Steelworkers ensued, resulting in the
Steelworkers' campaign to represent the employees at the
103rd and 111th Street plants. After the petitions for repre-
sentation of the 800 employees were consolidated for hearing,
the Steelworkers distributed a flyer at the 103rd Street and
111th Street plants stating that:
The workers at 103rd Street don't want to be represent-
ed by the Teamsters and have overwhelming[ly] signed
Steelworker cards ... The Teamsters are arguing for
one election including 83rd and 16th Street workers....
The Steelworkers are fighting to get an election for the
103rd Street workers.
Employees at the 16th and 83rd Street plants, without objec-
tion from the Teamsters, circulated a petition opposing the
Steelworkers: "We, the undersigned, DO NOT want the
Steelworkers to represent us. Rather than have them, we
will remain NON-UNION." (emphasis in original)
After failed attempts at mediation and on the eve of
arbitration, the unions agreed to file a joint petition for
certification. Following execution of a joint petition agree-
ment, the unions distributed flyers to the employees that set
out the first two paragraphs of the joint petition agreement:
At the National Relations Board hearing, the [Steelwork-
ers] and the [Teamsters] agree to engage in a joint
organizing/representa[ ]tion campaign at the Chicago
Complex of [the company] for a bargaining unit consist-
ing of all four facilities, including 16th Street, 83rd
Street, 103rd and 111th streets. This will involve an
amended representation petition to seek a joint certifica-
tion, unless otherwise agreed to by the [Teamsters] and
[Steelworkers].
Assuming that the campaign is successful, the union[s]
will jointly negotiate for a collective bargaining agree-
ment and will divide responsibility for administering the
contract as follows:
-16th and 83rd streets -- [Teamsters]
-103rd and 111th Streets -- [Steelworkers]
Dues and membership will follow the same lines.
No other portion of the joint petition agreement was divulged
to the employees. The unions circulated separate authoriza-
tion cards, and filed amended petitions to jointly petition to
represent "[a]ll full-time and regular part-time production
and maintenance employees" at the four Chicago Complex
plants.
During the election campaign, the Steelworkers distributed
literature and campaigned exclusively at 103rd and 111th
Streets, while the Teamsters distributed literature and cam-
paigned exclusively at 16th and 83rd Streets. Each union
held its own rallies. Organizers from both unions made
statements to employees that the unions would part ways
with respect to representation after the certification, dividing
the four plants between them for the election campaign and
thereafter for contract administration.1
On September 25, 1997, the unions won the election.2 The
company filed objections to the election, noting among other
__________
1 According to the Bureau of National Affairs, under the joint
representation agreement, the Teamsters will represent 525 em-
ployees at two plants and the Steelworkers will represent 275
employees at the other two Chicago Complex plants. See BNA
Daily Labor Report, Nov. 6, 1997, at A3.
2 Of the 820 employees eligible to vote in the election, 786
voted: 418 voted for the unions and 352 voted against the unions,
with 16 ballots challenged and one declared void.
things that the unions "stated [their] intention to negotiate as
separate unions in separate bargaining units, and not as a
joint bargaining representative" and "misrepresented how
bargaining and contract administration would occur if [they]
won the election." The company also served a subpoena on
the unions for "[a]ll documents relating to the joint represen-
tation arrangement" between the Teamsters and the Steel-
workers. The unions objected to the subpoena as seeking
irrelevant documents and as vague and unduly burdensome.
The hearing officer denied the subpoena except as to the first
two paragraphs of the joint petition agreement that had been
disclosed to the employees during the election campaign, on
the ground that the unions' internal communications were
irrelevant because they did not shed light on what the unions
had communicated to the employees during the election cam-
paign. Following a hearing over the course of several days,
the hearing officer found "no direct evidence that the [unions]
do not intend to bargain jointly," observing that the unions
had "consistently maintained that they would bargain jointly,
but administer the jointly-negotiated contract separately at
specific locations," and that there was no evidence "that the
[unions] misrepresented how bargaining and contract admin-
istration would occur if [they] won the election." The Board
adopted the hearing officer's findings and recommendations
in the unions' favor, and certified the unions as the exclusive
bargaining representative of the bargaining unit employees.
When the company subsequently refused to bargain, the
unions filed an unfair labor practice charge. The Board, in
response to the company's attack on the certification because
of the unions' conduct during the election campaign, ruled
that the company could not relitigate issues litigated in the
representation proceeding, and granted the General Counsel's
motion for summary judgment on the complaint charging the
company with violating ss 8(a)(1) and (5) of the Act. See
Joseph T. Ryerson & Sons, Inc. v. NLRB, 328 NLRB No. 168
(August 6, 1999). The company petitions for review of the
Board's unfair labor practice order, and the Board filed a
cross-application for enforcement of its order.
II.
In contending that the Board erred by failing to set aside
the election, the company makes three challenges. We ad-
dress each in turn.
A. Statutory challenge. The company contends that the
National Labor Relations Act does not authorize the Board
to certify more than one union as exclusive bargaining repre-
sentative, or to divide a bargaining unit for purposes of
contract administration.3 Specifically, the company makes
two statutory contentions. First, it maintains that the Board
acted contrary to the Act, which authorizes a union to be-
come the exclusive bargaining-unit representative only if it
obtains the support of a majority of the bargaining unit
employees, by certifying two unions, each of which garnered
only minority support, as the "exclusive representative" for
the company's single Chicago Complex bargaining unit. Sec-
ond, the company maintains that, even if the Act did permit
joint petitioning and representation, it does not permit the
unions to divide up a bargaining unit for purposes of bargain-
__________
3 While acknowledging that the court rejected a challenge to
joint petitioning in NLRB v. National Truck Rental Co., 239 F.2d
422 (D.C. Cir. 1986), the company maintains that the issue should
be revisited because the court's rationale is "obsolete and legally
invalid." To support its contention that the Board exceeded its
authority under the National Labor Relations Act, the company
cites cases for the propositions that (1) an exclusive collective
bargaining agent must enjoy the support of the majority of employ-
ees in the unit, see, e.g., Carothers v. Presser, 818 F.2d 926, 934
(D.C. Cir. 1987); Human Dev. Ass'n v. NLRB, 937 F.2d 657, 665
(D.C. Cir. 1991), and (2) contract bargaining and contract adminis-
tration are linked, such that allowing separate administration would
violate the Act. See, e.g., Air Line Pilots Ass'n, Int'l v. O'Neill, 499
U.S. 65, 77 (1991); United Steelworkers v. Warrior & Gulf Naviga-
tion Co., 363 U.S. 574, 578, 581 (1960). The Board, in turn, cites
National Truck Rental as to joint representation, and cites several
Board decisions for the proposition that a bargaining unit may be
divided by unions for purposes of contract administration, Utility
Servs., Inc., 158 NLRB 592, 593 (1966); Swift & Co., 114 NLRB
159, 160 (1955).
ing, contract administration, and representation. As ex-
plained in its brief, in the company's view, the Board's
authorization for the unions to divide up the Chicago Com-
plex bargaining unit and administer the contract separately
rests on "a false dichotomy between contract bargaining and
contract administration" inasmuch as contract administration,
and in particular the processing of grievances, is "inextrica-
bly linked with collective bargaining." While the second
statutory contention poses a serious legal issue that the court
has not yet addressed, see supra note 3, a threshold issue is
whether these contentions are properly before the court.
The Board maintains that the company "waived" its statutory
contentions by failing to raise them in the representation
proceeding before the Board and waiting until its opposition
to the General Counsel's motion for summary judgment on
the unfair labor practice complaint to raise the issues for the
first time.
"It is well established that in the absence of newly discover-
ed evidence or other special circumstances requiring reexami-
nation of the decision in the representation proceeding, a
respondent is not entitled to relitigate in a subsequent refus-
al-to-bargain proceeding representation issues that were or
could have been litigated in the prior representation proceed-
ing." Thomas-Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909,
912 (D.C. Cir 1998) (quoting Westwood One Broad. Servs.,
Inc., 323 N.L.R.B. No. 175 (June 16, 1997) (citing Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941))). The
company, seeming to acknowledge the need to have raised its
statutory argument in the representation proceeding, at-
tempts to demonstrate that it did by pointing to various pages
in the record. The assertion that it raised the statutory
challenge in that proceeding is not borne out by the record.
Neither the company's citations to the record nor counsel's
response at oral argument demonstrates that the company
made its statutory argument during the representation pro-
ceeding.
Apparently aware of the weakness of its position, the
company falls back on its assertion that its statutory chal-
lenge was "implicit" in its argument that the unions' conduct
demonstrated that they intended to divide the bargaining unit
for separate representation. But the thrust of the company's
reliance on the unions' conduct was to show that the joint
representation agreement was a sham and the bargaining
unit employees were confused about what they were voting
for in the election, which is unrelated to the statutory chal-
lenge it raised in opposing summary judgment. Further-
more, as the Board stated in granting summary judgment on
the unfair labor practice charge, the company did not "offer
to adduce at a hearing any newly discovered and previously
unavailable evidence, nor [did] it allege any special circum-
stances that would require the Board to reexamine the deci-
sion made in the representation proceeding." Ryerson, 328
NLRB No. 168, at 1. In any event, an implicit argument is
hardly the same as giving notice so the Board has an opportu-
nity to rule on the argument. Cf. Alois Box Co. v. NLRB,
No. 99-1340, slip. op. at 13-14 (D.C. Cir. June 30, 2000).
Indeed, the record suggests that rather than being an implicit
argument in the company's arsenal attacking the election, the
statutory challenge was an afterthought, interposed as a new
argument aimed at avoiding summary judgment. This is
evident from the fact that the company did not file an
exception to the certification decision on statutory grounds
muchless thereafter raise a statutory challenge in its answer
to the unfair labor practice charge.
The company's explanation that it was unable to litigate its
statutory objections "with all of the information it needed" as
a result of the denial of its subpoena for the entire joint
representation agreement rings hollow. Even if access to the
entire agreement might possibly have strengthened a statuto-
ry challenge, cf. Construction & Gen. Laborers' Local Union
No. 190 v. NLRB, 998 F.2d 1064, 1066-67 (D.C. Cir. 1993),
the lack of such access did not preclude the company from
raising the statutory challenge, particularly as it was suggest-
ed by the evidence on which the company relies to show that
the unions did not intend to bargain jointly or to administer
the parties' contract jointly. See infra Part II(B). Had the
company made a statutory challenge during the representa-
tion proceeding, moreover, it might well have had a better
argument in favor of enforcing the subpoena. See infra Part
III(C).
The company's current contention that the Board failed in
its responsibility to ensure that "fundamental labor princi-
ples" are not violated, see Associated Milk Producers, Inc. v.
NLRB, 193 F.3d 539, 543 (D.C. Cir. 1999), misses the mark.
Although it is not entirely clear, the company appears to be
contending that the Board's responsibility to protect funda-
mental principles of labor law constitutes a "special circum-
stance" as would excuse the company's failure to raise its
statutory argument during the representation proceeding.
Were that the case, the Board's non-relitigation rule would be
seriously compromised, eviscerating the non-relitigation rule
for legal arguments having to do with the Board's authority
under the Act. On the other hand, to the extent the company
is suggesting that it is foreclosed from obtaining relief if its
suspicions about how the unions will conduct themselves are
confirmed, it is in error. Were the unions, for example, not
to engage jointly in the collective bargaining process or not to
engage in joint contract administration by taking divergent
grievance and arbitration positions, cf. International Bhd. of
Teamsters v. NLRB, 587 F.2d 1176, 1181 (D.C. Cir. 1978), the
company would not be without a remedy. The Board ac-
knowledged in the certification order that the company could
then file a petition to modify or revoke the unions certifica-
tion, or file a refusal to bargain charge, or, as the Board
acknowledged at oral argument, the company could simply
refuse to bargain with an inappropriate unit. See Utility
Servs., 158 N.L.R.B. 592, 593 (1966).
Because the company did not preserve its right to raise its
statutory contentions in appealing the Board's unfair labor
practice order, those contentions are not properly before the
court and we do not address them.
B. Misrepresentation challenge. Seeking to overturn
the election on other grounds, the company contends that the
Board's finding that the unions did not misrepresent to the
bargaining unit employees during the election campaign the
character of their proposed joint representation is unsupport-
ed by substantial evidence in the record. Because the unions
engaged in misrepresentation, the company maintains, the
Board erred in failing to set aside the result of the tainted
election. The company relies on evidence in the record that
certain individuals told bargaining unit employees that the
Steelworkers and Teamsters intended to bargain separately
and that this message was reinforced by the separate cam-
paigns waged by the unions. Specifically, the company relies
upon statements attributed to union officials such as "don't
worry about the Teamsters, we're gonna be Steelworkers
here," and the "Teamsters [are] going to be at 16th and 83rd
and we are not worried about what the Steelworkers are
going to do."
Obviously, the members of the bargaining unit must have
accurate information to inform their election decisions. See,
e.g., General Teamsters Local Union No. 174 v. NLRB, 723
F.2d 966, 972 (D.C. Cir. 1983); Automatic Heating & Serv.
Co., 194 N.L.R.B. 1065 (1972); Suburban Newspaper Pubs.,
Inc., 230 N.L.R.B. 1215, 1217 (1977). However, the problem
for the company's position is two-fold.
First, the Board's rejection of the company's contention is
well founded. The court must affirm the Board's decision if it
reasonably rests on factual findings supported by substantial
evidence. See Family Serv. Agency San Francisco v. NLRB,
163 F.3d 1369, 1377 (D.C. Cir. 1999); Amalgamated Clothing
& Textile Workers Union v. NLRB, 736 F.2d 1559, 1562-63
(D.C. Cir. 1984). The Board's finding that there were no
misrepresentations by the unions during the election cam-
paign rests on two grounds. First, the testimony of union
supporters and officials was clear about the unions' intention
to bargain jointly. Thus, Denise Williams, a Steelworkers
organizer, testified that she informed bargaining unit employ-
ees that the unions would bargain jointly. Likewise, Gerald
Jagodzinski, an organizer for Teamsters Local 714, testified
that he never told employees that the unions would bargain
separately. The Board also points to statements made by
Jagodzinski to a reporter that "the two unions plan to negoti-
ate a collective bargaining agreement" once they were certi-
fied. Second, the evidence showed that management from the
company distributed fliers during the election campaign in-
forming employees that the unions would bargain jointly, and
that no fewer than seven managers spoke directly to employ-
ees telling them they would be voting for both unions.
Viewed together, these grounds establish substantial evidence
to support the Board's finding that the members of the
bargaining unit had accurate data to inform their election
choices.4
Second, the evidence the company cites is insufficient to
rebut even the prima facie showing. See, e.g., Gene Fielder
Chevrolet Co., 245 N.L.R.B. 1075, 1076 n.3 (1979); Utility
Servs., Inc., 158 N.L.R.B. 592, 592 (1966); Florida Tile
Indus., Inc., 130 N.L.R.B. 897, 897 (1961). The statements
on which the company relies are consistent with the interpre-
tation that contract administration would be handled at the
separate plants while joint bargaining would occur in a joint
fashion. Administration without deviation at the separate
plants clearly would not be inconsistent with joint representa-
tion. Further, a number of the allegedly misleading state-
ments that the company claims were made by the unions
were in fact made by employees in the bargaining unit--John
Jeziorski, James Malizio, Ron Butler, John Grey, Jesus Go-
mez, Mike Ross--not union officials. Because the Board
reasonably found that the company did not show that these
employees were acting as agents of the unions when these
statements were made, it was justified in not attributing the
statements to the unions. See, e.g., Overnite Transp. Co. v.
NLRB, 140 F.3d 259, 266 (D.C. Cir. 1998); Amalgamated
Clothing, 736 F.2d at 1565.
__________
4 The cases on which the company relies are readily distin-
guishable. In Suburban Newspaper Publications, Inc., 230
N.L.R.B. 1215, 1217 (1977), the Board nullified an election because
"the employees were told [by the unions and their representatives]
there would be separate units represented by the respective labor
organizations, not merely serviced by them." Id. at 1217 n.5.
Likewise, in Automatic Heating & Service Co., 194 N.L.R.B. 1065
(1972), union officials admitted at the hearing that they had no
intention of jointly bargaining or representing all the bargaining
unit employees.
Thus, absent evidence that could rebut the substantial
evidence on which the Board relied in finding that the unions
did not misrepresent their intent to bargain jointly, the
company fails to show that the Board erred in refusing to set
aside the election for the alleged misrepresentation.
C. Subpoena challenge. Finally, the company contends
that it was denied a full and fair hearing because the hearing
officer denied the company's subpoena for the unions' entire
joint representation agreement and other internal union com-
munications about jointly representing the bargaining unit.
The company maintains that the entire agreement was "high-
ly relevant" and "central" to its argument that the unions did
not intend to bargain jointly and the joint representation
agreement was a sham. Reviewing the hearing officer's
partial denial of the company's subpoena for abuse of discre-
tion, we find none in view of the nature of the arguments that
the company presented during the representation proceeding.
See Perdue Farms, Inc., Cookin' Good v. NLRB, 144 F.3d
830, 834 (D.C. Cir. 1998).
The hearing officer partially denied the subpoena on the
ground that he found relevant only "whatever communica-
tions have been made to employees regarding the status of
the joint petitioners," observing that the company "will have
the right to file an unfair labor practice charge" if the unions
do not bargain jointly. Given the nature of the company's
challenge to the union election in the representation proceed-
ing, that the unions made misrepresentations to the bargain-
ing unit employees during the campaign, and given the histor-
ical antagonism that the company identified between the two
unions, the company's position that it was deprived of infor-
mation relevant to its reasonable suspicion is plausible, see
Surburban Newspapers, 230 N.L.R.B. at 1216, and the denial
of the subpoena is thus troubling. Placing a barrier in the
way of a party's ability to present its case would, if prejudi-
cial, be grounds for reversing the Board. Cf. Drukker Com-
munications, Inc. v. NLRB, 700 F.2d 727, 731, 734; (D.C.
Cir. 1983); Indiana Hosp., Inc. v. NLRB, 10 F.3d 151, 154
(3d Cir. 1993).
Nevertheless, under the abuse of discretion standard, we
conclude that it was still reasonable for the hearing officer to
find that the full joint petition agreement and like internal
communications had little relevance to the misrepresentation
issue. See NLRB v. Blackstone Mfg. Co., 123 F.2d 633, 635
(2d Cir. 1944); cf. Carothers v. Pressler, 818 F.2d 926, 934
(D.C. Cir. 1987) (observing that viewing Labor Management
Reporting and Disclosure Act as creating a substantive "right
of access" to a union's mailing list could subvert union's
legitimate role as bargaining representative). Because the
company has not shown that it was prejudiced by the Board's
denial of the subpoena inasmuch as it is not without a remedy
if the unions fail to bargain jointly, see supra Part III(A),
when a subpoena of the entire agreement would no longer be
premature and would arguably be enforceable, we conclude
that the reasons given by the hearing officer for partially
denying the subpoena fall within the alternatives available to
him in the exercise of reasoned discretion. See generally
Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.
1995).
Accordingly, because the company failed to preserve its
statutory challenge to the certification of the unions as the
exclusive representative for the bargaining unit, and because
the company's other contentions are unpersuasive, we deny
the petition for review and grant the Board's cross application
for enforcement of its order.