UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-60976
RAVEN SERVICES CORPORATION,
d/b/a RAVEN GOVERNMENT SERVICES, INC.
Petitioner-Cross-Respondent,
VERSUS
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
Petition for Review and Cross Application for Enforcement of an
Order of the National Labor Relations Board
December 18, 2002
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case involves a petition for review of a National Labor
Relations Board (NLRB) order by Raven Services Corporation (Raven)
and a cross-application by the NLRB for enforcement of its order.
The NLRB found Raven had committed unfair labor practices by: (a)
refusing to bargain with the International Union of Operating
1
Engineers, Local 351, AFL-CIO (Union)1 and refusing to provide the
Union with requested information in violation of National Labor
Relations Act (NLRA) § 8(a)(1) and (5) (29 U.S.C. § 158(a)(1) and
(5)); (b) unilaterally eliminating job classifications, changing
wage rates, and directly dealing with employees regarding these
changes in violation of NLRA § 8(a)(1) and (5); (c) withdrawing
recognition of the Union as exclusive collective bargaining agent
for the employees in violation of NLRA § 8(a)(1) and (5); and (d)
interrogating employees regarding Union activities without advising
them of their rights not to answer such questions, also in
violation of § 8(a)(1).
In its petition for review Raven only challenges the NLRB’s
finding that its unilateral elimination of job classifications and
reclassification of certain employees violated the NLRA. It argues
that this claim was improperly amended to the complaint after the
end of the trial, and therefore was not properly before the NLRB.
It also argues that even if the charge was properly in front of the
NLRB, it erred in its finding of an unfair labor practice, either
because Raven was entitled to make the unilateral changes under a
management rights clause imposed at an earlier impasse in
negotiations, or because it had a good faith belief that the Union
no longer represented the majority of workers, and hence did not
1
International Union of Operating Engineers, Local 826, AFL-CIO
and Local 351, AFL-CIO merged effective March 1, 1997 to form Local
351.
2
need to bargain with it. Raven finally argues that even if it
violated the NLRA, the NLRB’s imposition of backpay for those
workers affected by the unilateral change was either inappropriate
or improperly calculated. The NLRB cross-petitions for enforcement
of its entire order.
For the reasons below we grant the NLRB’s requested
enforcement order in full.
I. Factual and Procedural Background
Raven is a Virginia corporation with an office in Fort Worth,
Texas, where it is engaged in the business of providing maintenance
services for the United States Bureau of Engraving and Printing.
On December 24, 1992, the NLRB certified the Union as the exclusive
collective-bargaining representative of Raven’s service and
maintenance employees at the Fort Worth facility.
In 1993, the parties met in ten bargaining sessions in an
unsuccessful effort to negotiate a collective bargaining agreement.
Another attempt at collective bargaining in August 1994 also
failed. Following these failed negotiations, Raven declared
bargaining at an impasse, and unilaterally imposed the proposals it
had made in negotiations. These proposals included a management
rights clause that allowed the company to unilaterally layoff,
reclassify, demote or transfer its employees. An NLRB
Administrative Law Judge (ALJ) confirmed that bargaining was at an
impasse in a November 24, 1994 opinion, and held that Raven was
3
correct in implementing its pre-impasse proposals, including the
management rights clause.
In August 1996 the Union elected a new group chairman, Kenneth
Forge. Around that time several external events led the Union to
consider re-opening negotiations. First, Union members were aware
that the contract between Raven and the U.S. Bureau of Engraving
and Printing was to expire in September 1996, and rumors abounded
that under the renegotiated contract there would be classification
changes and wage cuts. Second, unit employees had not received a
pay increase in 3 years, and were hoping to achieve such an
increase in negotiations. Third, given that there had been no
negotiations since the August 1994 meetings, nearly 2 years
earlier, and no substantive progress on negotiations since the 1993
negotiations, the Union hoped a passage of time would result in
changed bargaining positions.
On September 20, 1996 the Union business representative and
president Barney Allen sent a letter to Raven requesting a date for
new negotiations, as well as information to aid the Union in those
negotiations. In two letters, dated September 30, 1996 and October
14, 1996 Raven’s attorney, Buddy David, refused to provide the
information requested in the September 20 letter or to set a date
for negotiations, referencing the earlier negotiating impasse.
Further, notwithstanding the September 20th letter, on October 1,
1996, Raven eliminated two classifications without any notice to or
consultation with the Union, laying off two employees and
4
reclassifying two employees within a lower wage category. In
another letter to the company dated October 22, 1996, Allen noted
the Union’s intent to develop new bargaining proposals, and
reiterated its demand for information to help it do so. In further
correspondence, the Union requested information and negotiations,
but Raven denied all requests.
On August 29, 1997 the Union filed an unfair labor practices
complaint against Raven with the NLRB. The case was tried in
September 1997 before an ALJ. At the close of argument, but before
findings were issued, the NLRB General Counsel amended the
complaint to add the charge alleging that Raven violated the NLRA
by making the October 1, 1996 changes. On December 11, 1997 the
ALJ issued his opinion finding Raven had committed several
violations of the NLRA, including a finding that the October 1
changes were illegal. Raven appealed the decision to the NLRB, and
on June 30, 2000 the NLRB affirmed the ALJ’s opinion in all
relevant parts, except that it changed the method of backpay
computation for employees affected by the unilateral changes from
the F.W. Woolworth, 90 N.L.R.B. 289 (1950), method prescribed by
the ALJ, to the Ogle Protection Service, 183 N.L.R.B. 682 (1970),
method.2 On May 2, 2001 the NLRB General Counsel filed a motion to
“clarify” or “modify” the earlier judgment to return the backpay
2
The Ogle backpay computation method allows the employer credit
for all interim earnings, while the F.W. Woolworth method excludes
interim earnings in each calendar quarter to the extent the interim
earnings exceed the backpay obligations for that quarter.
5
computation method to the Woolworth method. This motion was
granted on November 6, 2001, and Raven appealed the entire modified
order to this court.
II. Unilateral Classification Eliminations
A. Amendment of the Complaint
Raven first argues that the issue of whether the unilateral
classification changes violated the NLRA was not properly before
the NLRB, because the charge was not added to the complaint until
after the close of arguments. Raven claims the ALJ erred in
allowing this amendment, and that therefore this court should
dismiss that charge. Alternatively, petitioner argues that the
record should be reopened now to allow it to develop evidence in
its defense, and that therefore we should remand the case to the
NLRB.
We are not persuaded by Raven’s arguments. Section 10(b) of
the NLRA provides that an NLRB complaint “may be amended by the .
. . Board in its discretion at any time prior to the issuance of an
order based thereon.” 29 U.S.C. § 160(b). We have previously held
that “a complaint before the Board is not judged by rigid pleading
rules. A finding not based on a charge in the complaint will be
enforced if the issue was fully and fairly litigated at the
hearing.” Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir.
6
1982).3 The ALJ found the issue of the unilateral classifications
was fully and fairly litigated at trial, and that therefore a
finding on the issue of the unilateral classifications was
appropriate.
This ALJ determination, adopted by the NLRB, is supported by
substantial evidence.4 The original complaint charged Raven with
directly discussing the October 1 changes with employees in lieu of
bargaining with the Union. This charge should have put Raven on
notice that the NLRB considered petitioner’s failure to bargain
with the Union over those changes unlawful. Moreover, it was a
Raven witness, its senior vice president Robert C. Pittman, who
provided the NLRB with the facts it used to formulate the complaint
related to the October 1 changes. And once the charge was added
to the complaint, Raven did not ask to be allowed to present
witnesses on the new charge,5 nor did it offer any objection when
3
Raven incorrectly contends that NLRB v. Kanmak Mills, 200 F.2d
542 (3rd Cir. 1952), provides the standard for determining when an
amendment to an NLRB complaint should be allowed. This Third
Circuit case is not controlling and in conflict with our circuit
precedent.
4
We review NLRB mixed law-fact determinations under the
substantial evidence standard. NLRB v. United Ins. Co. of America,
390 U.S. 254, 260 (1968). Evidence to support a determination must
be more than a mere scintilla; rather, it must be such evidence as
a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
5
The first request by Raven to be allowed to introduce more
evidence related to this charge came in a brief after the ALJ
closed the record with no objection from Raven.
7
the ALJ asked it whether he could close the record.6 Under such
circumstances Raven’s argument that the issue was not fully or
fairly litigated lacks substantiation and does not prevent a
reasonable contrary conclusion.
Likewise, Raven’s argument that we should remand this case to
the NLRB to allow for additional fact finding on this issue is
unpersuasive. Petitioner states that if it is allowed to introduce
new evidence, it would show that the government strongly influenced
its choice to eliminate job classifications in its contract
negotiations with Raven in September 1996. The NLRB’s Rules and
Regulations provide that such a motion must “state briefly the
additional evidence to be adduced, why it was not presented
previously, and that if addressed and credited, it would require a
different result.” 29 C.F.R. § 102.48(d)(1) (2002). The ALJ’s
found that Raven did not comply with this standard.
This finding is supported by substantial evidence on the
record. To begin with the motion failed to explain why the
evidence was not introduced before the record was closed. As noted
above, Raven had the opportunity to introduce evidence into the
6
The ALJ’s report details the efforts of the ALJ to ensure that
Raven had adequate opportunity to introduce evidence related to
October 1 changes. After the amendment to the complaint the ALJ
decided to forego a planned bench ruling on the case in the
interest of giving Raven time to “fully brief” the new charges.
But at no time between the amendment and the closing of the record
did Raven seek to present evidence on the new charge. Further,
before closing the record the ALJ asked Raven whether there was
anything further before the record was closed. Raven’s counsel
responded, “Nothing from us.”
8
record relating to the October 1 changes after the complaint was
amended to add the new charge but before the record was closed.
Raven failed to do so, and the motion provided no reasons for this
failure. Further, the motion failed to explain why the evidence
Raven sought to introduce would be outcome determinative. Raven’s
motion did not give an adequate explanation why evidence that a
government contract mandated the classification elimination would
have relieved Raven of its obligation to discuss the changes with
the Union. Accordingly, the ALJ did not err in refusing to reopen
the record, and we will not disturb that decision here.
B. Impasse
Raven next argues that even if its unilateral elimination of
job classifications was properly in front of the NLRB, those cuts
did not violate the NLRA. Rather, petitioner claims it acted
legally pursuant to a management rights clause implemented during
the impasse in negotiations reached in 1994.
There is no dispute in this case that Raven and the Union were
at impasse in 1994, and that Raven was at that time justified in
implementing its pre-impasse proposals. See Gulf States Mfg v.
NLRB, 704 F.2d 1390, 1398n.4 (5th Cir. 1983) (explaining that
employers may unilaterally implement negotiating proposals at
impasse). It is also not disputed here that these proposals
included a management rights clause that would allow for the
unilateral changes complained of here. We have previously held
9
that such clauses may be implemented at impasse. NLRB v.
Intracoastal Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961).7
The issue, instead, is whether the parties were still at
impasse on October 1, 1996, and therefore whether Raven could still
act pursuant to the management rights clause and forego its NLRA
obligation to bargain with the Union over the changes.8 Impasses
cannot continue forever, as they are by definition temporary. See
Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412
7
At oral argument the attorney for the NLRB suggested that we
should reconsider this rule, and defer to the NLRB’s determination
that management rights clauses cannot be implemented at impasse.
This argument was not briefed, however, and is not properly before
us. L & A Contracting Co. v. Southern Concrete Servs., 17 F.3d
106, 113 (5th Cir. 1994).
8
The ALJ concluded that the changes could not be made pursuant to
the management rights clause because there was no “clear and
express waiver” by the Union of its right to bargain on these
changes. The NLRB argues that we should uphold this conclusion.
Where the NLRB applies an incorrect legal standard, however, we
cannot enforce its order. Ford Motor Co. v. NLRB, 441 U.S. 488,
496-97 (1979). Here, the ALJ made such a mistake, as he confused
waiver doctrine with impasse doctrine.
The waiver doctrine allows a union to explicitly forego its NLRA
bargaining rights in a collective bargaining agreement. Where an
employer claims it is acting unilaterally pursuant to such an
agreement, the correct inquiry is whether the union in fact waived
its right of negotiation. NLRB v. McClatchy Newspapers, Inc., 964
F.2d 1153, 1157 (D.C. Cir. 1992) (Edwards, J., concurring). Where,
as here, the terms were imposed because there is no agreement,
however, there is by definition no waiver. And requiring a waiver
would defeat the purpose of the impasse theory, which is to
temporarily suspend the duty of an employer and union to bargain
over a subject where negotiations prove fruitless. Id. at 1158,
1164. Thus, to the extent that the ALJ and NLRB required Raven to
obtain a waiver from the Union before acting under the management
rights clause implemented at impasse, such a requirement has no
reasonable basis in law.
10
(1982) (defining impasse as a “temporary deadlock or hiatus in
negotiations”). “Anything that creates a new possibility of
fruitful discussion (even if it does not create a likelihood of
agreement) breaks an impasse: a strike may . . . so may bargaining
concessions, implied or explicit . . . the mere passage of time may
also be relevant.” Gulf States Mfg., 704 F.2d at 1399.
Because the ALJ erroneously based his determination that the
October 1 changes were illegal on the waiver theory, he never had
to rule on whether the 1994 impasse was still in existence on
October 1, 1996.9 The factual findings of the ALJ, however,
clearly reflect that the impasse was broken prior to the October 1
changes. Two reasons counsel this ruling. First, “it is well
settled that a failure to supply information relevant and necessary
for bargaining constitutes a failure to bargain in good faith and
precludes a finding of a genuine impasse.” New Associates d/b/a
Hospitality Care Ctr., 307 N.L.R.B. 1131, 1135-36 (1992). See also
Olivetti Office U.S.A. Inc. v. NLRB, 926 F.2d 181, 188-89 (2nd Cir.
1991) (noting that bargaining in good faith requirement of impasse
9
Raven argues that the ALJ in fact held that the impasse was
broken on October 22, 1996 by a Union letter indicating it was
interested in formulating new proposals to break deadlock. While
the ALJ certainly states that there was no impasse after October
22, he does not rule that there was a valid impasse prior to that
date. The ALJ writes that his focus on the October 22 letter is
“assuming there was a valid impasse” on October 22. Under the
ALJ’s erroneous application of the waiver theory it was irrelevant
whether the impasse broke prior to October 22, and thus we do not
read the ALJ’s opinion as having make a determination on that
issue.
11
cannot be met where employer refuses to furnish information on
union request). Here, the Union’s September 20 letter requested
information from Raven regarding currently available employee
benefit plans, job classifications, pay rates, and work schedules.
This information was “relevant and necessary” for bargaining
purposes. When Raven refused to provide that information in its
September 30 letter, it could no longer be said that a genuine
impasse still existed, as Raven was artificially perpetuating
deadlock. Thus, by at least September 30 the impasse had ceased to
exist.10
Second, application of the Gulf States test for determining
when impasse is broken makes clear that there was no impasse in
negotiations at the time of the October 1 changes, as several
factors suggested the possibility of “fruitful negotiations.” As
noted above, the Union had elected a new unit head in August 1996.
Such a change in key Union personnel suggests the possibility of a
changed Union approach to the negotiations. Airflow Research &
Mfg. Corp., 320 N.L.R.B. 861, 862 (1996). Further, by Raven’s own
10
The ALJ had concluded that on or about October 14 Raven
violated the NLRA by refusing to provide the Union with
information it requested for formulating bargaining proposals.
Upon review of the record, however, it is clear that Raven sent the
Union two substantially identical letters in response to the
Union’s September 20 letter. These letters, sent on September 30
and October 14, refused to provide the Union with the requested
information as a consequence of the earlier impasse. Thus, to the
extent that the ALJ’s finding was that October 14 was earliest date
of Raven’s failure to provide information offense, that
determination is not supported by substantial evidence on the
record.
12
admission the coming change in government contracts at the end of
September 1996 created changed economic circumstances in terms of
Raven’s contract cost obligations. These changed economic
circumstances altered the backdrop against which negotiations would
be conducted, and offered the possibility of productive bargaining.
Finally, as we noted in Gulf States Manufacturing, the mere passage
of time can suggest that new negotiations should be had. Gulf
States Mfg., 704 F.2d at 1399. Raven had declared an impasse more
than two years before the October 1, 1996 changes,11 and given this
time, along with the other foregoing factors, we conclude that an
impasse no longer existed on October 1, 1996.
Because the bargaining impasse between Raven and the Union had
ceased or been broken before October 1, Raven could not have
validly made the classification eliminations pursuant to the prior
unilaterally implemented management rights clause. The duty to
bargain resumes on the break or cessation of impasse. See Charles
D. Bonnano Linen Serv., 454 U.S. at 412 (upholding Hi-Way
Billboards, Inc., 206 N.L.R.B. 22, 23 (1973), rule holding that
impasse temporarily suspends, not permanently breaks, the duty to
bargain). Accordingly, the NLRA’s bargaining requirement was
applicable, and Raven’s failure to bargain was a violation of that
act.
11
Raven declared an impasse after a failed bargaining meeting in
August 1994, and an NLRB ALJ confirmed that bargaining was at an
impasse in a November 1994 opinion.
13
C. Union Majority Status
Raven argues in the alternative that its unilateral
elimination of job classifications was proper because it acted in
the good faith belief that the Union no longer enjoyed the support
of the majority of its members. When an employer has such a good
faith belief it may withdraw recognition from a union and refuse to
bargain with it. Allentown Mack Sales & Servs., Inc. v. NLRB, 522
U.S. 359, 359 (1998). To determine whether an employer in fact
holds such a belief, we apply a two part test in which the employer
bears the burden of proof. NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 787 (1990). First, we ask whether at the time
of its refusal to recognize a union, the employer had a “reasonable
uncertainty” about whether the union enjoyed the continuing support
of its members. Allentown Mack, 522 U.S. at 367, 371. These
doubts must be supported by objective evidence external to the
employer’s subjective impressions. Id. at 368n.2. Second, we
consider whether the employer’s uncertainty is held in good faith
(i.e., is it “genuine”?). Id. at 371. To be held in good faith
the doubt must arise in a context free of unfair employer labor
practices that could have reasonably tended to contribute to
employee dissatisfaction with its union. United Supermarkets, Inc.
v. NLRB, 862 F.2d 549, 554n.6 (5th Cir. 1989).
The ALJ concluded that Raven had not met the first prong of
this test, concluding it had failed to point to sufficient evidence
14
on which it could have based a good faith doubt of the Union’s
majority status on October 1, 1996. The ALJ also held that the
Raven had failed to demonstrate that its doubts were held in good
faith, as they were reached in the context of wide ranging unfair
labor practices that undermined Union support among employees. We
review these determinations under the substantial evidence
standard. Allentown Mack, 522 U.S. at 366. Put another way, we
must consider whether a reasonable fact-finder could have found
that Raven lacked a “genuine, reasonable uncertainty” about the
Union’s majority status. Id. at 367. We conclude that a
reasonable fact-finder could make such a determination.
First, we agree with the ALJ that Raven has failed to point to
sufficient evidence on which it could have based a good faith
belief that the Union lacked majority status in October 1996. In
its brief Raven cites five pieces of evidence that it relied upon
to question the Union’s majority. It noted: (1) lack of real
efforts by the Union to obtain an agreement; (2) the Union’s
inability or refusal to formulate proposals to break the impasse;
(3) Union inactivity from January to September 1996, including the
failure of the Union to provide Raven with a list of stewards; (4)
substantial workforce turnover from the certification of the Union
in December 1992 to October 1996; and (5) a rumor that a
decertification petition was circulated by an employee in January
or February 1996.
Raven’s actions were principally the reason for the Union’s
15
inability to formulate proposals that resulted in an agreement. By
refusing to give the Union the materials it requested in its
September 20 letter, Raven denied the Union the information it
needed to formulate new proposals. As for the remaining evidence,
after considering it as a whole we believe that a reasonable fact
finder could conclude that Raven did not have “reasonable
uncertainty” as to the Union’s status. Contrary to Raven’s claims,
there was at least some activity by the Union of which petitioner
was aware in 1996, including the election of Kenneth Forge as Union
steward. The workforce turnover that Raven notes was insufficient
to establish good faith doubt of majority status, unless there was
some reason to believe that the new workers were less likely to
support the Union. NLRB v. A.W. Thompson, Inc., 525 F.2d 870, 871-
72 (5th Cir. 1976). Raven offers no evidence to support such a
conclusion. And Raven’s information concerning the decertification
petition was a scant rumor at best. Raven made no attempt to
substantiate the hearsay information until September 1997, nearly
a year after the October 1, 1996 unilateral changes.
Unsubstantiated rumors of a decertification petition, even combined
with workforce turnover and limited activity by the Union over a 9
month span, do not constitute sufficient grounds for reasonable
uncertainty over the Union’s majority status. Cf. Allied Indus.
Workers v. NLRB, 476 F.2d 868, 881-82 (D.C. Cir. 1973) (noting that
“naked information” regarding the filing of a decertification
petition without information regarding the number of signatories is
16
insufficient to create good faith doubt of union majority status,
even with additional evidence present).
Even assuming arguendo that Raven had reasonable uncertainty
about the Union’s majority status, we agree with the NLRB’s
conclusion that this belief was not held in good faith. Raven did
not inform the Union that it doubted its majority status until July
1997, nine months after it made the October 1, 1996 changes
unilaterally. Given this time lag, Raven’s claim that it genuinely
doubted the Union’s majority status in October 1996 appears more as
a post hoc rationalization for unilateral action, than a real
reflection of its beliefs. Moreover, the doubts Raven claimed to
have had on October 1, 1996 were rendered suspect by its refusal of
the Union’s September 20, 1996 request for information necessary or
useful to the formulation of bargaining proposals. Raven’s
unlawful refusal of information itself threatened to undermine
support for the Union among workers by rendering futile the Union’s
attempts to formulate a new bargaining proposal. It is exactly
this kind of coercive anti-union employer practice that we have
previously held prevents an employer from establishing good faith
doubt as to a union’s majority status. United Supermarkets, 862
F.2d at 553n.6.
Thus, the NLRB’s determination that Raven lacked good faith
doubt as to the Union’s majority status entitling it to act
unilaterally in making the October changes is supported by
substantial evidence on the record. We therefore conclude the NLRB
17
did not err in finding that Raven’s unilateral October 1, 1996
changes constituted an unfair labor practice.
D. Backpay Remedy
In its final ground of error Raven argues that even if it
acted improperly in its October 1 changes, the NLRB erred in
ordering backpay for the affected workers, or at the least in using
the F.W. Woolworth, 90 N.L.R.B. 289 (1950), method of backpay
calculation rather than the Ogle Protection Services, 183 N.L.R.B.
682 (1970), method. We find neither argument persuasive.
Raven claims the October 1 layoffs could not have been avoided
through bargaining with the Union because the government required
the company to take the actions in question in order to cut labor
costs to meet the demands of a new contract. “ [ A ] b a c k p a y o r
restitution order will not be enforced where the result of the
enforcement would be to put the worker in better position than he
would have been without the violation.” Gulf States Mfg., 704 F.2d
at 1400-01. This rule applies where a company proves, “layoffs
would have occurred when and as they did even if there had been
bargaining.” Id.
Unfortunately for Raven it never made this argument to the ALJ
or the NLRB. Therefore, this court lacks jurisdiction, absent
extraordinary circumstances, to consider this argument on appeal.
Detroit Edison Co. v. NLRB, 440 U.S. 301, 311n.10 (1979) (“[NLRA]
Section 10(e) precludes a reviewing court from considering an
18
objection that was not urged before the Board.”). Raven argues
that because it lacked notice of the classification issue before
the close of evidence, it lacked the opportunity to make this
argument to the ALJ. As we noted above, however, not only was
Raven on notice that the NLRB found the October 1 changes
problematic, but it was given adequate opportunity to respond to
the charge before the close of evidence. Under such circumstances,
no extraordinary explanation for failure to exhaust this argument
exists.
Raven next argues that the NLRB erred when it granted the
General Counsel’s Motion to Reconsider its holding as to the
appropriate back pay computation method to be used in this case.
Raven urges this court to find that the motion, filed as a § 102.49
Motion for Clarification or Modification, was actually a Motion for
Reconsideration and thus was not timely filed under Section
102.48(d) of the Board’s Rules and Regulations.12
Section 102.48(d)(2) of the Board’s Rules and Regulations
provides that a party’s request for reconsideration, rehearing, or
reopening of the record must generally be filed within 28 days of
the Board’s decision. Section 102.49 states:
12
As explained above the ALJ originally recommended backpay be
computed according to the F.W. Woolworth method of backpay
calculation. The NLRB’s original order, filed on June 30, 2000
changed the method of calculation to the method set out in Ogle
Protection Service. The NLRB General Counsel then filed a motion
to clarify or modify its earlier order on May 2, 2001 to return the
backpay computation to the F.W. Woolworth method, which the NLRB
granted.
19
Within the limitations of the provisions of section 10(c)
of the Act, and §§ 102.48, until a transcript of the
record in a case shall have been filed in a court, within
the meaning of section 10 of the Act, the Board may at
any time upon reasonable notice modify or set aside, in
whole or in part, any findings of fact, conclusions of
law, or order made or issued by it. Thereafter, the Board
may proceed pursuant to §§ 102.50, insofar as applicable.
29 C.F.R. § 102.49 (2002) (emphasis added). Raven argues that
because § 102.49 makes no provisions for motions, the General
Counsel’s motion here must have been made pursuant to § 102.48(d).
Cf. NLRB v. Selvin, 527 F.2d 1273, 1276 (9th Cir. 1975) (holding
that motions made by parties to reopen record must be made within
the parameters of § 102.48(d), rather than § 102.49). Because the
motion here was filed 11 months after the original opinion, Raven
reasons that it was untimely under § 102.48(d)(2) and should not
have been considered.
In rejecting this argument the NLRB cited Dorsey Trailers, 322
N.L.R.B. 181 (1996), in which it denied an identical argument.
There the NLRB reasoned that if it had the power under § 102.49 to
modify its order sua sponte any time before the matter was filed
with the circuit court, it could not lose that power simply because
the General Counsel filed a motion for the change that he was not
mandated to file. Cases like Selvin were inapposite, the NLRB
concluded, because they dealt with a party’s attempt to get an
aspect of a decision reconsidered, rather than the General Counsel.
We need not address the merits of Dorsey Trailers because,
assuming arguendo that the General Counsel’s motion was a §
20
102.48(d) motion, it was within the NLRB’s discretion to accept
that motion beyond the 28 day deadline. In NLRB v. U.S.A. Polymer
Corp., 272 F.3d 289, 296 (5th Cir. 2001), we explained that the
NLRB can, at its discretion, disregard the 28 day deadline of §
102.48(d)(2), and consider motions filed after the deadline. Thus,
even if the motion here was filed pursuant to § 102.48(d), the NLRB
was acting within its authority to consider the motion. Raven’s
point of error has no merit.
III. Enforcement Order
The NLRB cross-petitions for enforcement of its order pursuant
to 29 U.S.C. § 160(e). An order issued by the NLRB does not have
the effect of law, and the NLRB has no authority to compel
compliance or punish noncompliance. The NLRB is thus generally
entitled to an enforcement order to bar the continuation or
resumption of unfair labor practices. NLRB v. Mexia Textile Mills,
Inc., 339 U.S. 563, 567-68 (1950).
Except for the objections discussed and denied above, Raven
does not contest the NLRB’s findings. Rather, it argues that
enforcement is not warranted because the uncontested charges are
all moot. The U.S. Supreme Court has recognized that an
enforcement may become moot if a party can show “there is no
reasonable expectation that the wrong will be repeated.” NLRB v.
Raytheon Co., 398 U.S. 25, 27 (1970) (citing NLRB v. Jones &
Laughlin Steele Corp., 331 U.S. 416, 428 (1947), and United States
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v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). Here, Raven makes
two arguments why an enforcement order is moot.
First, it argues that the order is moot pursuant to our
decision in Cagle’s, Inc. v. NLRB,588 F.2d 943 (5th Cir. 1979). In
Cagle’s this court held that an agreement between an employer and
union can be the basis of a conclusion that there is no “reasonable
expectation the wrong will be repeated.” Cagle’s, 588 F.2d at 951.
Raven argues that an agreement between it and the Union made after
the NLRB’s order render all but the direct dealing with employee
charge moot, as the agreement ensures there is no reasonable
expectation that the other transgressions will be repeated. There
is no evidence of such an agreement in the record, however. As
Raven as petitioner bears the burden of introducing evidence that
shows an enforcement order request is moot, NLRB v. CJC Holdings,
Inc., 97 F.3d 114, 116 (5th Cir. 1996), the absence of evidence of
the agreement in the record means its Cagle’s argument fails.
Second, Raven argues that it is in substantial compliance with
the orders, and that the fact that no new complaints have been
filed since 1996, shows it will not violate orders in the future.
However, “compliance with an order of the Board does not render the
cause moot, depriving the Board of its opportunity to secure
enforcement from an appropriate court.” Mexia Textile Mills Inc.,
399 U.S. at 567. Accordingly, Raven’s compliance cannot prevent us
from granting the NLRB’s requested order, and we conclude such an
order is warranted.
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IV. Conclusion
Because we find petitioner Raven Services’ grounds for review
lack merit, its petition for review is DENIED. Cross-petitioner
NLRB’s motion for an enforcement order is GRANTED in full.
PETITION FOR REVIEW DENIED; ENFORCEMENT ORDER GRANTED.
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