IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60173
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
USA POLYMER CORP,
Respondent.
Petition for Enforcement of the
Order of the National Labor Relations Board
November 6, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Acting on charges filed by the International Ladies Garment
Workers’ Union (ILGWU), the General Counsel of the National Labor
Relations Board (the NLRB or the Board) issued a complaint against
U.S.A. Polymer Corp. (Polymer) on March 21, 1995. The complaint
alleged violations of 29 U.S.C. § 158 (a)(1) and (3), and
eventually was consolidated with a subsequent complaint alleging
violations of section 158(a)(4), (3), and (1). An administrative
law judge (ALJ) issued a decision on March 25, 1996, finding merit
in most of the allegations. Polymer filed timely exceptions. The
NLRB issued a decision affirming the ALJ’s conclusions on August
24, 1999. Polymer filed a motion for reconsideration, to reopen
the record, and for rehearing dated September 24, 1999, which was
received by NLRB on September 29. On October 5, the Associate
Executive Secretary of the NLRB denied the motion as untimely. On
October 8, Polymer filed a supplemental motion for reconsideration,
reopening, and rehearing, which the Board denied on November 23.
In March 2000 the Board filed with this court its application for
enforcement of its August 24, 1999 order. 29 U.S.C. § 160(e).
Facts and Proceedings Below
Polymer operates a plastics recycling facility in Houston,
Texas. Its business is to recycle used plastic containers into
plastic pellets that are then sold as raw material to
manufacturers. Polymer employed sixty-four people at its
inception, and reached a peak workforce of ninety-two in February
1994. At the time of the events that were the subject of the
instant complaint, Polymer employed sixty-eight non-supervisory
employees, but since then the work force has dwindled to thirty-
six.
In the fall of 1994, some of Polymer’s employees contacted the
ILGWU. In early October, the ILGWU began a campaign to unionize
Polymer’s workers. In January 1995, Polymer laid off twenty-nine
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employees, and then another ten in July. Since 1995, the workforce
of Polymer has remained at around thirty-five employees.
The ILGWU filed a charge with the NLRB, alleging various
unfair labor practices, including charges that the layoffs were
motivated by a desire to quash the unionization campaign. The
General Counsel of the NLRB issued a complaint against Polymer on
March 21, 1995. The complaint was heard before an ALJ from June 5,
1995 through June 21, 1995, followed by a second two-day hearing in
October. The ALJ issued his decision on March 25, 1996, and found
that Polymer had committed numerous violations of the NRLA. The
ALJ recommended the imposition of a bargaining order under NLRB v.
Gissel Packing Co., 89 S.Ct. 1918 (1969). Polymer timely appealed
the ALJ's decision to the Board.
For some unexplained reason, the NLRB did not issue its
decision and order until August 24, 1999, more than three years
after the ALJ's decision. The Board affirmed the ALJ’s findings
that, inter alia, “[Polymer] unlawfully threatened employees with
more onerous working conditions, physical harm, layoff, discharge
and other unspecified reprisals for engaging in union and protected
concerted activity.” The Board also affirmed the ALJ’s findings
that Polymer made good on its threats by means of the January and
July 1995 layoffs. Id. The ALJ found, and the Board affirmed,
that Polymer had violated several sections of the National Labor
Relations Act (NLRA). See 29 U.S.C. § 158 (a)(1), (3), and (4).
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The Board agreed with the ALJ that the severity of Polymer’s
conduct required the imposition of a bargaining order under Gissel.
Under the bargaining order, Polymer was directed to bargain with
ILGWU’s successor union, the United Needle Trades, Industrial and
Textile Employees (UNITE).
When the Board’s order issued, Polymer’s original counsel on
this matter had retired, and Polymer was apparently in the process
of finding replacement counsel. Polymer’s new counsel filed a
Motion for Reconsideration and to Reopen the Record with the Board.
The motion is dated September 24, 1999, and was received by the
Board on September 29, 1999. In that motion, Polymer argued that
circumstances had changed since the ALJ’s decision, including the
restructuring of its business, a high turnover rate (only five
employees who were working at the time of the complaint still
worked for Polymer), and the passage of four and one half years.
Polymer asked for reconsideration of the bargaining order in light
of these changed conditions. On October 5, 1999, Polymer received
a letter from the NLRB informing Polymer that the motion for
rehearing was untimely. That same day, Polymer filed a motion
contesting the untimeliness of its original motion. On November
23, 1999, the Board ordered that Polymer’s motion for
reconsideration would not be considered, and that the order would
stand. The Board filed its application for enforcement of its
August 24, 1999 order with this court in March 2000. Polymer now
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contests the enforcement of the order.
Discussion
The Federal Circuit Courts are almost unanimous in holding
that the NLRB must take current conditions into account when it
determines whether to issue a bargaining order under NLRB v. Gissel
Packing Co., 89 S.Ct. 1918 (1969).1 See, e.g., Charlotte
Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996)
(noting that all Circuits except the Ninth require the NLRB to
consider changed circumstances when issuing Gissel bargaining
orders); NLRB v. Cell Agriculture Manuf. Co., 41 F.3d 389, 398-99
(8th Cir. 1994). Relevant changed circumstances include passage of
time and turnover in the workforce. Charlotte, 82 F.3d at 1078.
The Board should at least consider significant turnover and passage
of time when determining whether a bargaining order was
1
Of course, the order may still be appropriate despite the changed
conditions, as illustrated by Chromalloy v. NLRB, 620 F.2d 1120 (5th Cir.
1980). See also Bandag, Inc. v. NLRB, 583 F. 2d 765 (5th Cir. 1978).
The NLRB relies on Chromalloy for the proposition that a Gissel case
should never be remanded to the Board for reconsideration in light of
changed circumstances. This is an incorrect oversimplification. We
held in Chromalloy that while the existence of subsequent events is
relevant, the Board may still decide that a bargaining order is
required, and that the Board need not determine that the actual
sentiment of the majority of the work force favors the union before
issuing a bargaining order. Chromalloy, 620 F.2d at 1131-32. In
Chromalloy, we held that the Board was not required in all cases to
reopen the record for consideration of events occurring between the
ALJ’s decision and the Board’s order. However, the Board’s decision in
Chromalloy was issued five months after the ALJ’s decision; there was
no issue of lengthy delay as in the instant case. Id. at 1123, 1132.
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appropriate.2
However, despite the weight of the law in other Circuits, the
law on this point in the Fifth Circuit is somewhat confused. In
NLRB v. American Cable, 427 F.2d 446 (5th Cir. 1970), this court
held that the Board must consider the current circumstances when
determining whether to issue a bargaining order. Id. at 448-49.
While American Cable was never overruled, in a subsequent opinion
we stated that “in a case not involving a remand to the Board,” the
Court should evaluate the appropriateness of the bargaining order
“as of the date of the unfair labor practice proceedings, not as of
the date when the matter comes before the court.” See NLRB v.
2
Apparently this lesson has been a difficult one to learn for the
NLRB. The D.C. Circuit recently expressed some frustration with the
Board’s repeated refusals to consider current circumstances when issuing
bargaining orders:
We have repeatedly called the Board to task
for its intransigent refusal to accept and act
upon our instructions that the appropriateness of
a bargaining order must be assessed as of the time
it is issued. Nor have we been alone.
Given the changes in its own membership, it
may well be that the Board is devoid of an
institutional memory; but this court is not.
Perhaps it believes it can wear us down; after
more than twenty years, it should have learned
that it cannot. As a consequence of its stubborn
refusal to accept the holdings of virtually every
circuit that has considered the matter, it has
squandered a vast amount of our time as well as
its own and has caused delays in the ultimate
resolution of cases that cannot be laid at the
feet of recalcitrant employers. If the Board
continues to disagree with us, it is of course
free to seek Supreme Court review.
Charlotte, 82 F.3d at 1079 (citations omitted).
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Dadco Fashions, Inc., 632 F.2d 493, 497 n.7 (5th Cir. 1980). This
line of cases is based on J.P. Stevens & Co. v. NLRB, 441 F.2d 514,
525 n.16 (5th Cir. 1971), which did not, in fact, hold that the time
for consideration of current conditions was the time of the unfair
labor practice proceedings. Instead, in J.P. Stevens we held that
the proper time for evaluation of “current circumstances” was the
time at which the Board issued its bargaining order. Id. This
holding was read in NLRB v. Gibson Prod. Co., 494 F.2d 762, 766 n.4
(5th Cir. 1974) to mean that this Court should not remand to update
the record to take into account events subsequent to the Board’s
(not the ALJ’s) action. Id. We went one step further in Dadco,
and held that in a case not involving a remand to the Board, the
Court should evaluate the appropriateness of the bargaining order
as of the date of the unfair labor practice proceedings, not as of
the date when the matter came before the Court. Dadco, 632 F.2d at
497 n. 7. Despite our admittedly confusing line of cases, American
Cable has never been overruled, and, in fact, now represents the
overwhelming majority position among the Circuits on this issue.
Under American Cable the Board must consider evidence of
changed circumstances when it evaluates the appropriateness of a
Gissel bargaining order. If the Board had before it evidence that
circumstances at Polymer's plant were in relevant respects
significantly different from those at the time of the ALJ's
decision recommending a bargaining order the Board erred when it
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refused to take the changes into account in determining whether a
bargaining order should issue. We should not, however, take into
account changes in circumstance that have occurred since the time
of the Board's decision.
The Board's procedural rules permit an employer to submit a
motion to reopen the record after the ALJ's decision but before the
Board has ruled. After the filing of timely exceptions and briefs,
the Board “may decide the matter forthwith upon the record, or
after oral argument, or may reopen the record and receive further
evidence before a member of the Board or other Board agent or
agency, or may make other disposition of the case.” 29 C.F.R. §
102.48(b). Section 102.48(b) grants the NLRB wide discretion in
the manner in which it deals with appeals from decisions of the ALJ
and permits the Board to entertain motions to reopen the record in
order to receive evidence of changed circumstances. At oral
argument, both Polymer and the NLRB agreed that the Board's
procedural rules would have permitted Polymer to file a motion to
reopen or update the record prior to the Board's decision.3
Although there is no clear procedural vehicle for such a motion, we
agree with the parties' interpretation of the Board's regulations.
Polymer could have submitted a motion to update the record at any
3
Employers in other cases have moved to reopen the record in
the time between the ALJ's order and the decision of the Board.
See, e.g., Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398, 401
(5th Cir. 1991).
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time before the Board's decision, but made no such motion until a
month after that decision.
The NLRB denied Polymer’s motion for reconsideration and
reopening because, according to its order, it had no discretion to
allow filings after the twenty-eight day time limit imposed by 29
C.F.R. § 102.48. Polymer argues that the NLRB had discretion under
29 C.F.R. § 102.48(d)(2) to consider the late motion.4 The Board
4
§ 102.48(d) reads in pertinent part:
(1) A party to a proceeding before the Board
may, because of extraordinary circumstances,
move for reconsideration, rehearing, or
reopening of the record after the Board
decision or order. A motion for
reconsideration shall state with particularity
the material error claimed and with respect to
any finding of material fact shall specify the
page of the record relied on. A motion for
rehearing shall specify the error alleged to
require a hearing de novo and the prejudice to
the movant alleged to result from such error.
A motion to reopen the record shall state
briefly the additional evidence sought to be
adduced, why it was not presented previously,
and that, if adduced and credited, it would
require a different result. Only newly
discovered evidence, evidence which has become
available only since the close of the hearing,
or evidence which the Board believes should
have been taken at the hearing will be taken
at any further hearing.
(2) Any motion pursuant to this section shall
be filed within 28 days, or such further
period as the Board may allow, after the
service of the Board's decision or order,
except that a motion for leave to adduce
additional evidence shall be filed promptly on
discovery of such evidence. Copies of any
request for an extension of time shall be
served promptly on the other parties.
29 C.F.R. § 102.48(d).
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now takes the position, as it stated in its order, that the
provision allowing late filings refers only to the Board’s ability
to allow for extensions of time when requests for such extensions
are timely filed.
In Camvac v. NLRB, 877 F.2d 62 (6th Cir. 1989) (unpublished),
the Sixth Circuit faced a case with an almost identical procedural
history. As in the present case, in Camvac there was a long delay
between the ALJ’s original order and the Board’s decision, and
Camvac filed its motion for reconsideration three weeks after the
twenty-eight day period allowed by section 102.48. The Sixth
Circuit held that section 102.48 specifically allowed the Board to
accept motions beyond the twenty-eight day period, and that the
Board’s failure to accept the “untimely” motion was an abuse of
discretion.
Although Camvac was an unpublished opinion, we agree with the
Sixth Circuit that section 102.48 grants the NLRB discretion to
entertain motions for rehearing after the twenty-eight day period
has expired. The NLRB argues that section 102.48 simply allows
the Board to extend the time for filing motions upon receipt of a
timely motion for an extension. However, this argument is undercut
by the fact that section 102.48 specifically provides that evidence
that has become available “since the close of the hearing” can be
accepted if it is filed promptly upon discovery. 29 C.F.R. §
102.48(d)(1). Still, section 102.48 certainly does not command the
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Board to accept late filings–the treatment of those filings is
within the discretion of the Board.
Polymer also argues that the Board had discretion to accept
its filing under 29 C.F.R. § 102.111(c). After initially stating
that it had no discretion, the Board (in its order denying the
motions for reconsideration) thereafter goes on to hold that
section 102.111(c) governs acceptance of late filings, and that
section 102.111(c) allows the Board to consider late filings “upon
good cause shown based on excusable neglect and when no undue
prejudice would result” and makes specific provision for acceptance
of late filings. 29 C.F.R. § 102.111(c). The Board found that
Polymer’s having to hire a new lawyer in the time between the order
and the due date did not constitute excusable neglect and that
therefore the requests for rehearing and reopening were denied.
Although the amount of discretion that the Board has to accept late
filings is somewhat unclear, it is clear that the Board does
possess at least some discretion under both section 102.48(d)5 and
section 102.111(c). The Board’s action in finding lack of good
cause based on excusable neglect is reviewed for abuse of
discretion. See, e.g., Hospital Del Maestro v. N.L.R.B., 263 F.3d
173, 175 (1st Cir. 2001).
Under either provision we cannot say that the Board’s decision
5
We see no reason that a party that files an untimely motion under
§ 102.48(d) would not also have to demonstrate excusable neglect.
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to deny Polymer's untimely motion for reconsideration was an abuse
of discretion, even thought the Board had taken an extraordinary
amount of time to issue its merits decision in this case. It is
not the Board's responsibility to continually update the factual
picture that the parties have provided. While the Board must
consider properly presented or tendered evidence of materially
changed relevant circumstances in bargaining order cases, we can
see no reason why the Board itself should be required to gather
evidence. The party that seeks to benefit from demonstrating a
change of circumstances bears the burden of timely providing the
Board with evidence of those changes. The Board is entitled to
assume, in the face of the parties' silence, that the facts as
initially presented continue to adequately describe the employer's
workforce.
The Board's delay does not excuse Polymer's failure to timely
provide the evidence it seeks to introduce. Even though Polymer
was in the process of hiring a new lawyer at the time of the
Board's decision, this does not require the Board to excuse
Polymer's failure to file even a request for an extension of time
within the twenty-eight day period. And, Polymer's acquisition of
an attorney after the decision does not require the Board to excuse
its failure to move to reopen the record prior to the Board's
decision. There is no indication that any of the changes in
circumstance that Polymer claims invalidate the bargaining order
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occurred immediately prior to the Board's decision. Instead, those
changes are alleged to have occurred gradually, over a period of
years. A party must be given a reasonable amount of time to file
a motion to reopen the record after the events that change the
party's circumstances. Had a sudden change in Polymer's business
or workforce occurred only a few months before the Board's
decision, perhaps their failure to update the Board before the
decision would be excusable. However, there is no indication that
this is the case. Polymer appears to have made a conscious
decision to wait until after the Board's decision to inform the
Board of the significant changes that had taken place in its
workforce. The Board's refusal to accept Polymer's untimely motion
was not an abuse of discretion.
Polymer also challenges the substance of the Board's decision
approving the Gissel bargaining order. Polymer claims that the
Board's decision is unsupported by the record. The Board should
have evaluated the propriety of the Gissel order using the most
current set of facts properly before it. Since Polymer's evidence
of changed circumstances was not properly before the Board, the
most current set of facts was the evidence presented to the ALJ.
The NLRB’s findings of fact, if not influenced by an erroneous view
of the law, are conclusive if supported by substantial evidence on
the record considered in its entirety. Texas Petrochemicals v.
NLRB, 923 F.2d 398 (5th Cir. 1991). A reviewing court should not
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re-evaluate the credibility of witnesses, re-weigh the evidence, or
reject reasonable Board inferences simply because other inferences
might also have reasonably been drawn. NLRB v. Adco Electric,
Inc., 6 F.3d 1110, 1115 (5th Cir. 1993).
The imposition of a bargaining order is an extraordinary
remedy, which should be issued upon a determination “that the
possibility of erasing the effects of past practices and of
ensuring a fair election ... by the use of traditional remedies,
though present, is slight and that employee sentiment ... would, on
balance, be better protected by a bargaining order ....” Gissel,
89 S.Ct. at 1940. Upon review of the record in this case, we find
that substantial evidence on the record as a whole supports the
Board's conclusion that Polymer threatened and laid off a sizeable
number of its workers due to union activity at its Houston plant.
On the basis of the record properly before it, the Board did not
abuse its discretion when it issued the bargaining order proposed
by the ALJ.
Conclusion
The NLRB must consider current circumstances when issuing a
Gissel bargaining order. But, the NLRB is entitled to treat the
facts as of the ALJ's decision as static until the parties provide
the NLRB with evidence that the relevant circumstances have
materially changed, and Polymer has not timely presented or sought
to present any such evidence. Because the NLRB did not abuse its
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discretion in refusing to accept Polymer's untimely motion, the
NLRB's bargaining order should be evaluated on the basis of the
facts in evidence before the ALJ. Since under those facts the
Board did not abuse its discretion when it imposed the bargaining
order, the order must be enforced.
The Board’s application for enforcement is GRANTED.
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