National Labor Relations Board v. U.S.A. Polymer Corp.

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

-2-
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).

-3-
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

-4-
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.

-5-
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).

-6-
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

-7-
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).

-8-
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).

-9-
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

-10-
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.

-11-
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

-12-
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

-13-
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

-14-
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.

-15-