Teamsters Local 628 v. NLRB , 88 F. App'x 507 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-30-2004
Teamsters Local 628 v. NLRB
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2428
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2428
TEAMSTERS LOCAL 628, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL-CIO,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
Petition for Review of a Final Order
of the National Labor Relations Board
(NLRB Cases 4-CA-27669, 4-CA-27913 and 4-CB-08242)
Submitted Under Third Circuit LAR 34.1(a)
January 16, 2004
Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.
(Filed: January 30, 2004 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Before us is a petition for review of a final order of the National Labor Relations
Board (“NLRB”) denying a union’s request for review of a compliance determination in
connection with the resolution of an unfair labor practice proceeding. As we write for
the parties, and they are all too aware of the proceedings to date, we will not recount the
underlying facts except as necessary to our ruling. The NLRB had jurisdiction over the
underlying unfair labor practice proceeding pursuant to 29 U.S.C. §§ 151 and 160(a). We
have jurisdiction to review a final order of the NLRB under 29 U.S.C. § 160(f). In
reviewing such an order, we review factual findings to determine whether they are
supported by substantial evidence, and we review legal conclusions de novo. 29 U.S.C. §
160(f); NLRB v. Konig, 79 F.3d 354, 357 (3d Cir. 1996). For the reasons that follow, we
will affirm.
In December of 1999, an administrative law judge (“ALJ”) determined that Alliant
Foodservice Inc. (“Alliant”) and Local 1222 of the United Service Employees Union
(“Local 1222”) had violated certain sections of the National Labor Relations Act
(“NLRA”), 29 U.S.C. §§ 151-159, when Alliant made Local 1222 its employees’
exclusive bargaining representative, notwithstanding the fact that the employees who
voted for the union had also signed authorization cards for Teamsters Local 628
(“Teamsters”).
Alliant and Local 1222 had entered into a contract providing employees with a
union-sponsored health care plan that eliminated the need for employees to pay any
premiums or co-payments. In the order requiring the parties to disavow their collective
bargaining relationship, the ALJ specifically provided that “nothing in this order shall
authorize or require the withdrawal or elimination of any . . . benefits or terms and
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conditions of employment that may have been established pursuant to the performance of
the above contract.”
Following this determination, and in an effort to comply with the ALJ’s order,
Alliant ended its participation in the union-sponsored health care plan and established one
under which employees were required to pay a portion of the premiums. Teamsters then
filed an unfair labor practices charge against Alliant, contending that Alliant had violated
the ALJ’s order by instituting its own health care plan that required the employees to
contribute funds.
Thereafter, based upon conversations with the NLRB’s regional office, Teamsters
decided to remove that charge when it filed an amended unfair labor practice charge
against Alliant. The Regional Director for Region Four subsequently issued a complaint
that contained no allegations with respect to the issue of health insurance premiums.
In August of 2001, the NLRB issued an opinion in which it determined that Alliant
had violated certain sections of the NLRA by recognizing Local 1222, and by entering
into the collective bargaining agreement with it, at a time when it did not represent a
majority of Alliant’s employees. The NLRB ordered Alliant and Local 1222 to disavow
their collective bargaining relationship. Further, the NLRB stated that with respect to any
benefits that may have been established pursuant to the performance of the above
contract, the NLRB did not “require the withdrawal or elimination” of such benefits. The
order did not contain the stronger language used by the ALJ, namely, that the company
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and Alliant could not “authorize or require the withdrawal or elimination” of such
benefits.
Teamsters comes before us petitioning for review of the NLRB’s final order,
which followed a further set of proceedings concerning compliance with the August 2001
order. It complains of Region Four’s failure to issue a complaint regarding the
withdrawal of benefits secured by the contract negotiated between Alliant and Local
1222, noting that it is the “failure of these parties to honestly and candidly address this
fact” that culminated in the NLRB’s April 1, 2003 order, the final order in this matter.
It is apparent to us that the reason the issue urged by Teamsters was not presented
to the NLRB as the basis for an unfair labor practice charge was that Teamsters, when it
filed the amended unfair labor practice charge in November of 2000, deleted the charge,
effectively withdrawing it. Thus, Teamsters is either contending that Region Four should
have, on its own, presented such a charge, or that the NLRB, sua sponte, should have
included provisions of the ALJ’s order dealing with this issue as part of its own order.
We conclude that neither of these approaches will succeed.
As to the first approach, the exercise by the Regional Director of prosecutorial
discretion is just that: discretion, conferred by statute, to bring a charge. 29 U.S.C. §
160(b). We have no authority to disturb or countermand the exercise, or non-exercise, of
that discretion. Newspaper Guild, Erie Newspaper Guild, Local 187 v. NLRB, 489 F.2d
416, 426 (3d Cir. 1973) (holding that federal courts are “without power to interfere” with
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the General Counsel’s decision not to issue a complaint or not to include a particular
charge in a complaint). The second possible way of framing the issue is similarly
unavailing because, if the charge was not presented to the NLRB for its consideration, it
did not have any obligation or duty to consider it or to include this provision in its
ultimate ruling. To the extent that the petitioner seeks a review of the NLRB’s order
based upon this alleged defect, we find that petitioner effectively waived any argument
regarding this issue by not raising it until now. 29 U.S.C. § 160(e) (“No objection that
has not been urged before the Board . . . shall be considered by the court . . . .”); see
Woelke & Ramiro Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982) (stating that a
party’s failure to petition the board for reconsideration of an issue “prevents consideration
of the question by the courts”). As we see it, Teamsters is not actually challenging the
order, but rather is complaining about its own failure to preserve this issue.
Accordingly, the petition for review will be DENIED.
TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell
Circuit Judge
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