Union De La Construccion De Concreto Y Equipo Pesado v. National Labor Relations Board

Citations: 10 F.3d 14; 144 L.R.R.M. (BNA) 2681; 1993 U.S. App. LEXIS 29440; 1993 WL 456429Docket: 92-2384

Court: Court of Appeals for the First Circuit; November 11, 1993; Federal Appellate Court

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The case involves the Union de la Construccion de Concreto y Equipo Pesado (the "Construction Workers") challenging a National Labor Relations Board (NLRB) ruling. The NLRB determined that Empresas Inabon, Inc. (the "Company") engaged in an "unfair labor practice" by refusing to negotiate a new contract with the Construction Workers, who had previously represented the Company’s employees. Additionally, the NLRB found that the Congreso de Uniones Industriales de Puerto Rico (the "Industrial Workers") represented the employees after winning a union election. 

The background reveals that in spring 1991, the Construction Workers had a contract set to expire in June. In April, the Industrial Workers requested an election for employees to choose between the two unions, prompting the Company to halt negotiations with the Construction Workers. Following the election, the Construction Workers filed an unfair labor practice complaint, alleging the Company's refusal to bargain biased the election outcome. 

The NLRB consolidated the unfair labor practice case with the representation case, where an Administrative Law Judge ruled that while the Company’s refusal to bargain was an unfair labor practice, it did not affect the election's validity, which the Industrial Workers won. The judge recommended that the Company refrain from similar unfair practices in the future and post notices of compliance but did not mandate bargaining with the Construction Workers, concluding they no longer represented the employees. The court ultimately dismissed the Construction Workers' petition, stating it lacked jurisdiction to review the Board's representation decision.

The Construction Workers appealed the Administrative Law Judge's (ALJ) determinations to the Board, which upheld the ALJ's order and certified the Industrial Workers as the collective bargaining representative for the Company's employees. The Construction Workers are now seeking judicial review of the Board's decision. However, the Board argues that the court lacks the authority to review this matter, as it pertains to union representation, not an unfair labor practice. Judicial review of union representation decisions is restricted under the National Labor Relations Act (NLRA), specifically Section 9, which governs representation determinations, unlike Section 10 that addresses unfair labor practices. 

To challenge a representation decision, affected parties must first engage in conduct that qualifies as an unfair labor practice, leading to a Board ruling on the unfair practice. Only then can they seek judicial review of that ruling, asserting the underlying representation decision was improper. The Construction Workers have not pursued this route but instead attempt to create an analogy by requesting a review of the Board's refusal to issue an order compelling the Company to bargain with them. They argue that the Board would have issued this order had it deemed it necessary, which would indicate the invalidation of the election results favoring the Industrial Workers. The Construction Workers aim to indirectly obtain judicial review of the representation decision by linking it to an unfair labor practice determination, referencing NLRA Section 9(d) that allows for such review when a Board order in an unfair labor practice proceeding is based, in part, on representation proceeding results.

The Construction Workers failed to inform the Board that they wanted to review the scope of the Administrative Law Judge's (ALJ) "unfair labor practice" order. Instead, their objections focused on the ALJ's findings related to the election process and the Region's decision not to block the election despite a pending 8(a)(5) charge. The Board interpreted these objections as an indication that the Construction Workers were satisfied with the "unfair labor practice" results and only sought to contest the "representation" outcomes. Consequently, the Board believed the Construction Workers conceded that if the election was valid, a bargaining order was unnecessary. Since the Construction Workers did not raise their objection to the "unfair labor practice" order before the Board, it could not be considered on appeal, in accordance with NLRA Sec. 10(e). The Construction Workers did not cite any special circumstances to excuse their omission nor did they present a strong claim on the merits. As a result, the petition for review was dismissed.