Massachusetts Society for the Prevention of Cruelty To Children v. National Labor Relations Board

United States Court of Appeals
For the First Circuit
No. 01-2260
MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, AFL-CIO,
Intervenor.
PETITION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Torruella, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Barry S. Pollack, with whom Macon P. Magee, Kay H. Hodge, and
Stoneman, Chandler & Miller LLP, were on brief, for petitioner,
cross-respondent.
Fred L. Cornnell, Supervisory Attorney, with whom Siobhan M.
Kelly, Attorney, Arthur R. Rosenfeld, General Counsel, John E.
Higgins, Jr., Acting Deputy General Counsel, John H. Ferguson,
Associate General Counsel, and Aileen A. Armstrong, Deputy
Associate General Counsel, were on brief, for respondent, cross-
petitioner.
David R. Rome, with whom Pyle, Rome, Lichten & Ehrenberg,
P.C., was on brief, for intervenor.
August 1, 2002

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TORRUELLA, Circuit Judge. Petitioner Massachusetts
Society for the Prevention of Cruelty to Children ("MSPCC") seeks
review of a decision of the National Labor Relations Board ("NLRB"
or "Board"). In the proceedings below, the Board concluded that
MSPCC committed unfair labor practices under the National Labor
Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 151-169, by failing
to negotiate with the duly elected representative of a bargaining
unit comprising the employees at a single facility of MSPCC's
operations. MSPCC contests, inter alia, the appropriateness of the
unit certified by the Board for purposes of collective bargaining.
Given the deference we show to the Board in such matters, however,
we conclude that the unit determination must be sustained.
Accordingly, we deny MSPCC's petition for review and grant the
Board's cross-petition for enforcement of its order.
I. BACKGROUND
MSPCC is a nonprofit corporation that is engaged in
providing mental health care services, child welfare services, and
behavioral programs to children and families within Massachusetts.
It has an office and a place of business in the Jamaica Plain
section of Boston and maintains approximately thirty other
facilities throughout the state.
On January 22, 2001, the intervenor, Service Employees
International Union, Local 509, AFL-CIO ("Union" or "Local 509"),
filed a petition pursuant to § 9(c) of the Act, 29 U.S.C. § 159(c),
with the First Region of the NLRB. The Union sought to represent
all employees in MSPCC's Jamaica Plain office. MSPCC contested

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1 Section 8(a)(1) of the Act generally bars an employer from
engaging in anti-union coercion, 29 U.S.C. § 158(a)(1), while
§ 8(a)(5) makes it an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his
employees," id. § 158(a)(5).
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representation on the ground that the single location was an
inappropriate bargaining unit. The Regional Director of the NLRB
investigated and, on March 13, 2001, entered a decision approving
the single-facility unit and ordering an election.
On March 23, 2001, MSPCC requested that the Board review
the decision and stay the election. The Board denied the request
on April 4, 2001, and an election was conducted on April 11, 2001.
The tally of ballots showed that the employees at the Jamaica Plain
facility voted in favor of representation by the Union by a margin
of thirty-nine to ten. The Regional Director then issued a
Certificate of Representation on April 23, 2001.
Despite certification of the Union as the collective-
bargaining representative, MSPCC refused to bargain. The Union
then filed an unfair labor practice charge alleging that MSPCC had
violated §§ 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. § 158(a)(1)
& (5).1 The Regional Director issued a complaint, and MSPCC filed
an answer defending its actions on the ground that the bargaining
unit was inappropriate. Instead of first taking the case before an
administrative law judge, the Board's General Counsel moved to
transfer the proceeding directly to the Board for summary judgment.
The Board granted the transfer. In opposition to the General
Counsel's motion for summary judgment, MSPCC argued that the
single-facility bargaining unit was inappropriate. In addition,

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MSPCC argued for the first time that the Union was disqualified
from representing the employees at MSPCC's Jamaica Plain facility
because of a conflict of interest.
The Board issued a Decision and Order granting the
General Counsel's motion for summary judgment. Mass. Soc'y for the
Prevention of Cruelty to Children, 334 N.L.R.B. No. 141 (2001).
The Board upheld the appropriateness of the Regional Director's
bargaining unit determination. Id., slip op. at 1. Furthermore,
the Board found that MSPCC waived the issue of the Union's
disqualifying conflict of interest. Id., slip op. at 1 n.1.
Accordingly, the Board found that MSPCC had committed an unfair
labor practice and ordered it to commence bargaining with the
Union. Id., slip op. at 2-3. MSPCC then filed the instant
petition for review.
II. ANALYSIS
The Board is assigned many functions in furtherance of
its duty to effectuate the policies of the NLRA. Among them is its
responsibility under § 9(c) of the Act to define the composition
and scope of "unit[s] appropriate for the purposes of collective
bargaining." 29 U.S.C. § 159(b). Appropriate bargaining units are
the very building blocks of the federal system of labor relations.
Congress thus expressly directed the Board to exercise its power
under § 9(c) with the purpose of "assur[ing] to employees the
fullest freedom in exercising the rights guaranteed by this
subchapter." Id.

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In this case, MSPCC makes a two-fold challenge to the
Board's rulings concerning its duty to bargain with Local 509.
MSPCC argues first that the Board erred in determining that the
employees at a single facility of MSPCC's multi-facility operations
constitute an appropriate unit for collective bargaining. Second,
MSPCC argues that, in any event, Local 509 suffers from a conflict
of interest that precludes it from representing MSPCC's employees.
We address each of these arguments in turn.
A. Single-facility unit determination
It is now well settled that "the selection of an
appropriate bargaining unit lies largely within the discretion of
the Board, whose decision, 'if not final, is rarely to be
disturbed' . . . ." S. Prairie Constr. Co. v. Local 627, Int'l
Union of Operating Eng'rs, 425 U.S. 800, 805 (1976) (quoting
Packard Motor Co. v. NLRB, 330 U.S. 485, 491 (1947)); see also
Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570, 575 (1st Cir. 1983)
("[T]he Board's unit determinations are rarely disturbed.").
Nonetheless, MSPCC asks us to take the unusual step of upending the
Board's unit determination. We decline to do so.
In making its determination, "[t]he Board is not required
to select the most appropriate unit in a particular factual
setting; it need only select an appropriate unit from the range of
units appropriate under the circumstances." Friendly Ice Cream,
705 F.2d at 574 (emphasis in original). Thus, an employer seeking
to disturb the Board's unit determination cannot merely point to a
more appropriate unit; rather, "the burden of proof is on the

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employer to show that the Board's unit is clearly inappropriate."
Id. (emphasis added).
We review unit determinations only to assure that they
are not "unreasonable, made arbitrarily or capriciously, or
unsupported by substantial evidence." Id.; see also Nightingale
Oil Co. v. NLRB, 905 F.2d 528, 535 (1st Cir. 1990). In recognition
of the Board's expertise in this area, we may affirm the Board's
action, even though we might not have reached the same unit
determination. See Marriott In-Flite Servs. v. NLRB, 652 F.2d 202,
207-08 (1st Cir. 1981).
The critical inquiry in determining the appropriateness
of a proposed unit is whether the employees comprising the unit
share a "community of interest." Friendly Ice Cream, 705 F.2d at
575. When considering the appropriateness of a single-facility
bargaining unit in a multi-facility operation, the Board is also
aided by its policy that a single facility is "presumptively an
appropriate unit for bargaining." Id. (quoting Haag Drug Co., 169
N.L.R.B. 877, 878 (1968)). Once this presumption is invoked, the
employer bears the burden of demonstrating that the single facility
is so effectively merged into a more comprehensive unit, or is so
functionally integrated, that it lacks a separate identity. See
Retail Unif. Serv., Inc., 330 N.L.R.B. No. 44, slip op. at 2
(1999); D & L Transp., Inc., 324 N.L.R.B. 160, 160 (1997). To
determine whether such a strong shared interest between facilities
exists to rebut the single-facility presumption, the Board
considers several factors, with no single one being determinative.

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These factors include: 1) geographic proximity of the facilities in
relation to each other; 2) level of employee interchange between
various facilities; 3) degree of autonomy exercised by the local
managers, especially with respect to labor relations; 4) extent of
union organization; 5) history of collective bargaining; 6) desires
of the affected employees; 7) employer's organizational framework;
and 8) similarity in skills, employee benefits, wages, and hours of
work. See Friendly Ice Cream, 705 F.2d at 576.
Our review is "not for the purpose of weighing the
evidence upon which the Board acted and perhaps to overrule the
exercise of its discretion but to guarantee against arbitrary
action by the Board." May Dep't Stores Co. v. NLRB, 326 U.S. 376,
380 (1945) (citations and internal quotation marks omitted). Thus,
"[w]hile we must assure that the Board fairly and reasonably
considered all relevant factors, the weight assigned by the agency
to each factor it has fairly considered is a matter for it to
determine." Friendly Ice Cream, 795 F.2d at 575 (citations and
internal quotation marks omitted). We turn now to the principal
factors disputed by the parties to determine if they were fairly
and reasonably considered.
1. Geographic proximity. MSPCC has thirty sites
throughout the state, divided into seven regions. The closest
regional office to the Jamaica Plain facility is twenty miles, and
the farthest is ninety-five miles. MSPCC argues that the Regional
Director should have construed this factor in its favor.
Alternatively, MSPCC maintains that, if the factor counts in favor

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of a single-facility unit, the Board should not give it controlling
weight. The Board contends that the distance between the Jamaica
Plain facility and other facilities was correctly weighed in favor
of a single-facility unit.
We see no indication that the Board gave controlling or
undue weight to geographical factors. Moreover, the twenty- to
ninety-five-mile distance between facilities fits comfortably
alongside cases where the Board found geographical proximity to
favor a single-facility unit. See, e.g., Armored, Inc. v. NLRB,
186 F.3d 844, 848 (7th Cir. 1999) (approving single-facility unit
where distance between facilities was approximately one hour);
Staten Island Univ. Hosp. v. NLRB, 24 F.3d 450, 455 (2d Cir. 1994)
(same where distance between two hospitals was eight miles).
2. Employee interchange. MSPCC emphasizes that there
has been interchange between employees at the Jamaica Plain
facility and those from other MSPCC facilities. However, evidence
of such interchange is fairly weak: MSPCC has only identified two
employees from other facilities who work in the Jamaica Plain
facility with any regularity. We therefore see no error in the
Board's decision to tally this factor in favor of a single-facility
unit. See NLRB v. Heartshare Human Servs., Inc., 108 F.3d 467, 471
(2d Cir. 1997) (approving a single-facility unit where there was
"no routine interchange" of employees among facilities).
3. Autonomy of local employer's managers. The Regional
Director concluded that the relative autonomy of local managers at
MSPCC's individual facilities favored the certification of a

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single-facility unit. Although final employment decisions such as
hiring, firing, discipline, and promotion were approved by MSPCC's
central office, the Regional Director found that local managers
also had a significant role in these decisions. The Regional
director also found that the local managers controlled most aspects
of the day-to-day operation of the facility and supervision of
employees.
Although MSPCC assails the Regional Director's decision
to count this factor in favor of a single-facility unit, we detect
no abuse of discretion. Our review of the record confirms that
substantial evidence supports the Regional Director's understanding
of the duties and responsibilities of local managers in MSPCC's
individual facilities.
4. History of collective bargaining. It is undisputed
that there is no prior history of collective bargaining anywhere in
MSPCC's operation. However, the parties disagree over how this
fact should enter into the bargaining-unit calculus. MSPCC argues
that the absence of bargaining history should assist it in
rebutting the single-facility presumption. The Board, on the other
hand, argues that the absence of a bargaining history should weigh
in favor of a single-facility unit.
It is probably most accurate to say that the dearth of
prior bargaining favors neither position in any active sense. See
Heartshare Human Servs., 108 F.3d at 472 (stating that absence of
previous bargaining made that factor "irrelevant"). Nonetheless,
it was certainly within the agency's discretion to conclude that

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the factor created no impediment to establishing a single-facility
unit. And, based on our reading of the Regional Director's
decision, we are convinced that no abuse of discretion occurred in
taking bargaining history into account.
5. Organizational framework. The Regional Director
found that MSPCC maintained a high degree of central control with
respect to its operations and labor relations. Such control is
evidenced by MSPCC's decision to maintain uniform job descriptions,
pay structure, and benefits throughout its facilities. However,
the Regional Director noted that integration of MSPCC's operations
was limited by the fact that each facility provides essentially the
same services, thus eliminating the need for clients to progress
from one facility to another.
Overall, the Regional Director construed this factor in
MSPCC's favor. Nevertheless, MSPCC complains that the factor was
not given the weight it deserved and that the strong showing of an
integrated organizational framework should have rebutted the
single-facility presumption. We find no error in the Regional
Director's appraisal of this factor. As we noted earlier, our task
is only to assure that each factor was "fairly and reasonably
considered . . . [;] the weight assigned by the agency to each
factor . . . is a matter for [the agency] to determine." Friendly
Ice Cream, 795 F.2d at 575. The Regional Director considered this
factor; he simply did not find it dispositive when placed in
context.

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2 MSPCC also argues that the Board failed to heed Congress's
admonition that "[d]ue consideration should be given by the Board
to preventing proliferation of bargaining units in the health care
industry." H.R. Rep. No. 93-1051, at 6 (1974), reprinted in 1974
U.S.C.C.A.N. 3946, 3950. However, MSPCC seems to mistake the
object of Congress's concern. The reference in the House Report to
the proliferation of bargaining units in the health care industry
was directed at some of the Board's determinations regarding unit
composition (i.e., the types of employees to be included in a
bargaining unit). See Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304,
309 n.4 (9th Cir. 1996). The instant dispute, by contrast,
concerns the Board's determination of unit scope (i.e., the extent
to which the unit will encompass separate facilities of a single
employer). Moreover, this admonition by Congress does not have the
force of law. See Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 616
(1991). Instead, the statement is best understood as "a form of
notice to the Board that if it did not give appropriate
consideration to the problem of proliferation in this industry,
Congress might respond with a legislative remedy." Id. at 617.
"If Congress believes that the Board has not given 'due
consideration' to the issue, Congress may fashion an appropriate
response." Id.
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6. Other factors. Where an employer is engaged in the
health care industry, the Board will also weigh evidence of "an
increased risk of work disruption or other adverse consequences."
Manor Healthcare Corp., 285 N.L.R.B. 224, 226 (1987). MSPCC argues
that the possibility that patient care could be interrupted by
bargaining on a single-facility basis was not considered by the
Board and that such a factor should have counted strongly in
MSPCC's favor.2 However, we see no evidence presented to the Board
that disruption would be likely to occur. Without such evidence,
we will not require the Board to take into consideration mere
unsupported speculation that a single-facility unit might interfere
with patient care. See Staten Island Univ. Hosp., 24 F.3d at 457
(rejecting employer's unsubstantiated claim that wage "whipsawing"
would jeopardize patient care).

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7. Evaluation of the totality of factors. In his
decision establishing the single-facility as an appropriate unit,
the Regional Director summarized his evaluation of the various
factors as follows:
[A]lthough [MSPCC] has established a high
degree of centralization in regards to its
operations and labor relations, the duties and
responsibilities of its local managers in each
Region, together with the almost total lack of
employee interchange and transfers, the
distances of the various facilities, and the
absence of a bargaining history on a multi-
employer basis, prevent [MSPCC] from rebutting
the single-location presumption.
Despite MSPCC's protestations to the contrary, we see no
reason to disturb the unit determination. The Board has applied
its single-facility presumption to health care facilities with
court approval. See, e.g., Heartshare Human Servs., 108 F.3d at
471; Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 310 (9th Cir. 1996).
Moreover, all of the relevant factors were fairly and reasonably
considered. The fact that certain factors favored MSPCC's position
is by no means dispositive. Rather, "a strong showing on just a
few of the factors may suffice to sustain the Board's decision,
which is entitled to considerable deference on such matters."
Heartshare Human Servs., 108 F.3d at 472. We therefore reject
MSPCC's challenge to the Board's unit determination.
B. Conflict-of-interest
MSPCC also contends that it had no duty to engage in
collective bargaining because Local 509 has a conflict of interest
that disqualifies it from representing employees of MSPCC. See

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CMT, Inc., 333 N.L.R.B. No. 151, slip op. at 1 (2001) ("It is well
settled that a union may not represent the employees of an employer
if a conflict of interest exists on the part of the union such that
good-faith collective bargaining between the union and the employer
could be jeopardized."). In particular, MSPCC claims that the
Union's disqualifying conflict arises from its efforts, on behalf
of certain public-employee members it represents, to limit the
state's ability to sub-contract work to private entities such as
MSPCC.
As this court has stated:
There is a strong public policy favoring the
free choice of a bargaining agent by
employees. The choice is not to be lightly
frustrated. There is a considerable burden on
the nonconsenting employer, in such a
situation as this, to come forward with a
showing that danger of a conflict of interest
interfering with the collective-bargaining
process is clear and present.
NLRB v. David Buttrick Co., 399 F.2d 505, 507 (1st Cir. 1968). In
order to satisfy this heavy burden, an employer must show that the
alleged conflict of interest is "proximate and substantial, not
remote and speculative." Greyhound Lines, Inc., 319 N.L.R.B. 554,
557 (1995).
MSPCC raised the conflict-of-interest issue for the first
time in the unfair labor practice proceedings following its refusal
to bargain with the newly elected representative. Reasoning that
the employer could have raised the issue in the prior
representation proceeding, the Board concluded that the conflict
argument had been forfeited. MSPCC, 334 N.L.R.B. No. 141, slip op.

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at 1 n.1 (citing Colonial Garden Care Ctr., 268 N.L.R.B. 613,614
n.1 (1984)). We agree with the Board and find that MSPCC's failure
to seasonably raise the issue precludes review in these proceedings
as well.
"[C]ourts should not topple over administrative decisions
unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its practice."
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952); see also N. Wind, Inc. v. Daley, 200 F.3d 13, 18 (1st Cir.
1999) (noting that "this rule preserves judicial economy, agency
autonomy, and accuracy of result by requiring full development of
issues in the administrative setting to obtain judicial review."
(citations and internal quotation marks omitted)). In this vein,
the Board has established a reasonable rule precluding review of
issues raised for the first time in unfair labor practice cases
that could have otherwise been raised in an earlier representation
proceeding. See 29 C.F.R. § 102.67(d) & (f) (1998); see also
Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141-42 (1971);
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161-62 (1941).
In the absence of newly discovered evidence or special
circumstances, we will therefore enforce the Board's rule without
hesitation. See Fall River Sav. Bank v. NLRB, 649 F.2d 50, 58-59
(1st Cir. 1981); S.D. Warren Co. v. NLRB, 353 F.2d 494, 497 (1st
Cir. 1965).
MSPCC maintains that the Board's waiver is inapplicable
because the conflict-of-interest issue did not become "ripe" as a

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3 Notably, MSPCC's briefs give the misleading impression that the
quoted language is drawn from the majority opinion of the en banc
court, rather than the dissent. See Petitioner's Br. at 35;
Petitioner's Reply Br. at 3. There is certainly no harm in citing
to dissenting opinions from our sister circuits, as we are free to
look to them for their persuasive value. However, we generally
expect litigants before this court to accurately depict the
opinions on which they rely.
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matter of law until the Union was actually elected by the employees
and certified by the Regional Director. In support of this
argument, MSPCC relies on the following dicta from a dissenting
opinion from the Fourth Circuit: "Indeed, it is certification
itself which creates the union’s duty to avoid any conflict with
its bargaining duties." NLRB v. Annapolis Emerg. Hosp. Ass'n, 561
F.2d 524, 533 (4th Cir. 1977) (en banc) (Hall, J., dissenting).3
MSPCC's contention flies in the face of both experience
and logic. The Board has repeatedly examined conflict-of-interest
challenges that were raised in the first instance during
representation proceedings. See, e.g., CMT, 333 N.L.R.B. No. 151,
slip op. at 2 (addressing employer's conflict-of-interest claim
raised in a representation proceeding); Sierra Vista Hosp., Inc.,
241 N.L.R.B. 631, 635 (1979) (requiring the employer to argue
union's alleged conflict of interest at the representation phase).
Moreover, at the representation phase, whether a labor organization
is legally capable of representing a proposed unit of employees is
more than an abstract or academic question. The Regional
Director's decision on the issue will determine whether employees
may vote for a particular labor organization or, indeed, whether an
election may be held at all. We therefore conclude that the

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Union's alleged conflict of interest was "ripe" for review at the
representation phase and that MSPCC, by failing to raise the issue
at that time, forfeited its right to assert the claim during the
unfair labor practice proceedings.
As a fallback position, MSPCC argues that the conflict-
of-interest issue should be remanded for consideration by the Board
in light of new evidence, unavailable at the time of the Board
proceedings, that supports its claim. Section 10(e) of the Act
provides, in relevant part:
If either party shall apply to the court for
leave to adduce additional evidence and shall
show to the satisfaction of the court that
such additional evidence is material and that
there were reasonable grounds for the failure
to adduce such evidence in the hearing before
the Board . . . , the court may order such
additional evidence to be taken before the
Board . . . , and to be made a part of the
record.
29 U.S.C. § 160(e). Because we find MSPCC's claim of a
disqualifying conflict to be entirely conjectural (even in light of
its newly discovered evidence), we decline to take such action.
The evidence of a disqualifying conflict of interest
presented to the Board consisted of: 1) reprints of news stories
from 1991-1997 describing objections by the Union to the
privatization of services then provided by state employees; and 2)
legislation submitted on behalf of the Massachusetts AFL-CIO -- of
which the Union is a member -- for the 2001 legislative session,
that would require private contractors receiving state contracts to
hire laid-off state employees whose jobs were affected by the
privatization prior to the private contractor hiring or

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transferring other employees to carry out the work. Although never
presented by MSPCC in the representation proceeding, both pieces of
evidence were available at that time. Even the legislation from
2001 should have come as no surprise to MSPCC; identical bills were
filed by the Massachusetts AFL-CIO in 1997 and 1999.
The only truly "new" evidence MSPCC brings to the table
is a recent collective-bargaining proposal made to the Commonwealth
of Massachusetts by an alliance of labor organizations (including
the Union) representing state employees. The contract proposal
calls for limitations on subcontracting and for the creation of a
committee authorized to review and recommend decisions concerning
contracting-out. The final contract language, also presented by
MSPCC as new evidence, authorizes a committee with the power to
discuss and make suggestions concerning contracted services. In
our view, however, this newly discovered evidence is merely
duplicative of information that was already in MSPCC's hands --
namely, that labor organizations whose membership includes state
employees were concerned about the contracting-out of public
services to private entities.
"As a general proposition, the 'conflict of interest'
doctrine has not been applied to restrict employees from selecting
a bargaining representative solely because the labor organization
represents both employees of an employer and the employees of a
subcontractor doing business with their employer." CMT, 333
N.L.R.B. No. 151, slip op. at 2. And in this case, neither the
evidence presented to the Board below nor the evidence adduced for

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the first time before this court persuades us that we should
deviate from the Board's general rule. Indeed, viewed in its
totality, MSPCC's conflict-of-interest evidence paints a fairly
mundane portrait of a labor organization that represents both
employees of an employer and the employees of a subcontractor.
While umbrella organizations to which the Union belongs have
expressed opposition to the continuing contracting-out of work
performed by public employees, there is no indication -- much less
a clear and present danger -- that such action jeopardizes Local
509's ability to engage in good faith bargaining with MSPCC.
To be sure, there are cases where a labor organization
has actively pursued the elimination of all subcontracting and
effectively sought to extinguish the bargaining unit comprising the
subcontractor’s employees. In such cases, the Board has rightly
found that revocation of the labor organization's certification is
appropriate. See, e.g., Valley W. Welding Co., 265 N.L.R.B. 1597
(1982); Catalytic Indus. Maint. Co., 209 N.L.R.B. 641 (1974). But
the Union's actions in this case are a far cry from such
destructive tactics. Indeed, it is entirely possible that the
Union, having won the representation election, will soften or
abandon its stance on contracting-out. See CMT, 333 N.L.R.B. No.
151, slip op. at 2 (noting that after certification of the union,
its "interest in seeking to remove the subcontracted work may well
cease to exist"). Since we detect no colorable claim of a
disqualifying conflict, any remand based on the supposed new
evidence would be, in our view, futile. See NLRB v. Wyman-Gordon

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Co., 394 U.S. 759, 766-67 n.6 (1969) (admonishing that we should
not convert judicial review of agency action into "a ping-pong
game" where remand would be "an idle and useless formality").
We do not suggest that MSPCC is forever banned from
asserting the alleged conflict of interest. "The Board has
consistently held that it may police its certifications by
amendment, clarification, or even revocation." 1 The Developing
Labor Law 447 (Patrick Hardin ed., 3d ed. 1992). If at some point
MSPCC discovers credible evidence of a disqualifying conflict of
interest on the part of Local 509, it is free to move the Board for
revocation of the Union's certification. At this juncture,
however, MSPCC must abide by the wishes expressed by a majority of
employees at the Jamaica Plain facility to be represented by the
Union for purposes of collective bargaining.
III. CONCLUSION
For the reasons stated above, we deny MSPCC's petition
for review and grant the Board's cross-petition for enforcement.
Costs are taxed against the petitioner. See Fed. R. App. P.
39(a)(2).

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