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implemented by a centralized agency. Specifically, the Court
in New York Telephone Co. stated,
The overriding interest in a uniform, nationwide
interpretation of the federal statute by the centralized
expert agency created by Congress not only demands that
the NLRB’s primary jurisdiction be protected, it also
forecloses overlapping state enforcement of the
prohibitions in § 8 of the Act [29 U.S.C. § 158] . . . as
well as state interference with the exercise of rights
protected by § 7 of the Act [29 U.S.C. § 157].
Id. at 528 (citations and footnotes omitted). See also NLRB
v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940) ("The
control of the election proceedings, and the determination of
the steps necessary to conduct that election fairly were
matters which Congress entrusted to the Board alone.")
Further, we note that the extension of comity to the MERC-
conducted elections involving SLS would appear to be
inconsistent with the Board’s own policy. See Doctor’s
Osteopathic Hosp., 242 NLRB 447, 449 (1979), aff’d 624
F.2d 1089 (3d Cir. 1980) (noting that "it is only where the
state agency’s procedure is clearly repugnant to the Act that
we will refuse comity"). Accordingly, we deny AFSCME’s
petition for review.
CONCLUSION
For the foregoing reasons, we DENY the petitions for
review by MCS in Case No. 00-2192 and AFSCME in Case
No. 00-2451, and ENFORCE the Board’s order in Case No.
00-2440 finding that it is supported by substantial evidence
on the record.

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"Want of jurisdiction of the subject matter cannot be
waived; that jurisdiction of the subject matter cannot be
supplied by the consent of the parties; and that objection
to lack of such jurisdiction may be interposed or noticed
at any stage of the action." 1A Barron and Holtzoff, Fed.
Practice and Procedure, § 370b (Wright ed., 1960).
353 F.2d 366, 369 (6th Cir. 1965). Thus, the Board was free
to exercise its discretion and assume jurisdiction at any time.
In this case, the Board, after issuing Management Training,
had exclusive jurisdiction to direct or supervise the elections.
See Sears, Roebuck & Co. v. Carpenter’s Dist. Council (San
Diego), 436 U.S. 180, 202 (1978) ("The primary-jurisdiction
rationale unquestionably requires that when the same
controversy may be presented to the state court or the NLRB,
it must be presented to the Board.") As Intervenor SLS
rightly argues, quoting from San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 246 (1959), state
jurisdiction is displaced if conduct is "arguably within the
compass of § 7 or § 8 of the Act." Given that the elections
were "arguably within the compass of § 7 or § 8 of the Act,"
the elections conducted by MERC should be void. See Mass.
Labor Relations Comm’n v. Blue Hill Spring Water Co., 414
N.E.2d 351 (Mass. Ct. App. 1980) (recognizing that
proceedings in the Massachusetts Labor Relations Committee
would be void if the Board had asserted jurisdiction of an
unfair labor practice complaint).
Because MERC did not have jurisdiction to conduct the
elections involving SLS after the issuance of Management
Training, the Board properly refused to extend comity to
these MERC-conducted elections. As pointed out by SLS,
extending comity in this case would directly violate the intent
of Congress to vest exclusive jurisdiction with the Board and
subvert the goal announced in New York Telephone Co. v.
New York State Dept. of Labor, 440 U.S. 519 (1979) of
promoting a unified nationwide scheme of labor law
1RV 0LFK&RPPXQLW\6HUYV
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final decision and order entered by the National Labor
Relations Board ("the NLRB" or "the Board") in Summer’s
Living Systems, Inc., 2000 WL 1460041 (NLRB 2000)
(unpublished) in which the NLRB declined to set aside union
representation elections and held that MCS engaged in unfair
labor practices under §§ 7 and 8(a)(1) and (5) of the National
Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1) and
(5) ("the Act") by refusing to bargain collectively with the
American Federation of State, County & Municipal
Employees, AFL-CIO ("AFSCME"), and the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO ("UAW"),
(collectively, "the Unions"), after the unions won the
elections. In Case No. 00-2440, the NLRB has cross-
petitioned for enforcement of the order; the Unions have
intervened in support of the NLRB’s cross-petition. In Case
No. 00-2451, AFSCME seeks review of the NLRB’s decision
and order in Summer’s Living Systems dismissing unfair labor
practice allegations against Summer’s Living Systems, Inc.
and eight other employers (collectively "SLS") that own

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residential care facilities. SLS has intervened in opposition
to AFSCME’s petition.
In Summer’s Living Systems, the Board issued a decision
and order affirming the decision made by the administrative
law judge ("ALJ") to extend comity to the union
representation elections conducted by the Michigan Employee
Relations Commission ("MERC") in thirty residential care
facilities owned by MCS that took place before Management
Training Corp., 317 NLRB 1355 (1995) was decided, but not
to extend comity to the MERC-conducted elections in the
residential care facilities owned by SLS that took place after
Management Training was decided on the ground that MERC
lacked jurisdiction to conduct those union representation
elections. In Management Training, the Board, overruling the
jurisdictional test set forth in 5HV&DUH,QF1/5%
decided that it had MXULVGLFWLRQRYHUDQHPSOR\HUZLWK
FORVHWLHVWRDQH[HPSWJRYHUQPHQWDOHQWLW\DVGHILQHGXQGHU
86&† Accordingly, the Board upheld the unfair
labor practice complaints filed against MCS, but dismissed
those filed against SLS. For the reasons set forth below, we
DENY the petitions for review by MCS in Case No. 00-2192
and by AFSCME in Case No. 00-2451, and ENFORCE the
Board’s order in Case No. 00-2440.
BACKGROUND
The present case concerns a dispute between a group of
Michigan non-profit corporations operating group homes
providing residential care and services to individuals with
disabilities (collectively "the Employers") and the Unions
representing their employees regarding the employees’ rights
to choose union representation under § 7 of the Act. The
State of Michigan Department of Mental Health ("MDMH")
funds the Employers’ operations through annual contracts that
establish defined limits upon wages and benefits that the
Employers may pay. In 1985, the Unions began organizing
efforts at the Employers’ residential care facilities, with
AFSCME filing several election petitions with the Board’s
1RV 0LFK&RPPXQLW\6HUYV
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concerning assertion of that oversight." Pikeville, 109 F.3d at
1152 (internal citations and quotation marks omitted).
In determining whether the Board had jurisdiction, this
Court in Pikeville set forth the following standard: "Under a
Management Training Corp. analysis, the jurisdiction of the
NLRB over [an employer] is established simply by the
minimal showing that the [employer] both "meets the
definition of ‘employer’ under Section 2(2) of the Act," and
"meets the applicable monetary jurisdictional standards." Id.
Under this test, the Board properly had jurisdiction over SLS.
In this regard, there is no merit to AFSCME’s claim that
SLS waived the jurisdictional issue by failing to raise it
before the MERC elections were held or before the Board in
Summer’s Living Systems, Inc. As the Intervenors SLS point
out, their failure to contest the jurisdiction of the MERC at the
time of the elections does not prevent the Board from
concluding that the MERC lacked jurisdiction to conduct the
elections after Management Training. As this Court noted in
NLRB v. Ferraro’s Bakery, Inc.:
The Board concedes that the question of its statutory
jurisdiction may be raised at any time despite failure to
raise this issue before the Board in a timely fashion.
Failure to file exceptions does not confer jurisdiction on
the Board if the order is beyond the scope of its statutory
authority. As said in N.L.R.B. v. Cheney California
Lumber Company, 327 U.S. 385, 388, 66 S. Ct. 533, 554,
90 L.Ed. 739:
"Since the court is ordering entry of a decree, it
need not render such a decree if the Board has
patently traveled outside the orbit of its authority so
that there is, legally speaking, no order to enforce."
It is elementary that:

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1995); NLRB v. Winco Petroleum Co., 668 F.2d 973, 982 (8th
Cir. 1982). As stated in Fall River, the appropriate inquiry is
whether any changes have occurred such that "if [the
employees’] legitimate expectations in continued
representation by their union are thwarted, their
dissatisfaction may lead to labor unrest." Fall River, 482 U.S.
at 43-44. Further, as the Board points out, to allow new
elections in this case would permit MCS "to exploit the
heightened insecurities among employees" to the detriment of
the Act’s fundamental policy of favoring "industrial peace."
In any event, it is well recognized that the employees have the
statutorily-protected right of relieving themselves of union
representation if they so desire. See Auciello Iron Works, Inc.
v. NLRB, 517 U.S. 781, 790 (1996)(observing that the union
was "subject to a decertification petition from the workers if
they want to file one"); Franks Bros. Co. v. NLRB, 321 U.S.
702, 704-06 (1944). Thus, if the employees are not well-
served by union representation, they can pursue
decertification petitions.
Accordingly, we find that the Board did not err in
extending comity to the MERC-conducted elections held
before the issuance of Management Training. We thus deny
MCS’ petition for review.
Case No. 00-2451: AFSCME’s Petition
On the other hand, contrary to AFSCME’s claim, the Board
did not err in declining to extend comity to the MERC-
conducted elections after Management Training was decided
on the basis that MERC lacked jurisdiction to hold these
elections. In reviewing this claim, we note that the NLRB
"has discretion whether to exercise jurisdiction." Pikeville,
109 F.3d at 1152 (quoting Crestline Memorial Hosp. Ass'n,
Inc. v. NLRB, 668 F.2d 243, 244 (6th Cir.1982)). "Thus,
absent a showing that [the Board] acted unfairly and caused
substantial prejudice to the affected employer, a reviewing
court should not disturb the NLRB’s discretionary decision
1RV 0LFK&RPPXQLW\6HUYV
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regional office in Detroit, Michigan, seeking to represent the
employees of the Employers operating under contracts with
MDMH. In CK Homes, Inc. v. AFSCME, an unpublished
decision of the NLRB Seventh Region Director, decided
February 14, 1986 (Case No. 7-RM-1275) and Residential
Systems v. UAW, an unpublished decision of the NLRB
Seventh Region Director, decided April 7, 1988 (Case No.
No. 7-RC-18529), the Board, relying primarily upon Res-
Care Inc., 280 NLRB 670 (1980), dismissed AFSCME’s
petitions, citing lack of subject-matter jurisdiction under the
Act on the basis that the State of Michigan was an exempt
governmental entity.
Thereafter, on January 28, 1988, AFSCME filed petitions
with MERC seeking to represent the employees of the
Employers’ separate units, naming MDMH and the group
home providers as joint employers. MDMH opposed the
petitions naming it as a joint employer, claiming that
MERC’s jurisdiction over each private employer was
preempted as a matter of federal labor policy. After finding
that the named employers were joint employers, MERC
asserted jurisdiction over MDMH under the Michigan Public
Employment Relations Act ("PERA"), Mich. Comp. Laws
Ann. §§ 423.201%423.216, and over the group home
providers under the Michigan Labor Mediation Act
("MLMA"), Mich. Comp. Laws Ann. §§ 423.1%423.30. In
asserting jurisdiction, MERC relied upon the Board’s refusal
to assert jurisdiction over the group home providers under the
Act and the decision of the Michigan Civil Service
Commission not to classify the employees of the group homes
as state civil service employees. See AFSCME v. La. Homes,
Inc./Mich. Dep’t of Mental Health, MERC Case No. R88 C-
112, 1989 MERC Lab Op 51, 1990 MERC Lab Op 491, aff’d,
AFSCME v. La. Homes, 480 N.W.2d 280 (Mich. Ct. App.
1991), appeal denied, 487 N.W.2d 410 (Mich. 1992),
vacated, 503 N.W.2d 442 (Mich. 1992), reaff’d on remand,
511 N.W.2d 696 (Mich. Ct. App. 1994), appeal denied, 521
N.W.2d 607 (Mich. 1994), cert. denied sub. nom., Mich.

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Dep’t of Mental Health v. Louisiana Homes, Inc., 513 U.S.
1077 (1995) ("Louisiana Homes").
MERC then directed and conducted elections involving the
joint employers, as authorized by PERA. After elections were
conducted on April 20, 1989, the ballots were impounded, but
eventually counted by MERC on June 29, 1990. The Unions
won each election.$VDFRQVHTXHQFH0(5&FHUWLILHGWKH
EDUJDLQLQJUHSUHVHQWDWLYHVJLYLQJXQLWHPSOR\HHVEDUJDLQLQJ
ULJKWVZLWKUHVSHFWWR0'0+DQGWKHLUSULYDWHHPSOR\HUVDV
MRLQW HPSOR\HUV 0'0+ KRZHYHU UHIXVHG WR KRQRU
0(5&¶V FHUWLILFDWLRQV DQG FKDOOHQJHG WKHP LQ VWDWH FRXUW
VHHNLQJ MXGLFLDO UHYLHZ RI WKH 0(5&¶V DVVHUWLRQ RI
MXULVGLFWLRQE\FODLPLQJWKDWLWZDVQRWDMRLQWHPSOR\HURIWKH
VXEMHFWXQLW HPSOR\HHV DQG FRQWHQGLQJ WKDW WKH $FW
SUHHPSWHGVWDWHODZ0(5&¶VDVVHUWLRQRIMXULVGLFWLRQZDV
HYHQWXDOO\ XSKHOG RQ DSSHOODWH UHYLHZ LQ WKH /RXLVLDQD
+RPHV litigation. Throughout the appellate proceedings, the
Employers took the same position as AFSCME, that they and
MDMH were joint employers subject to MERC’s jurisdiction
which was not preempted by the Act. During this time,
however, no bargaining in the certified units took place
because the Employers were unwilling to participate in
bargaining if MDMH was also not a participant.
After the United States Supreme Court denied MDMH’s
petition for a writ of certiorari in the Louisiana Homes case
on January 9, 1995, bargaining eventually commenced, but
did not last long. In mid-1995, the Board announced a
change in policy in Management Training, overruling the test
stated in Res-Care and declaring that it had jurisdiction over
private employers under contract with exempt state agencies.
In light of the Board’s decision in Management Training,
MDMH petitioned the Michigan Court of Appeals to
reconsider and reverse its previous decision finding that
1RV 0LFK&RPPXQLW\6HUYV
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Here, the Board reasonably rejected as speculative the
claim of MCS that the contracts between MCS and MDMH
legally preclude MCS and their employees from bargaining
about improved wages, benefits, staffing levels and the like.
Even though the contracts with MDMH set the wages,
benefits and staffing levels for which MCS will be
reimbursed during the contracts’ annual term, these contracts
do not prevent the employers from agreeing to increase such
terms during collective bargaining with their employees.
Thus, there is no credible evidence that MCS’ employees
would have rejected union representation had they known
that MDMH would not be present at the bargaining table.
As the Board perceptively points out, the only real change
in the employees’ situation resulting from the Board’s
recognition of the MERC-conducted elections held before the
issuance of Management Training is that MCS’ employees
are now authorized to strike. As the Board notes, the
employees were prohibited from striking against an exempt
governmental entity under PERA. However, under the
Board’s jurisdiction, the employees are permitted to strike,
thus strengthening their ability to enforce their bargaining
demands. Given that the employees were given authorization
to strike, the Board correctly reasons that it is unlikely that
the changed circumstance occasioned by the Board’s
jurisdiction of this matter would cause the employees to
abandon union representation. Because it is not very likely
that the absence of the MDMH at the bargaining table would
have affected employee views and attitudes about union
representation, there was no support for nullifying the
elections upon the basis of a changed circumstance.
Consequently, MCS cannot repudiate its bargaining
obligations. As the Board makes clear, the situation in this
case is similar to one in a successorship context in which new
owners cannot repudiate an existing bargaining obligation on
the ground of changed circumstances. See Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 38, 47 (1987);
ARMCO, Inc. v. NLRB, 832 F.2d 358, 362-63 (6th Cir.

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that MERC conducted the elections, it was the case that
MDMH was considered to be a joint employer. However, as
Intervenor AFSCME states, "everyone knew, or should have
known, that the status of the state as employer under PERA
was subject to vigorous litigation." AFSCME Br. at 22.
Thus, contrary to MCS’ unsupported assertion, there is no
indication that the MERC-conducted elections at the time
"denied employees a free and fair choice based upon the
truth;" nor is there any basis to believe that "the complexity
of the interrelationships between the State of Michigan
Department of Mental Health, the state judiciary, the MERC,
the Board, and the parties to the election robbed employees
and Employers of a clear understanding as to the impact of
the union elections." MCS Br. at 18. Because there was no
misrepresentation concerning MDMH’s status as a joint
employer, there is no basis to set aside the elections.
Nevertheless, MCS’ real complaint is whether the changed
circumstance of MDMH not being at the bargaining table
called into question whether the election results reflected the
desires of their employees to be represented by the Unions.
Thus, MCS claims:
Had employees known in the present case that the State
of Michigan would ultimately not participate in
collective bargaining, the result of the election could
easily have been different. Without the
misrepresentation regarding the state’s involvement,
employees could have weighed the extraction of union
dues out of modest earnings against the improbability of
the union securing higher wages or different working
conditions.
MCS Br. at 22-23. According to MCS, the elections should
be invalidated because "[i]t is doubtful that employees would
have voted for a decrease in their wages to finance a union
dues deduction, in light of the improbability of wage
increases at the bargaining table." MCS Br. at 27.
1RV 0LFK&RPPXQLW\6HUYV
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MERC’s jurisdiction was not preempted as a matter of federal
labor policy. Thereafter, on January 26, 1996, the Michigan
Court of Appeals, in reliance upon Management Training,
vacated MERC’s decisions requiring the Employers and
MDMH to bargain with the Unions in all the adult residential
care cases before MERC, concluding that MERC’s
jurisdiction was preempted as a matter of federal labor policy.
AFSCME v. Mental Health Dep’t., 545 N.W.2d 363 (Mich.
Ct. App. 1996).7KXVWKH0LFKLJDQ&RXUWRI$SSHDOVKHOG
WKDWWKHDGXOWUHVLGHQWLDOFDUHSURYLGHUVWKDWFRQWUDFWHGZLWK
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'HS¶WAFSCME proceeded with elections that previously had
been directed by MERC, though not yet conducted.
AFSCME won those union representation elections involving
the employees of units of Summer’s Living Systems, Inc. and
eight other employers ("SLS"). However, following the
Michigan Court of Appeals’ decision in AFSCME v. Mental
Health Dep’t vacating MERC’s certifications on preemption
grounds, the State of Michigan refused to bargain with the
Unions. When the Unions requested that the Employers
continue to bargain under the Act without MDMH’s
participation, the Employers refused, claiming that the
changed circumstance&the absence of MDMH from the

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AFSCME.
bargaining process&undermined the efficacy of MERC’s
elections as a basis for requiring the Employers to bargain as
a matter of federal labor policy. Thus, all collective
bargaining came to a halt. The Unions contacted the Board
on March 18, 1996, formally demanding bargaining by the
Employers.
Thereafter, the Unions filed unfair labor practice charges
with the Board against thirty-eight of the group home
providers contracted by MDMH, alleging refusal to bargain
under the Act as the sole employers of employees in the
subject units.Based upon the charges filed by the Unions,
the Board issued a series of consolidated unfair labor practice
complaints alleging that the refusal to bargain violated
§ 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5).
After hearings in Detroit, Michigan on January 29 and 30,
1997, the administrative law judge ("ALJ") issued a decision
in which he found it appropriate to extend comity to the
elections that MERC had conducted when MERC properly
had jurisdiction over the private employers.7KXVWKH$/-
IRXQG WKDW 0&6 violated § 8(a)(1) and (5) of the Act, 29
U.S.C. § 158(a)(1) and (5) by refusing to recognize and
bargain with the Unions.,QVRKROGLQJWKH$/-UHMHFWHGWKH
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1979); accord Lincoln Park Zoological Soc’y v. NLRB, 116
F.3d 216, 219-20 (7th Cir. 1997) (extending comity to
voluntary recognition of the union where, pursuant to the state
public employee relations act, the employer has the initial
chance to refuse to recognize a union and the employees had
a right to decertify the union but failed to exercise it). Thus,
based upon the criteria set forth in Standby One Associates,
the Board properly extended comity to the MERC-conducted
elections.
There is no merit to MCS’ claim that the MERC-conducted
elections should be set aside based upon the alleged
misrepresentation that MDMH was a joint employer in these
proceedings. According to MCS, the alleged
misrepresentation concerning MDMH’s role affected the free
and fair conduct of the elections. Specifically, MCS contends
that the Board applied the wrong legal standard in evaluating
the facts. In support of their claim of misrepresentation, MCS
relies upon the five-factor test announced in Mitchellace, Inc.
v. NLRB, 90 F.3d 1150, 1155 (6th Cir. 1996). As this Court
stated in NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742
(6th Cir. 1999): "These factors include: (1) the timing of the
misrepresentation; (2) whether the employer was aware of the
situation and had an opportunity to respond; (3) the extent of
the misrepresentation; (4) whether the source of the
misrepresentation was identified; and (5) whether there is
evidence that employees ‘actually were affected’ by the
misrepresentation." Id. at 747 (citing Mitchellace, 90 F.3d at
1155). In Gormac, this Court added that "another factor that
plays a part in our analysis is the closeness of the election."
190 F.3d at 747 (citing NLRB v. Hub Plastics, 52 F.3d 608,
613 (6th Cir. 1995)).
What is wrong with this line of attack is that there was no
misrepresentation that supports setting aside the elections.
Specifically, there was no evidence in the record that MCS’
employees were misled by the status of MDMH at the time of
the elections, even though MCS had every opportunity to
present such evidence during these proceedings. At the time

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In this case, the Board, adopting the ALJ’s findings,
properly extended comity to the MERC elections conducted
before the issuance of Management Training. Specifically,
the Board, citing Standby One Associates, 274 NLRB 952
(1985), found that (1) the state-conducted elections reflect[ed]
the true desires of the affected employees; (2) there was no
showing of election irregularities; and (3) there was no
substantial deviation from due process requirements."
Summer’s Living Sys., Inc., 2000 WL 1460041, at *3. First,
it would appear that the state-conducted elections reflected
the true desires of the affected employees. As pointed out by
Intervenor AFSCME, eighty-five percent of the employees in
the thirty subject units voted in favor of union representation.
Moreover, in nine of the units, there were zero votes cast
against union representation. There was also no showing of
election irregularities. As Intervenor AFSCME notes, no
objections were filed in these elections. Afterwards, there
was no decertification petition or challenge to the MERC
elections. Id.
There was also no apparent deviation from due process
requirements. In particular, there was testimony that state-
election procedures are as rigorous as the Board’s. While
MCS suggests that "[t]he State of Michigan’s extensive
involvement in the election process painted the proceedings
with the authority of state government," MCS Br. at 20, there
is no credible evidence that the elections did not accord with
due process.
Moreover, the Board properly found that the MERC-
conducted elections were consistent with the policies and
procedures of the Act. As the Board points out, it has been its
longstanding policy to recognize as binding the results of
state-conducted elections "provided that the state proceedings
reflect the true desires of the affected employees, election
irregularities are not involved, and there has been no
substantial deviation from due process requirements."
Allegheny Gen. Hosp., 230 NLRB 954, 955 (1977),
enforcement denied on other grounds, 608 F.2d 965 (3d Cir.
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UHJDUGWRSLS, the ALJ held that its employees had voted in
elections conducted by MERC after the Board’s announced
change in policy preempted MERC’s jurisdiction. Thus, the
ALJ dismissed the unfair labor practice allegations as to SLS,
finding that the principles of comity should not be applied to
the MERC-conducted elections due to MERC’s lack of
jurisdiction.
In its decision issued on September 25, 2000, the Board
affirmed the ALJ’s decision to extend comity to the MERC
elections that took place before Management Training was
decided on July 28, 1995, but not to extend comity to the
MERC elections that took place after Management Training
was decided "when [MERC] did not have jurisdiction."
Summer’s Living Systems, Inc., 2000 WL 1460041. In its
decision, the Board, citing Standby One Associates, 274
NLRB 952 (1985), found that the ALJ correctly applied the
Board’s comity policy and adopted the findings of the ALJ as
to MCS that "(1) the state-conducted elections reflect the true
desires of the affected employees; (2) there was no showing
of election irregularities; and (3) there was no substantial
deviation from due process requirements." Summer’s Living
Systems, Inc., 2000 WL 1460041, at *3. The Board further
found that "for the reasons stated by the [ALJ] . . . the
removal of joint employer DMH from the bargaining table is
not such an unusual circumstance as to relieve [MCS] from
their bargaining obligation." Id. Accordingly, the Board,
with minor modifications not pertinent to the present appeals,
upheld the unfair labor practice complaints filed against
MCS, but dismissed the unfair labor practice complaints
against SLS.
In its appeal in Case No. 00-2192, MCS contends that the
representation elections should be invalidated because the
elections were conducted under the misrepresentation that the
State of Michigan was a joint employer. According to MCS,
"the post-election departure of the State of Michigan from its
role as co-employer was a material change in circumstances
that so radically affected relationships at the bargaining table

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that the employees lacked any knowledge of the true context
in which their votes for unionization were cast." MCS Br. at
7-8. In Case No. 00-2440, the NRLB cross-petitions for
enforcement of its order. On the other hand, AFSCME in its
appeal in Case No. 00-2451 argues that the Board erred in not
extending comity to the elections that MERC conducted after
Management Training was decided.
DISCUSSION
Before addressing the merits of the Board’s decisions to
extend comity to the MERC-conducted elections before the
date on which Management Training was decided, but not to
those conducted after Management Training was issued, it is
useful to consider the key decisions culminating in the
Board’s change of policy articulated in Management Training
regarding its jurisdiction over certain private employers with
contractual relationships with exempt governmental entities.
Initially, in National Transportation Service, Inc. v. Truck
Drivers & Helpers of America, Local Union 728, 240 NLRB
565 (1979), the NLRB set forth a test for determining whether
it would exercise jurisdiction over employers with close ties
to an exempt entity:
[I]n this and future cases involving a determination
whether the Board should assert jurisdiction [over an
employer with close ties to an exempt entity], we shall
determine whether the employer itself meets the
definition of "employer" in [29 U.S.C. 152(2)],DQGLI
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declares not how a case shall be decided but how it
may with propriety be decided.
The statement, however, was made in a far different
context, namely, the extent to which one federal court of
appeals should feel itself bound by the decision of
another with respect to the validity and scope of a patent.
Both courts were governed by the same law and the
statement was made in deprecating the appellant's claim
that the second court of appeals had given insufficient
weight to "comity". More enlightening for this case,
although not dispositive, is this court's recent statement
in NLRB v. St. Luke's Hospital, 551 F.2d 476 (2d Cir.
1976). There we upheld a finding that an employer had
engaged in an unfair labor practice by enforcing the
union security clause in a collective bargaining
agreement with a union certified by the SLRB to
represent a unit which could not have been approved by
the NLRB because of the "professional" proviso in
§ 9(b)(1). Rejecting the employer's claim to comity,
Chief Judge Kaufman said, id. at 482 (citations omitted):
Arrangements resulting from state agency
proceedings should generally be respected if
consistent with federal policies. "Comity" in this
sense reflects the desirability of supporting settled
relationships in the absence of compelling
countervailing reasons. It is clear, however, that the
NLRB is not required to defer to state proceedings
where federal policy would be undermined.
We would strengthen the last sentence to say "is not
required or permitted."
566 F.2d 833, 841-42 (2d Cir. 1977). Thus, as understood by
the Second Circuit in Long Island College Hospital, "comity"
refers to a rule of convenience or expediency whereby the
Board sustains settled issues or relationships, so long as
federal policy is not undermined.

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explained by the Supreme Court in Hilton v. Guyot, 159 U.S.
113 (1895),
"Comity" in the legal sense, is neither a matter of
absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other. But it is the
recognition which one nation allows within its territory
to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and
convenience, and to the rights of its own citizens, or of
other persons who are under the protection of its laws.
Id. at 163-64. By extension, the rule of comity also applies to
the recognition of federal and state courts of their respective
judgments in our federal system of governance. See Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999)("Most
essentially, federal and state courts are complementary
systems for administering justice in our Nation. Cooperation
and comity, not competition and conflict, are essential to the
federal design.") However, "comity," in this sense, is not
limited to the recognition of judicial acts. See Calderon v.
Thompson, 523 U.S. 538, 552 (1998) ("Comity is not limited
to the judicial branch of a state government.") As used in the
present context, "comity" refers to the Board’s recognition of
state agency proceedings. This use of "comity" was cogently
explained by the Second Circuit in Long Island College
Hospital v. NLRB, as follows:
"Comity" is a notion of highly uncertain content. The
Board refers us to the statement in Mast, Foos & Co. v.
Stover Mfg. Co., 177 U.S. 485, 488-89, 20 S.Ct. 708,
710, 44 L.Ed. 856 (1900), that
Comity is not a rule of law, but one of practice,
convenience and expediency . . . (which) has a
substantial value in securing uniformity of decision,
and discouraging repeated litigation of the same
question . . . its obligation is not imperative. . . .
Comity persuades; but it does not command. It
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&.+RPHVDW$ -$DW Residential Sys. v. UAW, an
unpublished decision of the NLRB Seventh Region Director,
decided April 7, 1988 (Case No. No. 7-RC-18529) (J.A. at
274-82).

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Subsequently, in Res-Care, Inc., 280 NLRB 670 (1986), the
NLRB reaffirmed the basic test set forth in National
Transportation, but clarified the latter prong of that test:
In applying [the National Transportation] test, however,
we will examine closely not only the control over
essential terms and conditions of employment retained by
the employer, but also the scope and degree of control
exercised by the exempt entity over the employer's labor
relations, to determine whether the employer in issue is
capable of engaging in meaningful collective bargaining.
Res-Care, 280 NLRB at 672. On July 28, 1995, the NLRB
issued its decision in Management Training, overruling the
Res-Care test and expanding its jurisdiction to include certain
private employers who have close ties to exempt
governmental entities:
In Res-Care, the Board held that, in deciding whether it
would assert jurisdiction over an employer with close ties
to an exempt government entity, it would examine the
control over essential terms and conditions of
employment retained by both the employer and the
exempt entity to determine whether the employer in issue
is capable of engaging in meaningful collective
bargaining. 280 NLRB at 672. After careful
consideration of Res-Care and its progeny and for the
reasons set forth below, we have decided that the test set
forth in Res-Care is unworkable and unrealistic. Rather,
we think that whether there are sufficient employment
matters over which unions and employers can bargain is
a question better left to the parties at the bargaining table
and, ultimately, to the employee voters in each case.
* * *
[I]n determining whether the Board should assert
jurisdiction, the Board will only consider whether the
employer meets the definition of "employer" under [29
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U.S.C. 152(2) ] of the Act, and whether such employer
meets the applicable monetary jurisdictional standards.
0JPW7UDLQLQJ317 NLRB at 1358. See Pikeville United
Methodist Hosp. v. USW, 109 F.3d 1146 (6th Cir. 1997)
(holding that, under Management Training, the NLRB’s
jurisdiction was established over a hospital by showing that
the hospital was an "employer" as defined by the NLRA, even
though the hospital was subject to some local governmental
control); Aramack Corp. v. NLRB, 179 F.3d 872 (10th Cir.
1999).
Case No. 00-2192: MCS’ Petition
In this case, we review de novo the Board’s legal
conclusions regarding whether comity should be extended to
the MERC-conducted elections held before and after the
issuance of Management Training, and its findings of fact
under the substantial evidence standard. Harborside
Healthcare, Inc. v. NLRB, 230 F.3d 206, 208-09 (6th Cir.
2000); United Parcel Serv., Inc. v. NLRB, 228 F.3d 772, 774-
75 (6th Cir. 2000).
As a legal doctrine, comity originally emerged in the
context of international law to reflect the recognition by one
state or nation of the laws, policies and judicial acts of
another. See B LACK’S LAW DICTIONARY , 261-62 (7th ed.
1999) ("The comity principle is most accurately characterized
as a golden rule among nations&that each must give the
respect to the laws, policies and interests of others that it
would have others give to its own in the same or similar
circumstances.")(quoting Thomas Buergenthal & Harold G.
Maier, Public Int’l Law in a Nutshell 178 (2d ed. 1990)). As

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