International Union , United Automobile , Aerospace v. National Labor Relations Board

*This order was originally issued as an “unpublished order” filed on April 4, 2012. On April 20,
2012, the court designated the order as one recommended for full-text publication.
**The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0107p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
I NTERNATIONAL UNION , UNITED
AUTOMOBILE , AEROSPACE AND
AGRICULTURAL I MPLEMENT WORKERS OF
AMERICA (UAW), AFL-CIO, and its LOCAL
822,
Petitioners,
DOUGLAS AUTOTECH CORPORATION ,
Intervenor,
v.
NATIONAL LABOR RELATIONS BOARD ,
Respondent.
X---->
,----------
N
No. 12-1014
Filed: April 4, 2012*
Before: SILER and SUTTON, Circuit Judges; HOOD, District Judge.**
_________________
ORDER
_________________
The International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America and its Local 822 (collectively, the “Union”) petition
for review of a decision of the National Labor Relations Board (“NLRB”). The
employer, Douglas Autotech Corporation (“Douglas”), moves to intervene and to
transfer this petition to the United States Court of Appeals for the District of Columbia
Circuit (“DC Circuit”), where Douglas’s earlier-filed petition for review from the same
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No. 12-1014 Int’l Union, UAW et al. v. NLRB Page 2
decision is pending. The NLRB also moves to transfer this petition to the DC Circuit.
The Union opposes a transfer and argues that instead the NLRB must submit the matter
to the Judicial Panel on Multidistrict Litigation for the selection of a forum.
The NLRB issued its decision and order on November 18, 2011. On December
15, Douglas filed a timely motion to reconsider. On December 30, the NLRB issued an
order denying reconsideration. Douglas filed its petition for review in the DC Circuit
on January 3, 2012. The Union filed this petition on January 9.
Under 28 U.S.C. § 2112(a), an agency must certify and file the administrative
record in the court of appeals where review is sought. But “[i]f proceedings are
instituted in two or more courts of appeals with respect to the same order,” there are
three options. § 2112(a). First, if multiple petitions for review are filed within ten days
of the order, the agency must apply to the Judicial Panel on Multidistrict Litigation,
which shall designate the proper court of appeals. §§ 2112(a)(1), (3). Second, if one
petition is filed within ten days, the agency will file the record in that court,
notwithstanding other petitions for review. § 2112(a)(1). Finally, in all other cases
where petitions have been filed in two or more courts of appeal, the record shall be filed
“in the court in which proceedings with respect to the order were first instituted.” Id.
In this case, the third option applies.
The Union argues that Douglas’s motion to reconsider rendered the NLRB’s
decision less than final and, because both petitions were filed within ten days of the
order denying reconsideration, selection of the forum rests with the Judicial Panel on
Multidistrict Litigation. The applicable statute and regulations, however, do not lead to
such a conclusion.
In a proceeding before the NLRB, a party may move for reconsideration
“because of extraordinary circumstances[.]” 29 C.F.R. § 102.48(d)(1). Such a motion
must be filed within 28 days or such further time as the NLRB allows. § 102.48(d)(2).
But “[t]he filing and pendency of a motion under this provision shall not operate to stay
the effectiveness of the action of the Board unless so ordered.” § 102.48(d)(3). A party
aggrieved by an NLRB order may seek review in the court of appeals. 29 U.S.C.

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No. 12-1014 Int’l Union, UAW et al. v. NLRB Page 3
§ 160(f). The statute does not state a time in which such a petition must be filed. But
“[u]ntil the record in a case shall have been filed in a court, as hereinafter provided, the
Board may at any time upon reasonable notice and in such manner as it shall deem
proper, modify or set aside, in whole or in part, any finding or order made or issued by
it.” § 160(d). Further, jurisdiction does not vest in the court of appeals until the record
is filed; “[u]pon the filing of the record with it the jurisdiction of the court shall be
exclusive . . . .” § 160(e). Given the possibility that proceedings may be pending before
both the NLRB and a court, a motion to reconsider would not preclude the filing of a
petition for review. See Kronenberger v. NLRB, 496 F.2d 18 (7th Cir. 1974). In this
case, neither petition for review was filed within ten days of the NLRB’s decision of
November 18, 2011. Therefore, the provision of 28 U.S.C. § 2112(a)(3) requiring
notification of the Judicial Panel on Multidistrict Litigation does not apply.
Douglas’s motion to intervene is GRANTED. Douglas’s and the NLRB’s
motions to transfer this appeal are GRANTED. The clerk is directed to effectuate the
transfer of this petition for review to the United States Court of Appeals for the District
of Columbia Circuit.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
_________________________________
Clerk

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