Pace University v. National Labor Relations Board

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2007 Decided January 25, 2008
No. 07-1032
PACE UNIVERSITY ,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with
No. 07-1054
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Terence M. O’Neil argued the cause for petitioner. On the
briefs was Raymond J. Pascucci.
Elizabeth A. Heaney, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief

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were Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Assistant General
Counsel, and Fred B. Jacob, Supervisory Attorney.
Before: ROGERS , TATEL and KAVANAUGH , Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS .
ROGERS , Circuit Judge: The petition for review filed by
Pace University seeks to have the court hold that the National
Labor Relations Board abused its discretion in applying its non-
relitigation rule. Under that rule the Board has determined that
only in limited circumstances will a party be permitted to reopen
a representation issue during an unfair labor practice proceeding.
Pace maintains that it did not raise an issue regarding the scope
of the bargaining unit during the representation proceeding
because it thought it had prevailed on the issue and only realized
there was disagreement during collective bargaining
negotiations with the duly elected Board-certified union. In
applying the non-relitigation rule, however, the Board pointed
to the record in the representation proceeding where Pace was
repeatedly asked to state its position on the issue and declined to
explain the nature of its concern, instead urging that its motion
to dismiss the union’s certification petition be granted due to
prejudicial timing.
In view of the Board’s reasonable determination of how it
will conduct its proceedings, there was no abuse of discretion by
the Board. The Board’s refusal to adopt an exception for
claimed reliance upon a mistake of fact illustrates the principle
behind the rule: On an issue of central importance in the
representation proceeding, a party having reason, ability, and
opportunity must make its position a matter of record.
Otherwise, the rationale for the rule – the importance of the
finality of Board-certified elections and avoidance of delay in

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enforcing their results – is compromised. Accordingly, we deny
the petition for review of the Board’s order that Pace unlawfully
refused to bargain with the certified union representative and
grant the Board’s cross-application for enforcement of its order.
I.
The relevant facts are undisputed. In December 2003, the
New York State United Teachers (“Union”) petitioned the Board
for certification as the representative of adjunct and part-time
faculty members (“adjuncts”) at Pace University, a private,
nonprofit institution of higher education. The number of
adjuncts varies during the calendar year, ranging from
approximately 109 employed by Pace in the summer semester
to 750 during the spring semester of the 2003-04 academic year,
for example; they are employed by the semester, but are
frequently reappointed and receive increased promotional,
salary, and other benefits according to years of service. Pace
filed a motion to dismiss the Union’s petition on the ground that
it was filed at a prejudicial time in the academic year when few
adjuncts were employed. Then, after a hearing in January 2004,
Pace objected that the petitioned-for unit was unsupported by
the evidence.
In response to Pace’s objection, the Regional Hearing
Officer reopened the record and held a multi-day hearing in
February 2004. During this hearing Pace did not contest the
inclusion in the bargaining unit of adjuncts whom it
subsequently sought, during the unfair labor practice
proceeding, to exclude from the certified unit. The Regional
Director denied Pace’s motion to dismiss and issued an Election
Order defining the scope of the bargaining unit and the voter-

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1 The Election Order read:
Included [in the bargaining unit]: All adjunct faculty
members, part-time instructors and all non-
supervisory employees who have dual capacity
functions who are employed by the Employer. [*]
[*] Eligible to vote in the election
are those in the unit . . . who have
received appointments and teach at
least 3 credit hours and/or 45 hours
in one semester in at least two of the
last three academic years, including
the current academic year.
Excluded: All other employees, including adjunct
faculty and part-time instructors employed in the
School of Law, all full-time faculty, casual
employees,[*] independent contractors, guards and
supervisors within the meaning of the Act.
[*] Casual employees ineligible to
vote are those employed for less
than 3 credit hours and/or 45 hours
in a semester.
eligibility criteria.1 The Board denied Pace’s request for review
of the Election Order on the ground that the petition raised “no
substantial issues warranting review” and finding without merit
Pace’s claims of bias of the Regional Director and Hearing
Officer. At this point, Pace had raised no objection regarding
the adjuncts whom it sought to have excluded during the unfair
labor practice proceeding.
In response to Pace’s letter seeking clarification of two
footnotes in the Regional Director’s Election Order regarding

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2 Although the Union’s initially proposed unit did not
mention “casual employees,” both the Election Order and Amended
Election Order did. The Election Order included a footnote stating
that “casual employees” were ineligible to vote; it defined “casual
employees” as “those employed for less than 3 credit hours and/or 45
hours in a semester.” This reflected the definition adopted by the
Hearing Officer in response to the Union’s amended definition of the
unit. The Amended Election Order, in referencing the definition in the
Election Order, stated that “casual employees” were “those adjunct
faculty and those part-time instructors who work less than 3 credit
which adjuncts would be eligible to vote at the election, the
Regional Director issued an Amended Election Order, which
read, in relevant part:
Included [in the bargaining unit]: All adjunct faculty
members, part-time instructors, and all adjunct faculty
members and part-time instructors who work in a non-
supervisory dual capacity for the Employer, employed
by the Employer. [* ]
[* ] Eligible to vote in the election are those in this unit
who have received appointments and teach or have
taught at least 3 credit hours and/or 45 hours in any
semester in any of two academic years during the
three-year period commencing with the 2001-2002
academic year and ending with the 2003-2004
academic year.
Excluded: All other employees, including adjunct
faculty and part-time instructors employed in the
School of Law, all full-time faculty, casual employees,
independent contractors, guards and supervisors within
the meaning of the Act.
Pace did not seek Board review of the Amended Election
Order.2

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hours and/or 45 hours in a semester or otherwise fail to meet the
eligibility formula set forth above.” According to the Board, the new
(italicized) text was an “inadvertent” typographical error. Resp.’s Br.
at 20. In defining the unit and voter-eligibility criteria, the Amended
Election Order did not include a footnote on “casual employees.”
The Union won the election and in May 2004 the Board
certified it as the representative of the adjuncts’ bargaining unit.
Negotiations on a collective bargaining agreement between Pace
and the Union commenced. A dispute arose in October 2004
about whether the bargaining unit included only those adjuncts
eligible to vote. See supra note 2. In February 2006, the Union
filed a petition for unit clarification. In response, the Regional
Director stated that the unit included all adjuncts who teach at
least 3 credit hours and/or 45 hours in one semester, regardless
of their eligibility to vote. The Board denied Pace’s petition for
review on the ground that it raised “no substantial issues
warranting review” regarding clarification of the unit. Two
Members of the Board noted that, although this was not the case
to do so because the parties had not litigated the definition of
“casual employee” and Pace had not previously challenged the
scope of the unit with respect to adjuncts, the Board should
reconcile its decisions on whether unit inclusion and voter
eligibility must be coextensive.
When Pace refused to resume collective bargaining
negotiations, the Board’s general counsel filed a complaint
based on the Union’s unfair labor practice charge, and moved
for summary judgment. In defense, Pace argued that the
Board’s unit determination was invalid because it included
adjuncts who were “casual employees” and ineligible to vote in
the election. The Board, pursuant to its non-relitigation rule,
refused to address the issue, observing that “[a]ll representation
issues raised by [Pace] were or could have been litigated in the
prior representation proceedings.” Pace Univ., 349 NLRB No.

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10, Case 2-CA-37884, 2007 WL 185973, at *1 (Jan. 22, 2007)
(“2007 Order”). The Board found that Pace’s refusal to bargain
violated §§ 8(a)(1) and (5) of the National Labor Relations Act
(“the Act”), and issued a cease and desist order directing Pace
to bargain upon the Union’s request. Pace petitions for review.
II.
Pace contends that the Board abused its discretion in
refusing to allow litigation of representation issues in the unfair
labor practice proceeding. It also challenges the Board’s
bargaining unit determination on several grounds, contending
that: (1) the Board erred as a matter of law in basing its decision
upon an inappropriate unit determination, contrary to the Act
and Board precedent, whereby the unit included members who
were ineligible to vote; (2) “casual employees” excluded from
the bargaining unit are those adjuncts who are ineligible to vote,
namely those who teach more than 3 credit hours and/or 45
hours in one semester, but have not done so for at least two of
the last three academic years; and (3) there was not substantial
evidence in the record that such adjuncts share a community of
interest with other adjuncts as would justify placing them in the
same bargaining unit. The Board seeks enforcement of its order
on both procedural and substantive grounds.
The Board has broad discretion to define the contours of an
appropriate bargaining unit. 29 U.S.C. § 159(b); Skyline
Distribs., Inc. v. NLRB, 99 F.3d 403, 406-07 (D.C. Cir. 1996).
Once a union is certified for a unit, the Act prohibits an
employer from refusing to bargain with the union. 29 U.S.C. §§
158(a)(1), (5); see Exxon Chem. Co. v. NLRB, 386 F.3d 1160,
1163-64 (D.C. Cir. 2004). The Board has authority under the
Act “to make, amend, and rescind . . . such rules and regulations
as may be necessary to carry out the provisions of this
subchapter.” 29 U.S.C. § 156. Under the Act and the Board’s

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3 The Board’s regulations provide:
The parties may, at any time, waive their
right to request review [of a Regional
Director’s unit determination]. Failure to
request review shall preclude such parties
from relitigating, in any related subsequent
unfair labor practice proceeding, any issue
which was, or could have been, raised in the
representation proceeding. Denial of a
request for review shall constitute an
affirmance of the [R]egional [D]irector’s
action which shall also preclude relitigating
any such issues in any related subsequent
unfair labor practice proceeding.
29 C.F.R. § 102.67(f).
rules, the representation proceeding is the forum designed for
parties to contest the appropriateness of a bargaining unit. Id. §
159(b); 29 C.F.R. §§ 102.60-68.
The Board has drawn a “well established” line between
representation and unfair labor practice proceedings, requiring
that any issues that may be presented during the representation
proceeding must be offered there. Joseph T. Ryerson & Son,
Inc. v. NLRB, 216 F.3d 1146, 1151-52 (D.C. Cir. 2000) (quoting
Thomas-Davis Med. Ctrs. v. NLRB, 157 F.3d 909, 912 (D.C. Cir.
1998)); see Wackenhut Corp. v. NLRB, 178 F.3d 543, 552-53
(D.C. Cir. 1999); Westwood One Broad. Servs. Inc., 323
N.L.R.B. 1002, 1002 (1997); 29 C.F.R. § 102.67(f).3 As a
refusal-to-bargain unfair labor practice proceeding addresses a
charge “based on the record made at the earlier representation
proceeding,” Amalgamated Clothing Workers of Am. v. NLRB
(ACWA I), 365 F.2d 898, 903 (D.C. Cir. 1966), “a party must
raise all of his available arguments in the representation

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proceeding rather than reserve them for an enforcement
proceeding,” Prairie Tank S., Inc. v. NLRB, 710 F.2d 1262, 1265
(7th Cir. 1983). There are only limited exceptions. See Thomas-
Davis, 157 F.3d at 912-13; Amalgamated Clothing Workers of
Am. v. NLRB (ACWA II), 424 F.2d 818, 829 (D.C. Cir. 1970);
Westwood One, 323 N.L.R.B. at 1002; see also 29 C.F.R. §
102.65(e). For example, relitigation is allowed if “newly
discovered evidence or other special circumstances requir[e]
reexamination of the decision in the representation proceeding,”
Joseph T. Ryerson, 216 F.3d at 1151; Soft Drink Workers Union
Local 812 v. NLRB, 937 F.2d 684, 688 (D.C. Cir. 1991), or if
there is “legal authority . . . that changed governing law,” Alois
Box Co., Inc. v. NLRB, 216 F.3d 69, 78 (D.C. Cir. 2000). Such
circumstances would arise, for example, where a new legal
argument is based on after-arising or after-discovered facts.
Prairie Tank, 710 F.2d at 1265. The rule thus requires litigation
of any unit issues that a party has reason, ability, and
opportunity to contest during the representation proceeding.
The purpose of the Board’s non-relitigation rule is to “estop
relitigation in a related proceeding . . . in accordance with the
long-held objective of avoiding undue and unnecessary delay in
representation elections.” ACWA I, 365 F.2d at 905. In effect,
the rule safeguards the results of a representation proceeding
from duplicative, collateral attack in a related unfair labor
practice proceeding. See Westwood One, 323 N.L.R.B. at 1002;
see also NLRB v. Mar Salle, Inc., 425 F.2d 566, 571-73 (D.C.
Cir. 1970) (citing Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 158, 162 (1941)). Judicial enforcement of the rule in turn
“protects the integrity of the administrative process by requiring
a party to develop all arguments and present all available,
relevant evidence at the representation proceeding,” rather than
“remain silent” and “ultimately defeat unionization on . . .
grounds asserted for the first time in the ensuing unfair labor
practice proceeding.” St. Anthony Hosp. Sys. v. NLRB, 655 F.2d

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1028, 1030 (10th Cir. 1981); see also Mar Salle, Inc., 425 F.2d
at 573. Such enforcement is consistent with the basic principle
that “[s]imple fairness to those who are engaged in the tasks of
administration, and to litigants, requires as a general rule that
courts 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).
The court will not disturb the Board’s application of its non-
relitigation rule absent an abuse of discretion. Alois Box Co.,
216 F.3d at 78; Thomas-Davis, 157 F.3d at 912. The court has
previously observed that it is “eminently reasonable” for the
Board to deny a second round to a party who “had the
opportunity to litigate all relevant issues previously,” where
there is no “newly discovered or previously unavailable
evidence.” Mar Salle, Inc., 425 F.2d at 572 & n.10; see NLRB
v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 709 (2001) (citing
Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139-41 (1971);
Pittsburgh Plate Glass Co., 313 U.S. at 161-62). By contrast, a
party who does litigate an issue in the appropriate forum may
receive review of representation issues in due course; the court
generally will review a representation issue upon the filing of a
petition from an unfair labor practice proceeding as long as a
party litigated the issue during the representation proceeding and
presented its arguments on the issue as a defense to an unfair
labor practice charge. Nathan Katz Realty, LLC v. NLRB, 251
F.3d 981, 987 (D.C. Cir. 2001). But in the absence of an abuse
of discretion by the Board in applying the non-relitigation rule,
a representation issue not previously litigated is not properly
before the court upon a petition for review of an order in the
unfair labor practice proceeding. Joseph T. Ryerson, 216 F.3d
at 1152; see also 29 U.S.C. § 160(e).

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The record of the representation proceeding demonstrates
that Pace had reason, ability, and opportunity to challenge the
description of the unit but repeatedly declined to do so. The
Regional Hearing Officer opened the February 2004 hearing on
Pace’s objection to the Union’s proposed unit by discussing the
dual objectives of the hearing — to determine the scope of the
bargaining unit and the criteria for voter eligibility. Although
Pace disagreed with the Hearing Officer’s statement that these
were “two distinct issues” and requested a stay, the Hearing
Officer adopted the Union’s amended definitions of the unit and
voter eligibility, setting forth two separate categories. When
asked during the hearing on several occasions by the Hearing
Officer to identify its position on the issues, Pace stated only a
general objection that the issues were intertwined and sought to
have granted its pending motions to dismiss the certification
petition, for a stay and transfer of the case to the Board, and for
recusal and transfer to a different Region. Pace neither
explained how the issues of unit scope and voter eligibility were
intertwined nor presented the arguments it presents in its brief
to the court that the Act and Board precedent require all
members in the unit to be eligible to vote. By contrast, Pace
argued that law school adjuncts should not be included in the
bargaining unit, which led to a stipulation of the parties.
Pace’s post-hearing letter seeking clarification of two
footnotes in the Regional Director’s Election Order also failed
to argue that adjuncts who are “casual employees” should be
excluded from the bargaining unit. Although the letter stated
that the footnote on “casual employees” did not make sense,
Pace did not present argument on this issue nor offer an
explanation of how this definition should be changed. Neither
did Pace seek Board review of the Amended Election Order
even though its treatment of “casual employees” is not the same
as that Pace attempted to urge during the unfair labor practice
proceeding.

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A mere reference to a potential issue is not the same as
litigating an issue by making an objection clear on the record of
the representation proceeding so as to preserve the right to
review by the Board and the court. See Alois Box Co., 216 F.3d
at 78. Even assuming Pace’s fleeting reference to a general
objection to the member-voter distinction sufficed to note the
issue, this is not tantamount to litigating specific concerns as is
contemplated by the non-relitigation rule. “[A]n implicit
argument is hardly the same as giving notice so the Board has an
opportunity to rule on the argument.” Joseph T. Ryerson, 216
F.3d at 1151; see also Family Serv. Agency S.F. v. NLRB, 163
F.3d 1369, 1380 (D.C. Cir. 1999). There were then-available
arguments that Pace could have made that it now contends are
dispositive, for example, in contending there is a lack of a
community of interest between adjuncts who have served for
longer than three credit hours in one as opposed to several
academic years. It was Pace’s concern about the sufficiency of
the evidence to support the Union’s proposed unit that was the
occasion for the Hearing Officer to reopen the record and
repeatedly attempt to discover the nature of Pace’s objection to
treating unit membership and voter eligibility as separate issues.
Yet, Pace declined, through self-described experienced counsel,
to respond in a manner that would alert the Hearing Officer or
the Regional Director to the substantive basis for its concern.
Given the centrality of the issue of the scope of the bargaining
unit, Pace could not stand mute under the circumstances.
To the extent Pace now contends that the Board was
required to make an exception to its non-relitigation rule due to
Pace’s reasonable reliance on an error in the Amended Election
Order, there is neither an exception that would apply nor a basis
for the exception it seeks. See Thomas-Davis, 157 F.3d at 912.
Pace does not maintain there was either new evidence or new
governing law. Instead, Pace suggests that there was no need to
litigate the “casual employees” definition or member-voter

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distinction until the unfair labor practice proceeding because it
“believed the issue had been resolved in its favor.” Pet.’s Reply
Br. at 8-9. Pointing to a typographical error in a footnote in the
Amended Election Order, see supra note 2, as evidence on
which it could reasonably rely to believe it had received a
favorable scope-of-unit ruling, Pace maintains that the footnote
stated the status of the law on a member-voter distinction.
However, the typographical error appeared at that time only in
the narrative portion of the Amended Election Order, which
misquoted the previously-issued Election Order. Critically, the
error did not appear in the part of the Amended Election Order
defining the scope of the unit. Neither did it appear in the
Board’s posted pre-election notices. Any confusion arising from
the added text should have prompted experienced counsel to
seek clarification or to state Pace’s understanding on the record,
not wait to raise the issue long after the election had occurred
and the Board had certified the Union. As the Regional Director
pointed out in resolving the Union’s unit-clarification petition,
“[t]he fact that [Pace] never addressed that issue strongly
militates against accepting [its] position.” Counsel’s silence
suggests a realization that the added text was inconsequential.
While Pace had every right to pursue a strategy seeking
dismissal of the petition, or the other relief sought by its several
motions, once the Hearing Officer reopened the record to
address Pace’s concerns about the unit and repeatedly inquired
of its position, Pace took the risk that the Board would apply the
non-relitigation rule if it did not present its position on the
record. Pace does not suggest that the Hearing Officer or
Regional Director acted contrary to Board procedures or rules in
attempting to address Pace’s concerns about the description of
the unit. The Board found no bias by the Regional Director or
Hearing Officer against Pace, and Pace does not pursue that
issue in its petition for review. Curiously, Pace never has
explained to the court why more time or information about the

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number of adjuncts during a given semester would be needed to
develop a legal argument that all members of the unit should be
eligible to vote in the election. As the Regional Director found,
Pace “has failed to identify any specific issue or unit contention
that it was precluded from raising or litigating arising out of the
fact that the adjunct faculty and part-time instructors had not yet
begun to teach their classes for the Spring 2004 semester when
the hearing commenced.” Even assuming that Pace’s contention
in its reply brief, that it was not obligated to raise issues
regarding the scope of the bargaining unit during the
representation proceeding because the Board has the evidentiary
burden on unit scope, is properly before the court, but see
Students Against Genocide v. Dep’t of State, 257 F.3d 828, 834-
35 (D.C. Cir. 2001), Pace’s reliance on Allen Health Care
Services, 332 N.L.R.B. 1308 (2000), would be misplaced as
nothing in that decision eliminated a party’s obligation to
present its objections to a proposed unit, notwithstanding the
Board’s recognition of its obligation to develop an evidentiary
record supporting a unit definition, id. at 1309.
The court need not reach Pace’s challenges to the Board’s
adoption of a distinction between unit membership and voter
eligibility. Because Pace failed to make known its objections to
the scope of the proposed bargaining unit when it had reason,
ability, and opportunity to do so during the representation
proceeding, the Board did not abuse its discretion in applying
the non-relitigation rule. Accordingly, we deny the petition for
review and grant the Board’s cross-application for enforcement
of its order.

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