10-4600-ag
NLRB v. Snell Island SNF LLC


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th
day of December, two thousand eleven.

Present:
             ROBERT D. SACK,
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,

                     Circuit Judges.
________________________________________________

NATIONAL LABOR RELATIONS BOARD,

             Petitioner,

                     v.                                                  No. 10-4600-ag

SNELL ISLAND SNF LLC, d/b/a SHORE ACRES REHABILITATION AND NURSING
CENTER, LLC, d/b/a CAMBRIDGE QUALITY CARE, LLC,

         Respondent.
________________________________________________

For Petitioners:               ROBERT J. ENGLEHART (David A. Seid, on the brief), National Labor
                               Relations Board, Washington, D.C.

For Respondent:                CHARLES PREYER ROBERTS, III, Constangy, Brooks & Smith, LLP,
                               Winston-Salem, N.C. (Clifford H. Nelson, Jr., Constangy, Brooks &
                               Smith, LLP, Atlanta, Ga., on the brief)
         Application for enforcement of a decision and order of the National Labor Relations
Board.

         ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the application for enforcement is GRANTED.

         Petitioner the National Labor Relations Board (the “Board”) petitions to enforce a final

Board order issued against Snell Island SNF LLC d/b/a Shore Acres Rehabilitation and Nursing

Center, LLC (“Shore Acres”) and HGOP, LLC d/b/a Cambridge Quality Care, LLC (“HGOP”)

(collectively “the Company”) concluding that the Company violated Section 8(a)(5) and (1) of

the National Labor Relations Act (the “Act”), 29 U.S.C. §§ 151, 158(a)(5) and (1), by failing to

recognize and bargain with the United Food & Commercial Workers Union, Local 1625 (“the

Union”). In response to the Board’s application, the Company argues that the Board (1) abused

its discretion by certifying the Union without interviewing witnesses or conducting an

evidentiary hearing; and (2) denied the Company due process by its hasty “rubber stamping” its

prior decision, which had been issued by an invalid two-member panel, following remand by this

Court. We assume the parties’ familiarity with the facts and procedural history of this case.

         “We must enforce the Board’s order if the Board’s legal conclusions have a reasonable

basis in law, and if its factual findings are supported by substantial evidence on the record as a

whole.” NLRB v. Windsor Castle Health Care Facilities, Inc., 13 F.3d 619, 623 (2d Cir. 1994)

(internal citation omitted). “Deference is given to the NLRB’s decision, and all reasonable

inferences are drawn in its favor.” Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir.

1996) (per curiam).


         We begin with the Company’s contention that the Board abused its discretion by

overruling the Company’s objections to the contested election without a hearing and concluding

that the Company violated Section 8(a)(5) and (1) of the Act. We addressed this precise

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argument in our previous decision in this case, Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d

Cir. 2009), abrogated on other grounds by New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635

(2010). There, we held that the Board’s regional director did not err in recommending that the

Company’s objections be overruled without a hearing and that the Union be certified as the

employees’ bargaining representative.


                    In the instant case, petitioners were afforded an opportunity to submit
       “[a]ffidavits, signed statements, documents or other appropriate material which
       constitutes prima facie evidence of each of the filed objections” to the NLRB regional
       director. J.A. 28. The regional director reviewed petitioners’ proffered evidence,
       including a letter from petitioners stating that at least two employees would testify that
       several co-workers told them prior to the union election that “if they were going to vote
       ‘No’ it would be best for them not to vote at all,” J.A. 40 (Report on Objections to [the]
       Election and Recommendations to the Board, Jan. 18, 2008, at 4.). The regional director
       found that these submissions were, at best, hearsay statements by management that
       employees had asserted complaints about a general atmosphere of union intimidation. In
       light of this finding, the regional director concluded that the evidence did not support
       petitioners’ objections because second- or third-hand allegations of intimidation, without
       specific allegations of voter coercion or other misconduct, could not constitute an unfair
       labor practice. See, e.g., NLRB v. Basic Wire Prods., Inc., 516 F.2d 261, 264 (6th Cir.
       1975) (stating that the NLRB “properly refused to invalidate the election or to hold a
       hearing on the allegations” of election abuses where “[t]he only evidence proffered by
       [employer] was an affidavit of its Vice President to the effect that ‘union people’ told
       several employees ‘that it would pay to support the Union’”). We agree. Petitioners did
       not “demonstrate by prima facie evidence the existence of substantial and material
       factual issues,” [NLRB v. Semco Printing Ctr., Inc., 721 F.2d 886, 891 (2d Cir. 1983)]
       (internal quotation marks omitted). Accordingly, we detect no error in the regional
       director's decision to forgo a hearing in this case.


Id. at 425 (some alterations in original). Neither the underlying facts nor the applicable legal

standards have changed since we issued our opinion in 2009. Accordingly, we hereby reaffirm

our prior decision and conclude that the Board did not abuse its discretion by declining to

conduct an evidentiary hearing in this case.


       We next consider whether the Board’s actions in this case denied the Company due

process. By way of brief background, the instant petition stems from an election held on

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December 12, 2007 in which employees of the Company voted in favor of representation by the

Union. Snell Island, 568 F.3d at 413. After a two-member panel of the Board certified the

Union, the Company continued to refuse to recognize and bargain with the Union, and, as a

result, the Union filed an unfair labor practices charge. Id. On July 18, 2008, the two-member

panel issued a Decision and Order concluding that petitioners had engaged in unfair labor

practices by refusing to negotiate with the Union. Id. at 414. The Board’s Decision and Order

was upheld by this Court its June 17, 2009 decision. The Company then successfully appealed

to the Supreme Court, which held in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010),

that the two-member Board lacked the power to issue decisions. The Supreme Court granted

certiorari and remanded in light of New Process, and we then remanded the case to the Board on

August 25, 2010. Two days later, a three-member panel convened to reconsider the case

certifying the Union representation and issued a notice to show cause as to why the Board should

not grant summary judgment. J.A. 93-94. After first noting that the two-member decision would

not be given “preclusive effect,” Snell Island, 355 N.L.R.B. No. 143 (2010), the Board adopted

the findings and recommendations of its prior decision, which it incorporated by reference. It

granted leave for either party to amend the complaint to line with the current sate of the evidence

and issued a notice to show cause as to why the Board should not grant summary judgment. On

November 9, 2010, after the regional director issued an amended complaint and the Company

filed its answer, the three-member panel granted summary judgment and concluded that the

Company had violated Section 8(a)(5) and (1) of the Act. See J.A. 95-108, 118-19. The Board

directed the Company to bargain and filed its petition for enforcement in this Court the same day

it issued its decision. Against this background, the Company now argues that the Board’s failure




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to reconsider the matter “afresh” amounted to a “hasty rubber stamping of its prior decision

constituted a denial of due process.” Resp’t Br. 14 (capitalization removed).


          We do not reach the merits of the Company’s due process argument, however, because

we lack jurisdiction to consider an issue raised for the first time on appeal. Section 10(e) of the

Act provides, in relevant part, that “[n]o objection that has not been urged before the Board, its

member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge

such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e).

See also Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982) (“[T]he Court of

Appeals lacks jurisdiction to review objections that were not urged before the Board . . . .”).

“Extraordinary circumstances” excusing a failure to raise an objection “exist only if there has

been some occurrence or decision that prevented a matter which should have been presented to

the Board from having been presented at the proper time.” NLRB v. Allied Prods., Corp., 548

F.2d 644, 654 (6th Cir. 1977). No such circumstances exist in this case because the Company

could have raised its due process arguments before the Board by moving for a rehearing. See id.

(“[B]ecause of the availability of a rehearing before the Board, the Board’s sua sponte adoption

of the status quo ante remedy is not a statutory extraordinary circumstance.”); Woelke & Romero

Framing, Inc., 456 U.S. at 666 (“Woelke could have objected to the Board’s decision in a

petition for reconsideration or rehearing. The failure to do so prevents consideration of the

question by the courts.”). Accordingly, we conclude that the Company has forfeited its due

process challenge.1


1
    Our conclusion in this regard accords with a recent D.C. Circuit decision in a similar case:

          Nor do we reach the Hospital’s argument that the Board failed to engage in “reasoned
          decisionmaking”—as the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,
          requires of Board decisions, Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

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       We have considered the Company’s remaining arguments and find them to be without

merit. For the reasons stated herein, the Board’s application for enforcement is GRANTED.


                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




       374, 118 S. Ct. 818, 139 L. Ed. 2d 797 (1998) – when the three-member panel of the
       Board summarily adopted the vacated April 29, 2009 decision and order. Whatever the
       merits of the Hospital's claim, section 10(e) prevents us from considering the argument
       raised for the first time on appeal. See 29 U.S.C. § 160(e) (“No objection that has not
       been urged before the Board . . . shall be considered by the court, unless the failure or
       neglect to urge such objection shall be excused because of extraordinary
       circumstances.”). The fact that the Board filed an application for enforcement in the
       Second Circuit just one day after adopting the decision and order does not constitute an
       “extraordinary circumstance[],” as the Hospital contends, because the Hospital still had
       up to twenty-eight days to move for reconsideration before the Board, 29 C.F.R. §
       102.48(d)(2), and the Board’s overlapping jurisdiction remained intact so long as the
       record had not been filed in the Second Circuit, 29 U.S.C. § 160(d), (e). Nor did the
       Hospital’s motion for reconsideration of the Board’s original April 29, 2009 decision and
       order, . . . raise the same objection the Hospital presses now—that the Board took an
       “impermissible shortcut” by summarily adopting the vacated decision and order. Pet’r’s
       Br. 32. Accordingly, the Hospital has forfeited its APA challenge.

N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C. Cir. 2011) (alteration in original).

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