
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2384                              UNION DE LA CONSTRUCCION                              DE CONCRETO Y EQUIPO PESADO,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                           and McAuliffe,* District Judge.                                           ______________                                 ____________________            Marcos A.  Ramirez Lavandero with  whom Pedro J.  Salicrup was  on            ____________________________            __________________        brief for petitioner.            Martin M. Eskenazi, Attorney, with whom  Jerry M. Hunter,  General            __________________                       _______________        Counsel, Yvonne T.  Dixon, Acting Deputy General  Counsel, Nicholas E.                 ________________                                  ___________        Karatinos,  Acting  Associate  General  Counsel,  Margery  E.  Lieber,        _________                                         ___________________        Assistant   General  Counsel  for  Special  Litigation,  and  Eric  G.                                                                      ________        Moskowitz, Deputy  Assistant General  Counsel for  Special Litigation,        _________        National Labor Relations Board, were on brief for respondent.                                 ____________________                                  November 12, 1993                                 ____________________        _____________________        *Of the District of New Hampshire, sitting by designation.                       BREYER, Chief Judge.  The Union de la Construccion                               ___________             de Concreto  y Equipo  Pesado  (the "Construction  Workers")             asks  us  to   review  a  National  Labor   Relations  Board             determination  finding both 1)  that  Empresas  Inabon, Inc.             (the  "Company") committed  an  "unfair  labor practice"  in             refusing  to bargain with  the Construction Workers;  and 2)             that,  currently, a different union, the Congreso de Uniones             Industriales de Puerto Rico (the "Industrial Workers"),  not             the   Construction   Workers,   represents   the   Company's             employees.  We  agree with the Board that  this petition, in             essence,  asks   us  to  review  a   Board  "representation"             decision;  that  we  lack  jurisdiction  to  review  such  a             decision;  and,  that  we  must,   therefore,  dismiss  this             petition.                                          I.                                      Background                                      __________                       In the  spring of  1991, the Construction  Workers             represented  the Company's employees under a contract due to             expire in June.  In  April, the Industrial Workers asked the             National Labor Relations  Board to hold an  election so that             the Company's employees could choose between the two unions.             In May, the Company decided that, pending the outcome of the                                         -2-                                          2             election, it would not bargain with the Construction Workers             over a new contract.                       The NLRB's Regional Director scheduled an election             for  mid-June.    Before   the  election,  the  Construction             Workers,  objecting to  the  Company's  refusal to  bargain,             filed  an unfair labor  practice complaint.   National Labor             Relations Act (NLRA)   8(a)(1), (5), 29  U.S.C.   158(a)(1),             (5).  The Industrial Workers won the June election by a vote             of 30 to  6.   The Construction  Workers subsequently  filed             objections to the election.  29 C.F.R.   102.69.  They  said             that the Company's  refusal to bargain with them  in May had             improperly  biased the employees  against them and  that the             election should be set aside.                       The  NLRB's  Regional  Director  consolidated  the             unfair  labor  practice proceeding  with  the representation             proceeding.  Ultimately,  an Administrative Law  Judge found             in  the  Construction  Workers' favor  on  the  unfair labor             practice  issue.   See RCA  Del Caribe,  Inc., 262  NLRB 963                                ___ ______________________             (1982) (the filing  of an election petition does  not excuse             an  employer from continuing  to bargain with  the currently             certified collective  bargaining representative).   But,  he             found in the Industrial Workers'  favor on the second issue.             That is to say, he  decided that the refusal to bargain  had                                         -3-                                          3             not affected the outcome of the election; that the election,             ___             therefore, was valid; and that, consequently, the Industrial             Workers,  not  the  Construction  Workers,  represented  the             Company's employees.  He issued a recommended order that, in             essence,  told the  Company not  to  commit similar  "unfair             labor practices" in the future, that is, it told the Company             that  it  should  not  again,  under similar  circumstances,             refuse to bargain with "an incumbent union."  The order also             told the  Company to post  notices saying that it  would not             refuse to do so.  But, the order did not tell the Company to             bargain  with the Construction  Workers, for, after  all, in             the  ALJ's   view,  the   Construction  Workers   no  longer             represented the employees.                       The  Construction   Workers  appealed   the  ALJ's             determinations to the Board.  The Board affirmed the ALJ and             issued the  ALJ's order;  it also  certified the  Industrial             Workers as the collective  bargaining representative of  the             Company's employees.  The  Construction Workers now petition             this court  for review of  the Board's decision.   The Board             asks us to dismiss the petition, and we shall do so because,             as the Board  points out, we lack the  legal power to review             what  is, in  essence, a  Board decision  about which  union                                         -4-                                          4             represents the Company's employees.  See American Federation                                                  ___ ___________________             of Labor v. NLRB, 308 U.S. 401, 405-11 (1940).             ________    ____                                         -5-                                          5                                         II.                                       Analysis                                       ________                       The Board is clearly right in pointing out that we             lack   the  legal   power  to   review   directly  an   NLRB             determination  about  which  union  represents  a  group  of             employees.  American  Federation of Labor,  308 U.S. at  409                         _____________________________             (NLRA    10 authorizes judicial  review of NLRA    8 "unfair             labor practice"  determinations, but it  does not  authorize             judicial    review    of   NLRA         9   "representation"             determinations);  Boire v.  Greyhound Corp.,  376  U.S. 473,                               _____     _______________             476-77 (1964); Pittsburgh Plate Glass  Co. v. NLRB, 313 U.S.                            ___________________________    ____             146, 154 (1941); S.D. Warren Co. v. NLRB,  353 F.2d 494, 496                              _______________    ____             (1st  Cir. 1965),  cert. denied,  383 U.S.  958 (1966).   To                                ____________             obtain judicial review  of a   9  "representation" decision,             an  objecting  firm,  or  a  "losing"  union,  must  take  a             roundabout,  "back door"  route.    It  must  transform  the             "representation"   determination  into   an  "unfair   labor             practice" determination.  It can do so by 1) engaging  in an             activity (typically, refusing to  bargain or picketing) that             amounts to  an unfair  labor practice if,  but only  if, the             Board's   9  decision is proper; 2) making  certain that the             Board  then finds  that it  has engaged  in an  unfair labor             practice; and, then, 3) petitioning a court to set aside the                                         -6-                                          6             "unfair labor practice" determination on the ground that the             underlying  "representation"   determination  is   improper.             Boire, 376 U.S. at 476-77; American Federation of Labor, 308             _____                      ____________________________             U.S.  at 410  n.3; United  Federation  of College  Teachers,                                _________________________________________             Local 1460 v. Miller, 479 F.2d 1074, 1078-79 (2d Cir. 1973);             __________    ______             Lawrence Typographical Union v. McCulloch, 349 F.2d 704, 708             ____________________________    _________             (D.C.  Cir.  1965);  see  also  NLRB  v. Union  Nacional  de                                  _________  ____     ___________________             Trabajadores,  540  F.2d  1, 12-13  (1st  Cir.  1976), cert.             ____________                                           _____             denied, 429 U.S. 1039 (1977).  The Construction Workers have             ______             not  tried to  take this  route  directly here,  though they             believe they can construct a  kind of analogy that will lead             to review.                       The Construction Workers find an analogy by asking             us to  review the  Board's decision not  to issue  a certain                                                 ___             kind  of order to cure  the "unfair labor practice," namely,             an order requiring  the Company to bargain with  them in the             future.   They believe the  Board would have issued  such an             order had it not thought  the order pointless; and, it would             not have  thought the order  pointless had it set  aside the             election  results  in  the Industrial  Workers  favor.   The             Construction Workers hope, in this way, to obtain our review             of the "representation proceeding" results through the  back             door,  that is,  by  obtaining review  of the  "unfair labor                                         -7-                                          7             practice"  order   that  is  necessarily   founded  upon   a             particular  "representation" proceeding outcome.  See NLRA                                                                 ___             9(d),  29  U.S.C.     159(d)  (permitting  court  review  of             representation  proceeding results  when  "an  order of  the             Board"  in an unfair labor practice  proceeding "is based in             whole  or  in   part"  upon  the   results  of  an   earlier             representation proceeding); Boire, 376 U.S. at 477; American                                         _____                   ________             Federation of Labor, 308 U.S. at 405-11.             ___________________                       The problem for the Construction Workers, however,             is that  they did not tell the Board  that they wanted it to             review the scope of the ALJ's "unfair labor practice" order.             Rather,  when they  asked  the  Board  to review  the  ALJ's             decision, they told it that they objected:                        to the  ALJ's finding that  directing an                       election, notwithstanding the pending of                       an 8(a)(5) unfair labor practice charge,                       does not affect the laboratory condition                       required by law before the holding of an                       election             and                       to the  ALJ's finding that  the Region's                       decision not to block the holding of the                       election did not affect its result since                       the  employees   were  able   to  freely                       exercise  their right  to choose  in the                       said election.             Petitioner's Appendix at 57-58.                                           -8-                                          8                       The   Board,  reading   these  objections,   could             reasonably  believe  that  the  Construction  Workers   were             satisfied with the "unfair labor practice" results, and that             they  wanted the Board  to review only  the "representation"             results.   They  might have  thought  that the  Construction             Workers  were conceding that, if  the election was proper, a             bargaining  order would not  be appropriate.   See Celebrity                                                            ___ _________             Inc., 284  NLRB 688 (1987);  Len Martin Corp., 282  NLRB 482             ____                         ________________             (1986).   Irrespective  of  what  the  Construction  Workers             actually did want,  they did not raise before  the Board the             objection to  the "unfair  labor practice"  order that  they             seek to raise here.  We therefore cannot  consider it.  NLRA               10(e), 29  U.S.C.   160(e); Woelke &  Romero Framing, Inc.                                           ______________________________             v. NLRB, 456 U.S. 645,  665-66 (1982); Detroit Edison Co. v.                ____                                __________________             NLRB, 440  U.S. 301, 311  & n.10  (1979); El  Gran Combo  de             ____                                      __________________             Puerto Rico v. NLRB, 853 F.2d 996, 1001 (1st Cir. 1988).             ___________    ____                       We  add that the Construction Workers do not point             to  any special circumstance that could excuse their failure             to raise the point before the  Board, nor do they raise  any             particularly strong claim  on the merits, nor do  we see any             obvious error in the ALJ's decision of the representation of             the matter.                       For these reasons, the petition for review is                                         -9-                                          9                       Dismissed.                       _________                                         -10-                                          10
