UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


JOSEPH T. RYERSON

v.

NLRB


99-1327a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued May 5, 2000 Decided July 7, 2000 


No. 99-1327


Joseph T. Ryerson & Son, Inc.,  Petitioner


v.


National Labor Relations Board,  Respondent


International Brotherhood of Teamsters,  AFL-CIO, Local 714 and  United
Steelworkers of America, AFL-CIO,  Intervenors


On Petition for Review and Cross-Application  for Enforcement of an
Order of the  National Labor Relations Board


Stephen D. Erf argued the cause for petitioner. With him  on the briefs
were Michael F. Rosenblum, Timothy S. Bishop  and Jeffrey W. Sarles.


Sonya Spielberg, Attorney, National Labor Relations  Board, argued the
cause for respondent. With her on the  brief were Leonard R. Page,
General Counsel, Linda R. Sher,  Associate General Counsel, Aileen A.
Armstrong, Deputy  Associate General Counsel, and Peter Winkler,
Supervisory  Attorney.


David I. Goldman argued the cause for intervenors. With  him on the
brief was Susan Brannigan.


Before: Silberman and Rogers, Circuit Judges and  Buckley, Senior
Circuit Judge.


Opinion for the Court filed by Circuit Judge Rogers.


Rogers, Circuit Judge: Joseph T. Ryerson & Sons, Inc.  petitions for
review of an order of the National Labor Rela- tions Board that the
company violated ss 8(a)(1) and (5) of  the National Labor Relations
Act by refusing to bargain with  the certified representative of the
bargaining unit, namely  with Local 714 of the International
Brotherhood of Teamsters  ("Teamsters") and the United Steelworkers of
America  ("Steelworkers"), which jointly petitioned to represent a
bar- gaining unit at four of the company's plants in Chicago, 
Illinois. The company contends that the Board erred in  failing to set
aside the election for three reasons: (1) the Act  does not authorize
either joint election petitions or separate  administration by two
unions of a collective bargaining agree- ment; (2) there is not
substantial evidence in the record to  support the Board's finding
that the unions did not misrepre- sent the intended nature of their
joint representation to the  bargaining unit employees during the
election campaign; and  (3) the hearing officer abused his discretion
in denying the  company's subpoena for the unions' entire joint
bargaining  agreement and other internal documents relating to the
joint  petitions for representation, thereby denying the company a 
full and fair hearing. Because the company failed to preserve  its
statutory argument for review by the court, and because  we conclude
that the company's other contentions are unper- suasive, we deny the
petition and grant the Board's cross- application for enforcement of


I.


Joseph T. Ryerson & Sons, Inc. operates four plants in  Chicago,
Illinois--the 16th Street, 83rd Street, 103rd Street,  and 111th
Street--known collectively as the "Chicago Com- plex." After a number
of unsuccessful attempts by the  Steelworkers--due, in part, to lack
of support at the 16th and  83rd Street plants--to organize Ryerson
production and  maintenance employees in Chicago, the Teamsters, in
1997,  began a campaign to represent production and maintenance 
employees at the 16th and 83rd Street plants. After the  Teamsters
filed a petition with the Board seeking certification  as the
exclusive bargaining representative of the bargaining  unit at the
16th and 83rd Street plants, a struggle between  the Teamsters and
Steelworkers ensued, resulting in the  Steelworkers' campaign to
represent the employees at the  103rd and 111th Street plants. After
the petitions for repre- sentation of the 800 employees were
consolidated for hearing,  the Steelworkers distributed a flyer at the


The workers at 103rd Street don't want to be represent- ed by the
Teamsters and have overwhelming[ly] signed  Steelworker cards ... The
Teamsters are arguing for  one election including 83rd and 16th Street
workers....  The Steelworkers are fighting to get an election for the 
103rd Street workers.


Employees at the 16th and 83rd Street plants, without objec- tion from
the Teamsters, circulated a petition opposing the  Steelworkers: "We,
the undersigned, DO NOT want the  Steelworkers to represent us. Rather
than have them, we  will remain NON-UNION." (emphasis in original)


After failed attempts at mediation and on the eve of  arbitration, the
unions agreed to file a joint petition for  certification. Following
execution of a joint petition agree- ment, the unions distributed
flyers to the employees that set  out the first two paragraphs of the
joint petition agreement:


At the National Relations Board hearing, the [Steelwork- ers] and the
[Teamsters] agree to engage in a joint 


organizing/representa[ ]tion campaign at the Chicago  Complex of [the
company] for a bargaining unit consist- ing of all four facilities,
including 16th Street, 83rd  Street, 103rd and 111th streets. This
will involve an  amended representation petition to seek a joint
certifica- tion, unless otherwise agreed to by the [Teamsters] and 
[Steelworkers].


Assuming that the campaign is successful, the union[s]  will jointly
negotiate for a collective bargaining agree- ment and will divide
responsibility for administering the  contract as follows:


-16th and 83rd streets -- [Teamsters] -103rd and 111th Streets --
[Steelworkers] Dues and membership will follow the same lines.


No other portion of the joint petition agreement was divulged  to the
employees. The unions circulated separate authoriza- tion cards, and
filed amended petitions to jointly petition to  represent "[a]ll
full-time and regular part-time production  and maintenance employees"
at the four Chicago Complex  plants.


During the election campaign, the Steelworkers distributed  literature
and campaigned exclusively at 103rd and 111th  Streets, while the
Teamsters distributed literature and cam- paigned exclusively at 16th
and 83rd Streets. Each union  held its own rallies. Organizers from
both unions made  statements to employees that the unions would part
ways  with respect to representation after the certification, dividing
 the four plants between them for the election campaign and 
thereafter for contract administration.1


On September 25, 1997, the unions won the election.2 The  company filed
objections to the election, noting among other  


__________

n 1 According to the Bureau of National Affairs, under the joint 
representation agreement, the Teamsters will represent 525 em- ployees
at two plants and the Steelworkers will represent 275  employees at
the other two Chicago Complex plants. See BNA  Daily Labor Report,
Nov. 6, 1997, at A3. 2 Of the 820 employees eligible to vote in the
election, 786  voted: 418 voted for the unions and 352 voted against
the unions,  with 16 ballots challenged and one declared void.


things that the unions "stated [their] intention to negotiate as 
separate unions in separate bargaining units, and not as a  joint
bargaining representative" and "misrepresented how  bargaining and
contract administration would occur if [they]  won the election." The
company also served a subpoena on  the unions for "[a]ll documents
relating to the joint represen- tation arrangement" between the
Teamsters and the Steel- workers. The unions objected to the subpoena
as seeking  irrelevant documents and as vague and unduly burdensome. 
The hearing officer denied the subpoena except as to the first  two
paragraphs of the joint petition agreement that had been  disclosed to
the employees during the election campaign, on  the ground that the
unions' internal communications were  irrelevant because they did not
shed light on what the unions  had communicated to the employees
during the election cam- paign. Following a hearing over the course of
several days,  the hearing officer found "no direct evidence that the
[unions]  do not intend to bargain jointly," observing that the unions
 had "consistently maintained that they would bargain jointly,  but
administer the jointly-negotiated contract separately at  specific
locations," and that there was no evidence "that the  [unions]
misrepresented how bargaining and contract admin- istration would
occur if [they] won the election." The Board  adopted the hearing
officer's findings and recommendations  in the unions' favor, and
certified the unions as the exclusive  bargaining representative of


When the company subsequently refused to bargain, the  unions filed an
unfair labor practice charge. The Board, in  response to the company's
attack on the certification because  of the unions' conduct during the
election campaign, ruled  that the company could not relitigate issues
litigated in the  representation proceeding, and granted the General
Counsel's  motion for summary judgment on the complaint charging the 
company with violating ss 8(a)(1) and (5) of the Act. See  Joseph T.
Ryerson & Sons, Inc. v. NLRB, 328 NLRB No. 168  (August 6, 1999). The
company petitions for review of the  Board's unfair labor practice
order, and the Board filed a  cross-application for enforcement of its
order.


II.


In contending that the Board erred by failing to set aside  the
election, the company makes three challenges. We ad- dress each in


A. Statutory challenge. The company contends that the  National Labor
Relations Act does not authorize the Board  to certify more than one
union as exclusive bargaining repre- sentative, or to divide a
bargaining unit for purposes of  contract administration.3
Specifically, the company makes  two statutory contentions. First, it
maintains that the Board  acted contrary to the Act, which authorizes
a union to be- come the exclusive bargaining-unit representative only
if it  obtains the support of a majority of the bargaining unit 
employees, by certifying two unions, each of which garnered  only
minority support, as the "exclusive representative" for  the company's
single Chicago Complex bargaining unit. Sec- ond, the company
maintains that, even if the Act did permit  joint petitioning and
representation, it does not permit the  unions to divide up a




__________

n 3 While acknowledging that the court rejected a challenge to  joint
petitioning in NLRB v. National Truck Rental Co., 239 F.2d  422 (D.C.
Cir. 1986), the company maintains that the issue should  be revisited
because the court's rationale is "obsolete and legally  invalid." To
support its contention that the Board exceeded its  authority under
the National Labor Relations Act, the company  cites cases for the
propositions that (1) an exclusive collective  bargaining agent must
enjoy the support of the majority of employ- ees in the unit, see,
e.g., Carothers v. Presser, 818 F.2d 926, 934  (D.C. Cir. 1987); Human
Dev. Ass'n v. NLRB, 937 F.2d 657, 665  (D.C. Cir. 1991), and (2)
contract bargaining and contract adminis- tration are linked, such
that allowing separate administration would  violate the Act. See,
e.g., Air Line Pilots Ass'n, Int'l v. O'Neill, 499  U.S. 65, 77
(1991); United Steelworkers v. Warrior & Gulf Naviga- tion Co., 363
U.S. 574, 578, 581 (1960). The Board, in turn, cites  National Truck
Rental as to joint representation, and cites several  Board decisions
for the proposition that a bargaining unit may be  divided by unions
for purposes of contract administration, Utility  Servs., Inc., 158
NLRB 592, 593 (1966); Swift & Co., 114 NLRB  159, 160 (1955).


ing, contract administration, and representation. As ex- plained in its
brief, in the company's view, the Board's  authorization for the
unions to divide up the Chicago Com- plex bargaining unit and
administer the contract separately  rests on "a false dichotomy
between contract bargaining and  contract administration" inasmuch as
contract administration,  and in particular the processing of
grievances, is "inextrica- bly linked with collective bargaining."
While the second  statutory contention poses a serious legal issue
that the court  has not yet addressed, see supra note 3, a threshold
issue is  whether these contentions are properly before the court. 
The Board maintains that the company "waived" its statutory 
contentions by failing to raise them in the representation  proceeding
before the Board and waiting until its opposition  to the General
Counsel's motion for summary judgment on  the unfair labor practice
complaint to raise the issues for the  first time.


"It is well established that in the absence of newly discover- ed
evidence or other special circumstances requiring reexami- nation of
the decision in the representation proceeding, a  respondent is not
entitled to relitigate in a subsequent refus- al-to-bargain proceeding
representation issues that were or  could have been litigated in the
prior representation proceed- ing." Thomas-Davis Med. Ctrs., P.C. v.
NLRB, 157 F.3d 909,  912 (D.C. Cir 1998) (quoting Westwood One Broad.
Servs.,  Inc., 323 N.L.R.B. No. 175 (June 16, 1997) (citing Pittsburgh
 Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941))). The  company,
seeming to acknowledge the need to have raised its  statutory argument
in the representation proceeding, at- tempts to demonstrate that it
did by pointing to various pages  in the record. The assertion that it
raised the statutory  challenge in that proceeding is not borne out by
the record.  Neither the company's citations to the record nor
counsel's  response at oral argument demonstrates that the company 
made its statutory argument during the representation pro- ceeding.


Apparently aware of the weakness of its position, the  company falls
back on its assertion that its statutory chal- lenge was "implicit" in
its argument that the unions' conduct 


demonstrated that they intended to divide the bargaining unit  for
separate representation. But the thrust of the company's  reliance on
the unions' conduct was to show that the joint  representation
agreement was a sham and the bargaining  unit employees were confused
about what they were voting  for in the election, which is unrelated
to the statutory chal- lenge it raised in opposing summary judgment.
Further- more, as the Board stated in granting summary judgment on 
the unfair labor practice charge, the company did not "offer  to
adduce at a hearing any newly discovered and previously  unavailable
evidence, nor [did] it allege any special circum- stances that would
require the Board to reexamine the deci- sion made in the
representation proceeding." Ryerson, 328  NLRB No. 168, at 1. In any
event, an implicit argument is  hardly the same as giving notice so
the Board has an opportu- nity to rule on the argument. Cf. Alois Box
Co. v. NLRB,  No. 99-1340, slip. op. at 13-14 (D.C. Cir. June 30,
2000).  Indeed, the record suggests that rather than being an implicit
 argument in the company's arsenal attacking the election, the 
statutory challenge was an afterthought, interposed as a new  argument
aimed at avoiding summary judgment. This is  evident from the fact
that the company did not file an  exception to the certification
decision on statutory grounds  muchless thereafter raise a statutory
challenge in its answer  to the unfair labor practice charge.


The company's explanation that it was unable to litigate its  statutory
objections "with all of the information it needed" as  a result of the
denial of its subpoena for the entire joint  representation agreement
rings hollow. Even if access to the  entire agreement might possibly
have strengthened a statuto- ry challenge, cf. Construction & Gen.
Laborers' Local Union  No. 190 v. NLRB, 998 F.2d 1064, 1066-67 (D.C.
Cir. 1993),  the lack of such access did not preclude the company from
 raising the statutory challenge, particularly as it was suggest- ed
by the evidence on which the company relies to show that  the unions
did not intend to bargain jointly or to administer  the parties'
contract jointly. See infra Part II(B). Had the  company made a
statutory challenge during the representa- tion proceeding, moreover,
it might well have had a better 


argument in favor of enforcing the subpoena. See infra Part  III(C).


The company's current contention that the Board failed in  its
responsibility to ensure that "fundamental labor princi- ples" are not
violated, see Associated Milk Producers, Inc. v.  NLRB, 193 F.3d 539,
543 (D.C. Cir. 1999), misses the mark.  Although it is not entirely
clear, the company appears to be  contending that the Board's
responsibility to protect funda- mental principles of labor law
constitutes a "special circum- stance" as would excuse the company's
failure to raise its  statutory argument during the representation
proceeding.  Were that the case, the Board's non-relitigation rule
would be  seriously compromised, eviscerating the non-relitigation
rule  for legal arguments having to do with the Board's authority 
under the Act. On the other hand, to the extent the company  is
suggesting that it is foreclosed from obtaining relief if its 
suspicions about how the unions will conduct themselves are 
confirmed, it is in error. Were the unions, for example, not  to
engage jointly in the collective bargaining process or not to  engage
in joint contract administration by taking divergent  grievance and
arbitration positions, cf. International Bhd. of  Teamsters v. NLRB,
587 F.2d 1176, 1181 (D.C. Cir. 1978), the  company would not be
without a remedy. The Board ac- knowledged in the certification order
that the company could  then file a petition to modify or revoke the
unions certifica- tion, or file a refusal to bargain charge, or, as
the Board  acknowledged at oral argument, the company could simply 
refuse to bargain with an inappropriate unit. See Utility  Servs., 158


Because the company did not preserve its right to raise its  statutory
contentions in appealing the Board's unfair labor  practice order,
those contentions are not properly before the  court and we do not
address them.


B. Misrepresentation challenge. Seeking to overturn  the election on
other grounds, the company contends that the  Board's finding that the
unions did not misrepresent to the  bargaining unit employees during
the election campaign the  character of their proposed joint
representation is unsupport-


ed by substantial evidence in the record. Because the unions  engaged
in misrepresentation, the company maintains, the  Board erred in
failing to set aside the result of the tainted  election. The company
relies on evidence in the record that  certain individuals told
bargaining unit employees that the  Steelworkers and Teamsters
intended to bargain separately  and that this message was reinforced
by the separate cam- paigns waged by the unions. Specifically, the
company relies  upon statements attributed to union officials such as
"don't  worry about the Teamsters, we're gonna be Steelworkers  here,"
and the "Teamsters [are] going to be at 16th and 83rd  and we are not
worried about what the Steelworkers are  going to do."


Obviously, the members of the bargaining unit must have  accurate
information to inform their election decisions. See,  e.g., General
Teamsters Local Union No. 174 v. NLRB, 723  F.2d 966, 972 (D.C. Cir.
1983); Automatic Heating & Serv.  Co., 194 N.L.R.B. 1065 (1972);
Suburban Newspaper Pubs.,  Inc., 230 N.L.R.B. 1215, 1217 (1977).
However, the problem  for the company's position is two-fold.


First, the Board's rejection of the company's contention is  well
founded. The court must affirm the Board's decision if it  reasonably
rests on factual findings supported by substantial  evidence. See
Family Serv. Agency San Francisco v. NLRB,  163 F.3d 1369, 1377 (D.C.
Cir. 1999); Amalgamated Clothing  & Textile Workers Union v. NLRB, 736
F.2d 1559, 1562-63  (D.C. Cir. 1984). The Board's finding that there
were no  misrepresentations by the unions during the election cam-
paign rests on two grounds. First, the testimony of union  supporters
and officials was clear about the unions' intention  to bargain
jointly. Thus, Denise Williams, a Steelworkers  organizer, testified
that she informed bargaining unit employ- ees that the unions would
bargain jointly. Likewise, Gerald  Jagodzinski, an organizer for
Teamsters Local 714, testified  that he never told employees that the
unions would bargain  separately. The Board also points to statements
made by  Jagodzinski to a reporter that "the two unions plan to
negoti- ate a collective bargaining agreement" once they were certi-
fied. Second, the evidence showed that management from the 


company distributed fliers during the election campaign in- forming
employees that the unions would bargain jointly, and  that no fewer
than seven managers spoke directly to employ- ees telling them they
would be voting for both unions.  Viewed together, these grounds
establish substantial evidence  to support the Board's finding that
the members of the  bargaining unit had accurate data to inform their
election  choices.4


Second, the evidence the company cites is insufficient to  rebut even
the prima facie showing. See, e.g., Gene Fielder  Chevrolet Co., 245
N.L.R.B. 1075, 1076 n.3 (1979); Utility  Servs., Inc., 158 N.L.R.B.
592, 592 (1966); Florida Tile  Indus., Inc., 130 N.L.R.B. 897, 897
(1961). The statements  on which the company relies are consistent
with the interpre- tation that contract administration would be
handled at the  separate plants while joint bargaining would occur in
a joint  fashion. Administration without deviation at the separate 
plants clearly would not be inconsistent with joint representa- tion.
Further, a number of the allegedly misleading state- ments that the
company claims were made by the unions  were in fact made by employees
in the bargaining unit--John  Jeziorski, James Malizio, Ron Butler,
John Grey, Jesus Go- mez, Mike Ross--not union officials. Because the
Board  reasonably found that the company did not show that these 
employees were acting as agents of the unions when these  statements
were made, it was justified in not attributing the  statements to the
unions. See, e.g., Overnite Transp. Co. v.  NLRB, 140 F.3d 259, 266
(D.C. Cir. 1998); Amalgamated  Clothing, 736 F.2d at 1565.




__________

n 4 The cases on which the company relies are readily distin-
guishable. In Suburban Newspaper Publications, Inc., 230  N.L.R.B.
1215, 1217 (1977), the Board nullified an election because  "the
employees were told [by the unions and their representatives]  there
would be separate units represented by the respective labor 
organizations, not merely serviced by them." Id. at 1217 n.5. 
Likewise, in Automatic Heating & Service Co., 194 N.L.R.B. 1065 
(1972), union officials admitted at the hearing that they had no 
intention of jointly bargaining or representing all the bargaining 


Thus, absent evidence that could rebut the substantial  evidence on
which the Board relied in finding that the unions  did not
misrepresent their intent to bargain jointly, the  company fails to
show that the Board erred in refusing to set  aside the election for
the alleged misrepresentation.


C. Subpoena challenge. Finally, the company contends  that it was
denied a full and fair hearing because the hearing  officer denied the
company's subpoena for the unions' entire  joint representation
agreement and other internal union com- munications about jointly
representing the bargaining unit.  The company maintains that the
entire agreement was "high- ly relevant" and "central" to its argument
that the unions did  not intend to bargain jointly and the joint
representation  agreement was a sham. Reviewing the hearing officer's 
partial denial of the company's subpoena for abuse of discre- tion, we
find none in view of the nature of the arguments that  the company
presented during the representation proceeding.  See Perdue Farms,
Inc., Cookin' Good v. NLRB, 144 F.3d  830, 834 (D.C. Cir. 1998).


The hearing officer partially denied the subpoena on the  ground that
he found relevant only "whatever communica- tions have been made to
employees regarding the status of  the joint petitioners," observing
that the company "will have  the right to file an unfair labor
practice charge" if the unions  do not bargain jointly. Given the
nature of the company's  challenge to the union election in the
representation proceed- ing, that the unions made misrepresentations
to the bargain- ing unit employees during the campaign, and given the
histor- ical antagonism that the company identified between the two 
unions, the company's position that it was deprived of infor- mation
relevant to its reasonable suspicion is plausible, see  Surburban
Newspapers, 230 N.L.R.B. at 1216, and the denial  of the subpoena is
thus troubling. Placing a barrier in the  way of a party's ability to
present its case would, if prejudi- cial, be grounds for reversing the
Board. Cf. Drukker Com- munications, Inc. v. NLRB, 700 F.2d 727, 731,
734; (D.C.  Cir. 1983); Indiana Hosp., Inc. v. NLRB, 10 F.3d 151, 154 


Nevertheless, under the abuse of discretion standard, we  conclude that
it was still reasonable for the hearing officer to  find that the full
joint petition agreement and like internal  communications had little
relevance to the misrepresentation  issue. See NLRB v. Blackstone Mfg.
Co., 123 F.2d 633, 635  (2d Cir. 1944); cf. Carothers v. Pressler, 818
F.2d 926, 934  (D.C. Cir. 1987) (observing that viewing Labor
Management  Reporting and Disclosure Act as creating a substantive
"right  of access" to a union's mailing list could subvert union's 
legitimate role as bargaining representative). Because the  company
has not shown that it was prejudiced by the Board's  denial of the
subpoena inasmuch as it is not without a remedy  if the unions fail to
bargain jointly, see supra Part III(A),  when a subpoena of the entire
agreement would no longer be  premature and would arguably be
enforceable, we conclude  that the reasons given by the hearing
officer for partially  denying the subpoena fall within the
alternatives available to  him in the exercise of reasoned discretion.
See generally  Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C.


Accordingly, because the company failed to preserve its  statutory
challenge to the certification of the unions as the  exclusive
representative for the bargaining unit, and because  the company's
other contentions are unpersuasive, we deny  the petition for review
and grant the Board's cross application  for enforcement of its