Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-1996

Nat'l Lab. Rel. Bd. v. Konig
Precedential or Non-Precedential:

Docket 95-3085




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Nat'l Lab. Rel. Bd. v. Konig" (1996). 1996 Decisions. Paper 212.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/212


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                            UNITED STATES COURT OF APPEALS

                                  FOR THE THIRD CIRCUIT

                                  Nos. 95-3085 and 95-3129

                            NATIONAL LABOR RELATIONS BOARD

Petitioner

                                             v.

                            MICHAEL KONIG t/a NURSING HOME

                                  CENTER AT VINELAND

Respondent/

Cross-Petitioner

                   * COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO

Intervenor-Petitioner

                              *(Granted as per Court's 4/7/95 Order)

                            On Application for Enforcement of an Order

                               of the National Labor Relations Board

                         (Cases 4-CA-20962-2, 4-CA-20984, 4-CA-21083,

                                4-CA-21093, and 4-CA-21360)

                                   Argued October 30, 1995

                               BEFORE: NYGAARD, ALITO and

                                  SAROKIN, Circuit Judges.

                                 (Opinion filed: March 11, 1996)

Linda J. Dreeben

John D. Burgoyne (argued)

Aileen A. Armstrong

Angela Washington

National Labor Relations

Board
1099 14th St., NW

Suite 8101

Washington, DC 10570

Attorneys for Petitioner

Steven P. Weissman

Weissman & Mintz

One Executive Drive, Suite 200

Somerset, NJ 08873

Attorney for Intervenor

David Lew (argued)

Peckar & Abramson, P.C.

70 Grand Avenue

River Edge, NJ 07661

Attorney for Respondent/

Cross-Petitioner

                              ORDER AMENDING OPINION

The opinion in the above-captioned case filed March 11, 1996 is amended as
follows:

(1) The last two sentences of page 10 of the slip opinion and the
accompanying footnote is hereby removed.
These sentences read:

     The Home could even have filed a petition for reconsideration as
permitted by 29 CFR § 102.48(d)(1) following the Board's decision. Yet it
failed to do so.

(2) A footnote is hereby added on page 10 of the slip opinion at the end
of what is now the last sentence of the page, following the phrase
"failure to argue the point before the Board" and before the citation to
Woelke &
Romero Framing . This footnote reads:

     Following the original filing of this opinion, the Home brought to
the attention of this Court for the first time that on March 10, 1995 --
ten months after the Supreme Court issued its decision in Health Care &
Retirement Corp. and seven months after the Board rendered its decision in
the instant case
     -- the Home filed before the Board a Motion to Set Aside and/or Stay
the Enforcement of the Board's order.

     Neither the Home nor the Board called this motion to the attention of
this Court. Indeed, the Board represented in a letter-brief that the Home
had "fail[ed] to raise the argument [regarding the supervisory status of
the nurses] at any time before the Board either before issuance of its
decision or afterwards by a petition for reconsideration ," NLRB's Letter-
Brief at 6 (January 17, 1996)(emphasis added). The Board further failed to
include the motion in its certified list of relevant docket entries
prepared on April 27th, 1995 and included in the Appendix to the Home's
Brief. Appendix at     663-64. We are disturbed by the Board's
misrepresentation to this Court. We further find inexcusable the Home's
failure to call this motion to our attention in its briefs before this
court.

     We recognize that if the Board entertained this motion on the merits,
this motion might be considered an "objection" based on Health Care &
Retirement Corp. "urged before the Board," although the Home did not raise
this as an issue. We find, however, that the Home's egregious delay in
bringing this fact to the Court's attention deprives it of any opportunity
it might have had to argue this point.
     Moreover, it is not at all clear from the Board's summary denial of
the motion on May 9, 1995, that the Board entertained the Home's Motion on
the merits. Indeed, it is likely that the Board may have denied the Motion
because it found it untimely under 29 CFR § 102.48(d)(2).

BY THE COURT:

/s/ H. Lee Sarokin

Circuit Judge

DATED: April 4, 1996