1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

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Recommended Citation

"Nat'l Lab. Rel. Bd. v. Konig" (1996). 1996 Decisions. Paper 212.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/212
 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 LetterBrief 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