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. e du/thir dc ir c uit_1996/212UNITED STATES COURT OF AP PEALS

FOR THE THIRD CIRCU IT

Nos. 95-3085 and 95 -3129

NATIONAL LABOR RELATIONS B OARD

Petitioner

v.

MICHAEL KONIG t/a NURSING HOME

CENTER AT VINELAND

Respondent/

Cross-Petitioner

* COMMUNICATIONS WORKERS OF AMERIC A, AFL-CIO

Intervenor-Petitioner

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

On Application for Enforc ement of an Order

of the National Labor Relations Board

(Cases 4-CA-20962-2, 4-CA-20 984, 4-CA-21083,

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

Argued October 30, 1995

BEFORE: NYGAARD, ALITO and

SAROKIN, Circuit Ju dges.

(Opinion filed: Marc h 11, 1996)

Linda J. Dreeben

John D. Burgoyne (argued)

Aileen A. Armstrong

Angela Washington

National Labor Relations

Board1099 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 OPINIO N

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 o pinion 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 Bo ard's decision. Yet it failed to do so.

(2) A footnote is hereby added on page 10 of the sl ip opinion at the end of what is now the last sentence of the page, follo wing the phrase "failure to argue the point before the Board" and b efore 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 decis ion in Health Care &Retirement Corp. and seven months after the Board r endered 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 mot ion to the attention of this Court. Indeed, the Board represented in a lett er-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 bef ore issuance of its decision or afterwards by a petition for reconsider ation ," NLRB's LetterBrief at 6 (January 17, 1996)(emphasis added). The Board further failed to include the motion in its certified list of relevan t docket entries prepared on April 27th, 1995 and included in the Ap pendix to the Home's Brief. Appendix at 663-64. We are disturbed by the Board's misrepresentation to this Court. We further find in excusable the Home's failure to call this motion to our attention in its briefs before this court.

We recognize that if the Board entertained thi s motion on the merits, this motion might be considered an "objection" base d 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 deprive s it of any opportunity it might have had to argue this point. Moreover, it is not at all clear from the Boar d's summary denial of the motion on May 9, 1995, that the Board entertain ed 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