United Food & Commercial Workers Union Local 204 v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2007 Decided November 6, 2007

No. 06-1318

UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL

204 AND

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL

UNION, AFL-CIO,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

SMITHFIELD PACKING COMPANY, INC. AND

SMITHFIELD FOODS, INC.,

INTERVENORS

On Petition for Review of an Order of the

National Labor Relations Board

Renee L. Bowser argued the cause and filed the briefs for

petitioner.

Elizabeth A. Heaney, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

2

General Counsel, and David S. Habenstreit, Supervisory

Attorney. Fred B. Jacob, Attorney, entered an appearance.

Douglas M. Topolski argued the cause for intervenors.

With him on the brief were Curtis L. Mack and Elena D.

Marcuss.

Before: SENTELLE, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL:

TATEL, Circuit Judge: Following a union’s unsuccessful

effort to organize a plant, the National Labor Relations Board

found that over the course of the union’s campaign the employer

committed several unfair labor practices in violation of the

National Labor Relations Act. Although the employer contests

none of the Board’s conclusions, the union challenges the

Board’s decision to dismiss two of its claims: (1) that statements

by high-level company management constituted unlawful threats

of plant closure; and (2) that the company’s decision to train a

security camera on union organizers created an illegal

impression of surveillance. Given the significant deference we

owe the Board’s factual findings, we deny the union’s petition

for review on both claims. The union also challenges the

adequacy of the Board’s remedies, but because the union failed

to present the issue to the Board, we lack jurisdiction over that

claim.

I.

This case arises out of the United Food and Commercial

Workers’ (UFCW) March 1999 attempt to organize a Smithfield

Foods meatpacking plant in Wilson, North Carolina. After a

three-month campaign, the union lost the election. The union

filed a series of unfair labor practice charges against Smithfield,

alleging that the company’s antiunion campaign had tainted the

3

election. An administrative law judge found that Smithfield had

committed several unfair labor practices in violation of sections

8(a)(1), (3), and (5) of the National Labor Relations Act, 29

U.S.C. § 158(a)(1), (3), (5). See Smithfield Foods, Inc., 347

N.L.R.B. No. 109, at 38 (Aug. 31, 2006) (finding that Smithfield

unlawfully discharged employees, engaged in interrogation, and

threatened job, pay, and benefit losses as a result of employee

union activities, among other violations). Relevant to this

appeal, the ALJ determined that Smithfield executives violated

section 8(a)(1) by threatening to close the company’s Wilson

plant if workers unionized and by training the facility’s security

camera on union organizers as they distributed handbills near

the plant’s entrance. Finding a widespread pattern of “repeated

and pervasive unfair labor practices of a hallmark nature,”

Smithfield, 347 N.L.R.B. No. 109, at 37, the ALJ recommended

that the Board order Smithfield to bargain with the UFCW

pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 610

(1969) (upholding the Board’s authority to issue a bargaining

order when an employer’s unfair labor practices “have made the

holding of a fair election unlikely” or “have in fact undermined

a union’s majority and caused an election to be set aside”).

On review, although the Board upheld most of the ALJ’s

findings, it found for Smithfield on the issues of threatened plant

closure and video surveillance. The Board also declined to issue

a bargaining order, instead mandating a new election along with

several “extraordinary remedies” to ensure the fairness of the

second election. Smithfield, 347 N.L.R.B. No. 109, at 8. The

union now seeks review of the Board’s dismissal of the unfair

labor practice charges and challenges the Board’s remedies as

inadequate.

We will uphold the Board’s dismissal of an unfair labor

practice charge “unless its findings are unsupported by

substantial evidence in the record considered as a whole, or

4

unless the Board ‘acted arbitrarily or otherwise erred in applying

established law to facts.’” Gen. Elec. Co. v. NLRB, 117 F.3d

627, 630 (D.C. Cir. 1997) (quoting Allegheny Ludlum Corp. v.

NLRB, 104 F.3d 1354, 1358 (D.C. Cir. 1997)). Under this

deferential standard of review, we will reverse the Board’s

factual determinations “only when the record is so compelling

that no reasonable factfinder could fail to find to the contrary.”

Resort Nursing Home v. NLRB, 389 F.3d 1262, 1270 (D.C. Cir.

2004). We will not “displace the Board’s choice between two

fairly conflicting views, even though the court would justifiably

have made a different choice had the matter been before it de

novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951). With this limited role in mind, we consider each of the

union’s challenges.

II.

NLRA section 7 guarantees employees “the right to self-

organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157. The NLRA safeguards these

rights through section 8(a)(1), which makes it an unfair labor

practice for an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in [section

7].” Id. § 158(a)(1). Section 8(c), however, protects employers’

First Amendment rights to convey their views on unionization

to employees so long as such expression “contains no threat of

reprisal or force or promise of benefit.” Id. § 158(c).

The Supreme Court addressed the relationship between

sections 8(a)(1) and 8(c) at length in Gissel, explaining:

[A]n employer is free to communicate to his

employees any of his general views about

5

unionism or any of his specific views about a

particular union, so long as the communications

do not contain a “threat of reprisal or force or

promise of benefit.” He may even make a

prediction as to the precise effects he believes

unionization will have on his company. In such

a case, however, the prediction must be carefully

phrased on the basis of objective fact to convey

an employer’s belief as to demonstrably probable

consequences beyond his control or to convey a

management decision already arrived at to close

the plant in case of unionization. If there is any

implication that an employer may or may not

take action solely on his own initiative for

reasons unrelated to economic necessities and

known only to him, the statement is no longer a

reasonable prediction based on available facts

but a threat of retaliation based on

misrepresentation and coercion, and as such

without the protection of the First Amendment.

395 U.S. at 618 (citations omitted). We have often applied

Gissel in situations involving allegedly unlawful employer

speech. In Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130

(D.C. Cir. 1994), we found an employer’s letter attacking a

union’s record on job security protected under NLRA section

8(c), noting that “[i]f the Board may take management

statements that very emphatically assert a risk, twist them into

claims of absolute certainty, and then condemn them on the

ground that as certainties they are unsupported, the [employer’s]

free speech right is pure illusion.” Id. at 1140. Similarly, in

General Electric, we dismissed an unfair labor practice charge

because the employer “did not ‘warn’ employees that [the

company] would retaliate if the union won the election,” but

rather “conveyed to employees the risks of voting in the union.”

6

117 F.3d at 633. In Allegheny Ludlum, however, we upheld an

unfair labor practice violation where the employer warned it

would “no longer find ways” to avoid laying off employees if

they joined a union. 104 F.3d at 1367.

Taken together, in a case like this, which deals only with

predictions of adverse economic consequences, Crown Cork &

Seal, General Electric, and Allegheny Ludlum establish a two-

part inquiry to distinguish “permissible predictions” from

“forbidden threats.” Crown Cork & Seal, 36 F.3d at 1135. First,

did the employer predict “adverse economic consequences” as

a result of unionization? Id. at 1134. If not, the inquiry ends.

But if the employer made such predictions, then we proceed to

the second question: did those predictions rest on objective facts

outside the employer’s control?

Guided by these questions, we turn to the union’s claim that

communications by high-level Smithfield managers during the

unionization campaign constituted unlawful threats of plant

closure. In a series of speeches and letters designed to combat

the UFCW’s unionization campaign, Plant Manager Phil Price

and Smithfield President and Chief Operating Officer Lewis

Little repeatedly told employees that three other companies had

previously operated the Wilson plant, that the UFCW had

unionized the plant under each of those companies, and that

each company ultimately shut down the plant. Both managers,

however, carefully avoided linking the previous closures directly

to the union. For example, in one speech Price mentioned the

three previous plant closures but made clear he had no idea

whether the UFCW had caused them:

In none of these three cases did a union contract

provide long-term job security for employees.

Maybe it was just the opposite. Maybe the union

forced inflexible rules on these companies so

7

that they could not compete in today’s

environment. Maybe this union made it so these

companies couldn’t satisfy their customers’

demands. It really doesn’t matter. Whether this

union caused these other three plants to close is

not for me to say. I don’t know what happened.

I do know that Smithfield wants this plant to be

a success . . . .

Later in the unionization campaign, Price sent a letter to all

Smithfield employees that again emphasized the Wilson plant’s

repeated failures under previous management. Offering no

prediction about the company’s intentions, he stated, “I can’t

predict the future, especially if the union were to get in,” and he

again disclaimed any direct link between the union and the

previous plant closures. Price wrote:

Did the UFCW cause these three companies to

close the plant here on Wilco Boulevard? I don’t

know the answer to that. Maybe they did, maybe

not. But I can spot a bad trend. . . . The UFCW

is obviously a jinx for this plant. They have

struck out for Wilson employees three times.

It’s time for another approach.

Finally, in an election-eve speech to employees, Smithfield

President Lewis Little explained that he was “committed to the

success of this plant.” Echoing Price’s letter, however, Little

made no predictions: “I cannot stand here and tell you what will

happen.” He concluded by urging employees not to “hang the

UFCW around this plant’s neck for a fourth time.”

Although this appeal concerns statements by Price and

Little, the two were not the only company representatives

encouraging Smithfield employees to reject the union. During

8

the unionization campaign, lower-level Smithfield supervisors

held smaller meetings with various plant workers. Less

circumspect than Price and Little, they expressly warned that the

company could close the Wilson plant if employees chose to

unionize. The ALJ found these unambigious statements violated

the NLRA. See Smithfield, 347 N.L.R.B. No. 109, at 18.

Rounding out Smithfield’s antiunion effort, another high-level

executive, Human Resources Director Sherman Gilliard,

appeared in a video shown to employees prior to the election.

In contrast to Price and Little, Gilliard linked one of the previous

plant closures directly to the union, opining, “If anything, [the

UFCW] pretty much ran the company out of business.” Due to

the General Counsel’s procedural error, the ALJ declined to rely

on Gilliard’s statements to make specific findings of unlawful

conduct, but he did consider the statements relevant to place

Price’s and Little’s statements in context. Smithfield, 347

N.L.R.B. No. 109, at 17 n.19. Based on the “full

circumstances,” the ALJ ruled that Price and Little unlawfully

threatened employees by repeatedly mentioning the three

previous plant closures without providing a sufficient objective

explanation for the closures. Id. at 17.

The Board disagreed. Reviewing all the evidence “in

context,” the Board, over one member’s dissent, found no threat

or coercion in Price’s and Little’s statements and concluded that

they merely contained “relevant, factual information about the

union’s history at the facility.” Id. at 2. The Board emphasized

that the two managers “never mentioned closure” and “expressly

disclaimed any certainty about the connection between the

previous closures at the Wilson facility and the union.” Id. at 3.

Turning to the lower-level supervisors, the Board upheld the

ALJ’s conclusion that their statements violated NLRA section

8(a)(1) because these more explicit threats “offer a clear contrast

with the speech by Plant Manager Price.” Id.

9

The union argues that under Gissel an employer can violate

the Act by merely suggesting that it may close a plant as a result

of unionization; it need not definitively assert that it will do so.

Placing the statements recounted above in the context of the

company’s overall antiunion campaign, the union contends that

the unmistakable effect of Price’s and Little’s remarks was to

threaten workers with the specter of a plant shutdown. That

being the case, the union argues, the managers violated the Act

by failing to provide any objective justification for the previous

plant closures. Instead, “Smithfield’s top managers expressly

blamed the past closures at Wilson on the union,” Pet’r’s

Opening Br. 6, leaving employees to believe that if they chose

UFCW representation, they would suffer the same fate as the

plant’s previous occupants.

The Board reads the record differently. It argues that

neither Price nor Little ever raised the possibility that Smithfield

might shut the plant. As the Board sees it, Price and Little

simply related indisputable historical facts without ever

explicitly linking previous plant closures to the UFCW. Under

this interpretation of the record, case law requiring an employer

to provide objective justification for a predicted plant

closure—the second of the two questions established in our case

law—has no applicability to this appeal because here the

managers never made such a prediction.

Thus, this case turns on the reasonableness of the Board’s

characterization of the evidence. Did Price and Little threaten

employees by predicting plant closure (as the union argues), or

did they simply relate the unfortunate history of the Wilson plant

to combat the union’s message that it could provide job security

for workers (as the Board found)? Did the managers blame the

previous shutdowns on the union, leading employees to

understand that a vote for the union was a vote for plant closure

(as the union argues), or did they assiduously avoid drawing any

10

link between unionization and closure, leaving employees to

come to their own independent conclusions (as the Board

found)? As noted above, our standard of review for resolving

such questions is highly deferential. Indeed, we “must

recognize the Board’s competence in the first instance to judge

the impact of utterances made in the context of the employer-

employee relationship.” Gissel, 395 U.S. at 620. And we grant

“the Board even greater deference with respect to questions of

fact that turn upon motive.” Capital Cleaning Contractors, Inc.

v. NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998).

Applying this deferential standard of review to the facts

before us, we conclude that substantial evidence supports the

Board’s finding that neither Price nor Little threatened to close

the Wilson plant in the event of unionization. As the Board

found, neither executive predicted that the company would take

any particular course of action, nor did either ever suggest

closing the plant. To the extent that Little made any prediction

at all, he told employees that he intended to invest in the Wilson

facility and was “committed” to its success. The record also

reveals that when asked whether Price ever said that “the plant

would close if the union got in,” one employee responded, “No,

he just asked what would—what do we think would happen.”

Finally, in a pre-election speech to employees, Little mentioned

that Smithfield had dealt with the UFCW at other plants, and

told employees that in the event of a strike Smithfield would

“operate the plant without” the striking workers. We are also

satisfied that the Board took the Gilliard video and the lower-

level supervisors’ statements into account when examining the

overall context in which Price and Little made their remarks.

See Smithfield, 347 N.L.R.B. No. 109, at 3 n.13 (“[T]he videos,

letters and speeches . . . in context, recount the failure of the

three previous plant owners, whose employees were represented

by the union, to remain competitive and in business.”).

11

In upholding the Board’s decision, we acknowledge that the

record could be read differently. Perhaps the Board could have

interpreted the managers’ statements as the union does, namely

as “thinly veiled prediction[s] that electing the union a fourth

time would result in closure.” Pet’r’s Opening Br. xv.

Nevertheless, as the union acknowledges, it is the Board’s duty,

not ours, to “focus on the question: ‘What did the speaker intend

and the listener understand?’” Id. at 5 (quoting Gissel, 395 U.S.

at 619). Here, the Board determined that threats were neither

intended nor understood. Had the Board reached the opposite

conclusion, we likely would have deferred to that determination

as well. For, as we have previously noted, “the very existence

of competing views reinforces the need for reliance on the

Board’s experience.” Hoffman Plastic Compounds, Inc. v.

NLRB, 237 F.3d 639, 647 (D.C. Cir. 2001), rev’d on other

grounds, 535 U.S. 137 (2002).

The union argues that the Board departed from its own

precedent, specifically Eldorado Tool, Division of Quamco, Inc.,

325 N.L.R.B. 222 (1997). There, the employer had displayed a

poster depicting a row of tombstones bearing names of plants

that had previously closed after unionization. The last

tombstone bore the employing plant’s own name with a question

mark beneath it. Id. at 222. Although the Board concluded that

the employer’s actions violated the Act, the case is both

distinguishable and irrelevant. It’s distinguishable because there

the Board found that “no member of the [employer’s]

management ever sought to clarify the message, or to assure

employees that it was not predicting that the same fate awaited

[them] as had befallen other plants,” id. at 223, while here the

Board found exactly the opposite. And it’s irrelevant because it

has nothing to do with the question before us—whether the

record supports the Board’s decision. Viewed in this light,

Quamco represents nothing more than an example of the Board

properly exercising its judgment to interpret arguably

12

ambiguous statements made in the employment context.

III.

While Smithfield executives delivered antiunion messages

inside the plant, union representatives gathered outside the

facility’s front gate to encourage entering employees to join the

UFCW. When union organizers began their campaign,

Smithfield painted a red line on the plant’s driveway to

distinguish public property from company property. From late

March 1999 until the election on July 8, union representatives

congregated at the driveway and distributed handbills to

employees as they went to work. Early in the organizing effort,

Smithfield’s security guard, Joe Pittman, saw union

representatives cross the red line onto company property “seven

to ten times” over the course of one day. Approaching the

organizers, Pittman asked them to stay behind the line and then

escorted them back to public property. When the union

representatives immediately followed him back onto company

property, Pittman warned he would call the police unless they

stayed on their side of the line. When they ignored him, Pittman

carried out his threat. The police arrived and informed the

organizers that they had to remain on public property or risk

arrest. The warning apparently had some effect, as later in the

campaign, one union representative told a Smithfield employee

that he could not cross the red line “[b]ecause he would be

trespassing [] and he’d get locked up.”

Pittman testified that following this trespassing incident, he

reoriented a security camera—which normally monitored the

plant’s parking lot and front gate—to focus farther down the

driveway on the union organizers “in case [the company] needed

some type of documentation that they were in fact on [company]

property.” The images from the camera appeared on television

monitors inside a guard shack near the plant entrance, which

was manned by one or two guards. Employees on their way to

13

work could see the screens as they walked through the guard

shack, but neither they nor the guards could make out facial

features or identify individuals from the images. The camera

usually recorded onto a videotape, and the guards typically

rewound the tape at the end of each shift to record over the

images the following day. Pittman acknowledged, however, that

guards occasionally neglected to insert a tape into the recording

device, explaining, “I mean the person on the shift before me

may have not put [a tape] in when it ran out or whatever.”

Smithfield left the camera trained on the union organizers until

the July 8 election, more than three months after the initial

trespassing incident. After the unionization campaign ended, the

company returned the camera to focus on its original target.

Under Board precedent, employers may not photograph or

videotape employees engaged in concerted collective activities

without legitimate justification. See Nat’l Steel & Shipbuilding

Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C. Cir. 1998)

(upholding the Board’s finding that a company committed an

unfair labor practice by videotaping union rallies without

sufficient justification). Preventing trespass may qualify as a

legitimate justification for videotaping. See Beverly Health &

Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 325 (D.C. Cir. 2003).

“Gathering evidence for use in legal proceedings also constitutes

a sufficient justification for videotaping protected activities.”

Nat’l Steel & Shipbuilding, 156 F.3d at 1271. In short, to assess

the legality of an employer’s surveillance activity, the Board

asks “whether there was proper justification and whether it

reasonably tends to coerce employees.” Timken Co., 331

N.L.R.B. 745, 754 (2000).

In this case, the ALJ found that Smithfield’s videotaping

created the impression of surveillance in violation of the NLRA.

The Board disagreed, ruling that Smithfield’s reasonable

concern over continued union trespassing justified the

14

company’s decision to reposition the camera. The dissenting

Board member found a single trespassing incident insufficient

to justify continuous video monitoring over the course of a

three-month unionization campaign. The majority dismissed

that objection because the union “never offered assurances that

it would not trespass again.” Smithfield, 347 N.L.R.B. No. 109,

at 4 n.15. Once again, we ask whether the Board’s

determination finds support in the record—specifically, whether

substantial evidence supports the Board’s conclusion that

Smithfield’s fear of trespass justified its surveillance activities.

And once again, our review of that question is highly

deferential: “The Board’s findings of fact are conclusive if

supported by substantial evidence and this Court reviews the

inferences drawn therefrom with considerable deference in light

of the Board’s expertise in these matters.” Nat’l Steel &

Shipbuilding, 156 F.3d at 1271.

The union argues that the Board should have discredited

Smithfield’s trespassing rationale because the company taped

over the recorded images each day and sometimes even failed to

insert videotapes into the camera’s recording device. According

to the union, these facts belie Smithfield’s purported concern

over trespass and reveal that its true purpose in repositioning the

camera was to chill employees’ exercise of their rights under

NLRA section 7. We are unpersuaded. It would make little

sense for the company to maintain an inventory of tapes

showing no evidence of trespass, and according to Pittman’s

testimony, the company’s occasional failure to insert a videotape

into the recording device seems to have resulted from ordinary

human error.

Considering the record as a whole, and according due

respect to “the Board’s expertise in these matters,” Nat’l Steel &

Shipbuilding, 156 F.3d at 1271, we conclude that substantial

evidence supports the Board’s finding that Smithfield acted to

15

protect its property rather than to intimidate its employees. To

begin with, union organizers trespassed onto company property

and “openly mocked” Pittman when he tried to escort them back

across the red line. Resp’t’s Br. 23. Second, after the

trespassing incident, union organizers continued distributing

handbills at the very boundary line separating company property

from public land. Finally, giving added support to the Board’s

finding that the company sought merely to protect its property,

not to coerce or intimidate its employees, Smithfield reoriented

its camera only after the union trespassed, and the ALJ found

that “[d]etails such as facial identification could not have been

determined by looking at the camera monitors,” Smithfield, 347

N.L.R.B. No. 109, at 13. Not only does the Board’s decision

thus find ample support in the record, but it is on all fours with

Washington Fruit & Produce Co., 343 N.L.R.B. 1215 (2004).

There, the Board found no violation when an employer,

“concerned about a recurrence of trespassing on the property,”

authorized video surveillance of a planned union rally “to gather

and preserve evidence.” Id. at 1217. “Given prior incidents of

trespassing on the [employer]’s property, which had led [the

employer] to contact the police, it was,” the Board concluded,

“prudent of [the employer] to plan on documenting the union’s

rally.” Id. at 1218. By applying this reasoning to Smithfield’s

conduct, the Board acted neither arbitrarily nor capriciously.

Next, the union asserts that even if Smithfield had a

reasonable justification for videotaping union organizers, the

Board’s decision in Randell Warehouse of Arizona, Inc., 347

N.L.R.B. No. 56 (July 26, 2006), required Smithfield to

communicate that justification to employees “in a timely

manner,” which the company failed to do. Id. at 8. According

to the Board, the union ignores a key exception in Randell

Warehouse, which states that an employer has no obligation to

communicate its justification for video surveillance to

employees “in cases where the justification is self-evident (e.g.,

16

violence or mass picketing, etc.).” Id. Citing the union

organizers’ close proximity to company property, the need for

the red boundary line, the previous trespassing incident, and the

fact that one union representative explained the company’s

concern with trespass to an inquiring employee, the Board

insists that Smithfield’s justification for videotaping falls within

Randell Warehouse’s exception as “self-evident.” We find this

persuasive, and the union points to nothing in the record leading

us to question the Board’s view.

IV.

The union’s final challenge concerns the scope of the

remedies the Board imposed to redress Smithfield’s NLRA

violations. Finding a widespread pattern of “repeated and

pervasive unfair labor practices of a hallmark nature,” the ALJ

recommended imposing a bargaining order. Smithfield, 347

N.L.R.B. No. 109, at 37. After the ALJ inadvertently failed to

include this remedy in his order, the union filed an exception to

the Board requesting its inclusion. The Board, concerned that

its own “long and unjustified delay in processing the case” could

render a bargaining order unenforceable, declined to decide the

issue and instead ordered a new election. Id. at 8. Noting the

company’s “proclivity to violate the Act,” however, the Board

ordered several “extraordinary remedies” to ensure the fairness

of the new election, including a broad cease and desist order and

a requirement that Smithfield mail notice to all employees, post

and mail a notice in Spanish, and give the union the names and

addresses of all current employees. Id. at 8-9. Although the

union failed to file a motion for reconsideration challenging this

order, it now urges us to review and overturn the Board’s

remedies as inadequate and inconsistent with prior Board

precedent.

NLRA section 10(e) bars this Court from considering any

“objection that has not been urged before the Board . . . unless

17

the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.” 29 U.S.C. § 160(e).

The Supreme Court has made clear that a petitioner must seek

Board reconsideration or rehearing before it brings an issue to

the courts, even when the Board has discussed and decided the

contested issue. Woelke & Romero Framing, Inc. v. NLRB, 456

U.S. 645, 666 (1982). Because the union failed to file a motion

for reconsideration challenging the Board’s remedies, section

10(e) precludes us from reviewing the union’s claim.

Attempting to evade section 10(e)’s clear jurisdictional bar,

the union argues that it “preserved the issue of the bargaining

order remedy because it provided the Board adequate notice of

the union’s objection to the failure to order the bargaining order

in its exceptions to the Board.” Pet’r’s Reply Br. 1. The union

misunderstands section 10(e). The union never raised before the

Board the objection it now asserts—the inadequacy of the

Board’s alternative extraordinary remedies—so it makes no

difference that the union once urged the Board to issue a

bargaining order. Because the union gave the Board no

opportunity to rule on the particular issue it presents here,

section 10(e) bars us from considering it.

V.

For the reasons given above, we deny the union’s petition

for review.

So ordered.