Spectrum Health—Kent Community Campus v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 2011 Decided August 5, 2011

No. 10-1260

SPECTRUM HEALTH -- KENT COMMUNITY CAMPUS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 10-1270

On Petition for Review and Cross-Application

for Enforcement of An Order of

the National Labor Relations Board

Peter J. Kok argued the cause for petitioner. With him on

the briefs were Nathan D. Plantinga and Gregory P. Ripple.

Richard A. Cohen, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him on

the brief were John H. Ferguson, Associate General Counsel,

Linda Dreeben, Deputy Associate General Counsel, and Fred B.

Jacob, Deputy Assistant General Counsel.

2

Before: HENDERSON, GARLAND, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Spectrum Health -- Kent

Community Campus withdrew recognition from its employees’

union after receiving a petition indicating that the union no

longer had majority support. The National Labor Relations

Board found this action unlawful because it occurred within the

first three years of the parties’ collective bargaining agreement,

during which time a union enjoys a conclusive presumption of

majority support. Spectrum argues that the term of the

collective bargaining agreement began more than three years

before it withdrew recognition, and that the conclusive

presumption had therefore lapsed. Spectrum also objects to the

Board’s imposition of an affirmative bargaining order.

We conclude that the Board properly interpreted the term of

the collective bargaining agreement, and that Spectrum waived

its objections to the bargaining order by failing to raise them in

a timely manner before the Board. Accordingly, we deny

Spectrum’s petition for review and grant the Board’s cross-

application for enforcement.

I

Spectrum operates a hospital in Grand Rapids, Michigan.

In late 1999, the International Union, United Automobile,

Aerospace, and Agricultural Implement Workers of America

(UAW), and its Local 2600, became the exclusive bargaining

representative for a sizeable unit of Spectrum’s employees. In

November 2004, Spectrum and the union began to negotiate a

successor to a 2002 collective bargaining agreement set to

expire on December 31, 2004. During the course of

3

negotiations, the parties extended the 2002 agreement to January

15, 2005, but did not agree on a second extension. As a

consequence, the agreement expired on that date. It was not

until late March 2005 that the parties reached a tentative

agreement on a new collective bargaining agreement. The

union’s members ratified that agreement on April 13, and it was

executed two days later, on April 15, 2005.

The following statement was written at the bottom of the

cover of the 2005 agreement: “DATE OF AGREEMENT:

JANUARY 1, 2005 THROUGH MARCH 31, 2008.”

Agreement Between Spectrum & Local 2600, UAW (J.A. 272)

[hereinafter CBA]. However, the first paragraph of the

document, under the heading “AGREEMENT,” stated: “This is

an Agreement by and between [Spectrum and the union],

effective April 13, 2005.” CBA para. 1. The final section of the

contract, under the heading “TERMINATION,” stated: “This

Agreement shall remain in force until 12:01 a.m., April 1,

2008.” Id. § 77. Among other provisions, the agreement

provided for annual wage increases for both “future hires” and

“incumbent employees.” Future hires, defined as those hired on

or after April 13, 2005, were to receive wage reclassifications

“[e]ffective with the first payroll periods beginning after April

13, 2005, April 13, 2006, and April 13, 2007.” Id. § 69(a)(i).

Incumbent employees, defined as those hired on or prior to April

12, 2005, were to receive an initial 4.5 percent raise “[d]uring

the first year of the contract, . . . retroactive to January 1, 2005,”

and additional raises “[a]t the beginning of the second and third

contract years.” Id. § 69(a)(ii). The agreement contained two

other provisions, relating to changes in Spectrum’s retirement

and health plans, that were also specifically made retroactive to

January 1, 2005.1

1

Section 61 designated a new default health insurance plan to be

effective “as soon as is feasible after January 1, 2005,” capped the

4

On January 7, 2008, Spectrum withdrew recognition from

the union based upon its receipt of a petition, signed by a

majority of the bargaining unit employees, stating that they no

longer wanted to be represented by the union. The next day,

Spectrum announced to employees that the UAW contract was

no longer in effect. Top Spectrum officials began a series of

meetings with employees in which they announced that

recognition of the union had been withdrawn due to a loss of

majority support and that the company was considering annual

spring wage and benefit adjustments. In late February,

Spectrum posted a notice of “Town Hall Meetings” to be held

on March 3 and March 7, promising “Exciting News for Former

UAW Staff.” At those meetings and in subsequent mailings to

employees, the company announced a series of wage and benefit

improvements, effective March 2, and suggested that further

wage adjustments would occur in October 2008. The company

also denied a grievance filed under the collective bargaining

agreement, taking the position that grievances would instead be

handled under Spectrum’s non-bargained “fair treatment”

policy.

In response to these actions, the union filed an unfair labor

practice charge against Spectrum, and the General Counsel of

the National Labor Relations Board (NLRB) subsequently

issued a complaint. On September 4, 2008, an Administrative

Law Judge (ALJ) found that Spectrum had violated

premium contributions that participants in the former plan had to pay

between January 1 and December 31, 2005, and set out revised health

insurance benefits and obligations of employees who retired on or

after January 1, 2005. CBA § 61. Section 68 provided that “[n]o

employee hired on or after January 1, 2005” could participate in the

“Spectrum Health -- Kent Community Campus Retirement Plan and

Trust.” CBA § 68.

5

sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act

(NLRA).2

As Spectrum acknowledges, under longstanding NLRB

precedent a union enjoys “a conclusive presumption of majority

status during the term of any collective-bargaining agreement,

up to three years.” Auciello Iron Works, Inc. v. NLRB, 517 U.S.

781, 786 (1996); see Raymond F. Kravis Ctr. for the Performing

Arts, Inc. v. NLRB, 550 F.3d 1183, 1188 (D.C. Cir. 2008);

Shaw’s Supermarkets, 350 N.L.R.B. 585, 587-88 (2007);

Spectrum Br. 13, 15. “This conclusive presumption . . . arises

not from an absolute certainty that the union continues to enjoy

majority status, but from the National Labor Relations Act’s

purpose of fostering industrial peace by promoting stable

collective bargaining relationships.” McDonald Partners, Inc.

v. NLRB, 331 F.3d 1002, 1005-06 (D.C. Cir. 2003) (citing

Auciello, 517 U.S. at 785-90). The Board has clarified that this

irrebuttable presumption becomes rebuttable after the agreement

expires or after the third year of an agreement of longer

duration. Shaw’s Supermarkets, 350 N.L.R.B. at 587-88. At

that point, an employer may withdraw recognition if it has

untainted evidence of a union’s actual loss of majority support.

Id.; see Raymond F. Kravis, 550 F.3d at 1189 n.1.

2

Section 8(a) makes it an “unfair labor practice for an employer

. . . (1) to interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in [section 7 of the NLRA] . . . [or] (5) to

refuse to bargain collectively with the representatives of his

employees.” 29 U.S.C. § 158(a). Section 7 of the NLRA 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 . . . .” Id. § 157.

6

It is undisputed that the petition Spectrum received would

have constituted sufficient evidence to rebut the presumption if

the three-year period had passed. Thus, as the ALJ recognized

and Spectrum agreed, Spectrum’s liability depends entirely on

whether the term of the 2005 agreement began more or less than

three years before January 7, 2008, the date of the employer’s

withdrawal. See Spectrum Health -- Kent Community Campus,

353 N.L.R.B. No. 99, at 5 (Feb. 26, 2009) (ALJ Op.); Spectrum

Br. 13, 15. Spectrum argued that the term began on January 1,

2005, the date inscribed on the cover of the agreement. The

General Counsel maintained that it began on April 13, 2005, the

effective date listed in the agreement’s first paragraph.

The ALJ concluded that the agreement itself was “at best

. . . ambiguous as to its term,” but that parol evidence --

specifically, the bargaining history of the agreement --

confirmed that the parties intended it to begin on April 13, 2005.

ALJ Op. at 6. Having thus found that the term of the agreement

began “no earlier than April 2005,” the ALJ concluded that

Spectrum’s January 2008 withdrawal of recognition and

repudiation of the agreement, its refusal to recognize and

bargain with the union thereafter, its ensuing unilateral changes

in the terms and conditions of employment, and its promise of

future benefits, were all unlawful. Id. at 7, 10-11.3 The ALJ

ordered Spectrum to cease and desist from the unfair labor

practices the judge had found and to bargain with the union. Id.

at 11-12.

3

The ALJ also considered, and rejected, Spectrum’s argument that

the conclusive presumption of majority support applies only when an

agreement is unambiguous on its face. ALJ Op. at 8-10. Spectrum

does not repeat that argument before us.

7

On February 26, 2009, a two-member panel of the Board

adopted the findings and recommendations of the ALJ.4 The

Board also explained its decision to adopt the ALJ’s affirmative

bargaining order. 353 N.L.R.B. No. 99, at 1-2 (Board Op.).

Spectrum filed a motion for reconsideration, which the Board

denied on April 21, 2009. On August 17, 2010, the Board

vacated its February 2009 decision after the Supreme Court

held, in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635

(2010), that two-member panels of the Board were without

authority to decide cases under the NLRA. Shortly thereafter,

a three-member panel of the Board adopted the February 2009

decision by reference. Spectrum Health -- Kent Community

Campus, 355 N.L.R.B. No. 101 (Aug. 23, 2010).

Spectrum has now petitioned for review by this court, and

the Board has filed a cross-application for enforcement. The

company contends that the term of the 2005 bargaining

agreement began on January 1, 2005, and that the conclusive

presumption of majority support had therefore lapsed by the

time it withdrew recognition from the union on January 7, 2008.

Our review is de novo because “[t]his court owes no deference

to the Board’s interpretation of a disputed collective bargaining

agreement.” Commonwealth Commc’ns, Inc. v. NLRB, 312 F.3d

465, 468 (D.C. Cir. 2002); see Litton Fin. Printing Div. v.

NLRB, 501 U.S. 190, 202-03 (1991). The company also objects

to the Board’s imposition of an affirmative bargaining order.

We consider the term of the agreement in Part II and Spectrum’s

objections to the bargaining order in Part III.

4

In so doing, the Board chose not to rely on the ALJ’s finding that

the January 1, 2005 date on the cover was an inadvertent mistake. In

addition, one member of the panel noted that, although he did not find

the parol evidence conclusive, he found it sufficient to meet the

General Counsel’s burden. Spectrum, 353 N.L.R.B. No. 99, at 1 n.3

(Board Op.).

8

II

Spectrum contends that the cover on the 2005 collective

bargaining agreement stated its term unambiguously: “DATE

OF AGREEMENT: JANUARY 1, 2005 THROUGH MARCH

31, 2008.” If the agreement had otherwise been silent as to the

dates of its operation, Spectrum’s position might well be

compelling. But the agreement was not otherwise silent. The

first and last paragraphs provided that “[t]his is an Agreement

. . . effective April 13, 2005,” that “shall remain in force until

12:01 a.m., April 1, 2008.” CBA para. 1 & § 77. We agree with

the Board that these and other textual provisions are at least as

probative of the agreement’s term as the statement on the cover.

See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,

63 (1995) (noting that a “cardinal principle of contract

construction [is] that a document should be read to give effect to

all its provisions and to render them consistent with each

other”).

Spectrum denies that there is any inconsistency between the

cover and the text, insisting that the first paragraph simply

memorialized the date upon which the agreement was ratified

and became legally enforceable. It is of course possible that the

parties intended the date April 13, 2005 to have no further

significance, but that is not clear on the face of the agreement.

Indeed, other provisions strongly suggest that April 13, 2005

marked the beginning of the first year of the contract.

As noted in Part I above, one subsection of the agreement

provided that incumbent employees would receive a wage

increase “[d]uring the first year of the contract, . . . retroactive

to January 1, 2005.” CBA § 69(a)(ii) (emphasis added). This

retroactivity provision would not have been needed if the first

year of the contract itself began on January 1, 2005 -- or, as

Spectrum puts it, if the parties had made the term of the entire

9

contract retroactive to January 1, 2005. The same is true of two

other provisions that the contract specifically made retroactive.

See supra note 1. It is possible, as Spectrum suggests, that these

express statements of retroactivity were merely redundant

expressions of the parties’ intent to make the entire contract

retroactive. As is true of drafters of legislation, drafters of

contracts do sometimes take a belt-and-suspenders approach in

order “to make assurance doubly sure,” United States v.

Hansen, 772 F.2d 940, 947 (D.C. Cir. 1985). But three sets of

belts and suspenders seem a bit much, especially when no other

contract provision included such accessories and yet, on

Spectrum’s theory, all were similarly retroactive.

The conclusion that the term of the contract as a whole

began on April 13, 2005, is also consistent with other parts of

the agreement’s wage section. CBA § 69. Subsection 69(a)(i)

provided that future hires would receive wage reclassifications

“[e]ffective with the first payroll periods beginning after April

13, 2005, April 13, 2006, and April 13, 2007.” CBA § 69(a)(i).

The incumbent employee subsection, which came next, not only

gave incumbent employees retroactive raises “[d]uring the first

year of the contract,” but also provided for additional raises “[a]t

the beginning of the second and third contract years.” Id. §

69(a)(ii) (emphasis added). Spectrum concedes the context

indicates that, under this section, the first year of the contract

began on April 13, 2005 -- not January 1 -- and that the second

and third contract years were to begin on April 13 of each

subsequent year. Oral Arg. Recording 5:29-6:14 (statement of

Spectrum counsel).

Even if the text of the agreement alone does not resolve the

issue, we agree with the ALJ that “at best for Respondent’s

argument,” the unexplained discrepancy between the dates on

the cover page and the contractual provisions cited above

renders the agreement “ambiguous as to its term.” ALJ Op. at

10

6. In the presence of ambiguity, “we must look to parol

evidence to determine the parties’ intent.” Commonwealth

Commc’ns, Inc., 312 F.3d at 466; see Am. Postal Workers Union

v. U.S. Postal Serv., 940 F.2d 704, 707-08 (D.C. Cir. 1991).

And in this case, the extrinsic evidence -- specifically, the

bargaining history -- confirms the Board’s contention that the

parties did not intend to make the term of the entire agreement

retroactive to January 1, 2005.5

In a January 14, 2005 draft, the “effective” and

“termination” dates in the body of the agreement matched the

dates stated on the cover -- both indicating that the agreement

would run between January 1, 2005 and November 1, 2007.

5

The Board’s General Counsel bears the burden of proving a

violation of the NLRA by a preponderance of the evidence. See 29

U.S.C. § 160(c); Cincinnati Newspaper Guild, Local 9 v. NLRB, 938

F.2d 284, 286 (D.C. Cir. 1991); Gateway Concrete Forming Servs.,

274 N.L.R.B. 154, 158 (1985). Spectrum suggests that the General

Counsel bears a heavier burden in this case, claiming that under the

Board’s decision in Des Moines Register & Tribune Co., 339 N.L.R.B.

1035, 1037 (2003), pet. for rev. denied, Des Moines Mailers Union,

Teamsters Local No. 358 v. NLRB, 381 F.3d 767 (8th Cir. 2004), “the

party that bears the burden of proof in a contract interpretation matter

. . . must clearly establish his interpretation as the correct expression

of the parties’ intent,” Spectrum Reply Br. 4. But Des Moines

Register does not contain such a rule. In that case, the Board said only

that the General Counsel must prove the terms of the agreement. 339

N.L.R.B. at 1037-38. It concluded that the General Counsel had failed

to do so because the provision of the collective bargaining agreement

at issue was ambiguous, and the General Counsel did not present

extrinsic evidence to shed light on the parties’ intent. Id.; see Des

Moines Mailers Union, 381 F.3d at 770. In this case, by contrast, the

General Counsel presented extrinsic evidence, which resolves in his

favor any ambiguity in the contract language. Nothing more is

required to satisfy the preponderance of evidence standard.

11

Draft Agreement Between Spectrum and Local 2600, UAW

(Jan. 14, 2005) (J.A. 145). On March 23, 2005, however,

Spectrum suggested that the parties “consider instead entering

into a 3 year agreement which would expire three years after

ratification/final approval by the union.” 2004 Collective

Bargaining Negotiations, Eighth Bargaining Session (Mar. 23,

2005) (J.A. 219). The bargaining notes indicate that “[t]he

parties will consider this possibility, but absent agreement to the

contrary, the contract would expire as previously agreed (i.e.:

November 2, 2007).” Id. On March 31, the parties did reach

agreement. Consistent with Spectrum’s proposal, the effective

date in the body of the new version was changed from January

1, 2005 to April 13, 2005, and the termination date was changed

from November 1, 2007 to April 1, 2008 (at 12:01 a.m.), thus

providing the (approximately) three-year term that Spectrum had

proposed. Indeed, as NLRB counsel points out, “‘12:01 a.m. on

April 1, 2008’” was “three years to the minute after the

anniversary of the date, March 31, on which the parties’

negotiators had reached a tentative agreement.” NLRB Br. 12.

The cover of the agreement was likewise changed to reflect

the new termination date of March 31, 2008. The bargaining

notes do not explain why the initial date on the cover was not

also changed to reflect the new effective date of April 13, 2005.

Although Spectrum insists this was a deliberate expression of

the parties’ intent to make the entire agreement retroactive to

January 1, 2005, the bargaining history indicates otherwise. The

negotiations over the wage provisions reveal that the parties

intended the first year of the contract term to begin in April

2005, not on January 1, 2005. Spectrum accepted a union

proposal for annual three-percent raises for future hires, but only

on the condition that the increases take effect on “anniversaries

of contract effective date, not ‘January 1.’” 2004 Collective

Bargaining Negotiations (Mar. 31, 2005) (J.A. 220). Spectrum

agreed to make raises for incumbent employees “[r]etroactive

12

to January 1, 2005,” but it warned that its “offer of retroactivity”

would expire if the union failed to approve the contract by a

certain date. Id. (emphasis in original). This suggests that the

initial date on the cover was left as January 1, 2005 to reflect the

fact that the incumbent hire provision -- and the two others listed

in footnote 1 above -- applied retroactively to that date, not to

suggest that the entire agreement was retroactive.

In sum, like the ALJ and the Board, we find that the term of

the collective bargaining agreement began on its effective date,

April 13, 2005. That finding is dispositive of Spectrum’s

liability under the Act. Because the union still enjoyed a

conclusive presumption of majority support when Spectrum

withdrew recognition less than three years later, on January 7,

2008, Spectrum’s withdrawal and subsequent actions violated

sections 8(a)(1) and 8(a)(5).6

III

Spectrum’s second contention is that the facts of this case

do not justify an affirmative bargaining order and that the Board

failed to conduct the fact-specific analysis this circuit requires

before the Board can impose such an order. See Vincent Indus.

Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). We

6

In light of this disposition, we do not consider the Board’s

alternate argument that, as a matter of federal labor law policy, the

three-year period of repose must run from the date of contract

formation, even if the parties agree on a retroactive effective date.

NLRB Br. 33-34, 37. In any event, this argument “is nowhere to be

found in the orders under review,” and is therefore a post hoc

rationalization that we may not consider. Vincent Indus. Plastics, Inc.

v. NLRB, 209 F.3d 727, 739 (D.C. Cir. 2000). In fact, the orders

below assume the opposite, conceding that Spectrum would not be

liable if the parties had intended the term to begin retroactively on

January 1, 2005. ALJ Op. at 5.

13

may not consider this contention, however, because Spectrum

failed to raise it before the Board in a timely fashion.

Section 10(e) of the NLRA provides that “[n]o objection

that has not been urged before the Board . . . shall be considered

by the court, unless the failure or neglect to urge such objection

shall be excused because of extraordinary circumstances.” 29

U.S.C. § 160(e); see id. § 160(f). The Supreme Court has held

that, pursuant to section 10(e), the failure to assert an objection

before the Board deprives the courts of appeals of jurisdiction to

consider it. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

645, 665 (1982).

In its exceptions to the ALJ’s decision, Spectrum did not

raise any specific objection to the ALJ’s imposition of an

affirmative bargaining order. Instead, in a list of 103

exceptions, the company said only that it excepted to the ALJ’s

proposed remedy “in its entirety.” Resp’t’s Exceptions to ALJ’s

Findings & Decision (Nov. 5, 2008) (NLRB Supp. App. 10).

We have repeatedly held this exact formulation insufficiently

specific to preserve an objection to a bargaining order. Prime

Serv., Inc. v. NLRB, 266 F.3d 1233, 1241 (D.C. Cir. 2001);

Quazite Div. of Morrison Molded Fiberglass Co. v. NLRB, 87

F.3d 493, 497 (D.C. Cir. 1996); see Highlands Hosp. Corp. v.

NLRB, 508 F.3d 28, 32-33 (D.C. Cir. 2007); Scepter v. NLRB,

280 F.3d 1053, 1057 (D.C. Cir. 2002); see also 29 C.F.R.

§ 102.46(b)(2) (“Any exception to a ruling, finding, conclusion

or recommendation which is not specifically urged shall be

deemed to have been waived.”). Spectrum does not dispute that

its exception to the ALJ’s decision was too general to satisfy

section 10(e). See Spectrum Reply Br. 28-29; Oral Arg.

Recording 28:00-29:05.

Although Spectrum did eventually raise specific objections

to the bargaining order in its motion for reconsideration, “[b]y

14

the time [the petitioner] objected to the bargaining order in a

motion for reconsideration, it was too late.” Parkwood

Developmental Ctr., Inc. v. NLRB, 521 F.3d 404, 410 (D.C. Cir.

2008); see Elmhurst Care Ctr. v. NLRB, 303 F. App’x 895, 897

(D.C. Cir. 2008); NLRB v. Local Union No. 74, 471 F.2d 43, 46

(7th Cir. 1973); A.H. Belo Corp. v. NLRB, 411 F.2d 959, 967

(5th Cir. 1969). As we held in Parkwood, to preserve objections

for appeal a party must raise them in the time and manner that

the Board’s regulations require. 521 F.3d at 410. Those

regulations provide that “[n]o matter not included in exceptions

. . . may thereafter be urged before the Board, or in any further

proceeding.” 29 C.F.R. § 102.46(g). “Having failed to exhaust

its administrative remedies under the Board’s rules, see 29

C.F.R. § 102.46(g) . . . , and having shown no ‘extraordinary

circumstances’ for this failure, see 29 U.S.C. § 160(e),”

Spectrum “may not raise this objection now.” Elmhurst Care

Ctr., 303 F. App’x at 897; see also Elastic Stop Nut Div. v.

NLRB, 921 F.2d 1275, 1284 (D.C. Cir. 1990) (“[S]ection 10(e)

is an example of Congress’s recognition that . . . ‘courts should

not topple over administrative decisions unless the

administrative body not only has erred but has erred against

objection made at the time appropriate under its practice.’”

(quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.

33, 37 (1952))).7

7

As we noted in Parkwood, the Board’s regulations provide that

it will “only entertain a motion for reconsideration in ‘extraordinary

circumstances.’” 521 F.3d at 410 (quoting 29 C.F.R. § 102.48(d)(1)).

There, as here, “[t]he Board found no such circumstances.” Id.; see

Spectrum Health -- Kent Community Campus, Order Den. Mot. for

Recons. (J.A. 59) (denying Spectrum’s motion because it “does not

present extraordinary circumstances necessary under Section

102.48(d)(1) . . . to warrant reconsideration of the Board’s decision”).

And as we said in Parkwood, “we must defer to the Board’s

interpretation of its own regulations because that interpretation is

neither plainly erroneous nor inconsistent with the regulations.” 521

15

There may be circumstances in which a motion for

reconsideration is the first opportunity a party has to raise

objections -- where, for example, the Board sua sponte decides

an issue not expressly presented to it by the parties or addressed

by the ALJ. Under those circumstances, the objections will be

preserved by a timely motion to reconsider. See Woelke, 456

U.S. at 665-66; W & M Properties v. NLRB, 514 F.3d 1341,

1345 (D.C. Cir. 2008); Flying Food Group, Inc. v. NLRB, 471

F.3d 178, 185-86 (D.C. Cir. 2006).8 This, however, is not such

a case because here the Board adopted the same bargaining

order imposed by the ALJ. It is true that Spectrum “could not

have faulted the Board’s reasoning in a filing that preceded the

Board’s order” adopting that of the ALJ. Parkwood, 521 F.3d

at 410. But it “could have alerted the Board to the possibility

that a bargaining order was unwarranted in this instance. Its

failure to do so deprives us of jurisdiction to consider the

remedial challenge.” Id. Because we may not review the

Board’s bargaining order, a fortiori we may not review its

rationale. Id.

Nor does it matter that the Board addressed the merits of

Spectrum’s objections in the course of denying its motion for

reconsideration. “As the Supreme Court has made clear, . . .

‘[t]he § 10(e) bar applies even though’ the Board has decided

the issue.” Highlands Hosp. Corp., 508 F.3d at 33 (quoting

Woelke, 456 U.S. at 666). “[T]he fact that the Board has or has

F.3d at 410.

8

This is what we meant by our dictum in W & M Properties that,

“[i]f aggrieved by the Board’s remedy, W & M should have filed a

motion for reconsideration pursuant to the Board’s rules and

regulations.” 514 F.3d at 1345. Spectrum misreads this as holding

that a motion for reconsideration always suffices to preserve an

objection not previously made.

16

not discussed an issue raises no necessary inferences with

respect to section 10(e).” Local 900, Int’l Union of Elec., Radio

& Mach. Workers v. NLRB, 727 F.2d 1184, 1192 (D.C. Cir.

1984); see id. at 1191 (“[T]he statute requires objection to the

Board, and not discussion by the Board, before an issue may be

presented in court.”); Alwin Mfg. Co. v. NLRB, 192 F.3d 133,

143 (D.C. Cir. 1999) (“[S]ection 10(e) bars review of any issue

not presented to the Board, even where the Board has discussed

and decided the issue.”).9 Accordingly, the Board’s

consideration does not change our determination that we may

not consider Spectrum’s objections to the bargaining order.

IV

For the foregoing reasons, we deny the petition for review

and grant the Board’s cross-application for enforcement.

So ordered.

9

Spectrum interprets our decision in Burinskas v. NLRB as

holding that the Board’s consideration of an objection preserves the

objection for review. 357 F.2d 822 (D.C. Cir. 1966). But in

Burinskas, the court found that the employer had timely excepted to

the back pay remedy in the trial examiner’s initial report, and then

objected again both before and after the Board issued a supplemental

decision upon remand from this court. Id. at 825. Although the court

noted that “the Board, through its agent, the Compliance Officer, ha[d]

considered the objection,” this merely confirmed that the Board could

not “now claim that the objection . . . was not properly before it.” Id.

at 826.