“Coercion and duress were asserted in the Board’s initial proceedings; but when the trial examiner decided the case in favor of the Company on a different ground, the Company filed no cross-exceptions to sustain the trial examiner’s result on the ground of coercion and duress. Absent extraordinary circumstances ... the Company’s failure to press its claim on the Board in accordance with the Board’s regulations, 29 C.F.R. §§ 102.46(b) and (e) and 102.48(a) results in the conclusion that the Company is foreclosed from pressing it on us under § 10(e) of the Act, 29 U.S.C. § 160(e).”
How later courts described this case
- “Coercion and duress were asserted in the Board’s initial proceedings; but when the trial examiner decided the case in favor of the Company on a different ground, the Company filed no cross-exceptions to sustain the trial examiner’s result on the ground of coercion and duress. Absent extraordinary circumstances ... the Company’s failure to press its claim on the Board in accordance with the Board’s regulations, 29 C.F.R. §§ 102.46(b) and (e) and 102.48(a) results in the conclusion that the Company is foreclosed from pressing it on us under § 10(e) of the Act, 29 U.S.C. § 160(e).”
- employer did not comply with termination provisions of prehire memorandum agreements
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge
(concurring in part and dissenting in part):
Reluctantly, I concur in this opinion, chiefly because the Company has been dilatory in actively asserting its rights. It definitely had some equitable claim to have the Board determine its duress defense. It properly asserted it at the outset but the Administrative Law Judge held for the Company on other grounds that were clearly recognized at the time as being valid. As expected, his position was sustained by the National Labor Relations Board only to be finally reversed by this court. The NLRB did not apply for certiorari, undoubtedly because they considered the case had some deficiencies for such review. Nevertheless, the NLRB does not agree with our reversal and reserves the right to raise the issue in other circuits. So when the foregoing opinion belabors the Company for signing “memorandum agreements not intending to observe them,” it overstates the facts. The Company signed the agreements intending to observe them when the union achieved majority status. That was the interpretation placed on such agreements at that time and the Company was sustained in such position by both the ALJ and the Board. That interpretation might still be eventually upheld, in other cases, by the NLRB and the Supreme Court. In view of this partial justification for'the Company’s position and the extreme burden that full back pay might entail in such circumstances, I would remand the issue of back pay for consideration by the Board. To this extent, I respectfully dissent.