“As a consequence of the remand, the Board expanded its make whole remedy to include [persons previously excluded]. We believe that the Board’s expansion of the remedy is consistent with the Act . . . .”
How later courts described this case
- “As a consequence of the remand, the Board expanded its make whole remedy to include [persons previously excluded]. We believe that the Board’s expansion of the remedy is consistent with the Act . . . .”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring.
Petitioner NLRB brings this enforcement action for the second time before this Court. Our Court previously upheld the Board’s substantive ruling but remanded for further proceedings. I agree with Judge Edwards that the contentions the Company now raises are beyond the scope of the remand, and thus cannot be litigated now.
In the initial administrative hearing the administrative law judge held that respondent Allied Products violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158 (a)(1), (5), by unilaterally suspending its previously established merit wage review program. The ALJ, however, specifically refused the general counsel’s recommendation of a status quo ante remedy. Generally, such a remedy awards employees the benefits they would have received had the Company not suspended its review program. The Company then filed objections to the findings of violations.
The Board, without hearing, and without filing exceptions sua sponte overruled the ALJ in part. They sought enforcement in this Court of an order requiring the status quo ante remedy.
In NLRB v. Allied Products, 548 F.2d 644 (6th Cir. 1977), this Court upheld the Board’s findings of violations. We refused to rule on two of the Company’s objections. The company had argued that the remedy was inappropriate and that the Board violated Section 10(c) 1 and its regulations 2 by *1174 summarily imposing the status quo ante remedy.
We noted that the company had failed to raise such objections in a Board proceeding, and there were no extraordinary circumstances that excused this failure. The Company could have filed an objection to the Board’s sua sponte action by way of a motion for reconsideration, but did not do so. Thus 29 U.S.C. § 160 (e) 3 precluded considering these objections.
We also held, however, that under 29 U.S.C. § 160 (b) the limitations period had been tolled, and thus started later than the date found by the ALJ. We then remanded for reconsideration of the remedy in light of this last issue.
On remand, the Board extended the remedy to cover violations that occurred during the period for which the statute was tolled. The Board refused, however, to consider the Company’s previously stated objections to the proposed remedy. The Board claimed that such inquiry was beyond the scope of our Court’s remand. The Company now argues to the contrary.
Fairly read, our Court’s opinion does preclude examining the issues the Company now raises. It states:
However, because we have affirmed the Board’s order based on a theory of the applicability of the § 10(b) limitations period which differs from that upon which the Board relied, we conclude that the case should be remanded to the Board for reconsideration of the remedy in light of that determination. 548 F.2d at 654 (emphasis added).
I read this to mean that the sole purpose of remand was to determine how back benefits were to be awarded for periods in which the statute of limitations was tolled. Accordingly, I concur with the opinion of my brother, Judge Edwards.
. Section 10(c), 29 U.S.C. § 160 (c), provides in part:
In case the evidence is presented before a member of the Board, or before an examiner or examiners thereof, such member, or such examiner or examiners as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed (emphasis added).
. 29 C.F.R. 102.46(b) states in relevant part:
‘‘Any exception to a ruling, finding, conclusion or recommendation, which is not specifically *1174 urged shall be deemed to have been waived.” Section 102.46(h) states: “No matter not included in exceptions or cross examinations may thereafter be urged before the Board, or in any further proceedings.”
. This section provides in part:
No objection that has not been urged before the Board, its member, agent or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances (emphasis added).