Southern Moldings, Inc. v. National Labor Relations Board

MERRITT, Circuit Judge,

delivering the opinion for the Court.

We voted to reconsider en banc this unfair labor practice case primarily to decide the question of whether NLRB v. Gissel Packing Co., 395 U.S. 575, 614 , 89 S.Ct. 1918, 1940 , 23 L.Ed.2d 547 (1969), should be interpreted to require the National Labor Relations Board, prior to the issuance of a bargaining order, to make explicit findings and conclusions respecting the inadequacy of a new election or other less onerous remedies for correcting unfair labor practices committed by an employer during a union election campaign. 1 We now conclude that we lack jurisdiction of this question under Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 , 102 S.Ct. 2071 , 72 L.Ed.2d 398 (1982), and section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160 (e) (1976), because this specific issue was not raised before the Board prior to its decision, or upon reconsideration. 2 The jurisdictional issue was not raised by the NLRB before the panel of this Court whose decision, 715 F.2d 1069 (6th Cir.1983), was vacated by our en banc order. We, therefore, must pretermit the question that we granted an en banc hearing to decide. For the same basic reasons stated by the panel decision, we find substantial evidence in the record to support the Board’s unfair labor practices findings and conclusions. We also find that there is evidence from which the NLRB could find that the general test stated by the Supreme Court in Gissel for the entry of a bargaining order is satisfied. 3 Accordingly, the Board’s order is enforced.

. In Gissel, the Court referred to the findings necessary for the issuance of such an order only in general language:

“In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue.

395 U.S. at 614-15 , 89 S.Ct. at 1940-11 .

. In Woelke, Justice Marshall wrote for a unanimous court:

[T]he Court of Appeals was without jurisdiction to consider that question [a picketing issue]. The issue was not raised during the proceedings before the Board, either by the General Counsel or by Woelke. Thus, judicial review is barred by § 10(e) of the Act, 29 U.S.C. § 160 (e), which 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.... ” Woelke could have objected to the Board’s decision in a petition for reconsideration or rehearing. The failure to do so prevents consideration of the question by the courts.

456 U.S. at 665-66 , 102 S.Ct. at 2082-83 .

. The general test is stated in note 1, supra.