“We now conclude that we lack jurisdiction of this question ... because this specific issue was not raised before the Board prior to its decision, or upon reconsideration.”
How later courts described this case
- “We now conclude that we lack jurisdiction of this question ... because this specific issue was not raised before the Board prior to its decision, or upon reconsideration.”
- “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.”
Written by the judges who cited it.
Distinguished
Distinguished by Awrey Bakeries, Inc. v. National Labor Relations Board, 59 F. App'x 690 (2003)
Id. Both cases are readily distinguishable because they involve issues never raised to the Board.
The opinion
KRUPANSKY, Circuit Judge,
concurring in part and dissenting in part.
I agree with the majority that pursuant to Woelke Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645 , 102 S.Ct. 2071 , 72 L.Ed.2d 398 (1982), this court is without jurisdiction to review the Board’s compliance with the Supreme Court mandate *807 enunciated in N.L.R.B. v. Gissel, 395 U.S. 575 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 (1969) in imposing the contested bargaining order in this case because the petitioner failed to assert this issue during the proceedings before the Board. I further concur with the majority that this Court has jurisdiction to review the Board’s determination that Southern Moldings Inc. committed the unfair labor practices with which it was charged and that the administrative record incorporates substantial evidence to support the Board’s conclusion that Southern Moldings Inc. violated the Act.
I write separately because I am not in accord with the obiter dictum contained in the majority opinion’s penultimate sentence namely that the United States v. Gissel criteria was satisfied. Having initially concluded that this very issue was beyond the court’s authority to review in light of the pronounced jurisdictional defect it is inappropriate for the court to thereafter comment on the merits of the assignment of error which was improperly submitted for appellate review.