“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
WELLFORD, Circuit Judge,
concurring in part and dissenting in part.
I concur with the conclusion set out by Judge Merritt that Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 , 102 S.Ct. 2071 , 72 L.Ed.2d 398 (1982), neither argued before nor called to the attention of the panel which considered this case prior to the en banc hearing, precludes our consideration of what I believe to be inadequate and insufficient findings and conclusion of the Board to justify the extraordinary remedy of ordering petitioner to bargain with the intervenor union, which lost the election in controversy.
To the extent the Board considered the failure of the petitioner to raise wages of its employees while the election campaign was in progress, but later did so consistent with petitioner’s commitment, as a basis for the bargaining order, I must respectfully dissent. I also cannot agree that the “possibility of erasing the effects of past practices and of ensuing a fair election (or a fair rerun) by the use of traditional remedies ... is slight” in this case. NLRB v. Gissel, 395 U.S. 575, 614 , 89 S.Ct. 1918, 1940 , 23 L.Ed.2d 547 (1969) (as cited in footnote 1 of the majority opinion). Rather, for the reasons set out in my dissent in the panel opinion in this case filed August 23, 1983, I would find no substantial basis for concluding that a fair election cannot be held utilizing traditional Board remedies.