United States Court of Appeals, District of Columbia Circuit
Argued September 18, 2015.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Joseph B. Fiorenzo argued the cause and filed the briefs for petitioner.
Jeffrey W. Burritt, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.
Patricia McConnell and Jessica D. Ochs were on the brief for intervenor United Food and Commercial Workers Local 1245 in support of respondent.
Before: TATEL, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges. OPINION filed by Senior Circuit Judge EDWARDS.
Edwards, Senior Circuit Judge :
Petitioner Alden Leeds, Inc. (" Alden Leeds" or " the Company" ), seeks review of a Decision and Order issued by the National Labor Relations Board (" NLRB" or " the Board" ) on July 19, 2011. The Board has filed a cross-application for enforcement. The United Food and Commercial Workers Union Local 1245 (" the Union" ), the charging party before the Board, has intervened in support of the Board.
The Board found that Alden Leeds had violated Sections 8(a)(1) and (3) of the National Labor Relations Act (" NLRA" or " the Act" ), 29 U.S.C. § 158(a)(1), (3), by locking out its employees on November 3, 2009, without providing the employees with a timely, clear, and complete offer setting forth the conditions necessary to avoid the lockout. Alden Leeds, Inc., 357 N.L.R.B. No. 20 (July 19, 2011). Alden Leeds claims that substantial evidence in the record does not support the Board's finding that the Company committed the cited unfair labor practices. Alden Leeds also argues that, even if the lockout was unlawful, the Board erred in declining to allow the Company to attempt to establish in a separate compliance proceeding that its backpay liability ended on November 9, 2009.
We hold that, on the record before us, there is substantial evidence to support the Board's finding that Alden Leeds violated the Act by locking out its employees on November 3, 2009. Therefore, we deny the Company's petition for review on this issue and grant the Board's cross-application for enforcement.
We have no jurisdiction to consider the Company's claim that the Board erred in precluding it from litigating its backpay liability in a compliance proceeding. Alden Leeds failed to raise this issue before the Board in the first instance, as required by Section 10(e) of the Act. See 29 U.S.C. § 160(e) ( " 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." ). There are no " extraordinary circumstances" here which give the court jurisdiction to address this matter.
Petitioner Alden Leeds manufactures and packages swimming pool cleaning supplies and chemicals at two locations in New Jersey. The Company employs approximately fifty production and delivery employees, who have been represented by the Union since 2001. In September 2009, Alden Leeds and the Union commenced negotiations on a new contract to succeed their 2005 collective bargaining agreement,
which was set to expire on October 3, 2009. The Union sought increases in wages, sick days, and vacation days; changes in seniority; and a three-year agreement. The main sticking point between the parties was health care. Premiums were set to increase under the existing health care plan, and the Company and Union disagreed over how to apportion the increases.
The parties' first bargaining session was on September 30, 2009. At that meeting, Tom Cunningham, the Union's business agent, went through the Union's proposals and explained that the Union was seeking to keep its existing health care plan, which would necessitate increased contributions from the Company. Mark Epstein, the Company's president and chief executive officer, informed Cunningham that the Company was not going to agree to the health care contribution increases the Union was seeking. ...