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Failure to Make Objection to the NLRB, Per the NLRA, Prohibited the Matter Being Raised For the First Time on Appeal


Laborers’ International Union of North America, Local Union No. 91 v. National Labor Relations Board - Second Circuit Court of Appeals


Facts:  Laborers’ International Union of North America, Local Union No. 91 (“Local 91”) operated a hiring hall that referred union members to job openings when they became available.  For nearly fifteen years, one union member, Ronald Mantell (“Mantell”), regularly received referrals to job openings through Local 91’s “out of work” list.  However, after Mantell’s brother filed unfair labor practice charges against Local 91 and alleged he had been taken off the “out of work” because of critical comments he made about Local 91 and its leadership on social media, Mantell no longer received referrals for job openings.

Mantell subsequently filed three unfair labor practice charges against Local 91 and claimed Local 91 had unlawfully threatened to file internal union charges against him, refused to show him the “out of work” list, and retaliated against him by not referring him for job openings.  The Administrative Law Judge (“ALJ”) that heard the matter found Local 91 had committed the first two unfair labor practices.  However, the ALJ held that sufficient evidence had not been presented to show retaliatory animus to explain Mantell’s lack of referrals.  As a result, the third unfair labor practice charge was dismissed.

However, the NLRB’s General Counsel sought review of the ALJ’s findings.  Since Local 91 filed no cross exception or response to the NLRB’s General Counsel’s exceptions to the ALJ’s decision on the third unfair labor practice charge, the NLRB reversed the ALJ’s ruling on the third unfair labor practice charge.  Rather than moving for reconsideration by the NLRB, Local 91 immediately appealed to the Second Circuit Court of Appeals.  

Holding:  The NLRB’s General Counsel contested the appeal and argued Local 91 was barred from arguing the matter on appeal because it failed to raise them in any cross exception or responsive brief before the NLRB.  The Second Circuit Court of Appeals got down to brass tacks quickly and recognized that Section 10(e) of the NLRA stipulates that “No objection that has not been urged before the Board [NLRB]...shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”  The NLRB’s rules and regulations further state that any matter “not included in exceptions or cross-exceptions may not thereafter be urged before the Board, or in any further proceeding.”

In this case, the Court recognized that Section 10(e)’s requirement is jurisdictional.  Consequently, a party’s failure to satisfy the requirement prohibited the Court from hearing new arguments presented on appeal.  Prior caselaw has established this bar applies whenever a party fails to raise an objection before the NLRB, regardless of whether an ALJ had earlier made favorable findings on the matter.  As Local 91 had failed to file any cross exception or responsive brief on the matter before the NLRB, that foreclosed the Court from considering Local 91’s appeal.

Judgment:  The Second Circuit Court of Appeals denied Local 91’s petition for review of the NLRB’s decision on the grounds that Local 91’s failure to assert its objection before the NLRB, as required by Section 10(e) of the NLRA, and instead raise it for the first time on appeal prevented the Court from considering the dispute.

The Takeaway:  As any good trial lawyer (or appellate lawyer) will tell you, preserving error is imperative when taking up a case on appeal.  I know that notion has been ingrained in me since I started practicing years ago.  This case is further proof of that.  Had error been persevered by Local 91 filing a cross exception or responsive brief on the matter before the NLRB, the Court of Appeals would have had grounds to consider the dispute.  Whether the Court would have ruled in favor of Local 91 or not is hard to say.  However, Local 91 would have at least been in the arena.  Instead, failure to preserve error doomed any chance they had and thus was the end of the road for their appeal.

Date:  October 9, 2020

Opinion:  https://www.courtlistener.com/pdf/2020/10/09/laborers_intl_union_of_n._am._v._n.l.r.b..pdf

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