On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. (No. 22-CA-10297 & 22-CA-10397).
Aldisert, Higginbotham and Sloviter, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This case involves a petition for review of and a cross-application for the enforcement of an order of the National Labor Relations Board (the "Board"). This court must decide whether it can review the Board's order granting a motion for summary judgment against petitioner for wrongfully laying off two employees and for engaging in an unfair labor practice. We believe that because petitioner neither filed timely exceptions to the Board's order, nor demonstrated extraordinary circumstances before the Board or this court for not having filed timely exceptions, this court cannot review the order issued against petitioner. Instead, we will grant respondent's cross-application for enforcement of the order.
On September 24, 1980, Local 825, International Union of Operating Engineers, AFL-CIO ("Union") filed an unfair labor practice charge against petitioner, Oldwick Materials, Inc. ("Oldwick"), a New Jersey corporation engaged in the processing and sale of crushed stone and related products. The Union's charge alleged that petitioner violated sections 8(a)(1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by terminating the employment of Michael Bylina and John Cregar because of their membership activities with the Union. On November 3, 1980, the Union filed a second charge, arising out of the same incident, which stated that petitioner refused to bargain collectively with the Union.
A complaint and notice of hearing on the first charge was served upon petitioner on November 7, 1980. The complaint, however, alleged wrongful discharge of only one of the employees, Bylina. After receiving an extension of time to file an answer, petitioner denied all the allegations on November 24, 1980.
On December 15, 1980, the two charges were consolidated and an amended complaint and notice of hearing were filed. The amended complaint incorporated most of the allegations of the two charges. It differed from the original complaint, however, in two respects: (1) it added Cregar's name, and (2) it alleged that the two employees were improperly laid off, as opposed to the original charge that Bylina was wrongfully discharged.
On December 16, 1980, a copy of the amended complaint was served upon petitioner, who was specifically instructed to file an answer within ten days; otherwise, the allegations contained in the complaint would be deemed admitted and could be so found by the Board. Because petitioner did not answer the amended complaint by January 12, 1981, the Board's general counsel moved for summary judgment on January 30, 1981, and petitioner was ordered to show cause by February 19, 1981 why the motion for summary judgment should not be granted. Petitioner failed to respond to this order to show cause, and therefore on September 30, 1982 the Board granted summary judgment against petitioner. Petitioner neither filed exceptions to the Board's order nor sought reconsideration by the Board. Thus, this record is devoid of any evidence indicating that petitioner ever filed any answer to the amended complaint, any response to the motion for summary judgment, any objection to the Board's order, or any request for reconsideration; instead of pursuing any of the options available, petitioner filed for review by this court.
The parties assert that this court has jurisdiction under sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e) and (f). The Board's order is final within the meaning of the Act and pursuant to § 10(e) the Board has the power to petition this court for its enforcement. At issue, however, is whether, under § 10(f) this court can review the final order where petitioner, Oldwick, neither urged objections before the Board in the form of exceptions to the order nor presented extraordinary circumstances to the Board or this court for reconsideration of the order. Procedures for filing exceptions and showing extraordinary circumstances before the Board are set out in the regulatory provisions, 29 C.F.R. §§ 102.46 and 102.48, which provide, generally, 20 days for making objections to the Board's order.
The relevant statutory language limiting this court's review is found in § 10(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 ...