National Labor Relations Board v. Saint-Gobain Abrasives, Inc.

United States Court of Appeals
For the First Circuit

No. 05-1061

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

and

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
Intervenor,

v.

SAINT-GOBAIN ABRASIVES, INC.,
Respondent.

PETITION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD

Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.

Robert J. Englehart, Supervisory Attorney, Arthur F.
Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and Kellie J. Isbell,
Attorney, on brief for petitioner.

Akin Gump Strauss Hauer & Feld, LLP, Lawrence D. Levien, and
Joshua B. Waxman on brief for respondent.

October 19, 2005

*
Of the Northern District of California, sitting by
designation.
 SELYA, Circuit Judge. The National Labor Relations Board

(the Board) found that Saint-Gobain Abrasives, Inc. (Saint-Gobain)

violated sections 8(a)(1) and (5) of the National Labor Relations

Act (NLRA), 29 U.S.C. §§ 158(a)(1) and (5), when Saint-Gobain

unilaterally reduced the work hours of a particular cadre of

employees within a collective bargaining unit. The Board now

applies for judicial enforcement of its order. Saint-Gobain

challenges the validity of the remedy selected by the Board and

opposes enforcement on that basis. We conclude that we are without

jurisdiction to entertain the challenges pressed by Saint-Gobain

and, consequently, enforce the Board's order.

Saint-Gobain, a multinational corporation, is the largest

abrasives manufacturer in the world. It maintains a 138-acre

manufacturing complex in Worcester, Massachusetts, where it

produces abrasives and ceramics.

We focus the lens of our inquiry on Plant No. 8 at the

Worcester facility and, more particularly, on the employees in the

"mix-and-mold" department. These men and women, over 100 strong,

work Monday through Friday, in three shifts. Their jobs involve

combining raw materials to form a mixture and then molding the

mixture into grinding wheels.

For many years, mix-and-mold employees worked 7.5-hour

days (with a half hour unpaid lunch break). In September of 2000,

however, Saint-Gobain instituted a new production regimen that

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required overlapping shifts. To facilitate this change, it placed

mix-and-mold employees on 8-hour shifts (again with a half hour

unpaid lunch break).

Saint-Gobain's business is cyclical. Typically, fewer

work-hours are needed in the winter months. On February 2, 2001,

after exhausting voluntary furloughs in the mix-and-mold

department, Saint-Gobain reinstituted the 7.5-hour work day. When

business picked up in the spring, Saint-Gobain reverted to 8-hour

shifts. It made all of these modifications unilaterally.

That August, unionization came to the mix-and-mold

department. As a result of a Board-supervised election, the

employees selected the International Union of Automobile, Aerospace

and Agricultural Implement Workers of America, Region 9A, AFL-CIO

(the Union) as their collective bargaining representative. Saint-

Gobain challenged the election. The Board overruled Saint-Gobain's

objections, certified the Union, and notified Saint-Gobain of the

certification.

On December 17, 2001, Saint-Gobain reinstituted 7.5-hour

shifts for mix-and-mold employees, effective January 5, 2002.

Saint-Gobain put the shortened shifts into effect as scheduled.

Once again, the company acted unilaterally; it did not give prior

notice of its decision to the Union, nor did it afford the Union an

opportunity to bargain before reducing employee hours.

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 Still overstaffed, Saint-Gobain offered voluntary

furloughs to its workforce in January of 2002. When that step

proved ineffectual, it negotiated a voluntary separation agreement

with the Union. That pact, which was executed in March of 2002,

resulted in a number of permanent layoffs. Since then, the size of

the mix-and-mold workforce has declined through normal attrition.

The remaining employees continue to work 7.5-hour shifts.

Saint-Gobain and the Union have engaged in extensive

negotiations over the terms and conditions of employment (including

hours of work). These discussions have failed to yield a

comprehensive collective bargaining agreement. At last report, the

negotiations had reached an impasse as to working hours.

On March 8, 2002, the Union filed an unfair labor

practice charge with the Board. It filed an amended charge on May

29, 2002. In the charging documents, the Union alleged that Saint-

Gobain violated the NLRA when it unilaterally reduced working hours

in January of 2002 without prior notice to, or any bargaining with,

the Union.1

Faced with a set of undisputed facts, the administrative

law judge (ALJ) recommended that the Board find that Saint-Gobain

had committed an unfair labor practice within the meaning of

sections 8(a)(1) and (5) of the NLRA. He recommended a remedy that

1
The Union also alleged that Saint-Gobain committed another
unfair labor practice when it unilaterally switched employees'
medical insurance plans. That issue is not before us.

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would require Saint-Gobain to: (i) reinstate the 8-hour work day;

(ii) award backpay to adversely affected employees up to the date

of that reinstatement; and (iii) engage in collective bargaining

with the Union as to hours of work and related conditions of

employment.

Saint-Gobain filed exceptions to the ALJ's decision. The

Board rejected these exceptions and adopted the ALJ's

recommendations in their entirety. See Saint-Gobain Abrasives,

Inc., 343 N.L.R.B. No. 68 (Oct. 29, 2004). The Board now petitions

for enforcement of its order. The Union has intervened in support

of the Board's petition but has not filed a brief.

In this venue, Saint-Gobain concedes its liability for

the charged unfair labor practice and contests only the remedial

portion of the Board's order. It claims that the remedy is

punitive and contravenes the tenets undergirding the NLRA. See,

e.g., NLRB v. Strong, 393 U.S. 357, 359 (1969) (explaining that,

though broad, the NLRA's grant of remedial power "does not

authorize punitive measures"). More specifically, Saint-Gobain

claims that the Board erred (i) by not tolling backpay as of March

7, 2002 (the date when management and the Union signed the

voluntary separation agreement) and (ii) by directing reinstatement

of the 8-hour work day (inasmuch as the voluntary separation

agreement eliminated the need for such reinstatement as well).

Since the Union agreed to layoffs in March of 2002, this thesis

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runs, it surely would have agreed to a reduction in hours of work

at that point in time.

Saint-Gobain also assigns error to the final feature of

the Board's designated remedy: its directive that Saint-Gobain

bargain further with the Union. In this regard, Saint-Gobain notes

that the parties already have engaged in extensive bargaining and

have reached an impasse. Further negotiations are, therefore,

unnecessary — and might even prove to be counterproductive.

The Board's initial response to this asseverational array

is that all of these arguments have been waived. The Board

maintains that, by only objecting generally to the ALJ's proposed

remedy, Saint-Gobain did not adequately raise before the Board the

challenges that it now seeks to mount and, therefore, cannot raise

those points in response to a petition for enforcement. Saint-

Gobain's rejoinder is that its objections were not so vague as to

preclude judicial review.

The general exhaustion requirement that prevails in

administrative matters is a bedrock principle: "as a general

rule[,] courts should not topple over administrative decisions

unless the administrative body not only has erred but has erred

against objection made at the [appropriate] time." United States

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). We have

described this raise-or-waive rule as creating "a win-win

situation" because "adhering to it simultaneously enhances the

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efficacy of the agency, fosters judicial efficiency, and safeguards

the integrity of the inter-branch review relationship." P. Gioioso

& Sons, Inc. v. OSHRC, 115 F.3d 100, 104 (1st Cir. 1997).

Section 10(e) of the NLRA, 29 U.S.C. § 160(e),

unreservedly embraces this rule. In relevant part, the statute

provides that when the Board petitions for judicial enforcement,

"[n]o 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." Id. That statutory

mandate is clear: if a particular objection has not been raised

before the Board, a reviewing court, in the absence of

extraordinary circumstances, is without jurisdiction to consider

the issue in a subsequent enforcement proceeding. See, e.g.,

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665 (1982)

(holding that the court of appeals lacked jurisdiction to consider

an issue not raised by either party before the Board); Local Union

No. 25 v. NLRB, 831 F.2d 1149, 1155 (1st Cir. 1987) (similar); cf.

29 C.F.R. § 102.46(b)(2) ("Any exception to a ruling, finding,

conclusion, or recommendation which is not specifically urged shall

be deemed to have been waived.").

The case before us is not as cut-and-dried as one in

which no pertinent objection was made. See, e.g., Local Union No.

25, 831 F.2d at 1155. Here, Saint-Gobain, in addition to

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contesting liability, filed a general objection to the remedial

portion of the ALJ's recommended order. That objection stated in

relevant part that "[t]he ALJ erred in recommending . . . the

remedies set forth in the decision [because those remedies] are not

supported by the evidence or by the law." In its supporting brief

before the Board, Saint-Gobain again made a general averment that

"the ALJ's findings and conclusions are inconsistent with the

record evidence and applicable law [and that as] a result, the

ALJ's recommended remedy and order are also inconsistent with the

record evidence and applicable law, and therefore should not be

adopted." But Saint-Gobain's references to the ALJ's recommended

remedy end there.2 Consequently, we must decide whether, in the

labor law context, a general objection, like this one, suffices to

preserve a more specific (but encompassed) issue for judicial

review.

Although our own case law is silent on this precise

question, the legal landscape is replete with guidance. The

seminal case is Marshall Field & Co. v. NLRB, 318 U.S. 253 (1943)

(per curiam). There, the Supreme Court held that an objection that

2
Saint-Gobain's claim that it raised other, more specific
remedy-related arguments to the Board's regional counsel is
unsupported by the record. Moreover, it is doubtful whether
presentation of an argument at that stage and in that manner,
without more, would suffice to preserve a claim of error. Cf. NLRB
v. United Shoe Mach. Corp., 445 F.2d 633, 634 (1st Cir. 1971)
(concluding that registering a complaint through a "letter to the
regional compliance officer and in a conference with the acting
regional director" was insufficient for section 10(e) purposes).

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the examiner erred "in making each and every recommendation" was

insufficient to grant jurisdiction for judicial review of a more

particularized challenge. Id. at 255. The test is whether the

objection, fairly read, apprises the Board that the objector

intended to pursue the issue later presented to the court. Id.

The objection in Marshall Field was too general to pass this test.

Id.

Other courts of appeals have embroidered the basic rule

of Marshall Field. A representative case is Quazite v. NLRB, 87

F.3d 493 (D.C. Cir. 1996). The court there made it pellucid that

when a party files only a blanket objection to the recommended

remedy without providing any indication of the thrust of that

objection, the objection alone furnishes inadequate notice to the

Board of the objecting party's particular argument and, thus, does

not satisfy section 10(e). See id. at 497-98. There is no

shortage of other cases to the same effect. See, e.g., NLRB v.

Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 241 (6th Cir.

1983) (per curiam) (holding that an objection "to each and every

provision of the Remedy" did not pass muster under section 10(e));

Singer Co. v. NLRB, 429 F.2d 172, 180-81 (8th Cir. 1970) (holding

that an exception to "[t]he Recommended Order in its entirety [as]

against the preponderance of the evidence and the law" was too

vague to preserve the court's jurisdiction over a specific issue

not otherwise argued before the Board).

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 Saint-Gobain's objection falls well within the compass of

these authorities. It is a general objection to the remedy as a

whole, and the supplemental brief adds nothing of substance to it.

Together, those documents merely reassert Saint-Gobain's contention

that it did not violate the NLRA and, therefore, that the

imposition of any remedy would be inappropriate. This general

objection is wholly insufficient to put the Board on notice of the

specific arguments that Saint-Gobain now attempts to advance.

Under section 10(e), then, we are without jurisdiction to entertain

those arguments.3 See Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 144

(D.C. Cir. 1999) ("Where . . . a party excepts to the entire

remedy, and provides no indication of the basis for its objection,

the exception alone provides insufficient notice to the Board of

the party's particular arguments to satisfy section 10(e).");

Quazite, 87 F.3d at 497 (concluding that an objection to a remedial

order "in its entirety" was "far too broad to preserve a particular

issue for appeal").

The raise-or-waive rule is, of course, not absolute.

However, the two exceptions that come to mind afford no succor to

Saint-Gobain.

3
This holding is consistent with our treatment of exceptions
in other administrative law contexts. See, e.g., P. Gioioso, 115
F.3d at 107 (holding that, under the Occupational Safety and Health
Act, a party desiring to preserve an issue for judicial review must
raise the issue clearly before the agency and articulate the issue
in its petition for judicial review).

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 The first exception involves section 10(e)'s caveat that,

even without proper objection, an issue may be appropriate for

judicial review under "extraordinary circumstances." Saint-Gobain

does not argue that extraordinary circumstances obtained here, and

in all events, the record would not support such a claim. The

procedural history of this case is pedestrian and Saint-Gobain,

despite its waiver, still may challenge the salient portions of the

Board's remedial order in a later compliance proceeding. See,

e.g., Pegasus Broad. of San Juan, Inc. v. NLRB, 82 F.3d 511, 513

n.3 (1st Cir. 1996) (noting that "[s]uch a bifurcated procedure is

common and has met with approval").

A second, exogenous exception is also available in

certain circumstances. Notwithstanding the mandate of section

10(e), the court of appeals retains residual jurisdiction to

consider a first-time challenge to a remedy on the ground that the

remedy is obviously beyond the Board's authority. See Detroit

Edison Co. v. NLRB, 440 U.S. 301, 311 n.10 (1979). In this case,

however, the Board's authority to impose remedies such as backpay,

reinstatement, and compulsory bargaining is unquestioned.

We need go no further. Concluding, as we do, that Saint-

Gobain's objection to the remedial portion of the Board's order

lacked the requisite specificity to preserve for judicial review

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the issues that it has now briefed,4 we grant the Board's petition

for enforcement.

So Ordered.

4
This conclusion renders it unnecessary for us to consider the
parties' substantive arguments anent the appropriateness of the
Board's remedial order.

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