Spectrum Health -- Kent Community Campus v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2011 Decided August 5, 2011
No. 10-1260
SPECTRUM HEALTH -- KENT COMMUNITY CAMPUS ,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 10-1270
On Petition for Review and Cross-Application
for Enforcement of An Order of
the National Labor Relations Board
Peter J. Kok argued the cause for petitioner. With him on
the briefs were Nathan D. Plantinga and Gregory P. Ripple.
Richard A. Cohen, Senior 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 Fred B.
Jacob, Deputy Assistant General Counsel.

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Before: HENDERSON , GARLAND , and GRIFFITH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND .
GARLAND , Circuit Judge: Spectrum Health -- Kent
Community Campus withdrew recognition from its employees’
union after receiving a petition indicating that the union no
longer had majority support. The National Labor Relations
Board found this action unlawful because it occurred within the
first three years of the parties’ collective bargaining agreement,
during which time a union enjoys a conclusive presumption of
majority support. Spectrum argues that the term of the
collective bargaining agreement began more than three years
before it withdrew recognition, and that the conclusive
presumption had therefore lapsed. Spectrum also objects to the
Board’s imposition of an affirmative bargaining order.
We conclude that the Board properly interpreted the term of
the collective bargaining agreement, and that Spectrum waived
its objections to the bargaining order by failing to raise them in
a timely manner before the Board. Accordingly, we deny
Spectrum’s petition for review and grant the Board’s cross-
application for enforcement.
I
Spectrum operates a hospital in Grand Rapids, Michigan.
In late 1999, the International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of America
(UAW), and its Local 2600, became the exclusive bargaining
representative for a sizeable unit of Spectrum’s employees. In
November 2004, Spectrum and the union began to negotiate a
successor to a 2002 collective bargaining agreement set to
expire on December 31, 2004. During the course of

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negotiations, the parties extended the 2002 agreement to January
15, 2005, but did not agree on a second extension. As a
consequence, the agreement expired on that date. It was not
until late March 2005 that the parties reached a tentative
agreement on a new collective bargaining agreement. The
union’s members ratified that agreement on April 13, and it was
executed two days later, on April 15, 2005.
The following statement was written at the bottom of the
cover of the 2005 agreement: “DATE OF AGREEMENT:
JANUARY 1, 2005 THROUGH MARCH 31, 2008.”
Agreement Between Spectrum & Local 2600, UAW (J.A. 272)
[hereinafter CBA]. However, the first paragraph of the
document, under the heading “AGREEMENT,” stated: “This is
an Agreement by and between [Spectrum and the union],
effective April 13, 2005.” CBA para. 1. The final section of the
contract, under the heading “TERMINATION,” stated: “This
Agreement shall remain in force until 12:01 a.m., April 1,
2008.” Id. § 77. Among other provisions, the agreement
provided for annual wage increases for both “future hires” and
“incumbent employees.” Future hires, defined as those hired on
or after April 13, 2005, were to receive wage reclassifications
“[e]ffective with the first payroll periods beginning after April
13, 2005, April 13, 2006, and April 13, 2007.” Id. § 69(a)(i).
Incumbent employees, defined as those hired on or prior to April
12, 2005, were to receive an initial 4.5 percent raise “[d]uring
the first year of the contract, . . . retroactive to January 1, 2005,”
and additional raises “[a]t the beginning of the second and third
contract years.” Id. § 69(a)(ii). The agreement contained two
other provisions, relating to changes in Spectrum’s retirement
and health plans, that were also specifically made retroactive to
January 1, 2005. 1
1 Section 61 designated a new default health insurance plan to be
effective “as soon as is feasible after January 1, 2005,” capped the

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On January 7, 2008, Spectrum withdrew recognition from
the union based upon its receipt of a petition, signed by a
majority of the bargaining unit employees, stating that they no
longer wanted to be represented by the union. The next day,
Spectrum announced to employees that the UAW contract was
no longer in effect. Top Spectrum officials began a series of
meetings with employees in which they announced that
recognition of the union had been withdrawn due to a loss of
majority support and that the company was considering annual
spring wage and benefit adjustments. In late February,
Spectrum posted a notice of “Town Hall Meetings” to be held
on March 3 and March 7, promising “Exciting News for Former
UAW Staff.” At those meetings and in subsequent mailings to
employees, the company announced a series of wage and benefit
improvements, effective March 2, and suggested that further
wage adjustments would occur in October 2008. The company
also denied a grievance filed under the collective bargaining
agreement, taking the position that grievances would instead be
handled under Spectrum’s non-bargained “fair treatment”
policy.
In response to these actions, the union filed an unfair labor
practice charge against Spectrum, and the General Counsel of
the National Labor Relations Board (NLRB) subsequently
issued a complaint. On September 4, 2008, an Administrative
Law Judge (ALJ) found that Spectrum had violated
premium contributions that participants in the former plan had to pay
between January 1 and December 31, 2005, and set out revised health
insurance benefits and obligations of employees who retired on or
after January 1, 2005. CBA § 61. Section 68 provided that “[n]o
employee hired on or after January 1, 2005” could participate in the
“Spectrum Health -- Kent Community Campus Retirement Plan and
Trust.” CBA § 68.

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sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act
(NLRA).2
As Spectrum acknowledges, under longstanding NLRB
precedent a union enjoys “a conclusive presumption of majority
status during the term of any collective-bargaining agreement,
up to three years.” Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 786 (1996); see Raymond F. Kravis Ctr. for the Performing
Arts, Inc. v. NLRB, 550 F.3d 1183, 1188 (D.C. Cir. 2008);
Shaw’s Supermarkets, 350 N.L.R.B. 585, 587-88 (2007);
Spectrum Br. 13, 15. “This conclusive presumption . . . arises
not from an absolute certainty that the union continues to enjoy
majority status, but from the National Labor Relations Act’s
purpose of fostering industrial peace by promoting stable
collective bargaining relationships.” McDonald Partners, Inc.
v. NLRB, 331 F.3d 1002, 1005-06 (D.C. Cir. 2003) (citing
Auciello, 517 U.S. at 785-90). The Board has clarified that this
irrebuttable presumption becomes rebuttable after the agreement
expires or after the third year of an agreement of longer
duration. Shaw’s Supermarkets, 350 N.L.R.B. at 587-88. At
that point, an employer may withdraw recognition if it has
untainted evidence of a union’s actual loss of majority support.
Id.; see Raymond F. Kravis, 550 F.3d at 1189 n.1.
2 Section 8(a) makes it an “unfair labor practice for an employer
. . . (1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in [section 7 of the NLRA] . . . [or] (5) to
refuse to bargain collectively with the representatives of his
employees.” 29 U.S.C. § 158(a). Section 7 of the NLRA guarantees
employees “the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining . . . .” Id. § 157.

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It is undisputed that the petition Spectrum received would
have constituted sufficient evidence to rebut the presumption if
the three-year period had passed. Thus, as the ALJ recognized
and Spectrum agreed, Spectrum’s liability depends entirely on
whether the term of the 2005 agreement began more or less than
three years before January 7, 2008, the date of the employer’s
withdrawal. See Spectrum Health -- Kent Community Campus,
353 N.L.R.B. No. 99, at 5 (Feb. 26, 2009) (ALJ Op.); Spectrum
Br. 13, 15. Spectrum argued that the term began on January 1,
2005, the date inscribed on the cover of the agreement. The
General Counsel maintained that it began on April 13, 2005, the
effective date listed in the agreement’s first paragraph.
The ALJ concluded that the agreement itself was “at best
. . . ambiguous as to its term,” but that parol evidence --
specifically, the bargaining history of the agreement --
confirmed that the parties intended it to begin on April 13, 2005.
ALJ Op. at 6. Having thus found that the term of the agreement
began “no earlier than April 2005,” the ALJ concluded that
Spectrum’s January 2008 withdrawal of recognition and
repudiation of the agreement, its refusal to recognize and
bargain with the union thereafter, its ensuing unilateral changes
in the terms and conditions of employment, and its promise of
future benefits, were all unlawful. Id. at 7, 10-11. 3 The ALJ
ordered Spectrum to cease and desist from the unfair labor
practices the judge had found and to bargain with the union. Id.
at 11-12.
3
The ALJ also considered, and rejected, Spectrum’s argument that
the conclusive presumption of majority support applies only when an
agreement is unambiguous on its face. ALJ Op. at 8-10. Spectrum
does not repeat that argument before us.

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On February 26, 2009, a two-member panel of the Board
adopted the findings and recommendations of the ALJ.4 The
Board also explained its decision to adopt the ALJ’s affirmative
bargaining order. 353 N.L.R.B. No. 99, at 1-2 (Board Op.).
Spectrum filed a motion for reconsideration, which the Board
denied on April 21, 2009. On August 17, 2010, the Board
vacated its February 2009 decision after the Supreme Court
held, in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635
(2010), that two-member panels of the Board were without
authority to decide cases under the NLRA. Shortly thereafter,
a three-member panel of the Board adopted the February 2009
decision by reference. Spectrum Health -- Kent Community
Campus, 355 N.L.R.B. No. 101 (Aug. 23, 2010).
Spectrum has now petitioned for review by this court, and
the Board has filed a cross-application for enforcement. The
company contends that the term of the 2005 bargaining
agreement began on January 1, 2005, and that the conclusive
presumption of majority support had therefore lapsed by the
time it withdrew recognition from the union on January 7, 2008.
Our review is de novo because “[t]his court owes no deference
to the Board’s interpretation of a disputed collective bargaining
agreement.” Commonwealth Commc’ns, Inc. v. NLRB, 312 F.3d
465, 468 (D.C. Cir. 2002); see Litton Fin. Printing Div. v.
NLRB, 501 U.S. 190, 202-03 (1991). The company also objects
to the Board’s imposition of an affirmative bargaining order.
We consider the term of the agreement in Part II and Spectrum’s
objections to the bargaining order in Part III.
4 In so doing, the Board chose not to rely on the ALJ’s finding that
the January 1, 2005 date on the cover was an inadvertent mistake. In
addition, one member of the panel noted that, although he did not find
the parol evidence conclusive, he found it sufficient to meet the
General Counsel’s burden. Spectrum, 353 N.L.R.B. No. 99, at 1 n.3
(Board Op.).

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II
Spectrum contends that the cover on the 2005 collective
bargaining agreement stated its term unambiguously: “DATE
OF AGREEMENT: JANUARY 1, 2005 THROUGH MARCH
31, 2008.” If the agreement had otherwise been silent as to the
dates of its operation, Spectrum’s position might well be
compelling. But the agreement was not otherwise silent. The
first and last paragraphs provided that “[t]his is an Agreement
. . . effective April 13, 2005,” that “shall remain in force until
12:01 a.m., April 1, 2008.” CBA para. 1 & § 77. We agree with
the Board that these and other textual provisions are at least as
probative of the agreement’s term as the statement on the cover.
See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
63 (1995) (noting that a “cardinal principle of contract
construction [is] that a document should be read to give effect to
all its provisions and to render them consistent with each
other”).
Spectrum denies that there is any inconsistency between the
cover and the text, insisting that the first paragraph simply
memorialized the date upon which the agreement was ratified
and became legally enforceable. It is of course possible that the
parties intended the date April 13, 2005 to have no further
significance, but that is not clear on the face of the agreement.
Indeed, other provisions strongly suggest that April 13, 2005
marked the beginning of the first year of the contract.
As noted in Part I above, one subsection of the agreement
provided that incumbent employees would receive a wage
increase “[d]uring the first year of the contract, . . . retroactive
to January 1, 2005.” CBA § 69(a)(ii) (emphasis added). This
retroactivity provision would not have been needed if the first
year of the contract itself began on January 1, 2005 -- or, as
Spectrum puts it, if the parties had made the term of the entire

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contract retroactive to January 1, 2005. The same is true of two
other provisions that the contract specifically made retroactive.
See supra note 1. It is possible, as Spectrum suggests, that these
express statements of retroactivity were merely redundant
expressions of the parties’ intent to make the entire contract
retroactive. As is true of drafters of legislation, drafters of
contracts do sometimes take a belt-and-suspenders approach in
order “to make assurance doubly sure,” United States v.
Hansen, 772 F.2d 940, 947 (D.C. Cir. 1985). But three sets of
belts and suspenders seem a bit much, especially when no other
contract provision included such accessories and yet, on
Spectrum’s theory, all were similarly retroactive.
The conclusion that the term of the contract as a whole
began on April 13, 2005, is also consistent with other parts of
the agreement’s wage section. CBA § 69. Subsection 69(a)(i)
provided that future hires would receive wage reclassifications
“[e]ffective with the first payroll periods beginning after April
13, 2005, April 13, 2006, and April 13, 2007.” CBA § 69(a)(i).
The incumbent employee subsection, which came next, not only
gave incumbent employees retroactive raises “[d]uring the first
year of the contract,” but also provided for additional raises “[a]t
the beginning of the second and third contract years.” Id. §
69(a)(ii) (emphasis added). Spectrum concedes the context
indicates that, under this section, the first year of the contract
began on April 13, 2005 -- not January 1 -- and that the second
and third contract years were to begin on April 13 of each
subsequent year. Oral Arg. Recording 5:29-6:14 (statement of
Spectrum counsel).
Even if the text of the agreement alone does not resolve the
issue, we agree with the ALJ that “at best for Respondent’s
argument,” the unexplained discrepancy between the dates on
the cover page and the contractual provisions cited above
renders the agreement “ambiguous as to its term.” ALJ Op. at

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6. In the presence of ambiguity, “we must look to parol
evidence to determine the parties’ intent.” Commonwealth
Commc’ns, Inc., 312 F.3d at 466; see Am. Postal Workers Union
v. U.S. Postal Serv., 940 F.2d 704, 707-08 (D.C. Cir. 1991).
And in this case, the extrinsic evidence -- specifically, the
bargaining history -- confirms the Board’s contention that the
parties did not intend to make the term of the entire agreement
retroactive to January 1, 2005. 5
In a January 14, 2005 draft, the “effective” and
“termination” dates in the body of the agreement matched the
dates stated on the cover -- both indicating that the agreement
would run between January 1, 2005 and November 1, 2007.
5 The Board’s General Counsel bears the burden of proving a
violation of the NLRA by a preponderance of the evidence. See 29
U.S.C. § 160(c); Cincinnati Newspaper Guild, Local 9 v. NLRB, 938
F.2d 284, 286 (D.C. Cir. 1991); Gateway Concrete Forming Servs.,
274 N.L.R.B. 154, 158 (1985). Spectrum suggests that the General
Counsel bears a heavier burden in this case, claiming that under the
Board’s decision in Des Moines Register & Tribune Co., 339 N.L.R.B.
1035, 1037 (2003), pet. for rev. denied, Des Moines Mailers Union,
Teamsters Local No. 358 v. NLRB, 381 F.3d 767 (8th Cir. 2004), “the
party that bears the burden of proof in a contract interpretation matter
. . . must clearly establish his interpretation as the correct expression
of the parties’ intent,” Spectrum Reply Br. 4. But Des Moines
Register does not contain such a rule. In that case, the Board said only
that the General Counsel must prove the terms of the agreement. 339
N.L.R.B. at 1037-38. It concluded that the General Counsel had failed
to do so because the provision of the collective bargaining agreement
at issue was ambiguous, and the General Counsel did not present
extrinsic evidence to shed light on the parties’ intent. Id.; see Des
Moines Mailers Union, 381 F.3d at 770. In this case, by contrast, the
General Counsel presented extrinsic evidence, which resolves in his
favor any ambiguity in the contract language. Nothing more is
required to satisfy the preponderance of evidence standard.

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Draft Agreement Between Spectrum and Local 2600, UAW
(Jan. 14, 2005) (J.A. 145). On March 23, 2005, however,
Spectrum suggested that the parties “consider instead entering
into a 3 year agreement which would expire three years after
ratification/final approval by the union.” 2004 Collective
Bargaining Negotiations, Eighth Bargaining Session (Mar. 23,
2005) (J.A. 219). The bargaining notes indicate that “[t]he
parties will consider this possibility, but absent agreement to the
contrary, the contract would expire as previously agreed (i.e.:
November 2, 2007).” Id. On March 31, the parties did reach
agreement. Consistent with Spectrum’s proposal, the effective
date in the body of the new version was changed from January
1, 2005 to April 13, 2005, and the termination date was changed
from November 1, 2007 to April 1, 2008 (at 12:01 a.m.), thus
providing the (approximately) three-year term that Spectrum had
proposed. Indeed, as NLRB counsel points out, “‘12:01 a.m. on
April 1, 2008’” was “three years to the minute after the
anniversary of the date, March 31, on which the parties’
negotiators had reached a tentative agreement.” NLRB Br. 12.
The cover of the agreement was likewise changed to reflect
the new termination date of March 31, 2008. The bargaining
notes do not explain why the initial date on the cover was not
also changed to reflect the new effective date of April 13, 2005.
Although Spectrum insists this was a deliberate expression of
the parties’ intent to make the entire agreement retroactive to
January 1, 2005, the bargaining history indicates otherwise. The
negotiations over the wage provisions reveal that the parties
intended the first year of the contract term to begin in April
2005, not on January 1, 2005. Spectrum accepted a union
proposal for annual three-percent raises for future hires, but only
on the condition that the increases take effect on “anniversaries
of contract effective date, not ‘January 1.’” 2004 Collective
Bargaining Negotiations (Mar. 31, 2005) (J.A. 220). Spectrum
agreed to make raises for incumbent employees “[r]etroactive

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to January 1, 2005,” but it warned that its “offer of retroactivity”
would expire if the union failed to approve the contract by a
certain date. Id. (emphasis in original). This suggests that the
initial date on the cover was left as January 1, 2005 to reflect the
fact that the incumbent hire provision -- and the two others listed
in footnote 1 above -- applied retroactively to that date, not to
suggest that the entire agreement was retroactive.
In sum, like the ALJ and the Board, we find that the term of
the collective bargaining agreement began on its effective date,
April 13, 2005. That finding is dispositive of Spectrum’s
liability under the Act. Because the union still enjoyed a
conclusive presumption of majority support when Spectrum
withdrew recognition less than three years later, on January 7,
2008, Spectrum’s withdrawal and subsequent actions violated
sections 8(a)(1) and 8(a)(5).6
III
Spectrum’s second contention is that the facts of this case
do not justify an affirmative bargaining order and that the Board
failed to conduct the fact-specific analysis this circuit requires
before the Board can impose such an order. See Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). We
6 In light of this disposition, we do not consider the Board’s
alternate argument that, as a matter of federal labor law policy, the
three-year period of repose must run from the date of contract
formation, even if the parties agree on a retroactive effective date.
NLRB Br. 33-34, 37. In any event, this argument “is nowhere to be
found in the orders under review,” and is therefore a post hoc
rationalization that we may not consider. Vincent Indus. Plastics, Inc.
v. NLRB, 209 F.3d 727, 739 (D.C. Cir. 2000). In fact, the orders
below assume the opposite, conceding that Spectrum would not be
liable if the parties had intended the term to begin retroactively on
January 1, 2005. ALJ Op. at 5.

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may not consider this contention, however, because Spectrum
failed to raise it before the Board in a timely fashion.
Section 10(e) of the NLRA provides that “[n]o objection
that has not been urged before the Board . . . shall be considered
by the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e); see id. § 160(f). The Supreme Court has held
that, pursuant to section 10(e), the failure to assert an objection
before the Board deprives the courts of appeals of jurisdiction to
consider it. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.
645, 665 (1982).
In its exceptions to the ALJ’s decision, Spectrum did not
raise any specific objection to the ALJ’s imposition of an
affirmative bargaining order. Instead, in a list of 103
exceptions, the company said only that it excepted to the ALJ’s
proposed remedy “in its entirety.” Resp’t’s Exceptions to ALJ’s
Findings & Decision (Nov. 5, 2008) (NLRB Supp. App. 10).
We have repeatedly held this exact formulation insufficiently
specific to preserve an objection to a bargaining order. Prime
Serv., Inc. v. NLRB, 266 F.3d 1233, 1241 (D.C. Cir. 2001);
Quazite Div. of Morrison Molded Fiberglass Co. v. NLRB, 87
F.3d 493, 497 (D.C. Cir. 1996); see Highlands Hosp. Corp. v.
NLRB, 508 F.3d 28, 32-33 (D.C. Cir. 2007); Scepter v. NLRB,
280 F.3d 1053, 1057 (D.C. Cir. 2002); see also 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.”). Spectrum does not dispute that
its exception to the ALJ’s decision was too general to satisfy
section 10(e). See Spectrum Reply Br. 28-29; Oral Arg.
Recording 28:00-29:05.
Although Spectrum did eventually raise specific objections
to the bargaining order in its motion for reconsideration, “[b]y

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the time [the petitioner] objected to the bargaining order in a
motion for reconsideration, it was too late.” Parkwood
Developmental Ctr., Inc. v. NLRB, 521 F.3d 404, 410 (D.C. Cir.
2008); see Elmhurst Care Ctr. v. NLRB, 303 F. App’x 895, 897
(D.C. Cir. 2008); NLRB v. Local Union No. 74, 471 F.2d 43, 46
(7th Cir. 1973); A.H. Belo Corp. v. NLRB, 411 F.2d 959, 967
(5th Cir. 1969). As we held in Parkwood, to preserve objections
for appeal a party must raise them in the time and manner that
the Board’s regulations require. 521 F.3d at 410. Those
regulations provide that “[n]o matter not included in exceptions
. . . may thereafter be urged before the Board, or in any further
proceeding.” 29 C.F.R. § 102.46(g). “Having failed to exhaust
its administrative remedies under the Board’s rules, see 29
C.F.R. § 102.46(g) . . . , and having shown no ‘extraordinary
circumstances’ for this failure, see 29 U.S.C. § 160(e),”
Spectrum “may not raise this objection now.” Elmhurst Care
Ctr., 303 F. App’x at 897; see also Elastic Stop Nut Div. v.
NLRB, 921 F.2d 1275, 1284 (D.C. Cir. 1990) (“[S]ection 10(e)
is an example of Congress’s recognition that . . . ‘courts should
not topple over administrative decisions unless the
administrative body not only has erred but has erred against
objection made at the time appropriate under its practice.’”
(quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.
33, 37 (1952))). 7
7 As we noted in Parkwood, the Board’s regulations provide that
it will “only entertain a motion for reconsideration in ‘extraordinary
circumstances.’” 521 F.3d at 410 (quoting 29 C.F.R. § 102.48(d)(1)).
There, as here, “[t]he Board found no such circumstances.” Id.; see
Spectrum Health -- Kent Community Campus, Order Den. Mot. for
Recons. (J.A. 59) (denying Spectrum’s motion because it “does not
present extraordinary circumstances necessary under Section
102.48(d)(1) . . . to warrant reconsideration of the Board’s decision”).
And as we said in Parkwood, “we must defer to the Board’s
interpretation of its own regulations because that interpretation is
neither plainly erroneous nor inconsistent with the regulations.” 521

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There may be circumstances in which a motion for
reconsideration is the first opportunity a party has to raise
objections -- where, for example, the Board sua sponte decides
an issue not expressly presented to it by the parties or addressed
by the ALJ. Under those circumstances, the objections will be
preserved by a timely motion to reconsider. See Woelke, 456
U.S. at 665-66; W & M Properties v. NLRB, 514 F.3d 1341,
1345 (D.C. Cir. 2008); Flying Food Group, Inc. v. NLRB, 471
F.3d 178, 185-86 (D.C. Cir. 2006). 8 This, however, is not such
a case because here the Board adopted the same bargaining
order imposed by the ALJ. It is true that Spectrum “could not
have faulted the Board’s reasoning in a filing that preceded the
Board’s order” adopting that of the ALJ. Parkwood, 521 F.3d
at 410. But it “could have alerted the Board to the possibility
that a bargaining order was unwarranted in this instance. Its
failure to do so deprives us of jurisdiction to consider the
remedial challenge.” Id. Because we may not review the
Board’s bargaining order, a fortiori we may not review its
rationale. Id.
Nor does it matter that the Board addressed the merits of
Spectrum’s objections in the course of denying its motion for
reconsideration. “As the Supreme Court has made clear, . . .
‘[t]he § 10(e) bar applies even though’ the Board has decided
the issue.” Highlands Hosp. Corp., 508 F.3d at 33 (quoting
Woelke, 456 U.S. at 666). “[T]he fact that the Board has or has
F.3d at 410.
8 This is what we meant by our dictum in W & M Properties that,
“[i]f aggrieved by the Board’s remedy, W & M should have filed a
motion for reconsideration pursuant to the Board’s rules and
regulations.” 514 F.3d at 1345. Spectrum misreads this as holding
that a motion for reconsideration always suffices to preserve an
objection not previously made.

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not discussed an issue raises no necessary inferences with
respect to section 10(e).” Local 900, Int’l Union of Elec., Radio
& Mach. Workers v. NLRB, 727 F.2d 1184, 1192 (D.C. Cir.
1984); see id. at 1191 (“[T]he statute requires objection to the
Board, and not discussion by the Board, before an issue may be
presented in court.”); Alwin Mfg. Co. v. NLRB, 192 F.3d 133,
143 (D.C. Cir. 1999) (“[S]ection 10(e) bars review of any issue
not presented to the Board, even where the Board has discussed
and decided the issue.”). 9 Accordingly, the Board’s
consideration does not change our determination that we may
not consider Spectrum’s objections to the bargaining order.
IV
For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-application for enforcement.
So ordered.
9 Spectrum interprets our decision in Burinskas v. NLRB as
holding that the Board’s consideration of an objection preserves the
objection for review. 357 F.2d 822 (D.C. Cir. 1966). But in
Burinskas, the court found that the employer had timely excepted to
the back pay remedy in the trial examiner’s initial report, and then
objected again both before and after the Board issued a supplemental
decision upon remand from this court. Id. at 825. Although the court
noted that “the Board, through its agent, the Compliance Officer, ha[d]
considered the objection,” this merely confirmed that the Board could
not “now claim that the objection . . . was not properly before it.” Id.
at 826.

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