United Food v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2007 Decided November 6, 2007
No. 06-1318
UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL
204 AND
UNITED FOOD AND COMMERCIAL WORKERS I NTERNATIONAL
UNION , AFL-CIO,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
SMITHFIELD PACKING COMPANY , I NC . AND
SMITHFIELD FOODS , I NC .,
I NTERVENORS
On Petition for Review of an Order of the
National Labor Relations Board
Renee L. Bowser argued the cause and filed the briefs for
petitioner.
Elizabeth A. Heaney, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate

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General Counsel, and David S. Habenstreit, Supervisory
Attorney. Fred B. Jacob, Attorney, entered an appearance.
Douglas M. Topolski argued the cause for intervenors.
With him on the brief were Curtis L. Mack and Elena D.
Marcuss.
Before: SENTELLE , TATEL , and GRIFFITH , Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL :
TATEL , Circuit Judge: Following a union’s unsuccessful
effort to organize a plant, the National Labor Relations Board
found that over the course of the union’s campaign the employer
committed several unfair labor practices in violation of the
National Labor Relations Act. Although the employer contests
none of the Board’s conclusions, the union challenges the
Board’s decision to dismiss two of its claims: (1) that statements
by high-level company management constituted unlawful threats
of plant closure; and (2) that the company’s decision to train a
security camera on union organizers created an illegal
impression of surveillance. Given the significant deference we
owe the Board’s factual findings, we deny the union’s petition
for review on both claims. The union also challenges the
adequacy of the Board’s remedies, but because the union failed
to present the issue to the Board, we lack jurisdiction over that
claim.
I.
This case arises out of the United Food and Commercial
Workers’ (UFCW) March 1999 attempt to organize a Smithfield
Foods meatpacking plant in Wilson, North Carolina. After a
three-month campaign, the union lost the election. The union
filed a series of unfair labor practice charges against Smithfield,
alleging that the company’s antiunion campaign had tainted the

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election. An administrative law judge found that Smithfield had
committed several unfair labor practices in violation of sections
8(a)(1), (3), and (5) of the National Labor Relations Act, 29
U.S.C. § 158(a)(1), (3), (5). See Smithfield Foods, Inc., 347
N.L.R.B. No. 109, at 38 (Aug. 31, 2006) (finding that Smithfield
unlawfully discharged employees, engaged in interrogation, and
threatened job, pay, and benefit losses as a result of employee
union activities, among other violations). Relevant to this
appeal, the ALJ determined that Smithfield executives violated
section 8(a)(1) by threatening to close the company’s Wilson
plant if workers unionized and by training the facility’s security
camera on union organizers as they distributed handbills near
the plant’s entrance. Finding a widespread pattern of “repeated
and pervasive unfair labor practices of a hallmark nature,”
Smithfield, 347 N.L.R.B. No. 109, at 37, the ALJ recommended
that the Board order Smithfield to bargain with the UFCW
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 610
(1969) (upholding the Board’s authority to issue a bargaining
order when an employer’s unfair labor practices “have made the
holding of a fair election unlikely” or “have in fact undermined
a union’s majority and caused an election to be set aside”).
On review, although the Board upheld most of the ALJ’s
findings, it found for Smithfield on the issues of threatened plant
closure and video surveillance. The Board also declined to issue
a bargaining order, instead mandating a new election along with
several “extraordinary remedies” to ensure the fairness of the
second election. Smithfield, 347 N.L.R.B. No. 109, at 8. The
union now seeks review of the Board’s dismissal of the unfair
labor practice charges and challenges the Board’s remedies as
inadequate.
We will uphold the Board’s dismissal of an unfair labor
practice charge “unless its findings are unsupported by
substantial evidence in the record considered as a whole, or

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unless the Board ‘acted arbitrarily or otherwise erred in applying
established law to facts.’” Gen. Elec. Co. v. NLRB, 117 F.3d
627, 630 (D.C. Cir. 1997) (quoting Allegheny Ludlum Corp. v.
NLRB, 104 F.3d 1354, 1358 (D.C. Cir. 1997)). Under this
deferential standard of review, we will reverse the Board’s
factual determinations “only when the record is so compelling
that no reasonable factfinder could fail to find to the contrary.”
Resort Nursing Home v. NLRB, 389 F.3d 1262, 1270 (D.C. Cir.
2004). We will not “displace the Board’s choice between two
fairly conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951). With this limited role in mind, we consider each of the
union’s challenges.
II.
NLRA section 7 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 or other mutual aid or
protection.” 29 U.S.C. § 157. The NLRA safeguards these
rights through section 8(a)(1), which makes it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [section
7].” Id. § 158(a)(1). Section 8(c), however, protects employers’
First Amendment rights to convey their views on unionization
to employees so long as such expression “contains no threat of
reprisal or force or promise of benefit.” Id. § 158(c).
The Supreme Court addressed the relationship between
sections 8(a)(1) and 8(c) at length in Gissel, explaining:
[A]n employer is free to communicate to his
employees any of his general views about

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unionism or any of his specific views about a
particular union, so long as the communications
do not contain a “threat of reprisal or force or
promise of benefit.” He may even make a
prediction as to the precise effects he believes
unionization will have on his company. In such
a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable
consequences beyond his control or to convey a
management decision already arrived at to close
the plant in case of unionization. If there is any
implication that an employer may or may not
take action solely on his own initiative for
reasons unrelated to economic necessities and
known only to him, the statement is no longer a
reasonable prediction based on available facts
but a threat of retaliation based on
misrepresentation and coercion, and as such
without the protection of the First Amendment.
395 U.S. at 618 (citations omitted). We have often applied
Gissel in situations involving allegedly unlawful employer
speech. In Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130
(D.C. Cir. 1994), we found an employer’s letter attacking a
union’s record on job security protected under NLRA section
8(c), noting that “[i]f the Board may take management
statements that very emphatically assert a risk, twist them into
claims of absolute certainty, and then condemn them on the
ground that as certainties they are unsupported, the [employer’s]
free speech right is pure illusion.” Id. at 1140. Similarly, in
General Electric, we dismissed an unfair labor practice charge
because the employer “did not ‘warn’ employees that [the
company] would retaliate if the union won the election,” but
rather “conveyed to employees the risks of voting in the union.”

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117 F.3d at 633. In Allegheny Ludlum, however, we upheld an
unfair labor practice violation where the employer warned it
would “no longer find ways” to avoid laying off employees if
they joined a union. 104 F.3d at 1367.
Taken together, in a case like this, which deals only with
predictions of adverse economic consequences, Crown Cork &
Seal, General Electric, and Allegheny Ludlum establish a two-
part inquiry to distinguish “permissible predictions” from
“forbidden threats.” Crown Cork & Seal, 36 F.3d at 1135. First,
did the employer predict “adverse economic consequences” as
a result of unionization? Id. at 1134. If not, the inquiry ends.
But if the employer made such predictions, then we proceed to
the second question: did those predictions rest on objective facts
outside the employer’s control?
Guided by these questions, we turn to the union’s claim that
communications by high-level Smithfield managers during the
unionization campaign constituted unlawful threats of plant
closure. In a series of speeches and letters designed to combat
the UFCW’s unionization campaign, Plant Manager Phil Price
and Smithfield President and Chief Operating Officer Lewis
Little repeatedly told employees that three other companies had
previously operated the Wilson plant, that the UFCW had
unionized the plant under each of those companies, and that
each company ultimately shut down the plant. Both managers,
however, carefully avoided linking the previous closures directly
to the union. For example, in one speech Price mentioned the
three previous plant closures but made clear he had no idea
whether the UFCW had caused them:
In none of these three cases did a union contract
provide long-term job security for employees.
Maybe it was just the opposite. Maybe the union
forced inflexible rules on these companies so

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that they could not compete in today’s
environment. Maybe this union made it so these
companies couldn’t satisfy their customers’
demands. It really doesn’t matter. Whether this
union caused these other three plants to close is
not for me to say. I don’t know what happened.
I do know that Smithfield wants this plant to be
a success . . . .
Later in the unionization campaign, Price sent a letter to all
Smithfield employees that again emphasized the Wilson plant’s
repeated failures under previous management. Offering no
prediction about the company’s intentions, he stated, “I can’t
predict the future, especially if the union were to get in,” and he
again disclaimed any direct link between the union and the
previous plant closures. Price wrote:
Did the UFCW cause these three companies to
close the plant here on Wilco Boulevard? I don’t
know the answer to that. Maybe they did, maybe
not. But I can spot a bad trend. . . . The UFCW
is obviously a jinx for this plant. They have
struck out for Wilson employees three times.
It’s time for another approach.
Finally, in an election-eve speech to employees, Smithfield
President Lewis Little explained that he was “committed to the
success of this plant.” Echoing Price’s letter, however, Little
made no predictions: “I cannot stand here and tell you what will
happen.” He concluded by urging employees not to “hang the
UFCW around this plant’s neck for a fourth time.”
Although this appeal concerns statements by Price and
Little, the two were not the only company representatives
encouraging Smithfield employees to reject the union. During

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the unionization campaign, lower-level Smithfield supervisors
held smaller meetings with various plant workers. Less
circumspect than Price and Little, they expressly warned that the
company could close the Wilson plant if employees chose to
unionize. The ALJ found these unambigious statements violated
the NLRA. See Smithfield, 347 N.L.R.B. No. 109, at 18.
Rounding out Smithfield’s antiunion effort, another high-level
executive, Human Resources Director Sherman Gilliard,
appeared in a video shown to employees prior to the election.
In contrast to Price and Little, Gilliard linked one of the previous
plant closures directly to the union, opining, “If anything, [the
UFCW] pretty much ran the company out of business.” Due to
the General Counsel’s procedural error, the ALJ declined to rely
on Gilliard’s statements to make specific findings of unlawful
conduct, but he did consider the statements relevant to place
Price’s and Little’s statements in context. Smithfield, 347
N.L.R.B. No. 109, at 17 n.19. Based on the “full
circumstances,” the ALJ ruled that Price and Little unlawfully
threatened employees by repeatedly mentioning the three
previous plant closures without providing a sufficient objective
explanation for the closures. Id. at 17.
The Board disagreed. Reviewing all the evidence “in
context,” the Board, over one member’s dissent, found no threat
or coercion in Price’s and Little’s statements and concluded that
they merely contained “relevant, factual information about the
union’s history at the facility.” Id. at 2. The Board emphasized
that the two managers “never mentioned closure” and “expressly
disclaimed any certainty about the connection between the
previous closures at the Wilson facility and the union.” Id. at 3.
Turning to the lower-level supervisors, the Board upheld the
ALJ’s conclusion that their statements violated NLRA section
8(a)(1) because these more explicit threats “offer a clear contrast
with the speech by Plant Manager Price.” Id.

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The union argues that under Gissel an employer can violate
the Act by merely suggesting that it may close a plant as a result
of unionization; it need not definitively assert that it will do so.
Placing the statements recounted above in the context of the
company’s overall antiunion campaign, the union contends that
the unmistakable effect of Price’s and Little’s remarks was to
threaten workers with the specter of a plant shutdown. That
being the case, the union argues, the managers violated the Act
by failing to provide any objective justification for the previous
plant closures. Instead, “Smithfield’s top managers expressly
blamed the past closures at Wilson on the union,” Pet’r’s
Opening Br. 6, leaving employees to believe that if they chose
UFCW representation, they would suffer the same fate as the
plant’s previous occupants.
The Board reads the record differently. It argues that
neither Price nor Little ever raised the possibility that Smithfield
might shut the plant. As the Board sees it, Price and Little
simply related indisputable historical facts without ever
explicitly linking previous plant closures to the UFCW. Under
this interpretation of the record, case law requiring an employer
to provide objective justification for a predicted plant
closure—the second of the two questions established in our case
law—has no applicability to this appeal because here the
managers never made such a prediction.
Thus, this case turns on the reasonableness of the Board’s
characterization of the evidence. Did Price and Little threaten
employees by predicting plant closure (as the union argues), or
did they simply relate the unfortunate history of the Wilson plant
to combat the union’s message that it could provide job security
for workers (as the Board found)? Did the managers blame the
previous shutdowns on the union, leading employees to
understand that a vote for the union was a vote for plant closure
(as the union argues), or did they assiduously avoid drawing any

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link between unionization and closure, leaving employees to
come to their own independent conclusions (as the Board
found)? As noted above, our standard of review for resolving
such questions is highly deferential. Indeed, we “must
recognize the Board’s competence in the first instance to judge
the impact of utterances made in the context of the employer-
employee relationship.” Gissel, 395 U.S. at 620. And we grant
“the Board even greater deference with respect to questions of
fact that turn upon motive.” Capital Cleaning Contractors, Inc.
v. NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998).
Applying this deferential standard of review to the facts
before us, we conclude that substantial evidence supports the
Board’s finding that neither Price nor Little threatened to close
the Wilson plant in the event of unionization. As the Board
found, neither executive predicted that the company would take
any particular course of action, nor did either ever suggest
closing the plant. To the extent that Little made any prediction
at all, he told employees that he intended to invest in the Wilson
facility and was “committed” to its success. The record also
reveals that when asked whether Price ever said that “the plant
would close if the union got in,” one employee responded, “No,
he just asked what would—what do we think would happen.”
Finally, in a pre-election speech to employees, Little mentioned
that Smithfield had dealt with the UFCW at other plants, and
told employees that in the event of a strike Smithfield would
“operate the plant without” the striking workers. We are also
satisfied that the Board took the Gilliard video and the lower-
level supervisors’ statements into account when examining the
overall context in which Price and Little made their remarks.
See Smithfield, 347 N.L.R.B. No. 109, at 3 n.13 (“[T]he videos,
letters and speeches . . . in context, recount the failure of the
three previous plant owners, whose employees were represented
by the union, to remain competitive and in business.”).

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In upholding the Board’s decision, we acknowledge that the
record could be read differently. Perhaps the Board could have
interpreted the managers’ statements as the union does, namely
as “thinly veiled prediction[s] that electing the union a fourth
time would result in closure.” Pet’r’s Opening Br. xv.
Nevertheless, as the union acknowledges, it is the Board’s duty,
not ours, to “focus on the question: ‘What did the speaker intend
and the listener understand?’” Id. at 5 (quoting Gissel, 395 U.S.
at 619). Here, the Board determined that threats were neither
intended nor understood. Had the Board reached the opposite
conclusion, we likely would have deferred to that determination
as well. For, as we have previously noted, “the very existence
of competing views reinforces the need for reliance on the
Board’s experience.” Hoffman Plastic Compounds, Inc. v.
NLRB, 237 F.3d 639, 647 (D.C. Cir. 2001), rev’d on other
grounds, 535 U.S. 137 (2002).
The union argues that the Board departed from its own
precedent, specifically Eldorado Tool, Division of Quamco, Inc.,
325 N.L.R.B. 222 (1997). There, the employer had displayed a
poster depicting a row of tombstones bearing names of plants
that had previously closed after unionization. The last
tombstone bore the employing plant’s own name with a question
mark beneath it. Id. at 222. Although the Board concluded that
the employer’s actions violated the Act, the case is both
distinguishable and irrelevant. It’s distinguishable because there
the Board found that “no member of the [employer’s]
management ever sought to clarify the message, or to assure
employees that it was not predicting that the same fate awaited
[them] as had befallen other plants,” id. at 223, while here the
Board found exactly the opposite. And it’s irrelevant because it
has nothing to do with the question before us—whether the
record supports the Board’s decision. Viewed in this light,
Quamco represents nothing more than an example of the Board
properly exercising its judgment to interpret arguably

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ambiguous statements made in the employment context.
III.
While Smithfield executives delivered antiunion messages
inside the plant, union representatives gathered outside the
facility’s front gate to encourage entering employees to join the
UFCW. When union organizers began their campaign,
Smithfield painted a red line on the plant’s driveway to
distinguish public property from company property. From late
March 1999 until the election on July 8, union representatives
congregated at the driveway and distributed handbills to
employees as they went to work. Early in the organizing effort,
Smithfield’s security guard, Joe Pittman, saw union
representatives cross the red line onto company property “seven
to ten times” over the course of one day. Approaching the
organizers, Pittman asked them to stay behind the line and then
escorted them back to public property. When the union
representatives immediately followed him back onto company
property, Pittman warned he would call the police unless they
stayed on their side of the line. When they ignored him, Pittman
carried out his threat. The police arrived and informed the
organizers that they had to remain on public property or risk
arrest. The warning apparently had some effect, as later in the
campaign, one union representative told a Smithfield employee
that he could not cross the red line “[b]ecause he would be
trespassing [] and he’d get locked up.”
Pittman testified that following this trespassing incident, he
reoriented a security camera—which normally monitored the
plant’s parking lot and front gate—to focus farther down the
driveway on the union organizers “in case [the company] needed
some type of documentation that they were in fact on [company]
property.” The images from the camera appeared on television
monitors inside a guard shack near the plant entrance, which
was manned by one or two guards. Employees on their way to

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work could see the screens as they walked through the guard
shack, but neither they nor the guards could make out facial
features or identify individuals from the images. The camera
usually recorded onto a videotape, and the guards typically
rewound the tape at the end of each shift to record over the
images the following day. Pittman acknowledged, however, that
guards occasionally neglected to insert a tape into the recording
device, explaining, “I mean the person on the shift before me
may have not put [a tape] in when it ran out or whatever.”
Smithfield left the camera trained on the union organizers until
the July 8 election, more than three months after the initial
trespassing incident. After the unionization campaign ended, the
company returned the camera to focus on its original target.
Under Board precedent, employers may not photograph or
videotape employees engaged in concerted collective activities
without legitimate justification. See Nat’l Steel & Shipbuilding
Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C. Cir. 1998)
(upholding the Board’s finding that a company committed an
unfair labor practice by videotaping union rallies without
sufficient justification). Preventing trespass may qualify as a
legitimate justification for videotaping. See Beverly Health &
Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 325 (D.C. Cir. 2003).
“Gathering evidence for use in legal proceedings also constitutes
a sufficient justification for videotaping protected activities.”
Nat’l Steel & Shipbuilding, 156 F.3d at 1271. In short, to assess
the legality of an employer’s surveillance activity, the Board
asks “whether there was proper justification and whether it
reasonably tends to coerce employees.” Timken Co., 331
N.L.R.B. 745, 754 (2000).
In this case, the ALJ found that Smithfield’s videotaping
created the impression of surveillance in violation of the NLRA.
The Board disagreed, ruling that Smithfield’s reasonable
concern over continued union trespassing justified the

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company’s decision to reposition the camera. The dissenting
Board member found a single trespassing incident insufficient
to justify continuous video monitoring over the course of a
three-month unionization campaign. The majority dismissed
that objection because the union “never offered assurances that
it would not trespass again.” Smithfield, 347 N.L.R.B. No. 109,
at 4 n.15. Once again, we ask whether the Board’s
determination finds support in the record—specifically, whether
substantial evidence supports the Board’s conclusion that
Smithfield’s fear of trespass justified its surveillance activities.
And once again, our review of that question is highly
deferential: “The Board’s findings of fact are conclusive if
supported by substantial evidence and this Court reviews the
inferences drawn therefrom with considerable deference in light
of the Board’s expertise in these matters.” Nat’l Steel &
Shipbuilding, 156 F.3d at 1271.
The union argues that the Board should have discredited
Smithfield’s trespassing rationale because the company taped
over the recorded images each day and sometimes even failed to
insert videotapes into the camera’s recording device. According
to the union, these facts belie Smithfield’s purported concern
over trespass and reveal that its true purpose in repositioning the
camera was to chill employees’ exercise of their rights under
NLRA section 7. We are unpersuaded. It would make little
sense for the company to maintain an inventory of tapes
showing no evidence of trespass, and according to Pittman’s
testimony, the company’s occasional failure to insert a videotape
into the recording device seems to have resulted from ordinary
human error.
Considering the record as a whole, and according due
respect to “the Board’s expertise in these matters,” Nat’l Steel &
Shipbuilding, 156 F.3d at 1271, we conclude that substantial
evidence supports the Board’s finding that Smithfield acted to

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protect its property rather than to intimidate its employees. To
begin with, union organizers trespassed onto company property
and “openly mocked” Pittman when he tried to escort them back
across the red line. Resp’t’s Br. 23. Second, after the
trespassing incident, union organizers continued distributing
handbills at the very boundary line separating company property
from public land. Finally, giving added support to the Board’s
finding that the company sought merely to protect its property,
not to coerce or intimidate its employees, Smithfield reoriented
its camera only after the union trespassed, and the ALJ found
that “[d]etails such as facial identification could not have been
determined by looking at the camera monitors,” Smithfield, 347
N.L.R.B. No. 109, at 13. Not only does the Board’s decision
thus find ample support in the record, but it is on all fours with
Washington Fruit & Produce Co., 343 N.L.R.B. 1215 (2004).
There, the Board found no violation when an employer,
“concerned about a recurrence of trespassing on the property,”
authorized video surveillance of a planned union rally “to gather
and preserve evidence.” Id. at 1217. “Given prior incidents of
trespassing on the [employer]’s property, which had led [the
employer] to contact the police, it was,” the Board concluded,
“prudent of [the employer] to plan on documenting the union’s
rally.” Id. at 1218. By applying this reasoning to Smithfield’s
conduct, the Board acted neither arbitrarily nor capriciously.
Next, the union asserts that even if Smithfield had a
reasonable justification for videotaping union organizers, the
Board’s decision in Randell Warehouse of Arizona, Inc., 347
N.L.R.B. No. 56 (July 26, 2006), required Smithfield to
communicate that justification to employees “in a timely
manner,” which the company failed to do. Id. at 8. According
to the Board, the union ignores a key exception in Randell
Warehouse, which states that an employer has no obligation to
communicate its justification for video surveillance to
employees “in cases where the justification is self-evident (e.g.,

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violence or mass picketing, etc.).” Id. Citing the union
organizers’ close proximity to company property, the need for
the red boundary line, the previous trespassing incident, and the
fact that one union representative explained the company’s
concern with trespass to an inquiring employee, the Board
insists that Smithfield’s justification for videotaping falls within
Randell Warehouse’s exception as “self-evident.” We find this
persuasive, and the union points to nothing in the record leading
us to question the Board’s view.
IV.
The union’s final challenge concerns the scope of the
remedies the Board imposed to redress Smithfield’s NLRA
violations. Finding a widespread pattern of “repeated and
pervasive unfair labor practices of a hallmark nature,” the ALJ
recommended imposing a bargaining order. Smithfield, 347
N.L.R.B. No. 109, at 37. After the ALJ inadvertently failed to
include this remedy in his order, the union filed an exception to
the Board requesting its inclusion. The Board, concerned that
its own “long and unjustified delay in processing the case” could
render a bargaining order unenforceable, declined to decide the
issue and instead ordered a new election. Id. at 8. Noting the
company’s “proclivity to violate the Act,” however, the Board
ordered several “extraordinary remedies” to ensure the fairness
of the new election, including a broad cease and desist order and
a requirement that Smithfield mail notice to all employees, post
and mail a notice in Spanish, and give the union the names and
addresses of all current employees. Id. at 8-9. Although the
union failed to file a motion for reconsideration challenging this
order, it now urges us to review and overturn the Board’s
remedies as inadequate and inconsistent with prior Board
precedent.
NLRA section 10(e) bars this Court from considering any
“objection that has not been urged before the Board . . . unless

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the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.” 29 U.S.C. § 160(e).
The Supreme Court has made clear that a petitioner must seek
Board reconsideration or rehearing before it brings an issue to
the courts, even when the Board has discussed and decided the
contested issue. Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 666 (1982). Because the union failed to file a motion
for reconsideration challenging the Board’s remedies, section
10(e) precludes us from reviewing the union’s claim.
Attempting to evade section 10(e)’s clear jurisdictional bar,
the union argues that it “preserved the issue of the bargaining
order remedy because it provided the Board adequate notice of
the union’s objection to the failure to order the bargaining order
in its exceptions to the Board.” Pet’r’s Reply Br. 1. The union
misunderstands section 10(e). The union never raised before the
Board the objection it now asserts—the inadequacy of the
Board’s alternative extraordinary remedies—so it makes no
difference that the union once urged the Board to issue a
bargaining order. Because the union gave the Board no
opportunity to rule on the particular issue it presents here,
section 10(e) bars us from considering it.
V.
For the reasons given above, we deny the union’s petition
for review.
So ordered.

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