National Labor Relations Board v. Earthgrains Baking Companies

116 F. App'x 161

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2004
• Docket: No. 03-72841; NLRB No. 20-CA-30575
• Status: Published

Opinion

MEMORANDUM

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The Board first argues that we do not have jurisdiction to entertain Earthgrains’ arguments on appeal because they were not made in its brief in support of exceptions to the ALJ’s decision. We disagree. It is not the supporting brief but the exceptions themselves that this Court looks to when determining whether an argument has been properly preserved by a party. See, e.g., Hosp. & Serv. Employees Union, Local 399 v. NLRB, 743 F.2d 1417 (9th Cir.1984). Though Earthgrains properly preserved its arguments for this appeal, we disagree with those arguments. The law is well settled that placing the' onus on the union for employees not receiving anticipated wage increases violates Section 8(a)(1) of the Act by actively interfering with the employees’ statutory right to “self-organization.” See, e.g., Earthgrains Co., 336 N.L.R.B. 1119 (2001) (“[T]he employer must assure the affected employees that (1) the benefits will be granted regardless of the election results, (2) the sole purpose of the postponement is to avoid the appearance of influencing the election outcome, and (3) the onus for the postponement is not placed upon the union.”) (internal quotation marks omitted), enforced mem., 61 Fed.Appx. 1, 7-8 (4th Cir.2003).

Here, the ALJ properly concluded that the wage increase was “anticipated,” “expected” and “normal.” He also found that the plant manager told the plant employees' that the Union was “preventing” the wage increase and her hands were “tied” while miming that her hands were being tied. These statements and actions improperly placed the onus of a wage increase postponement on a union in violation of. Section 8(a)(1). The Board’s petition for enforcement of its order is therefore GRANTED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.