National Labor Relations Board v. McGuire Plumbing & Heating, Inc. ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1924
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National Labor Relations Board, *
*
Petitioner, *
*
v. *
*
McGuire Plumbing and Heating, Inc., *
*
Respondent. *
__________ On Petition for Review from
National Labor Relations Board.
No. 04-2114
__________ [UNPUBLISHED]
National Labor Relations Board, *
*
Respondent, *
*
v. *
*
McGuire Plumbing and Heating, Inc., *
*
Petitioner. *
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Submitted: January 10, 2005
Filed: January 19, 2005
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Before WOLLMAN, FAGG, and BYE, Circuit Judges.
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PER CURIAM.
An administrative law judge (ALJ) found McGuire Plumbing & Heating, Inc.
unlawfully refused to hire two union members, Dale Hankins and Robert Vance.
McGuire was ordered to take affirmative action to make Hankins and Vance whole
for any loss of earnings. McGuire Plumbing did not file any exceptions with the
Board, the Board summarily adopted the ALJ’s decision, and we summarily entered
a judgment enforcing the Board’s order. A dispute about the amount of backpay
arose. After a hearing, an administrative law judge (ALJ) determined the applicable
back pay period, the hours Hankins and Vance would have worked, and their wage
rates. The Board affirmed the ALJ’s decision. McGuire now petitions for review
and the NLRB seeks enforcement.
McGuire raises eight arguments challenging the back pay orders. McGuire’s
arguments are not properly before us. McGuire Plumbing’s claim that the company
would not have hired Vance was resolved against the company in the underlying
unfair labor practice proceeding and cannot be relitigated in this compliance
proceeding. NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (8th Cir. 1984).
McGuire Plumbing did not raise most of its remaining arguments in exceptions before
the Board and offers no extraordinary reasons for failing to do so. Thus, we lack
jurisdiction to consider them. Cobb Mech. Contractors, Inc. v. NLRB, 295 F.3d
1370, 1377 (D.C. Cir. 2002). McGuire Plumbing raised one issue in exceptions to
the Board that was not decided in the underlying unfair labor practice proceeding:
that backpay was excessive because the backpay period failed to account for the
company’s typical employment cycle and normal pattern of employee hires,
discharges, and involuntary terminations. The Board considered the issue and
resolved it against the company. Because McGuire Plumbing did not raise the issue
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in its opening brief, we decline to consider it. See United States v. Brown, 108 F.3d
863, 867 (8th Cir. 1997).
We thus deny the petition for review and enforce the Board’s backpay order.
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