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Labor – quorum — due process

By: WISCONSIN LAW JOURNAL STAFF//May 22, 2012//

Labor – quorum — due process

By: WISCONSIN LAW JOURNAL STAFF//May 22, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Labor – quorum — due process

It did not violate due process for the NLRB to issue an opinion one day after a quorum was reestablished.

“Whatever one might think of the Board’s one-day turnaround is, unfortunately for KSM, beside the point. We lack authority to reach the merits of this argument because KSM did not raise it before the Board. 29 U.S.C. § 160(e); 29 C.F.R. § 102.48(d)(1), (2) (moving party has 28 days after the Board issues its decision to request reconsideration). Section 160(e) states, ‘No 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.’ KSM has not suggested any reason why we should find the requisite extraordinary circumstances. NLRB v. Dominick’s Finer Foods, Inc., 28 F.3d 678, 686 (7th Cir. 1994) (explaining that ‘extraordinary Circumstances’ under § 160(e) exist ‘only if there has been some occurrence or decision that prevented a matter which should have been presented to the Board from having been presented at the proper time’).”

“We add that even if we thought that KSM’s forfeiture of this point was excused, its underlying argument is without merit. The pendency of New Process Steel was hardly a secret, and for all we know the Board was already busy taking another look at the cases that were potentially affected by it. KSM has offered no evidence to show that the Board failed to fulfill its obligations. It takes much more for us to intervene than a disappointed party’s hunch that the Board gave a cursory review to its case.”

Enforced.

10-3300 NLRB v. KSM Industries, Inc.

Application for the Enforcement of a Supplemental Order of the National Labor Relations Board, Wood, J.

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