On Application for Enforcement and Petitions for Review of an Order of the National Labor Relations Board.
Hastings, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges.
The predecessor, Chicago Lamb Packers, employed seven butchers who were represented by Local Union No. 87, Amalgamated Meat Cutters & Butcher Workmen.*fn1 Early in 1970, Chicago Lamb Packers was sold to Good Foods Manufacturing & Processing Corp. Chicago Lamb Packers ceased doing business on Friday, March 28, 1970; on the following Monday, April 1, 1970, Good Foods continued the business at the same location.
On July 29, 1970, the Union filed charges of various unfair labor practices against Good Foods. The company responded to the complaint and participated in the hearing before the administrative law judge. He found that Good Foods was a successor to Chicago Lamb Packers, and that Good Foods was guilty of the following violations of the National Labor Relations Act:
1. Section 8(a) (3), by discharging six butchers for their union activities;
2. Section 8(a) (5), by refusing to bargain with the Union;
3. Section 8(a) (1), by the above conduct, by coercively interrogating its employees and by threatening to close its plant.
Good Foods did not file exceptions to the administrative law judge's findings and conclusions; it did not file a brief with the Board. The Board found the same violations plus an additional violation of sections 8(a) (1) and (5) in making unilateral changes in wages and other terms and conditions of employment without prior consultation with the Union.
The Board's original order, reported at 195 NLRB No. 83 (1972), was filed before the decision in NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 32 L. Ed. 2d 61, 92 S. Ct. 1571 (1972). Following Burns, the Board issued a notice to show cause regarding modifications of its order which might be required by Burns. Good Foods did not respond to the notice. The Board nevertheless modified its order, reported at 200 NLRB No. 86 (1972). Good Foods did not ask for reconsideration of either order.
Section 10(e) (29 U.S.C. § 160(e)), which governs enforcement proceedings in the courts of appeals, states in part:
No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.
Good Foods urges us to excuse its failure to file exceptions because its attorney was busy appealing his own criminal conviction, defending himself in disbarment proceedings and handling cases for other clients. This is exactly the sort of circumstances courts have refused to call extraordinary under section 10(e). NLRB v. Local 74, Marble, Slate & Stone Polishers, 471 F.2d 43 (7th Cir. 1973); NLRB v. Ferraro's Bakery, Inc., 353 F.2d 366 (6th Cir. 1965); NLRB v. Izzi, 343 F.2d 753 (1st Cir. 1965); NLRB v. Mooney Aircraft, Inc., 310 F.2d 565 (5th Cir. 1962). The attorney was free on bond ...