Summary
stating that party must object with specificity to preserve issue for judicial review
Summary of this case from National Labor Relations v. Legacy HealthOpinion
No. 71-2932.
January 31, 1973.
Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Steven Kahn, Elliot Moore, Attys., NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for petitioner.
Victor J. Van Bourg (argued), Mark Wurm, of Levy Van Bourg, San Francisco, Cal., for respondent.
The Board's Decision and Order, reported at 191 NLRB No. 73, will be enforced. The critical factual determinations upon which the Board based its decision are clearly supported by substantial evidence.
We reject the respondent's contention that the aggrieved employee failed to exhaust administrative remedies which the respondent urges were available under a collective bargaining agreement, consummated after the unfair labor practice had occurred. "[W]here the facts create both an arbitrable dispute and a possible unfair labor practice, the Board has discretion to issue a complaint or to defer action until an arbitration has been completed." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). See also NLRB v. Strong, 393 U.S. 357, 360-362, 89 S.Ct. 541, 21 L.Ed. 2d 546 (1969). Moreover, the respondent, in its exceptions to the Examiner's findings and recommendations, did not, with adequate specificity, object to any failure on the Examiner's part to find that the grievance procedure was applicable to the controversy. Nor in its exceptions did the respondent make any other reference to its present contention in this respect. See 29 C.F.R. § 102.46(b) (1969). See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 350, 73 S.Ct. 287, 97 L.Ed. 377 (1953); NLRB v. Giustina Bros. Lumber Co., 253 F.2d 371, 374 (9th Cir. 1958).