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Giacalone v. National Labor Relations Board

June 25, 1982

LEONARD GIACALONE, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Author: Gibbons

Before: ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges

Opinion OF THE COURT

GIBBONS, Circuit Judge:

In this matter of first impression, we are asked to decide whether under the National Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act), an alleged discriminatee who chose not to participate as a party in proceedings before an administrative law judge, has the right to file exceptions to the recommended order of that judge. The Act does not expressly answer this question. We agree with the National Labor Relations Board (the Board), however, that the language and policy of the Act suggest an answer in the negative. Thus we will deny the petition for review.

I

On February 15, 1980, the Lincoln Technical Institute Federation of Teachers, Local No. 2322, American Federation of Teachers, AFL-CIO (the Union), filed an unfair labor practice charge. A complaint issued, alleging, inter alia, that Lincoln Technical Institute, Inc. (the Employer) had unlawfully discharged several of its instructors including the petitioner, Leonard Giacalone, in violation of 29 U.S.C. § 158(a) (1) and (3) (1976).*fn1 Finding, after a hearing, that the instructors had either engaged in or supported a strike which constituted a material breach of the collective bargaining agreement between the Union and the Employer, the Administrative Law Judge (ALJ) recommended that the complaint be dismissed in its entirety.*fn2

During the hearing, Giacalone and the other instructors were represented by the Union, which had originally filed the unfair labor practice charge, and by counsel for the General Counsel of the NLRB. After the ALJ's decision was filed, none of these parties to the Board proceedings filed exceptions to that decision. Giacalone, however, alleges that it was not until the last day for filing such exceptions, March 2, 1981, that he was informed by the Union that it chose not to file exceptions.On that day he sent a telegram to the Board stating, in part, "that I would like to file an appeal from the Decision of Judge Green as pertains to me."*fn3

The Board issued a decision and order dismissing the complaint against the Employer in its entirety, and holding that Giacalone was not entitled under the Act to file exceptions to the ALJ's decision, since he was not a party to the proceedings and had not sought to file a charge or to intervene. 256 NLRB No. 32 (1981). Giacalone then petitioned this court for review of the Board's order.*fn4

II

Under Section 10(f) of the Act, Giacalone, as a "person aggrieved by a final order of the Board . . . denying in whole or in part the relief sought," may petition this court for review of that order. In this case the relief sought is a declaration of his alleged right to file exceptions to the decision of the ALJ. This alleged right is important to Giacalone in part because of another provision of Section 10(f) that incorporates a portion of the preceding subsection:

Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e) of this section, and shall have the same jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board; the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.

29 U.S.C. § 160(f). Section 10(e), concerning the Board's power to petition the United States Court of Appeals for enforcement of its orders, provides 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 ...


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