Cross Baking Co. v. National Labor Relations Board

453 F.2d 1346 (1971) | Cited 24 times | First Circuit | December 30, 1971


The Board seeks rehearing, contending that the correctness of the employees having "received" the pay increase had not been before it, and consequently was not before us. In connection therewith it transmits for the first time the company's exceptions, filed pursuant to section 10(e), 29 U.S.C. § 160(e), to the trial examiner's decision. It is true that these spoke specifically of the difference between the 60 cents and 75 cents, and did not in terms make the point that even the 60 cents was not "received." However, the company made a general objection: "The finding that the union's letter of January 18 did not contain material misrepresentations which impaired the employees freedom of choice."

Jurisdictionally, this exception seems broad enough to raise any misrepresentation borne out by the record. If for some reason aliunde the Board was misled, it is now far too late to say so. As a petitioner to review and set aside the order, the company's brief was filed first. Its brief plainly asserted that the union letter had additionally misrepresented when it stated that the 75 cents had been fully "received." The Board's brief in no way suggested this claim was impermissible. In oral argument the company repeated the point. Again the Board made no objection.

To object to the argument now, after we have gone through the considerable process of writing an opinion, is totally unacceptable. It is implicit in the judicial process, as reflected in our Local Rule 9,*fn* that, barring a substantial excuse, the court will digest a case but once, and ruminates only in the loose sense of the word. We have no intent to be a true ruminant.

Rehearing is denied.

* "A petition for rehearing shall contain an introductory statement that the argument or matter was not presented before, together with an explanation why it was not." The Board's petition complied with the first requirement, but makes no mention of the second. This rule is not precatory.

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