National Labor Relations Board v. Earthgrains Baking Companies

MEMORANDUM **

The Board first argues that we do not have jurisdiction to entertain Earthgrains’ arguments on appeal because they were not made in its brief in support of exceptions to the ALJ’s decision. We disagree. It is not the supporting brief but the exceptions themselves that this Court looks to when determining whether an argument has been properly preserved by a party. See, e.g., Hosp. & Serv. Employees Union, Local 399 v. NLRB, 743 F.2d 1417 (9th Cir.1984). Though Earthgrains properly preserved its arguments for this appeal, we disagree with those arguments. The law is well settled that placing the' onus on the union for employees not receiving anticipated wage increases violates Section 8(a)(1) of the Act by actively interfering with the employees’ statutory right to “self-organization.” See, e.g., Earthgrains Co., 336 N.L.R.B. 1119 (2001) (“[T]he employer must assure the affected employees that (1) the benefits will be granted regardless of the election results, (2) the sole purpose of the postponement is to avoid the appearance of influencing the election outcome, and (3) the onus for the postponement is not placed upon the union.”) (internal quotation marks omitted),…