National Labor Relations Board v. Can-Am Plumbing, Inc.

MEMORANDUM *

We have jurisdiction to hear the Board’s petition for enforcement. 29 U.S.C. § 160 (e). Venue is proper in this court. Id. The case is not moot, because Can-Am has not complied with the Board’s order requiring Can-Am to post a specified form of notice. Accordingly, the Board may bring this action to enforce its order. NLRB v. International Union of Elevator Constructors, Local No. 8, 465 F.2d 974, 976 (9th Cir.1972).

In its exceptions to the Administrative Law Judge’s decision, Can-Am failed *356 to assert that the inclusion of Davis-Bacon Act funds in the job-targeting program undermined the program’s protected status under the National Labor Relations Act. Nor did Can-Am move for reconsideration after the Board raised this issue in its initial order. Therefore, the Board’s holding that it could not address this issue because it was not exhausted, pursuant to 29 C.F.R. § 102.46 (g), was not arbitrary and capricious. See NLRB v. Southwest Security Equip. Corp., 736 F.2d 1332 , 1335 (9th Cir.1984).

Can-Am also challenges the Board’s supplemental decision on the ground that it fails to implement the D.C. Circuit’s mandate. Given Can-Am’s failure to appeal the…