and 22-3426 NEW CONCEPTS FOR LIVING, INC v. NATIONAL LABOR RELATIONS BOARD New Concepts for Living, Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
Nos. 22-3301 and 22-3426
_______________________
NEW CONCEPTS FOR LIVING, INC.,
v.
NATIONAL LABOR RELATIONS BOARD
New Concepts for Living, Inc.
Petitioner in No. 22-3301
National Labor Relations Board
Petitioner in No. 22-3426
__________________________
On Petition for Review from a decision of the
National Labor Relations Board
NLRB Nos: 1 : 22-CA-187407;
1 : 22-CA-195819; 1 : 22-CA-197088;
1 : 22-CA-205843; 1 : 22-CA-208390
__________________________

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Argued September 28, 2023
Before: KRAUSE, AMBRO, and SMITH, Circuit Judges
(Filed: March 4, 2024)
Maurice Baskin [ARGUED]
Emily Carapella
Littler Mendelson
815 Connecticut Avenue NW
Suite 400
Washington, DC 20006
Counsel for New Concepts for Living, Inc.
Ruth E. Burdick
Elizabeth A. Heaney
Joel Heller [ARGUED]
National Labor Relations Board
Appellate and Supreme Court Litigation Branch
1015 Half Street SE
Washington, DC 20570
Counsel for the National Labor Relations Board
________________________
OPINION OF THE COURT
__________________________

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SMITH, Circuit Judge.
New Concepts for Living, Inc. (“New Concepts”) seeks
review of an order of the National Labor Relations Board
(“NLRB” or the “Board”) determining that New Concepts
engaged in unfair labor practices by pushing to decertify its
employees’ union. An administrative law judge (“ALJ”)
dismissed all eight charges against New Concepts. Although
the Board affirmed the ALJ’s dismissal of three of those
charges, the Board reversed his dismissal of five others by a
two-to-one vote. New Concepts petitioned for review, and the
NLRB cross-petitioned for enforcement. After a thorough
review of the record, we hold that the Board majority’s five
reversals are not supported by substantial evidence. We will
therefore grant New Concepts’ petition for review and deny the
NLRB’s cross-application for enforcement.
I. Factual Background
New Concepts is a nonprofit corporation that provides
services for people with disabilities at several facilities located
in northern New Jersey. In 2007, the Communications Workers
of America, Local 1040 (the “Union”), began representing a
bargaining unit of approximately 90 New Concepts employees.
The most recent collective bargaining agreement (“CBA”)
between New Concepts and the Union (“the parties”) expired
on June 30, 2014. Thereafter, for nearly two years, a series of
Union representatives failed to request that New Concepts
commence negotiations aimed at reaching a successor
agreement. The result of that inactivity was that members were,
understandably, dissatisfied with their Union.

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In August 2016, the parties began negotiations to reach
a successor agreement. Around the same time, momentum was
building to decertify the Union. Specifically, New Concepts
employee Andre Marshall and several other employees
gathered signatures from coworkers on a petition in support of
decertification. Although the negotiations that had begun in
August did not result in a new CBA, the parties did agree to
meet again in late October 2016.
Meanwhile, New Concepts CEO Steve Setteducati
spoke at a series of staff meetings in October and answered
questions posed by employees. In the wake of those meetings,
Marshall filed a decertification petition with the NLRB. New
Concepts then informed the Union that it would suspend
bargaining, reasoning that the petition gave rise to a good faith
doubt that the Union was actually supported by a majority of
the unit. The NLRB scheduled a decertification vote which, in
turn, led the Union to file an unfair labor practice charge. Filing
of the charge blocked further processing of the petition and
resulted in an indefinite postponement of the vote. Marshall
then chose to withdraw the decertification petition.
On December 28, 2016, New Concepts distributed to its
employees a memorandum (the “December Memo”) which
informed them of their right to resign from the Union. The
December Memo began by stating that New Concepts had
“received numerous questions” from employees concerning
the deduction of union dues from their paychecks. R. 1434. The
Memo went on to state that more than two years had passed
since the CBA had expired and that the employees’ payment
of dues remained voluntary. Id. The Memo also cautioned that
“[employees] have the right to resign from membership in the

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Union and [from] paying dues at any time, BUT the Union may
take the position that [they] can only revoke . . . [dues]
deduction authorizations twice a year.” That meant, the Memo
explained, that if employees chose not to revoke authorization
by December 30, “[they] may be forced to pay Union Dues for
another 6 months.” Id. The Memo assured employees that there
would be “no reward for stopping Union Dues or punishment
for continuing to pay Union Dues.” Id. Attached to the
December Memo was a form letter titled “Resignation/Dues
Revocation Letter.” R. 1432. Addressed to both the Union and
New Concepts, the form letter provided a means for those who
signed it to “resign from membership in CWA Local 1040[,]”
reiterated that the employee understood that resignation would
“have no effect on [his/her] employment[,]” stated that
resignation required that “both the union and the company . . .
immediately cease enforcing the dues check-off
authorization[,]” and noted that “payment of union dues” was
a requirement of membership. Id.
Approximately 90% of the employees (80 individuals)
signed and returned the form letter to New Concepts, which, in
turn, forwarded the letters to the Union. Though the Union
regarded the form letter as not binding, it nonetheless
suspended the collection of dues from all employees, whether
or not they had signed the form letter.
The parties resumed bargaining in January 2017 and
continued those efforts through much of that year. It “is
undisputed” that, throughout this time, New Concepts
“push[ed] for negotiations to move faster” and for bargaining
sessions to take place more frequently. J.A. 41. Still, no final
agreement was reached.

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For its part, the Union attempted – unsuccessfully – to
revive support among unit members. Union employee Donna
Ingram led those efforts. She candidly acknowledged that
members “were dissatisfied” with prior enforcement of the
contract and with the “complete lack of communication” from
those who had served previously as union representatives. R.
3187. And despite efforts by the Union to revive support after
the decertification petition was withdrawn, Ingram conceded
that the “reception by employees was not positive.” R. 3188.
For example, the “Union was turned away by employees on
multiple occasions both at employee facilities and from the
employees’ individual residences.” R. 3188-89. Ingram also
attempted to gather new authorization forms throughout 2017.
And although she claimed to have received a few dozen
authorization cards in response to her efforts, she
“acknowledged she was only speculating” as to that estimate
and admitted “that some of those were likely duplicates.” R.
3189. By August 2017, “only a handful of employees”
remained who had “actually authorized dues to be deducted,
with nearly every employee having already requested in
writing” that their deductions cease. Id.
On August 15, 2017, Setteducati distributed to
employees a memorandum (the “August Memo” and, together
with the December Memo, the “Memos”) instructing them on
how they could resume or start paying dues. R. 1435. The
August Memo began by reminding employees that New
Concepts had, in 2016, received “numerous questions” from
employees about dues deductions, and that since then, “over
95%” of New Concepts employees, including both “new” and
“long term staff,” had chosen not to pay dues. Id. The August
Memo went on to explain the impetus behind its having been

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sent: to rebut the Union’s allegation that New Concepts,
through the distribution of the December Memo, had
“‘coerced’ employees into not paying Union Dues.” Id.
Setteducati wrote: “As you know, that’s just not true. BUT, to
prove that, [New Concepts is] attaching to this memo [an
authorization form] that you can sign and return if you want to
start paying Union Dues.” Id. (emphasis in original). The
August memo re-emphasized that the payment of dues was
voluntary and that there would be “no reward for NOT paying
Union Dues” nor “punishment for resuming or starting to pay”
dues. Id. (emphasis in original). Despite the information and
assurances provided to employees in the August Memo, New
Concepts did not receive any completed cards authorizing the
payment of union dues.
In September 2017, New Concepts announced its
intention to poll employees as to their support for the Union.
By letter, New Concepts informed the Union that it had a good
faith doubt of the Union’s majority status. Specifically, New
Concepts pointed to: (1) unit employees’ lack of participation
at bargaining sessions; (2) the fact that nearly every employee
had elected to stop paying dues; (3) the fact that no employees
opted to resume dues deduction after New Concepts circulated
the August Memo; and (4) the claim that roughly 50% of unit
employees had backed Marshall’s decertification petition. The
poll was conducted on September 21 and mimicked the process
used in an NLRB election. Voting was by secret ballot and
included oversight by a retired judge. The Union declined an
invitation to participate in any way or to even have an observer
present. With approximately 85 employees remaining eligible
to participate in the election, the Union lost the vote by 61 to
9. New Concepts then withdrew its recognition of the Union

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based on what it described as the “overwhelming” results of
the poll. R. 2531.
II. Procedural History
The NLRB’s General Counsel filed a complaint against
New Concepts alleging, in eight respects, that New Concepts
violated Sections 8(a)(1) and 8(a)(5) of the National Labor
Relations Act (the “Act”). 29 U.S.C. § 158(a)(1), (5). The
General Counsel alleged that: (1) Setteducati’s October 2016
employee meetings unlawfully encouraged support for the
decertification petition; (2) Setteducati unlawfully led
employees to believe that the Union was an ineffective
bargaining representative during the lead-up to the September
2017 poll; (3) New Concepts refused to provide the Union with
requested financial information; (4) the December Memo
unlawfully solicited employees to resign their union
membership and withdraw authorization for dues deduction;
(5) the August Memo was coercive and an unlawful poll of
union sentiment; (6) New Concepts’ conduct during the CBA
negotiations amounted to bad faith bargaining; (7) the
September 2017 poll of employees was inconsistent with the
requirements for lawful polling of employees under Struksnes
Construction Co., 165 NLRB 1062 (1967); and (8) New
Concepts, based on the results of the poll, unlawfully withdrew
recognition from the Union.
The ALJ conducted a hearing in the fall of 2018 during
which he heard testimony and made credibility determinations.
He found all of New Concepts’ witnesses to be credible.
Specifically, he found Setteducati “to have been
straightforward in answering questions without regard for any

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particular agenda,” and New Concepts’ attorney to have
testified “honestly” and with “candor” about the motivation
behind New Concepts’ bargaining positions. J.A. 42. The ALJ
also found the Union’s lead negotiator, Ingram, to be credible,
and several Union lay witnesses to be mostly credible, but he
found two of the Union’s witnesses to be “less than credible.”
Id. The ALJ then dismissed all the allegations, concluding that
“[n]otwithstanding that I have not found [New Concepts] to
have violated the Act in any of the manner[s] alleged, the
General Counsel’s position ignores the fundamental truth
underlying this case, that it was the Union’s own absence over
the span of multiple years that ultimately led to its loss of
support.” Id. at 45.
The General Counsel and the Union filed exceptions to
the ALJ’s decision. The Board upheld the ALJ’s credibility
determinations and affirmed the dismissals of the first three of
the General Counsel’s charges. However, a two-member
majority of the Board reversed the ALJ’s dismissal of the other
five. The majority concluded that the December and August
Memos were coercive and that New Concepts engaged in
overall bad faith bargaining. As to the September 2017 poll,
the Board decided that it was not grounded in a good faith
doubt about the Union’s majority status, that it failed to adhere
to two required safeguards, and that it did not provide an
adequate basis for the withdrawal of recognition from the
Union. Board member Ring dissented from the reversal of
those five dismissals.
This appeal followed.

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III. Jurisdiction and Standard of Review
The Board had jurisdiction over this matter pursuant to
29 U.S.C. § 160(a). We have jurisdiction to review the Board’s
order pursuant to 29 U.S.C. § 160(e) and (f).1
We are “highly deferential” in our review of orders of
the Board. Trimm Assocs., Inc. v. NLRB, 351 F.3d 99, 102 (3d
Cir. 2003). This Court “will uphold the Board’s interpretation
of the NLRA so long as it is rational and consistent with the
Act.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 201
(1991) (internal citation and quotation marks omitted). We
“exercise plenary review over questions of law and the Board’s
application of legal precepts” and accept the Board’s factual
determinations if they are “supported by substantial evidence.”
Spectacor Mgmt. Grp. v. NLRB, 320 F.3d 385, 390 (3d Cir.
2003) (internal citation omitted). Substantial evidence requires
“more than a scintilla[,]” which means such evidence that “a
reasonable mind might accept as adequate to support a
conclusion.” Adv. Disposal Servs. E., Inc. v. NLRB, 820 F.3d
592, 606 (3d Cir. 2016) (internal citation omitted).
The Supreme Court has clarified that “a reviewing court
is not barred from setting aside a Board decision when it cannot
conscientiously find that the evidence supporting that decision
is substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to
the Board’s view.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). And “evidence supporting a conclusion may
1 The Act does not impose a time limit for the filing of petitions
for review.

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be less substantial when an impartial, experienced examiner
who has observed the witnesses and lived with the case has
drawn conclusions different from the Board’s.” Id. at 496. If
the Board does not reject the examiner’s credibility
determinations, we “review the Board’s decision in light of the
[examiner’s] undisturbed finding that [a witness] testified
truthfully.” NLRB v. Alan Motor Lines, Inc., 937 F.2d 887, 892
(3d Cir. 1991).
IV. Forfeiture
The General Counsel argues that New Concepts has
forfeited arguments under § 10(e) of the NLRA and the
NLRB’s corresponding regulation, 29 C.F.R. § 102.46. We
disagree.
Section 10(e) of the NLRA states that “[n]o objection
that has not been urged before the Board . . . shall be considered
by the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e). Section 10(e) “is a jurisdictional
administrative exhaustion requirement designed to ensure that
any issue raised on appeal was first presented to the Board[.]”
Adv. Disposal Servs., 820 F.3d at 598 (internal citations
omitted). See also Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665-66 (1982). The provision serves a notice
function which allows the Board to consider all material issues,
thereby “insur[ing] against piecemeal appeals[.]” NLRB v.
Cardox Div. of Chemetron Corp., 699 F.2d 148, 152 n.10 (3d
Cir. 1983).

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The Board has promulgated regulations to flesh out §
10(e)’s requirements. See 29 C.F.R. § 102.46. A party may file
with the Board “exceptions” to an ALJ’s rulings, findings,
conclusions, or recommendations. § 102.46(a). An opposing
party may then file a brief in answer to those exceptions, §
102.46(b), and/or file cross-exceptions to the ALJ’s decision,
§ 102.46(c). A matter which is “included in exceptions or
cross-exceptions” is thereby preserved. § 102.46(f).
Here, the General Counsel filed detailed exceptions to
the ALJ’s decision. New Concepts, as the prevailing party,
filed a letter with the Board urging it to uphold the ALJ’s order
and attaching the brief it had initially filed with the ALJ. On
appeal, the General Counsel argues that New Concepts has
forfeited numerous arguments because it did not adequately
raise them before the Board.2 New Concepts counters that its
arguments are preserved.3
2 See, e.g., NLRB Br. 23-27. The General Counsel’s main
argument is that “New Concepts . . . attempts to distinguish or
undercut Space Needle[, LLC, 362 NLRB 35 (2015)],” and the
“back and forth between the Board majority and dissent
regarding that case does not excuse New Concepts from its
statutory obligation under § 10(e).” Id. at 24 (citing Oldwick
Materials, Inc. v. NLRB, 732 F.2d 339, 343 n.1 (3d Cir. 1984)
(cleaned up)). The General Counsel flags a range of other
“arguments on appeal” which it claims are “new” but which
we decline to exhaustively list here. See, e.g., id. at 27, 37-38.
3 See Reply Br. 10-12, 17-19, 22-24, 26. In essence, New
Concepts argues that “the General Counsel seeks more detail
than what Section 10(e) requires.” Reply Br. 10. New Concepts

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Section 10(e) does not preclude our review of the key
issues in this case related to the alleged unfair labor practices.
First, the General Counsel’s reliance on Oldwick is misplaced;
there, “petitioner never even filed an answer to the amended
complaint.” 732 F.2d at 342 (emphasis in original). Second, the
Board was clearly on notice of the key issues in the case before
us. For example, Space Needle, LLC, 362 NLRB 35 (2015),
features prominently within the Board’s own written opinions.
The Board majority, rather than raise Space Needle as part of
an entirely new argument, addressed Space Needle to respond
to the ALJ’s discussion of the standard for “employer
communications regarding dues deduction and resignation of
union membership.” J.A. 7.4 The General Counsel’s own
exceptions, as well as the ALJ’s opinion, also referenced
asserts that some arguments were “essentially components of
its argument to the Board.” Id. (internal citation omitted). It
also claims to have “incorporated the positions of the ALJ in
its submission to the Board,” id. at 12, and “where the ALJ did
not explicitly reference each point . . . [New Concepts’] points
are components underlying the ALJ’s positions.” Id. at 18
(internal citation omitted) (cleaned up). And it argues that
many of the allegedly forfeited arguments are simply
characterizations of material in the record. Id. at 22-24, 26.
4 As discussed infra, we need not reach any argument, raised
or not, concerning the validity of the Board’s decision in Space
Needle to ultimately decide this case. New Concepts made
clear at oral argument that its “primary position” on appeal is
that Space Needle is “totally distinguishable from [New
Concepts’] situation,” so we need not “reach . . . whether
[Space Needle] was correctly decided.” ECF No. 46 at 12-13.

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“ministerial” assistance, the standard set forth in Space Needle.
R. 3139, J.A. 42. New Concepts maintains that it “did not need
to explicitly mention Space Needle . . . to make the central
objection” regarding “the applicable and controlling” standard.
Reply Br. 10-11. We agree.
As to New Concepts’ other allegedly forfeited
arguments, many are simply expansions upon portions of the
record. For example, the NLRB claims that “New Concepts . .
. belatedly challenges the Board’s factual finding that no
employees asked New Concepts for help resigning from [the
Union].” NLRB Br. 26. But the ALJ’s opinion explicitly
addressed the existence of “employee questions[.]” J.A. 42.
New Concepts, rather than challenging an undisputed finding
of the Board, seeks on appeal to clarify the existence and nature
of those questions. Any remaining arguments are ordinary
rebuttals to the Board majority’s reasoning.5
5 Consider, for example, the General Counsel’s argument that
“New Concepts offered no defense of the August [M]emo to
the Board, and thus cannot do so for the first time on appeal.”
NLRB Br. 28. This argument strains reason. The August
Memo and its content are part of the basis for the General
Counsel’s unfair labor charge. And it was discussed by the
ALJ, with whom New Concepts agreed, as well as by the Board
itself. If we accepted the NLRB’s reasoning, it would lead to a
“hyper-refinement” of New Concepts’ procedural obligations.
Cf. HTH Corp. v. NLRB, 823 F.3d 668, 674 (D.C. Cir. 2016)
(taken “to its extreme, such hyper-refinement of party
obligations under § 10(e) would mean that any change made
by the Board sua sponte, however trivial, would require a

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The “crucial question in a section [10](e) analysis is
whether the Board received adequate notice of the basis for the
objection.” NLRB v. FedEx Freight, Inc., 832 F.3d 432, 437
(3d Cir. 2016) (internal citation and quotation marks omitted).
Here, we are satisfied that this notice requirement has been
met.
V. Departure from Precedent
New Concepts argues that, in applying Space Needle,
the Board departed from its own precedent in Peoples Gas
System, Inc., 275 NLRB 505 (1985). We do not agree.
The Board has construed the Act to require employers
to walk a fine line when engaging with employees on matters
concerning union representation. On the one hand, the Act
protects employees’ right to resign from a union, as well as
employers’ ability to “inform employees of their rights[.]”
Peoples Gas, 275 NLRB at 508. On the other hand, employers
must refrain from creating an “atmosphere . . . of coercion,
intimidation, or union animus.” Id. (internal citation omitted).
An employer “may lawfully provide neutral information to
employees regarding their right to withdraw their union
support, provided that the employer offers no assistance,
makes no attempt to monitor whether employees do so, and
does not create an atmosphere wherein employees would tend
to feel peril in refraining from withdrawing.” Space Needle,
362 NLRB at 36 (cleaned up).
motion for reconsideration”). We decline to adopt such an
overly expansive reading of § 10(e).

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In Peoples Gas, the Board determined that an
employer’s dues checkoff memorandum did not violate the
Act. 275 NLRB at 509. There, the CBA provided for an annual
period during which employees could revoke their dues
authorizations. Id. at 505. After several employees asked
supervisors about revoking dues authorizations, the employer
sent letters to all employees just before the dues revocation
period began, informing them that they had a “short
opportunity in the next few days” to discontinue the dues
checkoff or to resign from their union. Id. at 506. Each letter
included a dues checkoff form. The letter noted that the
employer was not “urging [employees] either to remain []
member[s] of the Union or to resign from the Union, or to
discontinue the dues checkoff.” Id. Rather, any decision to
leave would “not make any difference in . . . treatment by the
Company.” Id. The Board concluded that the language of the
letter “assured employees that the decision to remain a member
of the union or to resign” would “make no difference in their
terms and conditions of employment.” Id. at 508. The Board
also found that the employer had both a contractual basis (the
annual dues revocation period under the CBA) and an
extracontractual basis (the employee questions about dues
revocation) for sending the letter, and so concluded that the
employer did not violate the Act. Id. The Board contrasted its
decision with previous cases in which employers “had no
contractual or other valid reason for” distributing dues
revocation forms and had thus “acted unlawfully.” Id. at 509.
The Board distinguished Peoples Gas in its Space
Needle decision. In the latter case, the employer distributed to
its employees a letter “advising employees of their options
regarding the payment of dues, including the revocation of

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dues authorizations and resignation from union membership.”
362 NLRB at 35. The Board noted that, unlike in Peoples Gas
and similar cases, the Space Needle employer “did not
distribute its letters in anticipation of a contractually-
established window period for revocation” and so lacked a
contractual basis for providing employees with information
about how to revoke dues authorizations or resign from the
union. Id. at 37. The Space Needle employer also inserted itself
into the dues revocation process such that it was able to
monitor employee responses by “requiring the sample
resignation letters to be requested directly from management.”
Id. And though the letter made clear that an employee’s
resignation from the union would not alter the terms of his
employment, it provided no explicit assurances against
repercussions for choosing “not to resign . . . union
membership.” Id. The Board therefore concluded that the
employer violated § 8(a)(1) of the Act. Id.
New Concepts primarily argues that Space Needle
“departed from Board precedent.” New Concepts Br. 20.6 Yet
New Concepts hedges by arguing that, “regardless of its
6 See, e.g., New Concepts Br. 1 (characterizing the Board’s
application of Space Needle as a “depart[ure] from controlling
precedent”); see also id. at 13 (“the Board departed without
justification from its own precedent . . . thereby violating the
APA”); id. at 15 (arguing, while addressing this Court’s
standard of review, that we have “routinely declined to enforce
Board findings that deviate from precedent or apply an
incorrect legal standard without a reasoned explanation”); id.
at 20 (“the Board deviated from precedent . . . [and] Space
Needle itself departed from Board precedent”).

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validity, Space Needle is not on point[.]” Id. at 21.7 The Board
members themselves spill a great deal of ink debating the
appropriate standard for employer conduct when interacting
with employees on matters affecting their union
representation.8 We believe it unnecessary to wade into that
debate. It is “the primary responsibility of the Board and not of
the courts to strike the proper balance between” employers and
employees. Vesuvius Crucible Co. v. NLRB, 668 F.2d 162, 166
(3d Cir. 1981) (internal quotation marks and citation omitted).
Nor need we do so in deciding this case.
Regardless of the nature of New Concepts’ arguments
concerning Board precedent, it is enough that we simply
conclude that Space Needle is distinguishable on its facts from
Peoples Gas.9 The employer in Peoples Gas had both a
7 New Concepts also reframes its argument: “the Board …
declined to follow or repudiate a prior holding . . . [and] by
failing to properly apply either [Peoples Gas or Space Needle],
the Board has created contradictory case law.” New Concepts
Br. 22 (internal citation omitted) (cleaned up).
8 See, e.g., J.A. 27 (Dissenting member Ring concluded that
“the majority relies on Space Needle, [and] Space Needle . . .
depart[ed] from precedent without providing a reasoned
explanation. . . . [Peoples Gas] correctly honor[s] employers’ .
. . rights[, whereas] Space Needle . . . does not.”).
9 New Concepts concedes that the “Board in Space Needle
specifically distinguished Space Needle from Peoples Gas.”
New Concepts Br. 21. Its argument that the Board “shift[ed] its
precedent without announcing a change[,]” id. at 22, is not
consistent with this concession. Further, and as to New
Concepts specifically, the Board majority addressed whether

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contractual and extracontractual basis for sending letters to
employees. 275 NLRB at 508-09. And its letter contained
adequate assurances that employees could “decide for
[themselves] without pressure from . . . the company[.]” Id. at
508. By contrast, the employer in Space Needle lacked a
contractual basis for the distribution of its letter, monitored
employee responses, and provided no explicit assurances
against repercussions for choosing to remain part of the union.
362 NLRB at 37. Further, to the extent that Space Needle
narrowed the permissible range of employer conduct to
“ministerial or passive aid[,]” 362 NLRB at 36 (internal
citation omitted), that rule is “rational and consistent with the
Act” and so is entitled to deference. Litton, 501 U.S. at 201.
We conclude, then, that the Board majority’s
application of Space Needle did not represent a departure from
its own precedent.
VI. Substantial Evidence Analysis
The Board majority determined that New Concepts
engaged in unfair labor practices when it solicited employees
to resign from the Union, bargained in bad faith, polled
employees’ Union support, and, ultimately, withdrew
“the Board’s decision[] in . . . Peoples Gas [is] inconsistent
with the standard applied in Space Needle.” J.A. 9, 10-11.
Though New Concepts objects to the Board majority’s
application of Space Needle, any argument that the Board
majority failed to explain its reasoning is unsupported by the
record.

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recognition from the Union. We conclude that the majority’s
determinations are not supported by substantial evidence.
A. The December Memo
The Board majority decided that the December Memo
violated the Act. In reaching that conclusion, it determined that
New Concepts lacked a contractual basis for sending the Memo
because neither the Union’s own communications nor the most
recent CBA imposed a December 30 deadline for revoking
dues authorization. The majority also determined that New
Concepts lacked an extracontractual basis for sending the
Memo. In the majority’s view, New Concepts tracked the
identities of employees who chose to resign, and its Memo
failed to provide adequate assurances against reprisals.
These determinations lack support in the record. As to a
December 30 deadline, although employees who signed New
Concepts’ authorization form “might have been able to revoke
their authorizations at any time,” many of the unit members
“were still bound to the Union’s dues-deduction card.” J.A. 27,
n.19. The card permitted revocation of dues-checkoff
authorizations only twice a year after December 31. Id.
Further, the December Memo simply stated that “the Union
may take the position that you can only revoke your Union
Dues payroll deduction authorizations twice a year,” and that
“[employees] may be forced to pay Union Dues for another 6
months.” R. 1434 (emphases added). In advising of that
possibility, New Concepts correctly sounded a note of caution.
For at least some employees, a deadline did appear to exist.
And even if it did not, the use of “may” is hardly a declaration
that a deadline actually loomed. In short, New Concepts had a

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21
contractual basis for distributing the December Memo. And
because the record shows that New Concepts received
employee questions concerning the deduction of dues and the
possibility of resignation, it had an extracontractual basis for
distribution of the Memo.
With respect to tracking employee responses, the Board
majority took issue with New Concepts’ role as the
intermediary charged with submitting completed dues forms to
the Union. As such, their opinion declared that New Concepts
knew “exactly which employees chose to resign their union
membership and thereby further pressured employees to make
that choice.” J.A. 8. We agree with the ALJ that there was “no
evidence” to support the assertion that New Concepts
“maintained a list of those who had withdrawn and those who
had not for purposes beyond payroll administration.” Id. at 43.
True, Setteducati had access to the completed resignation
letters and the total number of employees withdrawing. But he
used that data merely to inform the Union of employees’
choices to cease paying dues and to acknowledge New
Concepts’ legal obligation to stop deducting them. And unlike
in Space Needle, New Concepts did not require “resignation
letters to be requested directly from management,” did not
track which employees requested letters, and did not instruct
management to convey its antipathy to union-dues collection.
362 NLRB at 37. Simply performing administrative acts of
distribution, collection, and forwarding to the Union of
completed forms does not equate to tracking.10
10 Tracking requires “monitor[ing,]” which is more intentional
and active than was the case here. See R.L. White Co., Inc., 262

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22
The December Memo makes clear that payment of dues
remained voluntary and that there would be “no reward for
stopping Union Dues or punishment for continuing to pay
Union Dues.” R. 1434. And the Memo stated explicitly that
resignation from the Union had “no effect on . . . employment.”
R. 1432. The Board majority acknowledged as much but
concluded that the Memo “contained no assurance[s]” with
respect to “resign[ation] from the Union.” J.A. 8. This
argument is no more than hair-splitting. The December Memo
made clear that “payment of union dues” was a requirement of
membership. R. 1432. And, when pressed at oral argument,
Board Counsel acknowledged that an employee could not
remain a member of the Union without paying dues. ECF No.
46 at 33-34. It should be obvious, then, that an employee could
reasonably infer that by stopping the authorization of dues
deduction she thereby intended to withdraw her union
membership. Accordingly, the Memo contained adequate
assurances against reprisal.11
NLRB 575, 576 (1982) (“An employer [may not] attempt to
ascertain whether employees will avail themselves” of “their
right to revoke [dues authorizations],” such as by
“monitor[ing] whether employees would actually revoke their
authorization cards.”).
11 The December Memo assured employees that there would
be “no reward for stopping Union Dues or punishment for
continuing to pay Union Dues.” R. 1434. This differs from the
letter in Space Needle, which did not contain specific
assurances for employees who elected to continue to pay dues.
362 NLRB at 36-37.

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23
Finally, the Board majority’s insistence that New
Concepts solicited responses to the December Memo is
unsupported by the record. In dismissing the charge related to
the December Memo, the ALJ pointed out that “although the
[General Counsel] alleged two supervisory employees . . . had
solicited employees to sign withdrawal forms, neither of these
individuals was called to testify” and no “evidence [was]
elicited to [show the] alleged solicitation[.]” J.A. 43. The
record supports the ALJ’s observation.
New Concepts’ distribution of the December Memo did
not violate the Act, and the Board majority’s conclusion to the
contrary was not supported by substantial evidence.
B. The August Memo
The Board majority determined that the August Memo
also violated the Act. In support, it repeated the conclusions it
advanced about the December Memo with respect to alleged
tracking and inadequate assurances against reprisals. And it
concluded that New Concepts lacked “any dues-based
justification” for distribution of the August Memo. J.A. 12.
None of these determinations find support in the record.
As was the case with the December Memo, there was
no evidence of tracking. Not a single employee returned a
completed card authorizing the payment of union dues. New
Concepts’ mere awareness of that fact, due to its administrative
role in deducting dues payments, is hardly sufficient to make
out a case for tracking. With respect to reprisals, the August
Memo was just as clear as the December Memo had been: dues
payments were voluntary, “[t]here [was] no reward for NOT

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24
paying Union Dues,” and there “[was] no punishment for
resuming or starting to pay Union Dues.” R. 1435 (cleaned up).
And New Concepts did assert a dues-based justification for
distributing the August Memo. The August Memo went on to
explain that it was intended to rebut the Union’s accusations
of coercion by providing employees with information on how
“to start paying Union Dues.” Id.
The Board majority’s determinations with respect to the
August Memo are thus not supported by substantial evidence.
C. Bargaining Conduct
Section 8(a)(5) of the Act prohibits an employer from
“refus[ing] to bargain collectively with the representatives of
[its] employees[.]” 29 U.S.C. § 158(a)(5). This is “not simply”
a duty to participate in negotiations, but rather “impose[s] a
mutual duty upon the parties to confer in good faith with a
desire to reach agreement[.]” NLRB v. Ins. Agents’ Int’l Union,
361 U.S. 477, 485, 488 (1960) (internal citations omitted). As
“Congress specifically delegated to the Board the primary
responsibility of defining the scope of the duty to bargain,” we
will adopt the Board’s construction of the duty to bargain in
good faith so long as it is consistent with the Act. Latrobe Steel
Co. v. NLRB, 630 F.2d 171, 176 (3d Cir. 1980) (internal
citation omitted).
The Board has long held that, “in some cases, the
content of specific proposals” is relevant to determining
whether the proposal was made in good faith. Altura Commc’n
Sols., LLC, 369 NLRB No. 85, 1 (2020). As relevant here, the
Board may consider “regressive bargaining” tactics in

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“determining whether there has been bad-faith bargaining,”
especially where “the proponent of a regressive proposal fails
to provide an explanation for it, or the [explanation] appears
dubious[.]” In re Hardesty Co., Inc., 336 NLRB 258, 260
(2001). The Board has found a party to have engaged in
regressive bargaining where the party has offered a proposal
that cuts back on existing terms of employment or retracts a
term or terms of the party’s prior proposal. Id. The Board has
also found regressive bargaining to have occurred where a
party offers a proposal that it “could not reasonably have
expected the Union to agree to.” U.S. Ecology Corp., 331
NLRB 223, 224 (2000).
As the Board has previously recognized, “[r]egressive
bargaining . . . is not unlawful in itself; rather, it is unlawful if
it is for the purpose of frustrating the possibility of agreement.”
Id. at 225. The Board has long construed the duty to bargain in
good faith to include “conduct[] both at and away from the
bargaining table.” Pub. Serv. Co. of Okla., 334 NLRB 487, 487
(2001) (internal citation omitted). The Board has found
violations of that duty where a party’s “conduct away from the
bargaining table confirms that it was focused more intently on
eliminating its bargaining obligation . . . than on successfully
negotiating a collective-bargaining agreement.” Id. at 489.
Here, the Board majority concluded that New Concepts’
“proposals on three issues — a wage freeze, elimination of
dues checkoff and union security, and elimination of
arbitration — were regressive and offered for the purpose of
frustrating agreement.” J.A. 13. The ALJ had concluded
otherwise, characterizing these proposals as “no more than
hard bargaining on the part of an employer who knew it had

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26
the upper hand at the bargaining table.” Id. at 44. We agree
with the ALJ.
As a starting point, both parties reserved the right to
modify their proposals over the course of their bargaining.12
With respect to wages, New Concepts’ prioritization of merit
pay and later wage reopener proposals reflected the reality of
rising costs in the midst of stagnant state funding. And New
Concepts obviously knew it had the upper hand after the
decertification petition was filed. It is true that, in its first
bargaining proposal, New Concepts proposed a merit pay
system, but later proposed a wage freeze with a possible
reopener upon receiving additional funding from the state. Yet
the Board majority’s conclusion — that this “unexplained
decision to withdraw its merit pay proposal is especially
glaring,” J.A. 13 — blinks reality. As the ALJ noted, “[t]he
wage freeze and reopener proposal . . . came after [the] initial
proposal for merit pay was dismissed out-of-hand by the
Union.” Id. at 44. This was no more than the ordinary give and
take of nearly all bilateral negotiations.
12 The Union reserved “the right to present new contract
proposals, or modify and/or delete proposals that ha[d] been
presented, no later than the third meeting between the parties.”
R. 585, 1819, 2810. New Concepts reserved “the right to add
to, delete, withdraw or modify any proposals during the course
of contract negotiations on a new labor agreement.” R. 1822.
Neither the Union nor New Concepts “objected to the other’s
reservation of th[e] right” to modify proposals during the
bargaining process. J.A. 33.

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27
With respect to dues checkoff and union shop, it is true
that New Concepts proposed to remove both from the contract.
But as the ALJ observed, these proposals, “while clearly
anathema to the Union, were within [New Concepts’] rights to
make, and were accompanied by an explanation as to why
[New Concepts] was resistant to those provisions.” Id. As the
ALJ further noted, “the fact that [New Concepts] proposed
agreeing to union shop if the Union agreed to a poll of its
members, rather than being evidence of bad faith, was evidence
of the genuine nature of its explanation as to why it was so
resistant to a union shop.” Id. Quite simply, the record here is
replete with evidence of employee dissatisfaction with the
Union. The Board majority conceded that “[a]n employer’s
philosophical opposition . . . does not, by itself, constitute bad-
faith bargaining.” Id. at 14 (citation omitted). And, as the
dissenting Board member reasoned, when viewed in the
context of the bargaining environment — over 90% of the
bargaining unit had just resigned — these proposals could have
easily reflected “employees’ wishes.” Id. at 35.
With respect to arbitration, it is true that New Concepts
proposed to remove or alter the arbitration provision from the
contract. Witnesses for New Concepts testified that “cost
concerns motivated . . . opposition to arbitration,” a contention
that may seem counterintuitive to those familiar with
transaction costs inherent in traditional litigation. And it is also
true that the parties “had never arbitrated a dispute, so there
[was] no history of expensive arbitrations . . . [a]nd it is
generally understood that arbitration is less expensive than
litigation.” J.A. 15. We agree with the ALJ that arbitration “is
among the most powerful tools in a collective bargaining
agreement, when it is negotiated.” Id. at 44. But we also agree

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28
that “an employer is not required . . . to accept any particular
contract term, and it is not clear from the evidence that the
parties had reached a firm agreement on an arbitration clause
earlier in bargaining.” Id.
Finally, the Board majority determined that New
Concepts’ conduct away from the bargaining table focused on
elimination of its bargaining duty rather than on negotiation. It
relied on the fact that, after two months of bargaining, New
Concepts suspended bargaining “1 day after the decertification
petition was filed[.]” J.A. 15. The majority also relied, in large
part, on the alleged unlawfulness of the December and August
Memos to further demonstrate bad faith away from the
bargaining table. But the suspension of bargaining after the
decertification petition could reasonably be interpreted to
reflect a desire to suspend negotiations while the Union’s
future was in doubt. And, as we have concluded supra, the
December and August Memos were lawful.
The Board majority’s determination with respect to
bargaining is not supported by substantial evidence.
D. Poll and Withdrawal
As the ALJ acknowledged, “[a]bsent unusual
circumstances, the polling of employees by an employer will
be violative of . . . the Act” because it is an attempt “to ascertain
employee views and sympathies regarding unionism,” which
“tends to cause fear of reprisal[.]” J.A. 44 (citing Struksnes
Constr. Co., 165 NLRB 1062, 1063 (1967)). But, if an
employer has “a reasonable doubt about a union’s continued
majority status,” it may “test the accuracy of that doubt” by

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29
“poll[ing] its employees about their union sentiments.” Texas
Petrochemicals Corp., 296 NLRB 1057, 1061 (1989). A poll
is lawful only if (1) the poll’s purpose is to assess a “union’s
claim of majority, (2) this purpose is communicated to the
employees, (3) assurances against reprisal are given, (4) the
employees are polled by secret ballot, and (5) the employer has
not engaged in unfair labor practices or otherwise created a
coercive atmosphere.” Struksnes, 165 NLRB at 1063. All five
safeguards must be met. See Grenada Stamping & Assembly,
351 NLRB 1152, 1152 n.4 (2007).
The Board majority concluded that the September 2017
poll of employees was inconsistent with the requirements
under Struksnes and that New Concepts thus unlawfully
withdrew recognition from the Union. In support, it determined
that New Concepts lacked a good faith doubt as to the Union’s
majority status, and that New Concepts violated Struksnes
safeguards three (assurances against reprisals) and five (other
unfair labor practices or coercive atmosphere).
While we fully recognize that the polling of employees
is disfavored, we agree with the ALJ that “this is the unusual
case where [New Concepts] was lawfully able to poll its
employees.” J.A. 45. New Concepts had a good faith doubt
about the Union’s majority status. A decertification petition
had been filed, few unit members attended bargaining sessions,
over 90% of the unit had withdrawn authorization for dues
checkoffs over eight months earlier, and not a single employee
requested dues to be deducted in response to New Concepts’
offer to do so. Although we agree that “[n]one of these items
would support an employer’s withdrawal of recognition,
individually or even taken together[,]” they do “support a

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30
good-faith doubt on the part of [New Concepts] sufficient to
allow it to conduct a lawful poll.” Id. We are satisfied that New
Concepts adhered to the Struksnes safeguards. It “informed
employees that they were not required to vote and that it would
honor their wishes[.]” Id. at 18. It conducted the vote in secret.
Id. at 37. And it attempted to follow the Board’s “gold-standard
procedure for a valid election,” id. at 45, including having
“ballots . . . counted by a neutral third party, a retired judge[,]”
Id. at 37. Because the poll was not unlawful, neither was New
Concepts’ subsequent withdrawal of recognition from the
Union.
VII. Conclusion
While it is a common human trait to want to get
something for nothing, almost no one wants to pay something
and receive nothing in return. As the ALJ concluded, the
“General Counsel’s position ignores the fundamental truth
underlying this case, that it was the Union’s own absence over
the span of multiple years that ultimately led to its loss of
support.” J.A. 45. For the reasons set forth above, we conclude
that the Board majority’s determinations regarding the alleged
unfair labor practices are not supported by substantial
evidence. We will therefore grant New Concepts’ petition for
review and deny the NLRB’s cross-application for
enforcement.

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1
KRAUSE, Circuit Judge, concurring.
I join Judge Smith’s excellent majority opinion without
reservation. I write separately, however, to call attention to an
argument that continues to be invoked by the National Labor
Relations Board (“NLRB” or the “Board”) and that exposes a
troubling gap between Section 10(e) of the National Labor
Relations Act (“NLRA”), and the Board’s regulation at
29 C.F.R. § 102.46 that purports to interpret it.
In the former, Congress excluded from judicial
consideration any “objection” to the ALJ’s decision that was
not “urged before the Board” absent extraordinary
circumstances, 29 U.S.C. § 160(e), and the Supreme Court
historically interpreted this issue-exhaustion requirement to be
jurisdictional, Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 665-66 (1982). In the latter, however, the Board
purported to extend this bar to “[a]ny exception” a party might
seek to raise to any “ruling, finding, conclusion, or
recommendation” that was not “specifically urged” before the
Board. 29 C.F.R. § 102.46(a)(1)(ii). It also prescribed a
perplexing array of technical prerequisites to raising an
“exception” before the Board in the first place, id. § 102.46(a)-
(e), and, in addition, decreed that “matters” not raised in
conformity with those requirements “may not thereafter be
urged before the Board, or in any further proceeding,” id. §
102.46(f). In short, by the terms of the regulation and as
asserted by the Board in this case, if an issue was not raised
before the Board in conformity with this exacting
administrative exhaustion scheme, it falls outside this Court’s
subject matter jurisdiction.

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2
The consequence of this expansive interpretation of
Section 10(e) is that the Board’s General Counsel, when
confronting an arguably meritorious argument on appeal, has
an ace in the deck, which he pulled here: While nominally
citing the statute, the General Counsel in fact relies on cases
applying the regulation to argue that—notwithstanding that an
issue was fairly raised before the Board, and even if the Board
actually addressed it—the issue is not “properly before the
Court” if the General Counsel now says that it was raised
without sufficient compliance with the regulation. Answering
Br. 23.
That is a dubious proposition for two reasons. First, the
regulation appears neither a reasonable nor an administrable
interpretation of the statute, and, to the extent it purports to
restrict (or the General Counsel argues it restricts) judicial
review beyond the bounds of the statute, it would be ultra vires.
Second, it is not clear that the exhaustion requirement is, in
fact, jurisdictional. In Santos-Zacaria v. Garland, 143 S. Ct.
1103, 1111-14 (2023), the Supreme Court demarcated the line
between jurisdictional requirements and claim-processing
rules in a way that casts doubt on the continued vitality of
Woelke and suggests that the exhaustion requirement may be
nonjurisdictional. I address each of these issues below.
I. The Regulation Is Not Entitled to Deference
The prerequisites to judicial review imposed by the
regulation are far more numerous and expansive than the
statute, raising the question whether the regulation is entitled

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3
to Chevron deference1 or instead “crosses the line from
permissible statutory interpretation . . . to ultra vires regulation
contrary to the clear intent of Congress.” Shalom Pentecostal
Church v. Acting Sec’y, Dep’t of Homeland Sec., 783 F.3d 156,
158 (3d Cir. 2015); Administrative Procedure Act (“APA”), 5
U.S.C. § 706(2). Below, I briefly review the relationship
between the statute and the regulation, describe the confusion
the regulation has generated, and explain why the regulation
appears ultra vires and should be reconsidered by the Board.
A. The Conflict Between Section 10(e) and
the Board’s Regulation
The NLRA authorizes the Board to “make, amend, and
rescind . . . such rules and regulations as may be necessary to
carry out the provisions” of the Act. 29 U.S.C. § 156. As
relevant here, one of those provisions, Section 10(e), governs
the Board’s petitions to the Courts of Appeals, 29 U.S.C.
§ 160(e), and—like Section 10(f), which governs petitions by
“any person aggrieved by a final order of the Board,” 29 U.S.C.
1 See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984). Of course, Chevron deference itself may
not survive this year’s Supreme Court term, pending the
Court’s resolution of Loper Bright Enters. v. Raimondo, No.
22-451 (argued Jan. 17, 2024), and Relentless, Inc. v. Dep’t of
Com., No. 22-1219 (argued Jan. 17, 2024). But regardless of
whether or how much deference will henceforth be owed to
administrative agencies generally, it would not change the
calculus for the Board’s regulation here because, for the
reasons explained below, that regulation should not be
accorded Chevron deference in any event.

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4
§160(f)—vests jurisdiction in the courts to entertain those
appeals, precludes the courts’ consideration of “objection[s] []
not . . . urged before the Board,” and specifies the standard for
upholding the Board’s findings and for re-opening of the
record.2 The Supreme Court has deemed that limitation on
judicial review of objections to be jurisdictional, Woelke, 456
U.S. at 665-66, and has called it an administrative “issue-
exhaustion requirement,” Sims v. Apfel, 530 U.S. 103, 107-08
(2000). By the statute’s terms, it provides: “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 excused because of
extraordinary circumstances.” 29 U.S.C. 160(e).
To “carry out” the purpose of Section 10(e)’s exhaustion
requirement—that is, ensuring that parties “first give the Board
an opportunity to rule upon all material issues in a case,” NLRB
v. Cardox Div. of Chemetron Corp., 699 F.2d 148, 152 n.10 (3d
Cir. 1983)—the Board promulgated 29 C.F.R. § 102.46.
Relative to the statutory requirement, the exhaustion scheme
set out in that regulation is long and elaborate. It “deem[s] to
have been waived” “[a]ny exception to a ruling, finding,
conclusion, or recommendation which is not specifically
urged” before the Board. 29 C.F.R. § 102.46(a)(1)(ii)
(emphasis added). It does not define the term “exception,” but
it does set out a host of detailed requirements with which a
party must comply to plead an “exception.” Id. §
102.46(a)(1)(i). For example, each exception must “(A)
Specify the questions of procedure, fact, law, or policy to
which exception is taken; (B) Identify that part of the [ALJ’s]
2 The full text of Sections 10(e) and 10(f) are
reproduced as Attachment A to this opinion.

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5
decision to which exception is taken; (C) Provide precise
citations of the portions of the record relied on; and (D)
Concisely state the grounds for the exception . . . .” Id. §
102.46(a)(1)(i)(A)-(D). Argument and supporting authorities
may be submitted either in the “exceptions document” or in a
supporting brief subject to its own technical requirements, id.
§ 102.46(a)(1)(i)(D), (a)(2), and any exception that fails to
conform with these strictures “may be disregarded,” by the
Board, id. § 102.46(a)(1)(ii).
In response to exceptions, the adverse party—
presumably the prevailing party before the ALJ—“may file” an
answering brief or file “cross-exceptions” of its own that
conform with the precise requirements of the regulation. Id.
§ 102.46(b)-(c). But though phrased in permissive terms, a
party that fails to file an answering brief or cross-exceptions,
or, upon an adverse ruling, to file for reconsideration so that it
can raise its own exceptions before the Board, may have lost
its day in court: Should the General Counsel press the point on
appeal, the regulation provides that “[m]atters not included in
exceptions or cross-exceptions may not thereafter be urged
before the Board, or in any further proceeding.”3 Id.
§ 102.46(f) (emphasis added).
By its terms, then, the Board’s regulation imposes
different, more cumbersome, and less straightforward
requirements on a litigant to preserve its opportunity for
judicial review. While the statute requires merely that a party
“urge[]” an “objection” before the Board, 29 U.S.C. § 160(e),
3 The labyrinthine nature of 29 C.F.R. § 102.46 is
apparent in the full version of the regulation, which is
appended to this opinion as Attachment B.

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6
the regulation demands that a party “specifically urge[]” an
“exception” to each and every “ruling, finding, conclusion, or
recommendation,” 29 C.F.R. § 102.46(a)(1)(ii) (emphasis
added), that the exception conform to precise specifications
lest it be “disregarded,” id., and that regardless of whether the
Board was in fact on notice of a “matter[]” and even addressed
it in its opinion, a party who fails to include that matter in
exceptions or cross-exceptions cannot raise it in court, id. §
102.46(f). In practice, this conflict creates uncertainty about
parties’ pleading obligations, enables arbitrary enforcement by
the Board, and spawns confusion in the Courts.
B. The Practical Consequences of The
Board’s Regulation
Confronted with a regulation that is inconsistent in
many respects with the statute it purports to interpret, the courts
and litigants have struggled to understand what suffices to
satisfy issue-exhaustion under Section 10(e) and whether the
administrative exhaustion scheme, purporting to implement
what under Woelke is a jurisdictional statutory requirement,
itself defines the courts’ jurisdiction. The conclusions have
been conflicting and confounding.
For starters, the courts diverge on whether fair notice to
the Board or compliance with the regulatory specifications is
the sine qua non of issue exhaustion under Section 10(e).
Some have focused on the notice function,4 considering an
4 See, e.g., NLRB v. FedEx Freight, Inc., 832 F.3d 432,
437 (3d Cir. 2016) (“The crucial question in a section 160(e)
analysis is whether the Board ‘received adequate notice of the
basis for the objection.’” (quoting FedEx Freight, Inc. v. NLRB,

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7
issue exhausted, for example, even where the opposing party
raised it in its exceptions before the Board.5 But others have
held that, even where fairly presented to the Board and/or
actually addressed in its opinion, the issue was not exhausted
unless the party seeking to raise the issue on appeal itself raised
the issue before the Board.6
816 F.3d 515, 521 (8th Cir. 2016))); Cast N. Am. (Trucking)
Ltd. v. NLRB, 207 F.3d 994, 1000 (7th Cir. 2000)
(“Accordingly, to effectively preserve an issue, the
respondent’s exception must apprise the Board of the issue that
the responding party intends to press on review sufficiently
enough that the Board may consider the exception on the
merits.” (quoting NLRB v. Howard Immel, Inc., 102 F.3d 948,
951 (7th Cir. 1996))); T-Mobile USA, Inc. v. NLRB, 90 F.4th
564, 579 (D.C. Cir. 2024) (“The ‘critical question’ in applying
Section 10(e) is [] ‘whether the Board received adequate notice
of the basis for the objection.’” (quoting Camelot Terrace, Inc.
v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016))).
5 E.g., NLRB v. U.S. Postal Serv., 833 F.2d 1195, 1201-
03 (6th Cir. 1987), decision supplemented, 837 F.2d 476 (6th
Cir. 1988).
6 See, e.g., Oldwick Materials, Inc. v. NLRB, 732 F.2d
339, 343 n.1 (3d Cir. 1984) (holding that even where one
member of the Board dissented on a given ground and the
majority responded, that “d[id] not excuse petitioner from its
statutory obligation under § 10(e) to file exceptions presenting
and preserving its argument to the Board”); HTH Corp. v.
NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016) (“[A] party may not
rely on arguments raised in a dissent or on a discussion of the

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8
Other points of contention resulting from the
regulation’s imprecision include whether a party who prevailed
before the ALJ must still file “exceptions” to preserve an issue
for appeal;7 the specificity of pleading required to satisfy
relevant issues by the majority to overcome the § 10(e) bar; the
Act requires the party to raise its challenges itself.”).
7 Compare Barton Brands, Ltd. v. NLRB, 529 F.2d 793,
801 (7th Cir. 1976) (“Failure to file exceptions to the [ALJ’s]
findings sometimes is excused where those findings were
favorable to the petitioner, where subsequently reversed by the
Board, and petitioner had no reason to file exceptions to a
decision in its favor.” (citation omitted)), NLRB v. Good Foods
Mfg. & Processing Corp., Chi. Lamb Packers, Inc., 492 F.2d
1302, 1305 (7th Cir. 1974) (same), and NLRB v. Loc. 282, 412
F.2d 334, 337 n.2 (2d Cir. 1969) (same), with NLRB v. Cast-A-
Stone Prods. Co., 479 F.2d 396, 398 (4th Cir. 1973) (holding
that employer who prevailed before ALJ on issue was required
to respond to NLRB counsel’s exception to that issue to
preserve it for appeal and noting that cases cited by employer
that held the opposite “all arose before the Board’s regulations
permitted the filing of cross-exceptions by a prevailing party”
or “relie[d] on authorities superseded by a change in the
Board’s regulation without adverting to either the basis for the
earlier decisions or the change in the Board’s rules”), and
Laborers’ Int’l Union of N. Am., Loc. Union No. 91 v. NLRB,
825 F. App’x 51, 53 (2d Cir. 2020) (holding that Section 10(e)’s
jurisdictional bar applies “whenever a party fails to raise an
objection before the Board, regardless of whether the ALJ had
earlier made favorable findings on [a] point”).

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9
Section 10(e);8 the sources of “notice” to the Board that courts
8 Compare, e.g., E. Brunswick Eur. Wax Ctr., LLC v.
NLRB, 23 F.4th 238, 252 (3d Cir. 2022) (concluding that
although party’s “submissions to the Board . . . did not
explicitly refer to the concepts of substantial compliance,
disproportionate forfeiture, or punitiveness” that it sought to
raise on appeal, those arguments were “essentially components
of its argument to the Board”), FedEx Freight, 832 F.3d at 438
(holding a mere footnote in filing before the Board sufficient
to exhaust issue where notice to Board was evident in
discussion of the issue in a Board member’s concurrence), and
NLRB v. Sw. Sec. Equip. Corp., 736 F.2d 1332, 1335-37 (9th
Cir. 1984) (holding party’s efforts to give the Board notice
“adequate, if somewhat inartful” and reminding Board that its
regulatory scheme “command[s] it to read its procedural rules
liberally” (citing 29 C.F.R. § 102.121)), with Atl. City Elec. Co.
v. NLRB, 5 F.4th 298, 306 (3d Cir. 2021) (concluding
exhaustion not satisfied where petitioner explicitly mentioned
the “in conflict” principle in its submission to the Board but
did so along with other standards of review as part of a broader
objection), NLRB v. FES, 301 F.3d 83, 88-89 (3d Cir. 2002)
(holding issue not exhausted where the “tenor” of petitioner’s
objection to the Board was “purely factual,” but the tenor of
the objection on appeal was legal): Nova Se. Univ. v. NLRB,
807 F.3d 308, 314 (D.C. Cir. 2015) (court lacked jurisdiction
to hear objection to ALJ’s decision where petitioner failed “to
provid[e] the detail required by the Board’s rules”); Spectrum
Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341, 348-49
(D.C. Cir. 2011) (holding that filing exception to the ALJ’s
imposed remedy “in its entirety” was insufficient to preserve
specific challenge to ALJ’s imposition of an affirmative
bargaining order and stating that “to preserve objections for

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10
may consider in assessing exhaustion;9 and whether failure to
comply with the regulation should be excused when the
policies behind Section 10(e) are not implicated.10 The extent
appeal a party must raise then in the time and manner that the
Board’s regulations require”), and NLRB v. Daniel Constr. Co.,
731 F.2d 191, 198 (4th Cir. 1984) (respondent’s exception to
“each and every part of the remedy recommended by the
administrative law judge” insufficient to preserve objection to
the calculation of Board’s back pay award).
9 Compare 29 C.F.R. § 102.46(b)(2) (providing that the
answering brief to exceptions “must be limited to the questions
raised in the exceptions,” “must present clearly the points of
fact and law relied on in support of the position taken on each
question,” and “must specify those pages of the record which
the party contends support the Judge’s finding”), with, e.g., E.
Brunswick Eur. Wax Ctr., 23 F.4th at 250-52 (allowing parties
to file letters and exhibits—rather than “true” answering briefs
or cross-exceptions—and construing parties’ arguments
generously to encompass issues that were otherwise not
explicitly argued before the Board), and U.S. Postal Serv., 833
F.2d at 1202 (rejecting argument that issue not exhausted
where, although respondents failed to raise it in cross-
exceptions, they re-filed with the Board their briefs to the ALJ,
which discussed the issue).
10 See, e.g., Indep. Elec. Contractors of Hous., Inc. v.
NLRB, 720 F.3d 543, 551 (5th Cir. 2013) (noting that
procedural requirements “can be measured in context,” and
following other courts who have held that “‘when the policies
underlying [Section 10(e)] are not implicated,’ issues not
directly raised to the Board may be considered on appeal”

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11
of this confusion raises serious questions about whether the
regulation is a lawful interpretation of the statute under
Chevron or is arbitrary or capricious under the APA, 5 U.S.C.
706(2)(A).
The most profound confusion spawned by the
regulation, however, concerns the extent to which it defines the
courts’ subject matter jurisdiction. Because the Supreme Court
has held Section 10(e)’s issue-exhaustion requirement to be
jurisdictional and the regulation purports to expound on that
requirement, a number of courts have opined that regulatory
noncompliance itself strips the court of jurisdiction.11 This has
(citation omitted)); IBEW v. NLRB, 973 F.3d 451, 461 (5th Cir.
2020) (same); Facet Enters., Inc., 907 F.2d 963, 970-72 (10th
Cir. 1990) (collecting cases where courts considered issues not
previously raised to the Board because Section 10(e)’s
underlying policies were not implicated).
11 See, e.g., Oldwick Materials, 732 F.2d at 343 & nn.1-
2 (holding failure to file exceptions under 29 C.F.R. § 102.46
commensurate with the “statutory obligation” to raise
objections before the Board under Section 10(e)); Laborers’
Int’l Union, 825 F. App’x at 52-53 (stating that Section 10(e)
and § 102.46’s requirements are jurisdictional); NLRB v.
Carpenters Loc. 209, No. 91-70761, 1993 WL 268447, at *2
(9th Cir. July 15, 1993) (concluding court lacked jurisdiction
to hear claim where Union failed to follow § 102.46’s
procedural requirements); Nova Se. Univ., 807 F.3d at 313
(holding court lacked jurisdiction to hear objection to ALJ’s
decision where petitioner failed to “provid[e] the detail
required by the Board’s rules”); see also NLRB v. Alwin Mfg.
Co. Inc., 78 F.3d 1159, 1162 (7th Cir. 1996) (citing § 102.46

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12
serious consequences for petitioners who may unwittingly lose
their right to Article III review, and it is all the more concerning
in view of the complexity and imprecision of the regulation—
confounding the courts, let alone litigants. As explained below,
however, the Board lacks authority to define the scope of
federal jurisdiction, so to the extent the regulation professes to
add jurisdictional requirements to those prescribed by
Congress, it would appear ultra vires for that reason as well.
C. Whether the Regulation Is Owed
Deference
Under the APA, we “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary,
capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2).
And to the extent Chevron deference survives, see supra note
1, it requires us to first consider whether Congress “directly
and clearly spoke[] to the question at issue,” in which case
“Congress’s unambiguous intent controls,” but if Congress
“[wa]s ‘silent or ambiguous,’ or . . . ‘explicitly left a gap for
the agency to fill,’” we consider whether the agency’s
interpretation was reasonable. Shalom Pentecostal Church,
783 F.3d at 164 (quoting Chevron U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984)). The Board’s
regulation fares poorly under either test.
It is true, of course, that “the doctrine of administrative
exhaustion should be applied with a regard for the particular
and holding that petitioner’s failure to file exception before
NLRB to ALJ’s adverse finding rendered petitioner
“jurisdictionally barred from obtaining appellate review of this
finding”).

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13
administrative scheme at issue,” Weinberger v. Salfi, 422 U.S.
749, 765 (1975), but there is also a “strong presumption that
Congress intends judicial review of administrative action,”
Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670
(1986). As the Supreme Court recently observed in Smith v.
Berryhill, the burden on an agency to rebut that presumption
with statutory language or structure is a heavy one, 139 S. Ct.
1765, 1776-77 (2019), and for the same reasons the Court there
rejected the argument that the Social Security Administration
had “the power to determine ‘the scope of the judicial power
vested by’ [the statute] or to determine conclusively when its
dictates are satisfied,” id. at 1779 (quoting Adams Fruit Co. v.
Barrett, 494 U.S. 638, 650 (1990)), the NLRB cannot claim
that Congress delegated it such power here.
Even accepting that Congress “empowered [the Board]
to create a scheme of administrative exhaustion,” it “did ‘not
empower the [agency] to regulate the scope of the judicial
power vested by the statute.’” Id. at 1778-79 (quoting Adams
Fruit Co., 494 U.S. at 650). To the contrary, in Section 10(e),
Congress exercised that power itself, requiring only that an
objection be “urged before the Board” as a precondition to
judicial review. 29 U.S.C. § 160(e). By its plain terms, then,
Section 10(e) makes only fair presentation of an issue to the
Board a jurisdictional prerequisite, see Urge, Webster’s New
International Dictionary of the English Language (2d ed. 1937)
(defining the verb “urge” to mean “to present in an earnest or
pressing manner; to press upon attention; to insist upon; to
plead or allege”); Urge, Webster’s 1913,
https://www.websters1913.com/words/Urge (last visited Feb.
19, 2024) (defining “urge” to mean “to be pressing in

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14
argument; to insist; to persist”).12 And there is no question of
Chevron deference to the regulation’s purported expansion of
that jurisdictional bar, for Chevron deference “‘is premised on
the theory that a statute’s ambiguity constitutes an implicit
delegation from Congress to the agency to fill in the statutory
gaps.’ The scope of judicial review, meanwhile, is hardly the
kind of question that [we] presume[] that Congress implicitly
delegated to an agency.” Smith, 139 S. Ct. at 1778 (citation
omitted) (quoting King v. Burwell, 576 U.S. 473, 485 (2015)).
So to the extent 29 C.F.R. § 102.46(a)(1) presents its
requirements as jurisdiction-stripping, the regulation is
12 The Courts of Appeals have interpreted a number of
other statutes’ exhaustion requirements phrased similarly to
Section 10(e) to require merely fair notice to the agency. See,
e.g., Power Plant Div., Brown & Root, Inc. v. Occupational
Safety & Health Rev. Comm’n, 659 F.2d 1291, 1293-94 (5th
Cir. Unit B Oct. 1981) (holding that the issue-exhaustion
provision of the Occupational Safety and Health Act of 1970,
29 U.S.C. § 660(a), requires the agency only to be “alerted to
the issues” and that “great specificity is not required” (quoting
Cleveland Consol., Inc. v. Occupational Safety & Health Rev.
Comm’n, 649 F.2d 1160, 1165 (5th Cir. Unit B July 1981));
Phillips v. SEC, 156 F.2d 606, 608 (2d Cir. 1946) (declining to
view § 24(a) of the Public Utility Holding Company Act of
1935 as a limitation on jurisdiction and acknowledging that its
purpose was to “prevent surprise”); Mallory Coal Co. v. Nat’l
Bituminous Coal Comm’n, 99 F.2d 399, 406-07 (D.C. Cir.
1938) (holding that purpose of § 6(b) of the National
Bituminous Coal Act was to “secure to the [agency] an
opportunity to correct its errors, when attention is properly
called thereto”).

-- 44 of 58 --

15
contrary to the statute and beyond the agency’s delegated
authority. See id. at 1778-79.
Viewed as a nonjurisdictional administrative-
exhaustion scheme, however, the regulation is within the
agency’s purview to promulgate. See id. at 1777 (recognizing
that the SSA “is empowered to define the steps claimants must
generally take” to satisfy administrative exhaustion). But even
where gap filling is permissible, the agency’s response must be
“based on a permissible construction of the statute” and not be
“unreasonable, arbitrary, capricious, or contrary to the plain
language of the [statute],” Armstrong World Inds., Inc. v.
Comm’r, 974 F.2d 422, 430, 442 (3d Cir. 1992) (quoting
Chevron, 467 U.S. at 843); see also 5 U.S.C. § 706(2)(A)
(arbitrary and capricious regulations impermissible under the
APA). Yet the widespread confusion in applying 29 C.F.R. §
102.46 and the inconsistency with which it appears to be
enforced by the General Counsel, see supra Section II(B),
suggest the regulation falls into the latter category.
The Board, for example, can use § 102.46(a) as a
regulatory shield to protect the agency on appeal and further its
policy prerogatives, exercising its discretion to deem parties’
arguments forfeited as it pleases, all with the knowledge that
its discretion directly affects our ability to hear an argument.
See, e.g., Special Touch Home Care Servs., Inc., 349 N.L.R.B.
759, 760 (2007). At the same time, the Board can wield
§ 102.46 as a regulatory sword, claiming parties forfeited
arguments by failing to adhere to Board procedure, even
though the General Counsel made no motion before the Board
to strike deficient filings for noncompliance and the Board
itself elected to proceed below without requiring such strict
adherence. And that is precisely what happened here: New

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16
Concepts failed to file any exceptions or cross-exceptions,
instead providing the Board with a short letter and the brief it
filed with the ALJ. But the Board appears to have accepted
New Concepts’ submission without pushback, and the General
Counsel argued his case before the Board without challenging
the form of New Concepts’ objections. On appeal, however,
the General Counsel has pulled the regulatory card, now
arguing that New Concepts’ failure to file specific exceptions
or a motion for reconsideration before the Board “deprives
[this] Court of jurisdiction.” Answering Br. 24.
Such tactics have serious consequences for parties, who,
having invested years litigating unfair-labor-practice claims,
may lose their right to appeal due to technicalities, and in such
circumstances, the Courts of Appeals may have occasion to
question the validity of the regulatory requirements
themselves. At a minimum, we should not apply them
reflexively. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 153
(1992) (refusing to enforce prison-grievance exhaustion
requirements against a prisoner, particularly because of their
“rapid filing deadlines” that could “trap . . . the inexperienced
and unwary inmate, ordinarily indigent and unrepresented by
counsel, with a substantial claim”); Bowen v. City of New York,
476 U.S. 467, 482-83 (1986) (waiving administrative
exhaustion requirements in a class action against the SSA
where claimants “would be irreparably injured” if exhaustion
were enforced); Ritz-Carlton Hotel Co v. NLRB, 123 F.3d 760,
763 (3d Cir. 1997) (concluding that 29 C.F.R. § 102.67(f),
providing that failure to request Board review “shall preclude
such parties from relitigating, in any subsequent unfair labor
practice proceeding, any issue which was, or could have been,
raised in a representation proceeding,” is an exhaustion
requirement that does “not purport to preclude the issues which

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17
a reviewing court may consider, and noting that “the Board
[would not] have the power to do so”).
In sum, whether viewed as ultra vires to the extent it
purports to impose jurisdictional limitations or unreasonable to
the extent it is unclear and inconsistently applied, 29 C.F.R. §
102.46 should be viewed by the courts with skepticism and
should be scrutinized by the Board itself for amendment.
II. Section 10(e)’s Exhaustion Requirement May
Not Be Jurisdictional
Four decades ago, the Court held in Woelke that Section
10(e)’s exhaustion requirement is “jurisdictional.”13 456 U.S.
at 665-66. Over two decades ago, it again referenced its
holding in Woelke that “the Court of Appeals lacked
jurisdiction to review objections not raised before the
[NLRB].” Sims, 530 U.S. at 107-08 (citing Woelke in
discussion of administrative exhaustion in the Social Security
Act to illustrate that the “requirements of administrative issue
exhaustion are largely creatures of statute”). But in more
recent years, the Supreme Court has undertaken to “ward off
profligate use” of the term “jurisdictional,” Fort Bend County
v. Davis, 139 S. Ct. 1843, 1849 (2019) (quoting Sebelius v.
13 The Courts of Appeals necessarily followed suit. See,
e.g., Kava Holdings, LLC v. NLRB, 85 F.4th 479, 489 (9th Cir.
2023) (expressly noting that Section 10(e) is jurisdictional);
Intl. Bhd. of Elec. Workers, Local Union 43 v. NLRB, 9 F.4th
63, 74 n.60 (2d Cir. 2021) (same); Atl. City Elec. Co., 5 F.4th
at 307 (same); Advancepierre Foods, Inc. v. NLRB, 966 F.3d
813, 818 (D.C. Cir. 2020) (same); Dolgencorp, LLC v. NLRB,
950 F.3d 540, 549-50 (8th Cir. 2020) (same).

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18
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013))—
distinguishing between a “‘jurisdictional’ prescription [that]
sets the bounds of the ‘court’s adjudicatory authority,’” Santos-
Zacaria, 143 S. Ct. at 1111-12 (quoting Kontrick v. Ryan, 540
U.S. 443, 455 (2004)), and a claim-processing requirement that
“‘promote[s] the orderly progress of litigation’ but do[es] not
bear on a court’s power,” Boechler, P.C. v. Comm’r., 142 S. Ct.
1493, 1497 (2022) (quoting Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)).
The distinction matters because “[h]arsh consequences
attend the jurisdictional brand.” Santos-Zacaria, 143 S. Ct. at
1112 (quoting Davis, 139 S. Ct. at 1849). Unlike claim-
processing rules, “[j]urisdictional requirements cannot be
waived or forfeited, must be raised by courts sua sponte, and .
. . do not allow for equitable exceptions.” Boechler, 142 S. Ct.
at 1497. For that reason, the Court held in Arbaugh v. Y&H
Corp. that we should impose those consequences only if
Congress “clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional.” 546 U.S. 500,
515-16 (2006). A “plausible or even preferable reading is not
enough to make [such] a statement clear.” Jaludi v. Citigroup
& Co., 57 F.4th 148, 152 (3d Cir. 2023) (citing Boechler, 142
S. Ct. at 1499). Rather, because exhaustion is “a quintessential
claim-processing rule” that is ordinarily not jurisdictional, “we
would need unmistakable evidence, on par with express
language addressing the court’s jurisdiction.” Santos-Zacaria,
143 S. Ct. at 1112-13. And if a statute is susceptible to
“multiple plausible interpretations . . . —only one of which is
jurisdictional—it is difficult to make the case that the
jurisdictional reading is clear.” Boechler, 142 S. Ct. at 1498.

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19
Given that high threshold, it is no wonder that the Court,
since Arbaugh, “ha[s] yet to hold that any statutory exhaustion
requirement is jurisdictional when applying the clear-statement
rule.” Santos-Zacaria, 143 S. Ct. at 1112-13 (recounting
numerous cases since Arbaugh in which the Court declined to
classify a statutory requirement as jurisdictional). We, too, in
following the Court’s instruction to “trea[t] as nonjurisdictional
. . . threshold requirements that claimants must complete, or
exhaust” for judicial review, id. (alteration and omission in
original) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 166 (2010)), have classified (or, in some cases,
reclassified) exhaustion requirements previously considered
jurisdictional as nonjurisdictional claim-processing rules.14
Section 10(e)’s exhaustion requirement may also be ripe
for reconsideration. Indeed, the Sixth Circuit, albeit
nonprecedentially, has observed that “[S]ection 10(e)’s
exhaustion requirement strikes us as a nonjurisdictional claim-
processing rule[]” and has characterized Woelke as the type of
14 See, e.g., Culp v. Comm’r., 75 F.4th 196, 202 (3d Cir.
2023) (classifying 26 U.S.C. § 6213’s 90-day filing
requirement as nonjurisdictional); Jaludi, 57 F.4th at 153
(holding that Sarbanes-Oxley Act’s statute of limitations and
provision requiring petitioners to file administrative complaint
before suing are nonjurisdictional); Holland v. Warden Canaan
USP, 998 F.3d 70, 74 (3d Cir. 2021) (holding § 2244(a) does
not bar jurisdiction over successive § 2241 habeas petitions);
United States v. Hart, 983 F.3d 638, 641-43 (3d Cir. 2020)
(classifying the First Step Act’s bar on second resentencings as
nonjurisdictional); Guerra v. Consol. Rail Corp., 936 F.3d 124,
133-34 (3d Cir. 2019) (holding FRSA statute of limitations
provision nonjurisdictional).

-- 49 of 58 --

20
“drive-by jurisdictional ruling[]” that the Supreme Court has
instructed courts to disregard. Sysco Grand Rapids, LLC v.
NLRB, 825 Fed. App’x 348, 356-57 (6th Cir. 2020) (internal
citations and quotation marks omitted). To ascertain whether
Congress intended the exhaustion requirement to be
jurisdictional (and, hence, whether Woelke has been
abrogated), we must consider its “text, context, and relevant
historical treatment.” T Mobile Ne. LLC v. City of Wilmington,
913 F.3d 311, 324 (3d Cir. 2019) (citation omitted).
Starting with the text, Section 10(e) states that “[n]o
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 excused
because of extraordinary circumstances.” 29 U.S.C. § 160(e).
Although the statute “speaks to the power of the reviewing
court, a fact that distinguishes it from many non-jurisdictional
requirements addressed only to the parties,” Pub. Serv. Co. v.
NLRB, 692 F.3d 1068, 1076 (10th Cir. 2012) (Gorsuch, J.)
(emphasis in original), and uses mandatory language like
“shall,” it is also the case that, without more, “emphatic words
are not enough to make a statute jurisdictional,” Guerra v.
Consol. Rail Corp., 936 F.3d 124, 133 (3d Cir. 2019), and
mandatory language like “shall” may be “of no consequence”
to the jurisdictional analysis, United States v. Kwai Fun Wong,
575 U.S. 402, 411 (2015). It is also telling that the statute is
written in the passive voice. Cf. United States v. Hart, 983 F.3d
638, 642 (3d Cir. 2020) (“The use of the active voice, making
the ‘court’ the subject, is suggestive but not conclusive”
evidence that the statute is jurisdictional). Even the use of
“consider,” which could send “moderate signals that it is
jurisdictional,” is not sufficient for a clear statement, as

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21
“Congress can tell a court not to consider a matter without
revoking its power to consider it.”15 Id. at 643.
The exhaustion requirement’s statutory context within
Section 10(e) also indicates it is nonjurisdictional. As apparent
in Attachment A, the first few sentences of Section 10(e) do
speak clearly to the jurisdiction of the Courts of Appeals,
providing that upon the filing of a petition for review and
notice to the respondent, “the court . . . shall have jurisdiction
of the proceeding and of the question determined therein, and
shall have power to grant such [relief].” 29 U.S.C. § 160(e)
(emphasis added). In contrast, the exhaustion requirement that
follows omits any reference to either jurisdiction or power,
stating simply that “[n]o objection that has not been urged
before the Board . . . shall be considered by the court, unless .
. . because of extraordinary circumstances.” Id. The mere
15 Two other aspects of the text bear mention. First,
while the term jurisdictional “is generally reserved for
prescriptions delineating the classes of cases a court may
entertain (subject-matter jurisdiction) and the persons over
whom the court may exercise adjudicatory authority (personal
jurisdiction),” Section 10(e) speaks only in terms of objections
to particular issues. Davis, 139 S. Ct. at 1849; see Sysco Grand
Rapids, 825 Fed. App’x at 357 (because Section 10(e) “speaks
to the issues courts may consider . . . , not the classes of cases
it may entertain” it is likely a claim-processing rule (emphasis
omitted)). Second, Section 10(e) contemplates a carveout for
“extraordinary circumstances,” which is consistent with a
waivable claim-processing rule but not with a jurisdictional
requirement. See Boechler, 142 S. Ct. at 1497; Ruehl v.
Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007).

-- 51 of 58 --

22
proximity of this sentence to the prior sentences conferring
subject-matter jurisdiction does not suffice; there must be a
“clear tie” between the jurisdictional grant and the provision in
question, and the “fact that [they] appear in the same provision,
[or] even the same sentence” does not amount to a clear
statement from Congress.16 Boechler, 142 S. Ct. at 1499; see
Culp v. Comm’r., 75 F.4th 196, 201-02 (3d Cir. 2023) (holding
there was no clear tie between statutorily imposed deadline and
jurisdictional provision). That is especially true where, as here,
the remainder of Section 10(e) also delineates such
nonjurisdictional claim-processing matters as the “substantial
evidence” standard of review and the standard for re-opening
the record.17
16 In the past, some courts reasoned that the proximity
of the exhaustion requirement to Section 10(e)’s jurisdictional
grant rendered it a jurisdictional requirement, see, e.g.,
Chevron Mining, Inc. v. NLRB, 684 F.3d 1318, 1329 (D.C. Cir.
2012); Pub. Serv. Co., 692 F.3d at 1076-77 (Gorsuch, J.), but
Boechler makes clear that alone is not sufficient. Boechler,
142 S. Ct. at 1499.
17 The broader context of Section 10(e) itself reinforces
this conclusion. That subsection, which concerns appeals filed
by the Board, works in tandem with Section 10(f), which
governs appeals filed by the “person[s] aggrieved by a final
order of the Board.” The latter confers on the Courts of
Appeals “the same jurisdiction to grant [relief]” as subsection
(e), but groups the exhaustion requirement with other
nonjurisdictional aspects of the proceeding in stating that “the
court shall proceed in the same manner as in the case of an
application by the Board under subsection (e).” 29 U.S.C. §
160(f).

-- 52 of 58 --

23
That brings us to the exhaustion requirement’s historical
treatment—the one factor that, as a consequence of Woelke,
decidedly supports its status as jurisdictional. But the Supreme
Court has not reconsidered this provision of Section 10(e) in
the 40 years since that case, and, as the Sixth Circuit
recognized in Sysco Grand Rapids, 824 Fed. App’x at 356-57,
its refusal since Arbaugh to hold any exhaustion requirement
jurisdictional under the clear statement rule, see Santos-
Zacaria, 143 S. Ct. at 1112-13, portends a different outcome
when it does.18
In short, it is not clear that Section 10(e)’s exhaustion
requirement is properly considered jurisdictional at all, but if it
is, as the Board continues to assert, that only confirms the
propriety of a narrow—not expansive—interpretation in 29
C.F.R. § 102.46 and reinforces the need for the Board to
reconsider that regulation.
18 While not dispositive, I note that Congress has made
no effort to amend the NLRA to reflect a different
understanding. See Davis, 139 S. Ct. at 1849 (indicating the
Court may opt to “treat a requirement as ‘jurisdictional’ when
‘a long line of [its] decisions left undisturbed by Congress’
attached a jurisdictional label to the prescription” (quoting
Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs, 558 U.S.
67, 82 (2009)).

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ATTACHMENT A
29 U.S.C. § 160. Prevention of unfair labor practices
[ . . . ]
(e) Petition to court for enforcement of order; proceedings; review of judgment
The Board shall have power to petition any court of appeals of the United States, or if
all the courts of appeals to which application may be made are in vacation, any district
court of the United States, within any circuit or district, respectively, wherein the unfair
labor practice in question occurred or wherein such person resides or transacts business,
for the enforcement of such order and for appropriate temporary relief or restraining
order, and shall file in the court the record in the proceedings, as provided in section 2112
of title 28. Upon the filing of such petition, the court shall cause notice thereof to be
served upon such person, and thereupon shall have jurisdiction of the proceeding and of
the question determined therein, and shall have power to grant such temporary relief or
restraining order as it deems just and proper, and 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. 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 excused because of extraordinary circumstances. The findings of the
Board with respect to questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive. If either party shall apply to the court for leave
to adduce additional evidence and shall show to the satisfaction of the court that such
additional evidence is material and that there were reasonable grounds for the failure to
adduce such evidence in the hearing before the Board, its member, agent, or agency, the
court may order such additional evidence to be taken before the Board, its member,
agent, or agency, and to be made a part of the record. The Board may modify its findings
as to the facts, or make new findings by reason of additional evidence so taken and filed,
and it shall file such modified or new findings, which findings with respect to questions
of fact if supported by substantial evidence on the record considered as a whole shall be
conclusive, and shall file its recommendations, if any, for the modification or setting
aside of its original order. Upon the filing of the record with it the jurisdiction of the court
shall be exclusive and its judgment and decree shall be final, except that the same shall be
subject to review by the appropriate United States court of appeals if application was
made to the district court as hereinabove provided, and by the Supreme Court of the
United States upon writ of certiorari or certification as provided in section 1254 of title
28.
(f) Review of final order of Board on petition to court
Any person aggrieved by a final order of the Board granting or denying in whole or in
part the relief sought may obtain a review of such order in any United States court of
appeals in the circuit wherein the unfair labor practice in question was alleged to have
been engaged in or wherein such person resides or transacts business, or in the United

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States Court of Appeals for the District of Columbia, by filing in such a court a written
petition praying that the order of the Board be modified or set aside. A copy of such
petition shall be forthwith transmitted by the clerk of the court to the Board, and
thereupon the aggrieved party shall file in the court the record in the proceeding, certified
by the Board, as provided in section 2112 of title 28. 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), 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.

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ATTACHMENT B
29 C.F.R. § 102.46. Exceptions and brief in support; answering briefs to exceptions;
cross-exceptions and brief in support; answering briefs to cross-exceptions; reply
briefs; failure to except; oral argument; filing requirements; amicus curiae briefs.
(a) Exceptions and brief in support. Within 28 days, or within such further period as the
Board may allow, from the date of the service of the order transferring the case to the
Board, pursuant to § 102.45, any party may (in accordance with Section 10(c) of the Act
and §§ 102.2 through 102.5 and 102.7) file with the Board in Washington, DC, exceptions
to the Administrative Law Judge's decision or to any other part of the record or
proceedings (including rulings upon all motions or objections), together with a brief in
support of the exceptions. The filing of exceptions and briefs is subject to the filing
requirements of paragraph (h) of this section
(1) Exceptions. (i) Each exception must:
(A) Specify the questions of procedure, fact, law, or policy to which exception is taken;
(B) Identify that part of the Administrative Law Judge's decision to which exception is
taken;
(C) Provide precise citations of the portions of the record relied on; and
(D) Concisely state the grounds for the exception. If a supporting brief is filed, the
exceptions document must not contain any argument or citation of authorities in support
of the exceptions; any argument and citation of authorities must be set forth only in the
brief. If no supporting brief is filed, the exceptions document must also include the
citation of authorities and argument in support of the exceptions, in which event the
exceptions document is subject to the 50-page limit for briefs set forth in paragraph (h) of
this section.
(ii) Any exception to a ruling, finding, conclusion, or recommendation which is not
specifically urged will be deemed to have been waived. Any exception which fails to
comply with the foregoing requirements may be disregarded.
(2) Brief in support of exceptions. Any brief in support of exceptions must contain only
matter that is included within the scope of the exceptions and must contain, in the order
indicated, the following:
(i) A clear and concise statement of the case containing all that is material to the
consideration of the questions presented.
(ii) A specification of the questions involved and to be argued, together with a reference
to the specific exceptions to which they relate.

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(iii) The argument, presenting clearly the points of fact and law relied on in support of the
position taken on each question, with specific page citations to the record and the legal or
other material relied on.
(b) Answering briefs to exceptions. (1) Within 14 days, or such further period as the
Board may allow, from the last date on which exceptions and any supporting brief may be
filed, a party opposing the exceptions may file an answering brief to the exceptions, in
accordance with the filing requirements of paragraph (h) of this section.
(2) The answering brief to the exceptions must be limited to the questions raised in the
exceptions and in the brief in support. It must present clearly the points of fact and law
relied on in support of the position taken on each question. Where exception has been
taken to a factual finding of the Administrative Law Judge and the party filing the
answering brief proposes to support the Judge's finding, the answering brief must specify
those pages of the record which the party contends support the Judge's finding.
(c) Cross-exceptions and brief in support. Any party who has not previously filed
exceptions may, within 14 days, or such further period as the Board may allow, from the
last date on which exceptions and any supporting brief may be filed, file cross-exceptions
to any portion of the Administrative Law Judge's decision, together with a supporting
brief, in accordance with the provisions of paragraphs (a) and (h) of this section.
(d) Answering briefs to cross-exceptions. Within 14 days, or such further period as the
Board may allow, from the last date on which cross-exceptions and any supporting brief
may be filed, any other party may file an answering brief to such cross-exceptions in
accordance with the provisions of paragraphs (b) and (h) of this section. Such answering
brief must be limited to the questions raised in the cross-exceptions.
(e) Reply briefs. Within 14 days from the last date on which an answering brief may be
filed pursuant to paragraphs (b) or (d) of this section, any party may file a reply brief to
any such answering brief. Any reply brief filed pursuant to this paragraph (e) must be
limited to matters raised in the brief to which it is replying, and must not exceed 10
pages. No extensions of time will be granted for the filing of reply briefs, nor will
permission be granted to exceed the 10-page limit. The reply brief must be filed with the
Board and served on the other parties. No further briefs may be filed except by special
leave of the Board. Requests for such leave must be in writing and copies must be served
simultaneously on the other parties.
(f) Failure to except. Matters not included in exceptions or cross-exceptions may not
thereafter be urged before the Board, or in any further proceeding.
(g) Oral argument. A party desiring oral argument before the Board must request
permission from the Board in writing simultaneously with the filing of exceptions or
cross-exceptions. The Board will notify the parties of the time and place of oral

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argument, if such permission is granted. Oral arguments are limited to 30 minutes for
each party entitled to participate. No request for additional time will be granted unless
timely application is made in advance of oral argument.
(h) Filing requirements. Documents filed pursuant to this section must be filed with the
Board in Washington, DC, and copies must also be served simultaneously on the other
parties. Any brief filed pursuant to this section must not be combined with any other
brief, and except for reply briefs whose length is governed by paragraph (e) of this
section, must not exceed 50 pages in length, exclusive of subject index and table of cases
and other authorities cited.
(i) Amicus curiae briefs. Amicus curiae briefs will be accepted only by permission of the
Board. Motions for permission to file an amicus brief must state the bases of the movant's
interest in the case and why the brief will be of benefit to the Board in deciding the
matters at issue. Unless the Board directs otherwise, the following procedures will apply.
(1) The Board will consider motions to file an amicus brief only when: (a) A party files
exceptions to an Administrative Law Judge's decision; or (b) a case is remanded by the
court of appeals and the Board requests briefing from the parties.
(2) In circumstances where a party files exceptions to an Administrative Law Judge's
decision, the motion must be filed with the Office of the Executive Secretary of the Board
no later than 42 days after the filing of exceptions, or in the event cross-exceptions are
filed, no later than 42 days after the filing of cross-exceptions. Where a case has been
remanded by the court of appeals, the motion must be filed no later than 21 days after the
parties file statements of position on remand. A motion filed outside these time periods
must be supported by a showing of good cause. The motion will not operate to stay the
issuance of a Board decision upon completion of the briefing schedule for the parties.
(3) The motion must be accompanied by the proposed amicus brief and must comply with
the service and form prescribed by § 102.5. The brief may be no more than 25 pages in
length.
(4) A party may file a reply to the motion within 7 days of service of the motion. A party
may file an answering brief to the amicus brief within 14 days of issuance of the Board's
order granting permission to file the amicus brief. Replies to an answering brief will not
be permitted.
(5) The Board may direct the Executive Secretary to solicit amicus briefs. In such cases,
the Executive Secretary will specify in the invitation the due date and page length for
solicited amicus briefs, and the deadline for the parties to file answering briefs. Absent
compelling reasons, no extensions of time will be granted for filing solicited amicus
briefs or answering briefs.

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