21

- 71 NLRB

. v. Laborers’ Int’ l Union , Loc

. Union No. 91 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CIT ING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on th e 15 th day of February , two thousand twenty

- t hree

. PRESENT: BARRINGTON D. PARKER , RICHARD J. SULLIVAN , EUNICE C. LEE , Circuit Judges

.

_____________________________________ N ATIONAL L ABOR R ELATIONS B OARD , Petitioner,
v. No. 21

- 71 L ABORERS ’ I NTERNATIONAL U NION OF N ORTH A MERICA , L OCAL U NION N O
. 91 , Respondent

.

_____________________________________2 For Petitioner : Kira Dellinger Vol, Supervisory Attorney, Milakshmi V. Rajapakse, Attorney, Peter Sung Ohr , Acting General Counsel, Iva Y. Choe, Acting Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, Davi d Habenstreit, Assistant General Counsel, National Labor Relations Board , Washington , DC.
F or Respondent : Robert L. Boreanaz, Joseph L. Guza, Lipsitz Green Scime Cambria LLP, Buffalo , NY.

On application for enforcement of a decision and order of the National
Labor Relations Board

. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the application for enforcement is
GRANTED

. The National Labor Relations Board (the “NLRB , ” or the “Board” ) seeks
enforcement of its Octob er 28, 2020 decision and order affirm ing and adopt ing ( with amendment ) the June 28, 2019 decision of an Administrative Law Judge ( the “ALJ”), wh ich found th at the Laborers’ International Union of North America, Local Union No. 91 (the “Union”) had committed multiple violations of s ection 8(b)(1)(A) of the National Labor Relations Act (the “Act”) , 29 U.S.C. § 158(b)(1)(A),3 by engaging in retaliatory conduct against u nion members Duane Korpolinski and
Frank Mantell. In opposition to the NLRB’s application for enforcement, the
Union raises a series of challenges to the NLRB’s decision

. We assume the parties’ familiarity with the underlying facts, procedural history, a nd issues relevant to the application for enforcement

.

“ Factual findings of the Board will not be disturbed if they are supported by substantial evidence in light of the record as a whole , ” which means “such relevant evidence as a reasonable mind might a ccept as adequate to support a conclusion.” NLRB v. Starbucks Corp. , 679 F.3d 70, 77 (2d Cir. 2012) (citation omitted). Furthermore, “ [ l ] egal conclusions based upon the Board ’ s expertise should receive, pursuant to longstanding Supreme Court precedent, c onsiderable
deference.” Id. ( internal quotation marks omitted ). We address each of the Union’s contentions in turn.
First , the Union contends that the Board lacked substantial evidence for its finding that one of Korpolinski’s charge s – specifically , the one alleging that the
Union ’s business manager , Richard Palladino , consistently failed to refer Korpolinski for jobs from the out

- of

- work list

– was timely

. Section 10(b) of the Act provides that “no complaint shall issue based upon any unfair labor practice4 occurring more than six months prior to the filing of the charge with the Board

. ” 29 U.S.C. § 160(b). T he Board has interpreted the s ection

- 10(b) limitations period to begin to run once the charging party has “clear and unequivo cal notice, either actual or constructive, of an unfair labor practice

. ” Sp. App’x at 16 (internal quotation marks omitted) ; see also NLRB v. Glover Bottled Gas Corp. , 905 F.2d 681, 684 (2d Cir. 1990) (discussing the unequivocal

- notice rule) . Actual or c onstructive knowledge “may be ascribed where the conduct was sufficiently open and obvious to provide clear notice and/or where the party would have discovered the violation had it exercised reasonable diligence

. ” Sp. App’x at 16 (internal quotation marks omitted). Applying th is legal framework

– which neither party contests

– the Board reasonably determined that Korpolinski did not have actual or constructive knowledge of the retaliatory lack of referrals more than six months prior to filing his charge in July 2017

. To be sure, it is undisputed that , prior to January 2017, Korpolinski knew he had not been referred for work by the Union since November 2015, had access to the out

- of

- work r eferral lists , a nd could observe during his regular visits to the hiring hall whether other U nion members seemed to be working

. Nevertheless, the Board had ample basis to conclude that it w as neither5 obvious nor discoverable through reasonable diligence t hat Palladino was impermissibly bypassing Korpolinski on the list , particularly since there were many
referral

- rule exceptions pursuant to which Palladino might permissibly make
referrals out of order

. On this record, we cannot say the Board’s factual finding regarding notice , and thus the timeliness of Korpolinski’s refusal

- to

- refer charge, is inadequately supported

. See Encore Event Techs., LLC , 371 N

. L

. R

. B

. No. 161 , slip op. at 2 ( Sept. 30, 2022) ( “[A] charging party ’ s delay in filing an unfair labor practice charge will not bar a charge when the delay is a consequence of

. . . ambiguous conduct by the other party.” (internal quotation marks omitted)). 1 Second , a lso pertaining to Korpolinski’s refusal

- to

- refer charge, the Union
argues (1) that the ALJ and Board should have applied a modified version of the
framework laid out in Wright Line , a Div. of Wright Line, Inc. , 251 N.L.R.B. 1083 (1980), and required the NLRB General Counsel to prove as p art of his prima facie case that Korpolinski was eligible for the referrals that he was refused ; and (2) that the Board lacked substantial evidence for its finding that Palladino’s failure to refer Korpolinski was motiv at ed by his support for Mantell , give n that other members

1 Contrary to the Union’s assertions, this finding is not inconsistent with other NLRB precedent. See, e.g. , Loc

. 25, Int’l Bhd. of Elec. Workers , 321 N.L.R.B. 498, 499

– 501 (1996) (finding that the charging party in an exclusive hiring

- hall had notice of a violation when at least three fellow members explicitly told her of an out

- of

- order referral).6 were often bypassed along with Korpolinski

. In its exceptions to the Board , however, the Union did not raise either of these arguments ; instead , it stated generally that “the record clearly demonstrates that [the Union] has only
confo rmed with its own referral rules and never referred work based on animosity towards protected activity

. ” J. App’x at 1610. A s a result , we find that we lack jurisdiction to consider the se challenges presented for the first time in opposition
to the NLRB’ s application for enforcement

. See 29 U.S.C. § 160(e) (“ 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. ”) ; NLRB v. Consol

. Bus Transit, Inc. , 577 F.3d 467, 474 n.2 (2d Cir. 2009) (“ [ W ] e ‘lack jurisdiction to review objections that were not urged before the Board.’” (quoting Woelke & Romero Framing, Inc. v. NLRB , 456 U. S. 645, 666 (1982)) )

. 2

2 To the extent that the Union’s exception c ould be construed to have preserved our jurisdiction, we note that both argument s would fail on the merits . First, even if we assume d that the Union is legally correct that the NLRB General Counsel was required to prove as part of its prima facie case that Korpolinski was eligible for referrals, the record is replete with evidence that Korpolinski was eligible for many of the jobs for which he was bypassed. Second, the fact that others were also bypassed on occasion neither logically preclude s , nor undermines the substantial

- evidence support for, a finding that the Union continuously bypassed Korpolinski out of animus for his support of Mantell

.7 Third , the Union contends that the Board lacked substantial evidence for its finding that Palladino t hreatened Korpolinski , in violation of s ection 8(b)(1)(A) of
the Act , when Palladino told him that the Union would sue him to recov er legal fees if he made false statements or charges to the NLRB. Although t he ALJ ’s finding did rest on Korpolinski’s uncorroborated testimony concerning the
statements made by Palladino

– statements Palladino denie d making

– the ALJ also made extensive credibility findings, which the Board adopted, explaining precisely why she found Korpolinski’s account of the conversation to be more credible than Palladino’s

. Because th at credibility determination is neither “incredible” nor “flatly co ntradicted by undisputed documentary testimony,” we must accept it and conclude that substantial evidence supports the finding that
Palladino made the threats described by Korpolinski

. NLRB v. Newark Elec. Corp. , 14 F.4th 152, 169

– 70 (2d Cir. 2021) (citat ion omitted )

. Fourth , and finally, the Union asserts that the Board lacked jurisdiction over Korpolinski’s and Mantell’s charges alleging their removal for extended periods
of time from the out

- of

- work referral list, as those allegations related to interna l U nion disciplinary matters insulated from Board review

. See 29 U.S.C. § 158(b)(1)(A)

. But this argument rests on a faulty factual premise. The Board8 reasonably found that when Pal l adino removed Korpolinski and Mantell from and/or kept them off the out

- of

- work referral list, he was not in fact disciplin ing
them for violations of the Union’s referral rules

– but r ather, engag ing in ad hoc retaliation for Mantell’s prior criticism of Palladino and Korpolinski’s support of
Mantell , and us ing the alleged referral

- rule violations as a pretext

. Such actions are firmly within the purview of the Board. See, e.g. , Sheet Metal Workers Loc. 104 , 311 N.L.R.B. 99, 105

– 06 (1993) ( applying Wright Line framework to cases in which

a union is alleged to have discriminated against a member, even where discrimination is purportedly discipline ) ; c f. Breininger v. Sheet Metal Workers Int’l Ass’n Loc

. Union No. 6 , 493 U.S. 67, 91

– 92 & n.15 (1989) ( in the context of the Labor

Management Repo rting and Disclosure Act, holding that “ Congress ’ reference to punishments typically imposed by the union as an entity through established procedures indicates that Congress meant ‘ discipline ’ to signify penalties applied by the union in its official capac ity rather than ad hoc retaliation by individual
union officers ” )

.

* * *9 We have considered the Union’s remaining arguments and find them to be
without merit

. Accordingly , the application for enforcement is GRANTED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court