                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 26 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED FOOD AND COMMERCIAL                       No.   14-70771
WORKERS UNION LOCAL NOS. 135,
324, 770, 1036, 1167, 1428, 1442,                NLRB No. 31-CA-27160

              Petitioner,
                                                 MEMORANDUM*
 v.

NATIONAL LABOR RELATIONS
BOARD,

              Respondent.



RALPHS GROCERY COMPANY,                          No.   14-71004

              Petitioner,                        NLRB No. 31-CA-27160

 v.

NATIONAL LABOR RELATIONS
BOARD,

              Respondent.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NATIONAL LABOR RELATIONS                       No.    14-71202
BOARD,
                                               NLRB No. 31-CA-027160
             Petitioner,

 v.

RALPHS GROCERY COMPANY,

             Respondent.


                     On Petition for Review of an Order of the
                         National Labor Relations Board

                     Argued and Submitted February 10, 2016
                             Deferred June 7, 2016
                        Resubmitted September 22, 2016
                              Pasadena, California

Before: TROTT, DAVIS,** and OWENS, Circuit Judges.

      Ralphs Grocery Company (“Ralphs”) petitions for review of a National

Labor Relations Board (“Board”) final Supplemental Decision and Order dated

March 13, 2014, adopting and affirming Administrative Law Judge Kocol’s

October 24, 2012 adverse Supplemental Decision regarding Ralphs’ waiver of

attorney-client privilege in its dispute with the United Food and Commercial

Workers Union (“Union”) and various local chapters. Ralphs also challenges a


        **
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
                                         2
Board interim order reopening “Ralphs II,” dated April 17, 2012, which paved the

way for Judge Kocol’s decision. Ralphs argues that the Order was not legally

susceptible to ratification.

       The Union petitions for review of the Board’s final Order because the Order

did not award the Union litigation expenses, a claim the Union did not raise before

the Board.

       The Board cross-petitions for enforcement of its March 13, 2014 final Order.

       We exercise jurisdiction over this petition pursuant to our holding in

Consumer Financial Protection Bureau v. Gordon, 819 F.3d 1179 (9th Cir. 2016).

       Because the parties are familiar with the contours of this protracted and

labyrinthian controversy, which began in 2003, we repeat its facts and

circumstances only as necessary to explain our conclusions.

       The alleged procedural and constitutional Article II Appointments Clause

defects that Ralphs brings to our attention leading up to the challenged final Order

of March 13, 2014, were cured when a properly constituted and valid Board

affirmed and adopted, “with slight modifications,” Judge Kocol’s disputed

Supplemental Decision, rulings, findings, and conclusions. As we held in Gordon,

“a ratification is valid even if the principal did not have capacity to act at the time,

so long as the person ratifying has the capacity to act at the time of ratification[.]”


                                            3
Id. at 1191 (citations omitted). We note that the only action taken by the

challenged recess appointees was to grant the Union’s motion for reconsideration.

At the time, Ralphs did not object. A properly constituted Board subsequently

ratified and affirmed by implication the decision to reopen.

         On the merits, the Board’s comprehensive findings are fully supported by

substantial evidence, and its challenged decisions on all of Ralphs’ issues are

supported by the evidence and were well within its discretion. The Board’s work

is free from legal error. Consequently, Ralphs’ petition is denied.

         The Union’s assertion -- admittedly for the first time “on appeal” -- that the

Board should have ordered Ralphs to reimburse it for litigation expenses is

jurisdictionally barred because (1) the Union did not raise this claim before the

Board, and (2) it has not demonstrated “extraordinary circumstances” excusing its

failure to do so. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,

665-66 (1982); 29 U.S.C. § 160(e). Consequently, we deny the Union’s request to

remand this matter to the Board for further proceedings.

         In light of our conclusions, we deny Ralphs’ petition for review.

         We dismiss as jurisdictionally barred the Union’s petition for review.

         We grant in full the Board’s petition for enforcement of its March 13, 2014

Order.


                                             4
The parties shall bear their own costs of these petitions.




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