                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 09 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NATIONAL LABOR RELATIONS                         No. 10-72651
BOARD,
                                                 NLRB No. 19-CA-32171
              Petitioner,

  v.                                             MEMORANDUM *

FRED MEYER STORES, INC.,

              Respondent.



NATIONAL LABOR RELATIONS                         No. 10-72652
BOARD,
                                                 NLRB No. 19-CA-32311
              Petitioner,

  v.

FRED MEYER STORES, INC.,

              Respondent.



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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted October 14, 2011 **
                                 Portland, Oregon

Before: EBEL,*** BERZON, and N.R. SMITH, Circuit Judges.

      In these two consolidated cases, the National Labor Relations Board (Board)

petitions for enforcement of its orders finding that Fred Meyer Stores, Inc. (Fred

Meyer) engaged in unfair labor practices in violation of the National Labor

Relations Act (Act). We have jurisdiction under 29 U.S.C. § 160(e). We grant the

Board’s applications for enforcement of its orders and deny Fred Meyer’s motions

to supplement the record.

      1. The Act generally bars judicial review of issues not raised during

proceedings before the Board. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

645, 665 (1982). The Act provides that, in a petition for enforcement, “[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). Fred Meyer did not show

that its failure to urge its objections before the Board was excused because of



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
               The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.

                                          2
extraordinary circumstances. See, e.g., NLRB v. Legacy Health Sys., 662 F.3d

1124, 1127 (9th Cir. 2011). Thus, we do not have discretion to review Fred

Meyer’s challenges to the Board’s decisions, because Fred Meyer did not raise its

challenges before the Board.

      2. The record in an action for enforcement of an NLRB order consists of the

order; any findings or reports upon which the order was based; and the pleadings,

evidence, and proceedings before the Board. See Fed. R. App. P. 16(a). That is,

the record in an enforcement proceeding before the Court of Appeals is the same as

the record before the agency. Id. Under Federal Rule of Appellate Procedure

16(b), parties may, by stipulation or by order of the court, supplement this record

“to supply any omission . . . or correct a misstatement.” However, absent

circumstances not present here, parties may not supplement the record with

evidence not presented to the agency in the first instance. See Sw. Ctr. for

Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). In

this case, the Board did not have the opportunity to consider the evidence with

which Fred Meyer seeks to supplement the record in both cases. Neither the Act

nor caselaw governing enforcement actions permits us to consider such evidence.

      A. While the Act does not permit us to supplement the record directly, it

does allow us to order the Board to take supplemental evidence, add it to the


                                          3
administrative record, and reconsider its decision based on the supplemented

record. See 29 U.S.C. § 160(e); L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1352

(9th Cir. 1980). However, we may issue such an order only if the “additional

evidence” a party seeks to introduce “is material and . . . there were reasonable

grounds for the failure to adduce such evidence . . . .” 29 U.S.C. § 160(e).

      Here, Fred Meyer has not shown that there were reasonable grounds for its

failure to adduce the evidence. In both cases, Fred Meyer could have adduced the

evidence to the Board (in motions for reconsideration) before the record was filed.

The Board filed its applications for enforcement with this court one day after the

Board issued its orders. However, that quick filing did not provide Fred Meyer

reasonable grounds for failure to adduce the evidence. The Board retained

concurrent jurisdiction with this court until the Board filed the records several

months later. See Legacy Health Sys., 662 F.3d at 1127; see also 29 U.S.C.

§ 160(e).

      B. An appellate court does have discretion to review evidence arising after

the Board issues an order, if that evidence may affect the propriety of enforcement

of the order. NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428 (1947).

The evidence offered by Fred Meyer in these cases, however, would not affect the

propriety of enforcement of the orders. Under Jones & Laughlin Steel, we may not


                                           4
review the evidence Fred Meyer seeks to offer, because any evidence of Fred

Meyer’s compliance with the orders would not render the Board’s orders moot.

See NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970). Thus, we deny Fred Meyer’s

motions to supplement the record, because the Federal Rules of Appellate

Procedure, the National Labor Relations Act, and the caselaw governing

enforcement actions do not permit us to consider the evidence Fred Meyer seeks to

offer.

         The Board’s applications for enforcement of its orders in 10-72651 and 10-

72652 are GRANTED. Fred Meyer’s motions to supplement the record in 10-

72651 and 10-72652 are DENIED.




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