the District of Columbia Circuit considers “the ‘covered by’ and ‘waiver’ inquiries ... analytically distinct: A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter; but where the matter is covered by the [CBA], the union has exercised its bargaining right and the question of waiver is irrelevant;” Id. III. In the case before us, the Board avoided-the controversy surrounding the applicable standard when a union alleges a § 8(a)(5) unilateral change and the employer defends with contractual privilege by determining sua sponte that the General Counsel alleged only a § 8(d) contract modification. Bath Iron Works Corp., 345 N.L.R.B. No. 33, at 3. The Unions argue th Mfg. Co., 420 U.S. 276, 281 n. 3, 95 S.Ct. 972, 43 L.Ed.2d 189 (1975) (<HOLDING>). Section 10(e) does not, however, “deprive the
holding that even a remand by the supreme court for reconsideration in light of an intervening court opinion does not require the court to consider an argument raised for the first time in a petition for certiorari holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration holding that motion for reconsideration would be construed not as a rule 60b motion but rather as an unauthorized successive motion under  2255 which the district court may have been without jurisdiction to consider holding that the board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented holding that the court of appeals lacked jurisdiction to consider whether the board had erred in finding that certain picketing was lawful because no party had raised the issue to the board either during the initial proceedings or on motion for reconsideration