United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2002 Decided October 25, 2002
No. 01-1242
International Union of Painters and Allied Trades,
Local Unions No. 970 and 1144, AFL-CIO-CLC,
Petitioners
v.
National Labor Relations Board,
Respondent
Consolidated with
01-1323
On Petition for Review and Application for
Enforcement of an Order of the
National Labor Relations Board
Forrest H. Roles argued the cause and filed the briefs for
W.R. Mollohan, Inc.
Joseph E. Kolick, Jr. argued the cause for International
Union of Painters and Allied Trades, Local Unions No. 970
and 1144, AFL-CIO-CLC. With him on the brief was Kir-
sten Lea Doolittle.
David A. Fleischer, Senior Attorney, National Labor Rela-
tions Board, argued the cause for the Board. With him on
the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and Fred L. Corn-
nell, Jr., Supervisory Attorney. Frederick Havard, Superviso-
ry Attorney, and Jill A. Griffin, Attorney, National Labor
Relations Board, entered appearances.
Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: This case arises from the
refusal of an employer to enter into and abide by a collective
bargaining agreement ("CBA") negotiated with various un-
ions (collectively, the "union"). The employer claimed that it
had not authorized the negotiators and therefore was not
bound by the agreement; it also argued that the union's
failure to have obtained majority status excused the employ-
er's non-compliance. The National Labor Relations Board
rejected these arguments. See W.R. Mollohan, Inc., 333
NLRB No. 162, 2001 WL 497324, at *1, *3 (2001). The
employer also claimed that two clauses of the agreement
violated the National Labor Relations Act. The Board reject-
ed one such claim and accepted the other, relating to the
"successorship clause." Id. at *2. But it ruled that the
allegedly defective language in that clause was severable and
therefore did not justify the employer's refusal to abide by
the agreement. Id. at *3. On petitions for review by the
employer and the union (relating, in the case of the latter,
only to the successorship clause), and a cross-application by
the Board for enforcement, we reject the employer's claims
but accept that of the union. We thus grant the Board's
application for enforcement except with regard to its order's
deletion of language from the successorship clause.
Because there is little overlap between the issues relating
to the negotiations and majority status on the one hand, and
to the two disputed clauses on the other, we address them
separately.
Our review is governed by s 10(e) of the Act, 29 U.S.C.
s 160(e), and the Administrative Procedure Act. The Board's
factual findings "shall be conclusive" if supported by substan-
tial evidence. 29 U.S.C. s 160(e). Its reasonable interpreta-
tions of the Act are entitled to deference under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-45 (1984). Board interpretations of the CBA,
however, receive no deference. Litton Fin'l Printing Div. v.
NLRB, 501 U.S. 190, 202-03 (1991).
* * *
W.R. Mollohan, Inc. is in the business of painting and
repainting bridges, overpasses, and tunnels on federal and
state highways. For many years, Mollohan signed union
contracts negotiated by the Charleston Chapter of the Paint-
ing and Decorating Contractors of America ("the Associa-
tion"), which represented several area employers in collective
bargaining negotiations with the union. Mollohan's Vice
President of Operations, Joe Beam, was president of the
Association and served on its negotiating committee. The
Association negotiated the contract preceding the one now in
dispute, which Beam then signed on behalf of the company.
In March 1998 the union expressed its desire to negotiate a
new contract by sending a letter to the Association. Beam, in
his capacity as president of the Association, sent a similar
letter to the union expressing the Association's desire to
negotiate as well. At the first bargaining session, Beam and
Association Secretary-Treasurer Ken Bowen told the union
that they were representing seven named employers, includ-
ing Mollohan. Negotiations began.
Beam resigned from the negotiating committee in the
course of the negotiations, but didn't indicate that Mollohan
was withdrawing authority from the Association to bargain on
its behalf. About 10 days later, on April 28, 1998, the union
and the Association reached agreement on a new CBA,
subject to ratification by the union's membership, which
followed in due course.
On May 8 Mollohan notified the Association and the union
that it was withdrawing authorization from the Association to
bargain on its behalf. The union took the position that the
company was already bound, and asked Mollohan to sign.
Mollohan refused and, without bargaining with the union,
ceased making contractually required payments to several
funds, and instead began depositing employee pension funds
into an escrow account.
Acting on separate charges filed by the union, the Board's
General Counsel issued a consolidated complaint alleging that
Mollohan had violated ss 8(a)(1), (5) of the Act, 29 U.S.C.
s 158(a)(1), (5), by these and related acts of non-compliance
with the agreement. Besides its claim that the negotiators
lacked authority, Mollohan argued that the agreement was
invalid because two of its clauses violated the Act, thus
excusing Mollohan's non-compliance.
After a hearing, the Administrative Law Judge issued a
decision entirely rejecting Mollohan's claims. It didn't have
to consider severability, as it found the two challenged clauses
not violative of the Act.
The Board affirmed the ALJ's findings of violations, hold-
ing that the Association had apparent authority to bind the
company. Mollohan, 333 NLRB No. 162, 2001 WL 497324, at
*1. Contrary to the ALJ, however, the Board found that
some language in the successorship clause violated s 8(e) of
the Act, and accordingly it modified the ALJ's recommended
order to require that Mollohan execute and abide by the
contract only after deletion of the unlawful language. Id. at
*2-*3.
First, we reject Mollohan's argument that the Board's
finding of apparent authority was not supported by substan-
tial evidence. As both the ALJ and the Board discussed at
length in their opinions, the Association told the union, in the
presence of company representatives, that it represented the
company, and the company did not purport to revoke that
authority until after the agreement was reached. Id. at *1.
Thus the Board's conclusion that the Association had appar-
ent authority to bind Mollohan is supported by substantial
evidence.
Although the company argues that the Board erred in
deciding the case on an issue, apparent authority, that it says
was not litigated before the ALJ, Employer's Br. at 13,
Mollohan failed to raise the argument before the Board.
Thus we lack jurisdiction. 29 U.S.C. s 160(e) ("No 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."). Mollohan's attempted parry--that it could
not raise the claim because it didn't know that the Board
would adopt that theory until it issued its decision--doesn't
work. Mollohan could have raised the point in a petition for
reconsideration. International Ladies' Garment Workers'
Union v. Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975).
Second, although Mollohan appears to accept the general
validity of the Board's rule that the company could not
repudiate the agreement simply because the union had not
attained majority status, John Deklewa & Sons, 282 NLRB
1375, 1385 (1987) ("Deklewa"), enforced sub nom. Interna-
tional Ass'n of Bridge, Structural & Ornamental Iron Work-
ers v. NLRB, 843 F.2d 770, 775-780 (3d Cir. 1988), it argues
that the Board erred in not creating an exception to that rule.
Section 8(f) of the Act permits a construction industry
employer and a union to enter into a contract even though
"the majority status of such [union] has not been established
... prior to the making of such agreement." 29 U.S.C.
s 158(f). The parties here pursued that course. The Board
applied the interpretation of s 8(f) that it adopted in Dekle-
wa, under which an employer may not unilaterally repudiate a
pre-hire agreement unless the employees have voted to decer-
tify the union or change their bargaining representative. See
Mollohan, 333 NLRB No. 162, 2001 WL 497324, at *3.
In Deklewa the Board changed course from an earlier
interpretation that had allowed repudiation of s 8(f) agree-
ments at any time before the union gained majority status.
The Deklewa Board found that the prior interpretation was
not supported by the text or legislative history of the Act, and
had caused disruption and instability because "neither the
parties to the agreement nor the employees working under it
can know with any degree of certainty what their respective
rights and obligations are at any given time." Deklewa, 282
NLRB at 1383. In fact, the Board found that the right to
repudiate a s 8(f) agreement was "so antithetical to tradition-
al principles of collective-bargaining under the Act" that it
was "likely that Congress would have expressly stated such a
right if it intended to create one." Id. at 1381. So it held
that both parties to a s 8(f) agreement are required by
ss 8(a)(5) and 8(b)(3) "to comply with that agreement unless
the employees vote, in a Board-conducted election, to reject
(decertify) or change their bargaining representative." Id. at
1385. The Third Circuit enforced the Deklewa ruling, finding
it to be a reasonable and permissible construction of the Act.
843 F.2d at 775-80.
Mollohan does not here argue that the Board's Deklewa
rule is an unreasonable interpretation of the Act. In fact, the
company expressly "acknowledges the soundness of the
Board's ... argument that the Board has authority to adopt
reasonable interpretations of the Act, to which this Court
must give deference, even when the Board has changed its
mind in an effort to better effectuate those policies." Emp.
Reply Br. at 4. Instead, Mollohan suggests that we should
not approve the Board's reliance on Deklewa, in certain
circumstances, i.e., "in a case like this one where its applica-
tion is critical." Emp. Br. at 19.
In light of the company's limited argument, we have no
need to rule upon the reasonableness of the Deklewa inter-
pretation as a whole. The narrower claim for an exception
builds on the proposition that application of a generally valid
rule may prove invalid in a case presenting special circum-
stances. See, e.g., WAIT Radio v. Federal Communications
Comm'n, 418 F.2d 1153, 1157-58 (D.C. Cir. 1969). But here
Mollohan has pointed to no specific facts that distinguish it
from any other situation in which a party to a s 8(f) agree-
ment might wish to repudiate the agreement. So far as
appears, its argument is simply that the "application is criti-
cal" in the sense that it is outcome-determinative; obviously
an exception for that circumstance would obliterate the rule.
The employer also argues that we should apply the Board's
pre-Deklewa interpretation of the Act because "this case
arose within the jurisdiction of the Fourth Circuit," Employ-
er's Brief at 20, which appears to be the only circuit to resist
the Board's attempt to implement its Deklewa interpretation.
See Industrial Turnaround Corp. v. NLRB, 115 F.3d 248
(4th Cir. 1997). But the argument is to some degree inconsis-
tent with Mollohan's failure to claim that the Deklewa rule is
invalid. To the extent that Mollohan asks us to create special
circuit law depending on the geographic origins of a case, it
asks us--with no precedential support, unsurprisingly--to
abandon the federal circuits' normal task of trying to deter-
mine federal law as correctly as possible. See, e.g., In re
Korean Air Lines Disaster of September 1, 1983, 829 F.2d
1171, 1176 (D.C. Cir. 1987) ("The federal courts spread across
the country owe respect to each other's efforts and should
strive to avoid conflicts, but each has an obligation to engage
independently in reasoned analysis. Binding precedent for
all is set only by the Supreme Court...."); compare Hill v.
Henderson, 195 F.3d 671, 678 (D.C. Cir. 1999) (discussing
special situation where one circuit's "law of the case" is to be
honored by another). Mollohan's other arguments against
Deklewa, raised for the first time in its reply brief, are
waived.
* * *
We now turn to the validity of specific clauses in the CBA.
First is the preservation-of-work clause.
In a very obliquely expressed argument, Mollohan contends
that the preservation-of-work clause is invalid because, it
says, "it applies ... to work of a type not performed by the
Employer." Emp. Br. at 17. Mollohan offers no analysis,
merely citing the dissent of Board member Hurtgen from the
Board decision, Mollohan, 333 NLRB No. 162, 2001 WL
497324, *2, n.11., a dissent that in turn simply cites his own
dissent in Carpenter's District Council of New York City
(Mfg. Woodworkers Ass'n.), 326 NLRB 321, 328-29 (1998)
(Hurtgen dissent), which in turn points us to two other cases,
see id. at 328 (Hurtgen dissent) ("The more particularized
rationale for my position is to be found in the Manganaro
dissent and in Alessio."). A litigant must do more than
simply point to the beginning of a string of incorporations by
reference and ask the court to discern which arguments he
seeks to advance. This is particularly true where, as here,
the incorporated arguments involve contract language that
differs from case to case and in all instances from the text of
the clause in this case. In order to prompt a ruling from this
court, Mollohan needed to at least make a rudimentary
argument explaining how the words of this contract conveyed
an illegal meaning. As Mollohan has failed to do so, it would
be irresponsible for us to interpret the language. Thus we
cannot find that the preservation-of-work clause violates
s 8(e).
The remaining issue is posed by the successor clause. Its
key parts are as follows:
In the event the Employer's business is, in whole or in
part, sold, leased, transferred, or taken over by sale,
transfer, lease, assignment, receivership, or bankruptcy
proceedings, such business and operation shall continue
to be subject to the terms and conditions of this Agree-
ment for the life thereof.
It is understood by this provision that the parties
hereto shall not use any leasing or other transfer device
to a third party to evade this Agreement....
In the event the Employer fails to require the pur-
chase, transferee, or lessee to assume the obligations of
this Agreement, the Employer (including partners there-
of) shall be liable to the Union, and to the employees
covered for all damages sustained as a result of such
failure to require assumption of the terms of this Agree-
ment, but shall not be liable after the purchaser, or
lessee has agreed in writing to assume the obligations of
this Agreement.
J.A. at 245-46. Mollohan's complaint, which the Board ac-
cepted, is that the clause violates s 8(e) of the Act insofar as
it covers leases. Section 8(e) provides in relevant part:
It shall be an unfair labor practice for any labor organi-
zation and any employer to enter into any contract or
agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from
handling, using, selling, transporting or otherwise deal-
ing in any of the products of any other employer, or to
cease doing business with any other person, and any
contract or agreement entered into heretofore or hereaf-
ter containing such an agreement shall be to such extent
unenforceable and void....
29 U.S.C. s 158(e). The section is designed to eliminate
secondary boycotts, i.e., union attempts to pressure neutral
employers to stop doing business with other businesses in-
volved in labor disputes. See National Woodwork Mfrs.
Assoc. v. NLRB, 386 U.S. 612 (1967). Section 8(e) does not,
however, reach "primary" provisions, i.e., those encompassing
"employees' activity to pressure their employer to preserve
for themselves work traditionally done by them." Id. at 635
(emphasis added).
The Board noted that it "has generally considered a lease
to be a form of 'doing business' within the meaning of Section
8(e)," and that because the clause applies "regardless of
whether the unit employees are retained," it "exceeds the
legitimate primary purpose of protecting unit work and is
directed at the secondary purpose of furthering union objec-
tives elsewhere." Mollohan, 333 NLRB No. 162, 2001 WL
497324, *2.
But the clause in question is a successorship clause, explic-
itly said to take effect only when "the Employer's business is,
in whole or in part" transferred to another entity. Moreover,
as the ALJ correctly noted, the clause itself refers to efforts
to use a lease transfer "to evade this Agreement." Id. We
think it clear that the clause is designed to protect the
employees' legitimate and primary interest in retaining the
benefits of the CBA in the event of a transfer--as it says--of
the "business." The Board's argument that the clause is
secondary because it applies "regardless of whether unit
employees are retained," Mollohan, 333 NLRB No. 162, 2001
WL 497324, at *2, not only overlooks the clause's limited
trigger (transfer in whole or in part of the employer's "busi-
ness"), but it proves too much, as the same reasoning would
doom the sale language, which the Board finds acceptable.
We therefore reverse the Board's finding that the leasing
language of the successorship clause must be excised as
unlawful.
* * *
Thus we reject all of the employer's claims but grant the
union's petition with respect to the successorship clause, and
we grant the Board's application for enforcement except with
regard to that clause.
So ordered.