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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2003 Decided July 8, 2003
No. 01-1456
INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES,
GREATER NEW ORLEANS STAGE, MOTION PICTURE,
TELEVISION AND EXHIBITION EMPLOYEES,
LOCAL 39, AFL–CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
FREEMAN DECORATING COMPANY, ET AL.,
INTERVENORS
Consolidated with
01–1504, 01–1509, 02–1035
On Petitions for Review and Cross–Applications
for Enforcement of an Order of the
National Labor Relations Board
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Philip A. Franco and Curtis Mack argued the cause for
petitioners Freeman Decorating Company, et al. With them
on the briefs were William J. Kelly III, William Lurye,
Dannie B. Fogleman and David A. Rosenberg. Robert Mar-
kle, Richard B. Hankins and Peter J. Petesch entered ap-
pearances.
James D. Fagan, Jr. argued the cause and filed the briefs
for petitioner International Alliance of Theatrical and Stage
Employees, Greater New Orleans Stage, Motion Picture,
Television and Exhibition Employees, Local 39, AFL–CIO.
Robert S. Giolito entered an appearance.
James M. Oleske, Jr., Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Robert J. Englehart,
Supervisory Attorney.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Separate opinion filed by Circuit Judge TATEL concurring
in part and dissenting in part.
SENTELLE, Circuit Judge: Several parties petition for re-
view of the National Labor Relations Board’s (NLRB or the
Board) ruling that the petitioning employers in this case
committed an unfair labor practice by refusing to accept
referrals from a local union hiring hall, after the union
engaged in an illegal strike. We reverse the Board and hold
that the hiring hall registrants lost the protection of the
National Labor Relations Act (NLRA or Act) when the union
engaged in an illegal strike. Central to this conclusion, we
hold that each hiring hall registrant was an ‘‘employee who
engage[d] in a strike’’ within the meaning of Section 8(d) of
the Act, 29 U.S.C. § 158(d) (2000), regardless of whether the
registrant was on referral to an employer at the time the
strike was called.
3
I. Background
This petition involves nine employers (Employers)1 and two
unions (Local 39 and the Carpenters),2 each of which chal-
lenges the Board’s ruling. The Employers provide installa-
tion, decorating, and related services for conventions held in
the New Orleans area. Prior to July 1, 1997, Local 39 had
individual contracts with approximately eighty employers,
including the Employers involved in this petition. These
contracts provided that the signatory Employers would hire
workers in the New Orleans area exclusively from Local 39’s
hiring hall. Pursuant to the contract, when one of the
Employers needed labor, it called Local 39’s hiring hall.
Local 39 then called individuals on its referral list to attempt
to fill the request. Employees were not allowed to contact
Employers directly to solicit work. The hiring hall had a
registry of 446 journeymen, who were eligible for member-
ship in Local 39, and 1,885 ‘‘helpers’’ who were not eligible for
membership. Anyone registered with the hiring hall could be
referred to any of the signatory Employers, but a number of
the registrants had never been referred to any of the Em-
ployers involved in this case. Due to the transitory nature of
the convention business, individual employees would often be
referred to an Employer for short periods of time, sometimes
only a single day.
Local 39’s contracts with the Employers were set to expire
on June 30, 1997. In April 1997, Local 39 sent timely notice
to the Employers of its intent to renegotiate the contracts,
and bargaining ensued. However, the parties did not reach
1 Freeman Decorating Co., GES Exposition Services, Inc., Con-
vention Service, Inc. of Pennsylvania, Expo Services, Sho–Aids,
Inc., Czarnowski Display Services, Inc., Renaissance Management.,
Inc., Zenith Labornet, Inc., and W.H. Bower Spangenberg, Inc.
(represented in this petition by its trustee in bankruptcy).
2 International Alliance of Theatrical and Stage Employees,
Greater New Orleans Stage, Motion Picture and Exhibition Em-
ployees, Local 39, AFL–CIO (Local 39) and the United Brotherhood
of Carpenters and Joiners of America, Louisiana Carpenters Re-
gional Council, AFL–CIO (Carpenters).
4
an agreement, and the contracts expired without successor
agreements on June 30, 1997. On that date, at a meeting
attended by 126 of its members, Local 39 voted to go on
strike against the Employers on July 1. At the time of the
strike, only three hiring hall registrants were on referral to
one of the Employers, and none of these three is an alleged
discriminatee in this case.
By July 2, Local 39 had set up picket lines. For the next
three weeks, Local 39 did not refer any of its hiring hall
registrants to the Employers. Despite calls for labor, none of
the hiring hall registrants worked for any of the Employers
or attempted to disassociate themselves from the strike.
Consequently, the Employers were left with no source of
labor during a busy convention that began several days after
the strike. Bargaining continued during the strike and sever-
al contract offers were exchanged and rejected.
Through inquiries with the Federal Mediation and Concilia-
tion Service (FMCS), the Employers learned that Local 39
had failed to file a dispute notice with the FMCS thirty days
before calling a strike, as required by Section 8(d)(3) of the
NLRA, 29 U.S.C. § 158(d)(3). It is undisputed that Local
39’s failure to file the required notice made its strike illegal
under Section 8(d)(4) of the Act.
On July 22, 1997, six of the Employers faxed a ‘‘Notice of
Termination’’ to Local 39, which stated that ‘‘all employees
covered under the Local 39 Labor Agreement with any of the
signatory employers indicated below are hereby terminated
for participating in an illegal strike.’’ Within the week, the
six Employers mailed copies of the termination notice to over
2,600 individuals represented by Local 39, including anyone
who had ever been referred to a job by the Local 39 hiring
hall.
On July 23 or 24, Local 39 attempted to accept any contract
offer that was still on the table from the largest Employer,
GES, but was informed that GES no longer recognized Local
39 and had terminated all ‘‘Local 39 employees.’’ On July 26,
Local 39 sent a letter to all of the Employers purporting to
end its economic strike and attempting to accept the Employ-
5
ers’ contract proposal it had rejected in mid-July. The
Employers responded that the contract proposal had been
withdrawn, that they had no obligation to bargain with Local
39, and that all strikers had been terminated.
Three of the Employers–Zenith, Renaissance, and Eagle–
did not sign the July 22 termination letter, but sent similar
letters to Local 39 in August. They did not, however, send
copies of their letters to the hiring hall registrants, and Local
39 submitted a request to Zenith and Eagle asking for the
names of the individuals affected by the termination notices.
Zenith and Eagle refused to provide that information.
In late 1997, Freeman and GES, the two largest Employ-
ers, signed contracts with the Carpenters Union, which also
operates a hiring hall, to replace Local 39 as their labor
source. In early 1998, in preparation for the Board hearing
in this case, an attorney for GES contacted a number of the
hiring hall registrants who had received termination letters
and questioned them over the telephone.
Local 39 filed an unfair labor practice charge alleging that
the Employers’ and the Carpenters’ actions violated the Act.
On September 28, 2001, the Board issued a decision and
order. The Board found that the Employers violated Sec-
tions 8(a)(3) and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) &
(3), by announcing the terminations of over 2,200 individuals
who had used Local 39’s hiring hall. The Board reasoned
that although the strike was unlawful, the hiring hall regis-
trants were not ‘‘employee[s] who engage[d] in a strike’’
under Section 8(d) and thus did not lose the protection of
Section 8(a) of the Act. 29 U.S.C. § 158(d). They were not
‘‘employee[s],’’ the Board determined, because none of the
registrants was on referral to an Employer at the time the
strike was called. Moreover, even if the registrants were
employees, the Board held that the Employers had failed to
show that any of the hiring hall registrants ‘‘engage[d] in
[the] strike’’ by deliberately withholding labor from the Em-
ployers.
The Board declined, however, to find that the Employers
violated the Act by announcing the terminations of 330 other
hiring hall registrants because the Board deferred to the
6
General Counsel’s decision not to include these individuals in
the unfair labor practice charges.
In addition, the Board ruled that the Employers violated
Sections 8(a)(5) and 8(a)(1) by withdrawing recognition from
Local 39; that Zenith and Eagle violated Sections 8(a)(5) and
8(a)(1) by refusing to provide Local 39 with information
relevant to its representation duties; that Freeman and GES
violated Sections 8(a)(2) and 8(a)(1) by entering into a collec-
tive bargaining agreement with the Carpenters; that the
Carpenters violated 8(b)(1)(A) by acting as the representative
of employees that Local 39 had the exclusive right to repre-
sent; and that GES violated Section 8(a)(1) by interrogating
employees about their union activities.
The Board issued a remedial order requiring the Employ-
ers and the Carpenters to cease and desist from their ‘‘unlaw-
ful’’ conduct. The Employers were ordered to rescind the
announced discharges–i.e., begin to accept referrals from
Local 39; recognize and bargain with Local 39 upon request;
and post remedial notices. The Carpenters and the two
Employers with whom they entered into collective bargaining
agreements (Freeman and GES) were ordered to rescind
those agreements and jointly and severally disgorge certain
dues, fees, and benefit contributions.
In addition, the Board remanded the matter to the ALJ for
a determination of whether individual hiring hall registrants
might also be entitled to instatement and backpay in addition
to the other relief ordered. The Board stayed the remand
proceedings pending the outcome of this petition for review.
The Employers and Carpenters petitioned for review of the
Board’s ruling that they had violated the Act. Local 39
petitioned for review of the Board’s ruling that the Employ-
ers’ termination of 330 of its members was lawful. The
Board filed a cross-application for enforcement of its order.
II. Analysis
A. Standard of Review and Statutory Background
This Court will not disturb an order of the NLRB unless,
reviewing the record as a whole, it appears that the Board’s
7
factual findings are not supported by substantial evidence, 29
U.S.C. § 160(e), or that the Board acted arbitrarily or other-
wise erred in applying established law to the facts at issue.
Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C. Cir.
1994). When the Board’s decision turns on its interpretation
of the NLRA, the familiar two-step Chevron test applies.
Jacoby v. NLRB, 325 F.3d 301, 308 (D.C. Cir. 2003) (citing
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842–45 (1984)).
The NLRA grants statutory rights to both employees and
employers. NLRB v. Town & Country Elec., Inc., 516 U.S. 85,
88 (1995). As relevant here, the Act secures employees’
rights to unionize and engage in union activities by forbidding
employers from interfering with these rights, 29 U.S.C.
§ 158(a)(1)-(2); from discriminating on the basis of union
membership or activity, § 158(a)(3)-(4); and from refusing to
bargain collectively with a duly elected union, § 158(a)(5).
Importantly, the Act grants these rights only to ‘‘employees,’’
as defined by the Act in Section 2(3). Town & Country, 516
U.S. at 89. Section 2(3) states that ‘‘[t]he term ‘employee’
shall include any employee, and shall not be limited to the
employees of a particular employer, unless this subchapter
explicitly states otherwiseTTTT’’ 29 U.S.C. § 152(3). The
Supreme Court and this Court have, consistent with the Act’s
expansive definition covering ‘‘any employee,’’ broadly inter-
preted the term ‘‘employee,’’ holding it to include individuals
outside direct employment relationships, such as job appli-
cants, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 190–93
(1941), and auxiliary choristers who are ‘‘on call’’ to perform
as necessary, Seattle Opera v. NLRB, 292 F.3d 757, 761–65
(D.C. Cir. 2002). See also Town & Country, 516 U.S. at 90–
92 (discussing broad construction of the term ‘‘employee’’).
Most importantly for our purposes, the Supreme Court and
the NLRB have squarely held that hiring hall members are
‘‘employees’’ protected by the Act. See Teamsters Local 357
v. NLRB, 365 U.S. 667 (1961); see also Allied Chem. & Alkali
Workers of Am. v. Pittsburgh Plate Glass Co., 404 U.S. 157,
168 (1971) (noting that Board considers hiring hall registrants
‘‘employees’’ under the Act); Int’l Bhd. of Teamsters, Local
8
Union 104, 325 NLRB No. 121 (1998) (holding that hiring hall
registrants are protected by the Act); Int’l Longshoremen’s
Ass’n, Local 872, 163 NLRB 586 (1967) (same).
In addition to granting rights to employees and employers,
the Act imposes certain responsibilities as well. Central to
this case, Section 8(d)(3) requires a union to notify the
Federal Mediation and Conciliation Service within thirty days
after it notifies the employer of a dispute over the terms of
the contract. 29 U.S.C. § 158(d)(3). This requirement is
designed to provide the parties an opportunity to mediate
their disputes and to avert labor strife. Not surprisingly,
then, the Act provides drastic consequences when a union
goes on strike without first notifying the FMCS. Specifically,
[a]ny employee who engages in a strike within any notice
period specified in this subsection TTT shall lose his
status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 158,
159, and 160[.]
29 U.S.C. § 158(d). In other words, if an ‘‘employee TTT
engages in a strike’’ within the FMCS notice period, he
forfeits his rights under the Act, and thus may be lawfully
terminated by his employer. As explained above, it is undis-
puted that Local 39 struck without giving the required notice,
and thus called an unlawful strike. The only question, then,
is whether the individual hiring hall registrants were ‘‘em-
ployee[s] who engage[d] in a strike.’’ If they were, they lost
their status as employees of the Employers and lost the
protections of Section 8(a) of the Act; consequently, the
Employers did not violate Sections 8(a)(1) & (3) by ‘‘terminat-
ing’’ the hiring hall registrants. See United Furniture Work-
ers of Am., AFL–CIO v. NLRB, 336 F.2d 738 (D.C. Cir.
1964). If the hiring hall registrants were not ‘‘employee[s]
who engage[d] in a strike,’’ they retained the protection of
Section 8(a), and the Employers violated the Act if they
terminated the registrants because of anti-union animus.
The Board ruled that the hiring hall registrants were not
‘‘employee[s]’’ within the meaning of Section 8(d) because
none of them was on referral to an Employer at the time the
9
strike was called. To reach this conclusion, the Board inter-
preted ‘‘employee[s]’’ in Section 8(d) more narrowly than the
general statutory definition of employee in Section 2(3). The
Board reasoned that Section 8(d) falls within the exception to
Section 2(3), which states that the meaning of the term
‘‘employee’’ may ‘‘be limited to the employees of a particular
employer’’ if the statute explicitly states the limitation. The
Board held that Section 8(d)’s coverage clause–‘‘any employee
who engages in a strike’’–must be read in light of the loss of
status clause–‘‘an employee of the employer engaged in the
particular labor dispute.’’ Read as a whole, the Board rea-
soned that Section 8(d) states an explicit limitation on the
usual definition of ‘‘employee’’ since ‘‘[o]nly someone who first
has the status of an employee of a particular employer can
lose that status.’’ The Board concluded that none of the
hiring hall registrants were ‘‘employee[s] of the employer
engaged in the particular labor dispute’’ because none was on
referral to an Employer at the time the strike was called, and
thus no ‘‘current employment relationship existed.’’ Conse-
quently, the Board held that the hiring hall registrants re-
tained the protections of Section 8(a)(1) & (3), and that the
Employers violated those sections by terminating them.
B. ‘‘Employee[s]’’
We review the Board’s interpretation of Section 8(d) under
the two-step framework provided in Chevron, 467 U.S. at
842–43. At step one we ask ‘‘whether Congress has directly
spoken to the precise question at issue.’’ Id. at 842. If
Congress unambiguously addressed whether hiring hall regis-
trants fall within Section 8(d), ‘‘that is the end of the matter[,]
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.’’ Id. at 842–43.
If the statute is ambiguous, we move to Chevron’s second
step and ask whether the Board’s interpretation is ‘‘a permis-
sible construction of the statute’’ to which this Court must
defer. Id. at 843.
At the first step of Chevron, we conclude that Congress did
not unambiguously address the ‘‘precise question at issue.’’
Id. at 842. Section 8(d) does not mention hiring hall regis-
10
trants, nor does the general definition of ‘‘employee’’ in
Section 2(3). To be sure, the Supreme Court has held that
the Act covers hiring hall registrants, but neither this Court
nor the Supreme Court has addressed whether the broad
definition of employee is incorporated in Section 8(d), much
less whether Section 8(d) covers only hiring hall registrants
engaged in a direct employment relationship at the time a
strike is called. Thus, we turn to Chevron step two to
determine whether the Board’s interpretation of Section 8(d)
is reasonable. We conclude that it is not.
First, the Board improperly reads Section 8(d)’s loss of
status clause as a limitation on the term ‘‘any employee.’’
When read in light of the structure and purpose of Section
8(d), however, the loss of status clause is not an explicit
limitation of the term ‘‘employee’’ for purposes of Section 2(3).
Rather, the loss of status clause delineates the extent of the
loss of status that occurs when an employee engages in an
unlawful strike–i.e., the employee only loses his status as ‘‘an
employee of the employer engaged in the particular labor
dispute;’’ he does not lose the Act’s protection for all time or
for all employers. Contrary to the Board’s interpretation,
the loss of status clause does not tell us what type of
employee is capable of losing his status. The coverage clause
of Section 8(d) accomplishes this function, telling us that ‘‘any
employee who engages in a strike’’ will lose the protection of
the Act as to the specified employers. Importantly, ‘‘employ-
ee’’ is explicitly modified only by ‘‘any’’ and ‘‘who engages in a
strike.’’ ‘‘Any’’ signals that ‘‘employee’’ should receive its
broadest statutory definition, which both the Court and the
Board have consistently held to include hiring hall registrants
and other ‘‘on call’’ workers, regardless of whether they are
engaged in a direct employment relationship. See supra at
7–8. Accordingly, the term ‘‘employee’’ includes hiring hall
registrants, if they are capable of ‘‘engag[ing] in a strike.’’
Hiring hall registrants–even those not on referral to a partic-
ular employer–are capable of striking by refusing to work for
any signatory Employer. Therefore, viewed in light of the
structure of Section 8(d) and Court precedent, hiring hall
registrants are ‘‘employees’’ within the meaning of Section
11
8(d), even if they are not on referral to a particular employer.
Inasmuch as the Board’s contrary interpretation of Section
8(d) is in conflict with both interpretive precedent and the
statute’s structure, it is unreasonable.3
Furthermore, the Board’s reading of Section 8(d) renders
the Act internally inconsistent and reads many hiring hall
registrants out of Section 8(d) on an arbitrary basis. The
Board, in essence, creates an entire category of employees
who enjoy NLRA rights, but do not shoulder its responsibili-
ties. Under the Board’s interpretation, all hiring hall regis-
trants are protected by the Act, but registrants only lose
protected status if they happen to be on referral to a particu-
lar employer at the time an unlawful strike is called. The
practical result of the Board’s holding is that many unlawfully
striking hiring hall workers will suffer no consequences from
their unlawful behavior. Besides the internal inconsistency
produced by the Board’s reading, the Board’s reading pro-
duces absurd results in individual cases. In this case, hun-
dreds of registrants unlawfully denied their labor to the
Employers. Yet only three of these strikers forfeited their
rights under the NLRA–those who happened to be on a job
the day the strike was called. This result is utterly arbitrary
when hundreds of registrants had direct employment rela-
tionships with the Employers in the recent past and would
likely have been employed again in the near future but for the
strike. Moreover, unions could easily exploit the statutory
3 While our colleague’s suggestion that ‘‘if the court believes that
section 8(d)‘s plain language, structure, and purpose require that
the section apply to all statutory ‘employees,’ then it should have
rejected the Board’s interpretation at Chevron step one,’’ Dissent at
1–2, has a certain allure, we do not find the statute to be so plainly
unambiguous as to compel our rejection of the Board’s interpreta-
tion at step one. The Supreme Court has from the beginning in its
application of Chevron considered the language, structure, and
purpose of statutes in evaluating the reasonableness of agency
interpretations of ambiguous congressional language. See, e.g.,
NLRB v. United Food & Commercial Workers, 484 U.S. 112, 125
(1987); Immigration & Naturalization Serv. v. Cardoza–Fonseca,
480 U.S. 421, 445–46 & n.29 (1987).
12
gap caused by the Board’s interpretation by initiating an
unlawful strike during a slow referral period and continuing
to withhold labor throughout a busy season. The employer
would then be faced with the distasteful choice of ‘‘terminat-
ing’’ the hiring hall registrants and incurring unfair labor
practice charges or acceding to the union’s demands, no
matter that they were raised unlawfully. Indeed, that hypo-
thetical is close to the facts of this case. Such conduct is
inconsistent with the system of notification and mediation
established in Section 8(d). The Board’s reading upsets the
statutory balance struck by Congress and leads to irrational
results in practice. Consequently, its interpretation is unrea-
sonable under Chevron step two.
C. ‘‘Engages in a strike’’
Having held that hiring hall registrants are ‘‘employee[s]’’
within the meaning of Section 8(d), we similarly reject the
Board’s alternative holding that the hiring hall registrants
retained protection of the Act because the Employers failed
to show that the registrants ‘‘engage[d] in a strike.’’ The
Board held that the Employer was required to produce
evidence that each registrant deliberately withheld labor
when he was given the opportunity to work. We find this
holding contrary to law, arbitrary and capricious, and unsup-
ported by substantial evidence.
By requiring the Employers to produce evidence that each
registrant deliberately withheld labor, the Board acted con-
trary to the plain language of Section 8(d) and longstanding
precedent of the Board and this Court. Perhaps most impor-
tantly, the Board set a standard that could never be met in
the hiring hall context. Under the contract between Local 39
and the Employers, the hiring hall registrants were unable to
contact the Employers directly to seek work. Moreover, the
union controlled the referral process and refused to refer a
single registrant despite the Employers’ repeated request for
workers. It was therefore impossible for the Employers to
demonstrate that each hiring hall registrant deliberately
withheld labor because the Employers’ requests never
reached the registrants, and it is unclear that Employers
13
could ever have directly contacted the hiring hall registrants
while Local 39 purported to represent them. Despite these
facts precluding individualized proof, the Board went so far as
to opine that even picketing hiring hall registrants–who plain-
ly supported the strike–did not engage in the strike unless
the Employers could prove that each one turned down a
request for work from the Employer. This assertion borders
on the absurd. In any event, even if the Board’s standard
were correct, its decision could not stand on the present
record because the ALJ did not allow the Employers to
introduce evidence that each registrant deliberately withheld
labor from the Employers, and indeed scoffed at the notion
that such evidence was necessary.
The hiring hall registrants ‘‘engage[d] in a strike’’ as surely
as traditional employees who walk off the job site. The
deprivation of labor was total. During a busy convention, the
Employers received no workers from their exclusive labor
source, the Local 39 hiring hall. Under such circumstances, to
hold that not a single employee engaged in a strike is
irrational. In its ruling, the Board recognized that its prece-
dent held that individual employees ‘‘engage in a strike’’ when
the union calls an unlawful strike and employees do not
present themselves for work, unless the General Counsel
presents evidence that the employees did not support the
strike. For example, in Bechtel Corp., 200 NLRB 503 (1972),
which involved, among others, hiring hall employees, id. at
505, 507, the Board held that eighteen employees ‘‘engage[d]
in a strike’’ called by their union, despite their claims that
they did not come to work due to an authorized leave of
absence. Id. at 508–13. The Board inferred from their
membership in the striking bargaining unit and their failure
to affirmatively disavow the strike that they engaged in the
strike when they failed to present themselves for work. Id.
Accord Marathon Elec. Mfg. Corp., 106 NLRB 1171 (1953),
enf’d, 223 F.2d 338 (D.C. Cir. 1955). Nonetheless, the Board
contends that Bechtel and Marathon have been undercut by a
line of precedent involving unions engaging in lawful strikes.
See Park Manor Nursing Home, 312 NLRB 763, 766–67
(1993); Toledo (5) Auto/-Truck Plaza, 300 NLRB 676 n.2
14
(1990), aff’d 986 F.2d 1422 (6th Cir. 1993); Texaco, Inc., 285
NLRB 241, 246 (1987); Conoco, Inc., 265 NLRB 819, 821
(1982); Emerson Elec. Co., 246 NLRB 1143, 1143 (1979), enf’d
in relevant part, 650 F.2d 463 (3d Cir. 1981). In these cases,
the Board held that the employer may not infer strike
support from mere absence when there is another plausible
reason for the absence, such as sickness or disability; rather
the Board requires individual proof of strike support in the
case of these lawful strikers. The Board argues that this line
of precedent applies here because individual hiring hall regis-
trants also have reasonable grounds for absence since by
nature of the hiring hall process, at any given time many of
the hiring hall registrants are not on referral to an employer,
regardless of whether a strike has been called.
None of the cases cited by the Board, however, addressed
unlawful strikers, nor even cited Bechtel or Marathon, much
less overruled them. The Board utterly failed to explain why
a standard developed for lawful strikers should be applied to
unlawful strikers. Contrary to the Board’s position in this
case, Board precedent has long recognized the distinction
between lawful strikers–for whom individual proof of strike
support may be required–and unlawful strikers–who are pre-
sumed to ‘‘engage in [the] strike.’’ See Bechtel, 200 NLRB at
513 n.11. The Board obliterated this essential distinction
without explanation. Consequently, the Board acted arbi-
trarily by applying a standard designed to safeguard the
protected conduct of lawful strikers and ignoring relevant
precedent holding that employees represented by a striking
union are presumed to have engaged in the strike. The
Board’s ruling directly contravenes Section 8(d), which pro-
vides that unlawful strikers lose the protection of the Act and
contravenes common sense by effectively presuming that
every single hiring hall registrant has a reasonable excuse for
his absence despite the fact that the Employers were totally
deprived of labor. The Board may not, consistent with
Section 8(d), treat illegally striking hiring hall workers the
same as sick or disabled members of a lawfully striking union
merely because hiring hall workers are not expected to show
up at work every day.
15
By requiring employers to prove that individual hiring hall
registrants deliberately withheld labor, the Board effectively
reads hiring hall workers out of Section 8(d), much as it did
by misinterpreting the term ‘‘employee.’’ In many cases, as
here, it will be impossible for an employer to produce individ-
ualized proof because the union controls the hiring hall refer-
ral process and refuses to pass on employer requests for
work to employees. The result is that a union can call an
unlawful strike with impunity, knowing that its individual
registrants retain protection of the Act. Such a rule turns
Section 8(d) on its head; rather than discouraging strikes
through negotiation and mediation, it encourages strikes by
removing the statutorily prescribed consequences of unlawful
behavior. The Board’s decision is contrary to law, inconsis-
tent with its own precedent, and unsupported by substantial
evidence.
Because we hold that the hiring hall registrants were
‘‘employee[s] who engaged in a strike’’ within the meaning of
Section 8(d)–and thus lost the protection of Section 8 of the
Act–we grant the Employers’ petition for review and deny the
Board’s cross-application for enforcement. The Employers
did not violate Sections 8(a)(1) & (3) by refusing to accept
referrals from Local 39, nor did they violate Sections 8(a)(5)
& (1) by withdrawing recognition from Local 39.
D. Other issues
All other issues raised in the petitions for review are
resolved by our main holding. Because the hiring hall regis-
trants were lawfully terminated and lost the protection of the
Act: (1) Freeman and GES did not violate Sections 8(a)(2) &
(1) by entering into a collective bargaining agreement with
the Carpenters; (2) the Carpenters did not violate Section
8(b)(1)(A) by acting as the representative of employees in the
bargaining unit formerly represented by Local 39; (3) Zenith
and Eagle did not violate Section 8(a)(5) by refusing to
provide Local 39 with information relevant to its representa-
tion duties; and (4) GES did not violate Section 8(a)(1) by
interrogating employees about their union activities. Thus,
we grant the Employers’ and Carpenters’ petitions for review
16
in all respects and deny the Board’s cross-application for
enforcement. Finally, we lack jurisdiction to consider Local
39’s petition for review claiming that the Board should have
included 330 of its members in its remedial order. Not only
does our principal holding render this issue moot, but Local
39 failed to raise the issue before the Board in a motion for
reconsideration and thus may not raise it before this Court.
See 29 U.S.C. § 160(e); Alwin Mfg. Co. v. NLRB, 192 F.3d
133, 143 (D.C. Cir. 1999).
III. Conclusion
For the foregoing reasons, we hold that Local 39’s hiring
hall registrants were ‘‘employee[s] who engage[d] in a strike’’
within the meaning of Section 8(d) of the Act, and thus lost
the protection of the Act. Accordingly, we grant the Employ-
ers’ and the Carpenters’ petitions for review, deny the
Board’s cross-application for enforcement, and dismiss Local
39’s petition for lack of jurisdiction.
So ordered.
1
TATEL, Circuit Judge, concurring in part and dissenting in
part: I agree with the court’s Chevron step one conclusion
that Congress has not spoken to ‘‘the precise question at
issue,’’ Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984): How does section 8(d) of the
National Labor Relations Act apply to hiring halls? But
because the National Labor Relations Board’s resolution of
that question represents a reasonable interpretation of sec-
tion 8(d), and because in rejecting that interpretation the
court has substituted its views of labor policy for those of the
Board, I dissent.
Section 8(d) states that ‘‘[a]ny employee who engages in a
strike within any notice period specified in this section TTT
shall lose his status as an employee of the employer engaged
in the particular labor dispute, for the purposes of sections 8,
9, and 10 of [the NLRA], TTT but such loss of status for such
employee shall terminate if and when he is reemployed by
such employer.’’ 29 U.S.C. § 158(d). NLRA section 2(3)
defines ‘‘employee’’ as ‘‘any employee,’’ providing that the
term ‘‘shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise.’’ 29
U.S.C. § 152(3).
Reading section 8(d) as ‘‘explicitly stat[ing] otherwise,’’ the
Board interprets the section as applying only to ‘‘employee[s]
of the employer engaged in the particular labor dispute,’’ in
this case hiring hall registrants actually on referral to an
employer at the time of the strike, rather than to all ‘‘employ-
ees,’’ a category the Supreme Court has held to include hiring
hall registrants, Local 357, Int’l Bhd. of Teamsters v. NLRB,
365 U.S. 667 (1961). Freeman Decorating Co., 336 N.L.R.B.
No. 1, 2001 NLRB LEXIS 798, at *32–33 (Sept. 28, 2001).
The court rejects this interpretation as unreasonable on two
grounds: first, section 8(d)’s plain language, ‘‘[w]hen read in
light of [its] structure and purpose, TTT is not an ‘explicit’
limitation of the term ‘employee,’ ’’ Maj. Op. at 10, and
second, the Board’s interpretation produces results inconsis-
tent with the basic purposes of section 8(d) and the NLRA,
Maj. Op. at 11–12.
With respect to the first rationale, if the court believes that
section 8(d)’s plain language, structure, and purpose require
2
that the section apply to all statutory ‘‘employees,’’ then it
seems to me the court should have rejected the Board’s
interpretation at Chevron step one. See FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000) (considering
the Food, Drug, and Cosmetic Act’s plain language, structure,
and purpose in rejecting, at Chevron step one, the Food and
Drug Administration’s assertion of jurisdiction over tobacco
products). But the court did not do so, and for good reason:
Section 8(d) is far from unambiguous. Although the provision
begins with the phrase ‘‘any employee,’’ its later reference to
loss of status as an ‘‘employee of the employer engaged in the
particular labor dispute’’ suggests that it applies only to those
who can lose such status, namely current ‘‘employees of the
employer engaged in the particular labor dispute.’’ In the
ordinary case—for example, factory workers involved in an
illegal strike—the question whether section 8(d) applies to
‘‘any employee’’ or only to ‘‘employees of the employer en-
gaged in the particular labor dispute’’ makes no difference,
since all illegal strikers are covered by both phrases. See,
e.g., Marathon Elec. Mfg. Corp., 106 N.L.R.B. 1171 (1953),
enforced sub nom. United Elec., Radio & Mach. Workers of
Am., Local 1113 v. NLRB, 223 F.2d 338 (D.C. Cir. 1955)
(applying section 8(d) to factory workers engaged in an illegal
strike). In the hiring hall situation, in contrast, registrants
can be ‘‘employees’’ but not ‘‘employees of the employer
engaged in the particular labor dispute.’’ Under these cir-
cumstances, it should come as no surprise that precisely how
section 8(d) applies to hiring halls is far from clear, particu-
larly since, as the parties agreed at oral argument, section
8(d)’s language and legislative history give no sign that
Congress considered hiring halls when it enacted that section
through the 1947 Taft–Hartley Amendments to the NLRA,
Pub. L. No. 80–101, 61 Stat. 136. In fact, as late as 1957, the
Board had held that hiring halls are illegal per se under the
NLRA, Mountain Pac. Chapter of the Associated Gen. Con-
tractors, Inc., 119 N.L.R.B. 883 (1957), a conclusion not
overruled by the Supreme Court until 1961—fourteen years
after section 8(d)’s enactment, Local 357, 365 U.S. 667.
3
Had Congress considered hiring halls when it enacted
section 8(d), it could have used language that unambiguously
resolved the precise issue we face here. For instance, if
Congress had wished for section 8(d) to apply to all hiring
hall registrants, it would have provided that ‘‘[a]ny employee
who engages in a strike TTT shall not enjoy lose his status as
an employee of the employer engaged in the particular labor
dispute, for the purposes of sections 8, 9, and 10 of [the
NLRA].’’ Or if, in addition to specifying that section 8(d)
applies to all hiring hall registrants, Congress had wished to
adopt this court’s view—that illegal strikers do not ‘‘lose the
Act’s protection for all time or for all employers,’’ Maj. Op. at
10—it would have provided that ‘‘[a]ny employee who engages
in a strike TTT shall not enjoy lose his status as an employee
of the employer engaged in the particular labor dispute, for
the purposes of sections 8, 9, and 10 of [the NLRA].’’ Or if
Congress had wished to adopt the Board’s interpretation—
that section 8(d) applies only to ‘‘employee[s] of the employer
engaged in the particular labor dispute’’—it would have pro-
vided that ‘‘[a]ny employee of the employer engaged in the
particular labor dispute who engages in a strike TTT shall lose
his status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 8, 9, and
10 of [the NLRA].’’
Because, as written, section 8(d) falls somewhere in be-
tween the second and third options, this court has no basis for
concluding that the Board acted unreasonably in interpreting
the statute’s direct reference to ‘‘employee[s] of the employer
engaged in the particular labor dispute’’ as constituting sec-
tion 2(3)’s ‘‘explicit’’ limitation on the scope of ‘‘employee.’’
This is especially true given that section 8(d)’s reference to
‘‘employee[s] of the employer engaged in the particular labor
dispute’’ is one of only two instances in the entire NLRA
where the term ‘‘employee’’ is restricted to employees of a
‘‘particular’’ anything. The other, section 8(b)(4)(i)(D), is
hardly more ‘‘explicit.’’ It states that ‘‘forcing or requiring
any employer to assign particular work to employees in a
particular labor organization or in a particular trade, craft, or
class rather than to employees in another labor organization
4
or in another trade, craft, or class’’ is an unfair labor practice.
29 U.S.C. § 158(b)(4)(i)(D).
The Board’s interpretation of section 8(d) seems especially
reasonable in light of the phrase following the section’s loss-
of-status provision: ‘‘such loss of status for such employee
shall terminate if and when he is reemployed by such employ-
er.’’ 29 U.S.C. § 158(d) (emphasis added). The reference to
reemployment, like the earlier reference to loss of status,
suggests that Congress did not intend section 8(d) to apply to
employees having no past or current relationship with partic-
ular employers. Moreover, the return-of-status provision
makes sense only under the Board’s interpretation of section
8(d). Under that interpretation, just the three hiring hall
registrants employed at the time of the strike lose their
NLRA protection, and, pursuant to the return-of-status provi-
sion, those three would regain their protection if the Employ-
ers reemploy them at some future date. In contrast, under
the court’s interpretation, all hiring hall registrants lose their
NLRA protection, but only those who once worked for a
particular employer can regain it; those who never worked
for a particular employer can never regain NLRA protection
since they cannot be ‘‘reemployed by such employer.’’ It
makes little sense to suppose Congress intended remediable
loss-of-status for previous employees of the Employers but
perpetual loss-of-status for all other hiring hall registrants.
Why would Congress grant illegal strikers who once worked
for a particular employer greater protection than illegal strik-
ers who never did?
The court’s second ground for rejecting the Board’s inter-
pretation as unreasonable is that applying section 8(d) only to
hiring hall registrants on referral at the time of the strike
undermines the section’s purpose and ‘‘renders the [NLRA]
internally inconsistent.’’ Maj. Op. at 11. Specifically, the
court points out that the Board’s interpretation means ‘‘many
unlawfully striking hiring hall workers will suffer no conse-
quences from their unlawful behavior,’’ and that ‘‘unions could
easily exploit the statutory gap caused by the Board’s inter-
pretation by initiating an unlawful strike during a slow refer-
ral period and continuing to withhold labor throughout a busy
5
season.’’ Id. at 11–12. Thus, the court concludes, ‘‘[t]he
Board’s reading upsets the statutory balance struck by Con-
gress.’’ Id. at 12.
While it is true that under the Board’s interpretation
‘‘many unlawfully striking hiring hall workers will suffer no
consequences from their unlawful behavior,’’ the court ignores
the fact that under its interpretation many workers with
highly attenuated relationships with the hiring hall at the
time of the strike—or even no relationship at all—will suffer
serious consequences. Indeed, reading the court’s opinion,
one would never know that at the time of the strike approxi-
mately 300 of the workers terminated by the Employers were
not even registered with Local 39 for work referrals. Free-
man Decorating Co., NLRB LEXIS 798, at *9. Nor would
one know that of the 2,331 workers who were registered, only
an unknown subset had ever worked for any of the Employ-
ers in the past. Id. at *31. Nor, finally, would one know that
of the roughly 2,600 terminated workers, the record contains
evidence that only 357 (a figure later revised downward to
330) ‘‘had engaged in picketing activity or otherwise sup-
ported the strike,’’ id. at *50, and only 126 union members
attended the meeting at which the union voted to strike, id. at
*92 n.8. In fact, the record contains no evidence that the vast
majority of the 2,600 terminated workers even knew that the
union was on strike until they received the Employers’ letter
informing them of their termination.
Given these facts—that not all of the terminated workers
were even registered with the hiring hall at the time of the
strike, and that many of the remaining 2,331 terminated
registrants had never worked for the Employers, were not
working for them at the time of the strike, and, even without
the strike, might never have worked for them in the future—
the Board chose to interpret section 8(d)’s scope narrowly.
The Board explained its policy choice as follows:
[T]he issue is which individual workers will lose the
protection of the [NLRA], by virtue of their employ-
ment relationship and their conduct. In concluding
that the [NLRA’s] loss-of-status provision applies
6
only where individual workers can fairly be regarded
as complicit in an unlawful strike,TTTT we believe
that Congress could not have intended the draconian
result that our [dissenting] colleague would permit
in this case.
Freeman Decorating, NLRB LEXIS 798, at *33.
Although the court thinks the Board acted unreasonably by
failing to interpret section 8(d) as punishing every illegally
striking worker, nothing in section 8(d)’s plain language sug-
gests that the provision’s purpose is meting out individualized
punishments. Rather, as the court acknowledges, section
8(d)’s contract modification and termination provisions seem
designed to establish a ‘‘system of notification and mediation,’’
Maj. Op. at 12, including requiring unions to give thirty days’
notice before striking. Restricting section 8(d)’s loss-of-
status penalty to workers actually on referral at the time of a
strike may indeed dull unions’ incentive to give proper notice
and invite strategic behavior, but it does not eliminate the
incentive altogether. Even though the court may believe that
weakening employers’ protection against illegal strikes in
order to protect innocent employees constitutes unwise labor
policy, the purpose of the NLRA is not solely ‘‘to promote the
full flow of commerce,’’ but also ‘‘to prescribe the legitimate
rights of both employees and employers.’’ 29 U.S.C. § 141(b)
(emphasis added). The Board can hardly be accused of
unreasonably subverting the statute’s overall purpose where,
as here, it seeks to balance the competing interests of em-
ployers and employees.
The fundamental point is this: Only the Board, not this
court, has authority to choose on policy grounds between two
alternative interpretations of the NLRA, so long as neither
interpretation departs from the statute’s text or overall pur-
pose. As the Supreme Court has observed, ‘‘[t]he ultimate
problem’’ in federal labor law is ‘‘the balancing of [employees’
and employers’] conflicting legitimate interests.’’ NLRB v.
Truck Drivers Local Union No. 449, 353 U.S. 87, 96 (1957).
‘‘The function of striking that balance to effectuate national
labor policy,’’ the Court continued, ‘‘is often a difficult and
7
delicate responsibility, which the Congress committed primar-
ily to the National Labor Relations Board, subject to limited
judicial review.’’ Id. Because ‘‘ ‘[c]ourts must not enter the
allowable area of the Board’s discretion and must guard
against the danger of sliding unconsciously from the narrow
confines of law into the more spacious domain of policy,’ ’’ id.
at 96 n.28 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941))—precisely what this court has done—I would
sustain the Board’s statutorily permissible, reasonable, policy-
conscious interpretation of section 8(d).
Two final points. First, after raising the possibility that
unions might ‘‘exploit the gap caused by the Board’s interpre-
tation’’ by timing illegal strikes to coincide with a ‘‘slow
referral period,’’ the court states that ‘‘[i]ndeed, that hypo-
thetical is close to the facts of this case.’’ Maj. Op. at 12.
Nothing in the record supports this statement. In fact, Local
39’s failure to file the proper notice with the Federal Media-
tion and Conciliation Service seems to have stemmed from a
good faith mistake. As soon as Local 39 learned of its error,
it ‘‘attempted to accept any contract offer that was still on the
table.’’ Maj. Op. at 4.
Second, although my view of section 8(d) makes it unneces-
sary to consider which of the alleged discriminatees ‘‘en-
gage[d] in a strike,’’ I question the court’s conclusion that all
the alleged discriminatees ‘‘engage[d] in a strike.’’ See Maj.
Op. at 12–15. Even if, as the court holds, the Board erred by
refusing to accept the Employers’ proffered evidence about
the discriminatees’ strike activities and by deciding as a legal
matter that none of the alleged discriminatees engaged in a
strike, the court should have remanded to the Board with
instructions to consider the relevant evidence and to articu-
late criteria for determining whether hiring hall registrants
engaged in a strike. See Plumbers & Steamfitters Local 342
v. NLRB, 598 F.2d 216, 222 (D.C. Cir. 1979) (remanding to
Board because ‘‘[w]e think it inconsistent with Congress’
general scheme for judicial review under the Act to address
such complex and important questions of statutory interpreta-
tion without the benefit of the agency’s expertise in the first
instance’’). Instead, the court announces a per se rule that
8
‘‘all hiring hall registrants’’ should be deemed participants in
any illegal strike declared by their hiring hall. Maj. Op at 15.
Not only does this rule unnecessarily constrain the Board’s
ability to interpret section 8(d) in future hiring hall cases, but
the court’s application of the rule to this case ignores the fact
that at the time of the strike roughly 300 discriminatees were
not even ‘‘hiring hall registrants.’’
I concur with the court’s conclusion that Local 39’s argu-
ments on appeal were not properly raised. Maj. Op. at 15–16.