United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2001 Decided June 29, 2001
No. 00-1171
Honeywell International, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, AFL-CIO,
Intervenor
-----------
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
-----------
Philip Allen Lacovara argued the cause for petitioner
Honeywell International, Inc. With him on the briefs was
Charles P. O'Connor.
Harold P. Coxson and Stanley R. Strauss were on the brief
for amicus curiae Council on Labor Law Equality.
David A. Fleischer, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent. With him on
the brief were John H. Ferguson, Associate General Counsel,
and Aileen A. Armstrong, Deputy Associate General Counsel.
David S. Habenstreit, Attorney, entered an appearance.
Thomas W. Meiklejohn was on the brief for intervenor
International Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America.
Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Honeywell International Inc.
("Honeywell") petitions for review from a decision of the
National Labor Relations Board ("NLRB" or "Board") hold-
ing that the company violated ss 8(a)(1) and (5) of the
National Labor Relations Act ("NLRA" or "Act") by unilater-
ally terminating severance benefits allegedly owed to bargain-
ing unit employees. In 1994, Honeywell purchased Textron's
military and commercial engine manufacturing operations at
the Stratford Army Engine Plant in Stratford, Connecticut.
At the time of the sale, Honeywell assumed the collective
bargaining agreements that had been executed by Textron
and the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America ("UAW" or
"Union"), and its Local 376 and Local 1010. The collective
bargaining arrangement consisted of a core agreement, a
Competitiveness Agreement ("CA"), covering relocation deci-
sions, and an Effects Bargaining Agreement ("EBA"), cover-
ing insurance, pension, severance, and other such benefits to
deal with the economic impact and effects of a potential sale
of Textron assets. At issue before us is whether the sever-
ance benefits under the EBA were subject to the rule enunci-
ated in NLRB v. Katz, 369 U.S. 736 (1962).
Pursuant to Katz, it is generally held that, absent impasse
or waiver, "an employer's unilateral change during the course
of a collective bargaining relationship of a matter that is a
mandatory subject of bargaining is a per se violation of the
[NLRA]." The Developing Labor Law 266-69 (Christopher
T. Hexter et al., eds., 3d ed. 1999 Cumulative Supplement).
"The Katz doctrine has been extended as well to cases where,
as here, an existing agreement has expired and negotiations
on a new one have yet to be completed." Litton Fin.
Printing Div. v. NLRB, 501 U.S. 190, 198 (1991). Severance
pay is indisputably a mandatory subject of bargaining; it was
an established term of employment under the parties' EBA;
and it is not among the categorical exceptions to the Katz rule
noted in Litton. It is therefore clear that Honeywell was
barred from unilaterally terminating severance benefits at the
expiration of the EBA, absent an impasse in bargaining with
the Union or a waiver by the Union of the right to claim
severance benefits on behalf of bargaining unit employees.
The Board properly found no exception to the Katz rule in
this case.
In challenging the Board's decision, Honeywell contends,
first, that the "contract coverage" doctrine should trump the
unilateral change doctrine in this case. In other words,
Honeywell argues that, by the terms of the parties' agree-
ment, severance benefits expired with the termination of the
EBA. This argument fails, because severance benefits in the
EBA are not limited to a time certain. The EBA contains a
contract duration clause at the end of the document. Under
Katz, however, an expiration date in a standard contract
duration clause cannot defeat the unilateral change doctrine.
Indeed, as the Court made clear in Litton, the Katz rule often
presupposes the end of a collective bargaining agreement and
guarantees the continuation of existing benefits as a matter of
law. To hold that a general contract duration clause "covers"
and vitiates a Union's statutory claim to continued status quo
benefits, would be to drain the unilateral change doctrine of
any coherent meaning.
Honeywell also claims that the express terms of the EBA
clearly and unmistakably waived any right to post-expiration
eligibility for severance. We agree with the Board that this
argument fails. Honeywell's final argument, suggesting that
this dispute should have been settled in arbitration, is fore-
closed by 29 U.S.C. s 160(e).
Accordingly, we deny Honeywell's petition for review of the
Board's order.
I. Background
In 1993, Honeywell, known at the time as Allied Signal,
entered into negotiations to purchase Textron Inc., which
produced mainly helicopter and tank engines for military and
commercial purposes at the Stratford Army Engine Plant in
Stratford, Connecticut. In 1994, Textron began negotiating
new collective bargaining agreements with the UAW and its
Local 376 and Local 1010. Although Textron owned the
business at the time of the labor negotiations, Honeywell
committed to adopting the agreements if they were competi-
tive. AlliedSignal Aerospace, 330 N.L.R.B. No. 176 at 4
(Apr. 12, 2000).
After Honeywell and Textron announced the intended sale,
the Union demanded to bargain over the effects on bargain-
ing unit employees. Transcript (Oct. 6, 1998), reprinted in
J.A. 98. Formal negotiations over the EBA took place be-
tween May 20 and July 13, 1994. During these negotiations,
"the Union gave Textron an 'Effects Proposal' which included
severance pay calculated on the basis of 40 hours of [pay] for
each year of employment, with a graduated payment scale
based on [an employee's] number of years of service."
AlliedSignal Aerospace, at 4. The severance proposal was
tied to a Supplementary Unemployment Benefit Plan
("SUB") that was in existence in the parties' expiring collec-
tive bargaining contract. Id. In the past, money in the SUB
"had run out because of the large number of layoffs in 1991
and 1992. The union team was looking for an alternative to
the SUB plan and thus [was] interested in working out a
severance program." Id. at 5.
As a part of its Effects Proposal, the Union suggested that
employees laid off because of the sale or laid off in the three-
year period before the sale, and impacted by the sale, should
be eligible for severance benefits. Effects Proposal (May 20,
1994), reprinted in J.A. 599-606. Textron responded on May
28 with a "declining balance" proposal. Under this plan, the
employees laid off earliest would receive the greatest sever-
ance pay; the pay would gradually decrease over the period
of the agreement, declining to zero benefits upon expiration of
the EBA. AlliedSignal Aerospace at 5. This proposal also
maintained a modified version of the SUB plan. Company
Proposal (May 28, 1994), reprinted in J.A. 608-10. The
employer's plan stipulated that only employees who had
worked at least one year prior to the sale and who were laid
off as a direct result of a transfer of bargaining unit work
would be eligible for severance benefits. Id. at 609.
The Union rejected the company's proposal, because, under
existing seniority rules, the most junior employees were laid
off first and would therefore receive the most in severance
benefits. AlliedSignal Aerospace at 5; Transcript (Oct. 6,
1998), reprinted in J.A. 150. However, the Union indicated
that it was willing to adopt the eligibility criteria proposed by
Textron. Employees on the active payroll with at least one
year of employment at the time of purchase by Honeywell,
and who were subsequently laid off as a direct result of a
transfer of bargaining unit operations by the company, would
be eligible for severance pay.
On June 2, Textron responded with a revised draft which
retained the "declining balance" plan and included a duration
clause stating that the EBA would "remain in effect until the
date of expiration of the new 1994 labor agreement between
the parties, but not thereafter unless renewed or extended in
writing by the parties." AlliedSignal Aerospace at 5; Com-
pany Proposal (June 2, 1994), reprinted in J.A. 691-705. The
Union rejected the duration clause. David Kelly, then-
president of Local 1010, testified that the Union was con-
cerned about employees laid off shortly before the EBA
expired. Employees had to wait 12 months after being laid
off to apply for severance benefits. Under the terms of the
proposed duration clause, the Union was concerned that if an
employee was laid off six months before the end of the
agreement, the employee would not be able to apply for
benefits. AlliedSignal Aerospace at 5-6; Transcript (Oct. 6,
1998), reprinted in J.A. 103.
Textron subsequently proposed the addition of the follow-
ing language:
It is understood that expiration of this Agreement shall
not foreclose the post-expiration payment to employees
of bonuses or other benefits which accrued to them
because of lay off during the term of this agreement, or
the post-expiration presentation in a timely fashion of
claims regarding matters arising out of the application of
its terms prior to the expiration date.
AlliedSignal Aerospace at 6. The company also removed the
declining balance provision, increased the severance benefit to
45 hours per year of service, and agreed that any employee
with at least one year of seniority on the effective date of the
agreement would be eligible for severance. Id. Final and
Definitive Company Proposal (June 5, 1994), reprinted in J.A.
827.
The parties signed the EBA draft on June 9, 1994. This
included an agreement by Local 1010 waiving its "right to
bargain over any future work transfer, reduction in the
working force (regardless of its scope), and any partial or
total shutdown or closure of the Stratford Plant." AlliedSig-
nal Aerospace at 6. The EBA also suspended the SUB fund
during the term of the new agreement. Id. at 5 n.9.
Subsequently, an internal company planning document
dealing with plant relocation was leaked to the Union. The
document stated: "Best assumption today is that the Army
will not buy any new tank engines. We need to evaluate the
barriers to closing the plant in case that it eventually becomes
expedient." Id. at 6; Internal Memorandum (June 6, 1994),
reprinted in J.A. 204-07. When Union officials expressed
concerns over the possibility of relocation, the parties negoti-
ated the CA and revised the EBA, deleting the waiver
provision. Transcript (Oct. 6, 1998), reprinted in J.A. 60-62.
The final version of the EBA was signed by the company and
Local 1010 on July 13 and ratified on July 21, 1994. Local
376 signed the EBA on July 28, 1994. In October 1994,
Honeywell purchased Textron and assumed these agree-
ments.
The eligibility portion of the severance provision in the
EBA provides that:
... employees who are hereafter laid off shall be eligible
for a severance bonus ... as specified in this Sec-
tion....
An employee who shall be laid off without being re-
called for a period of twelve (12) full consecutive months
thereafter shall be entitled to a severance bonus if the
employee was on the active payroll with one year or
more of seniority on the effective date of this Agreement,
or was on leave of absence granted or approved in
accordance with the terms of the collective bargaining
agreement on such date....
This severance bonus shall be payable to an otherwise
eligible employee who is laid off after the effective date
of this Agreement by either [Textron] or AlliedSignal
[Honeywell], provided that an asset sale by [Textron] to
such AlliedSignal shall, in fact, occur.
Effects Bargaining Agreement (July 13, 1994), reprinted in
J.A. 512-13. There is nothing in the severance provision
saying that severance benefits are terminated at the expira-
tion of the EBA, or on any other date for that matter.
Rather, the severance provision merely states that an em-
ployee must have been "laid off without being recalled for a
period of twelve (12) full consecutive months" and been "on
the active payroll with one year or more of seniority on the
effective date" of the EBA in order to be eligible for sever-
ance pay. Id.
The duration clause appearing at the end of the EBA
specifies that the EBA expires on June 6, 1997, unless the
agreement is renewed in writing. The EBA's duration clause
reads as follows:
The Effects Bargaining Agreement shall be effective as
of May 30, 1994, and shall remain in effect until midnight
on June 6, 1997, but not thereafter unless renewed or
extended in writing by the parties. It is understood that
expiration of this Agreement shall not foreclose the post-
expiration payment to employees of bonuses or other
benefits which accrued to them because of layoff during
the term of this Agreement, or the post-expiration pre-
sentation in a timely fashion of claims regarding matters
arising out of the application of its terms prior to the
expiration date.
Id. at 528. This clause mirrors the "June 6, 1997" expiration
date in the parties' core collective bargaining agreement.
In September 1995, Honeywell announced that it intended
to close the Stratford plant and terminate the CA. Allied-
Signal Aerospace at 8. The Company was unclear, however,
regarding whether employees would be paid severance bene-
fits after the expiration of the EBA. For example, in Janu-
ary 1997, Honeywell wrote a letter to employees saying that
"[q]uestions concerning layoffs after June 6, cannot be an-
swered at this time, nor can we advise you of what benefits
will be available after June 6. Benefits such as severance pay
are subjects for negotiation." Id. at 9.
There is some dispute over when Honeywell first informed
the Union that it intended to terminate severance benefits as
of June 7, 1997. It is certain, however, that the Union had
notice as of May 1997, when Allan Bocik, the company's vice
president for labor relations, told Union officials that sever-
ance under the EBA would not continue after June 6, 1997.
The company informed the Union on June 13, 1997 that the
decision to close the Stratford plant was final. Severance
benefits were paid to employees who were laid off during the
term of the EBA, but denied to employees laid off after June
6, 1997.
The Union filed a complaint with the NLRB alleging that
the company violated ss 8(a)(1) and (5) by unilaterally termi-
nating severance benefits under the EBA. The ALJ deter-
mined that Honeywell had unilaterally changed the terms and
conditions of employment in violation of s 8(a)(1) and (5) of
the NLRA when it cut off severance benefits on June 7, 1997.
With one member dissenting, the Board affirmed the ALJ's
decision and held that Honeywell had a statutory obligation to
maintain the status quo. The Board held that the contract
coverage doctrine did not apply and that the Union had not
waived any right to employees' post-expiration eligibility for
severance pay.
II. Discussion
A. Unilateral Change Doctrine
Under the NLRA, the obligation to bargain collectively
includes the duty to "confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment." 29 U.S.C. s 158 (d). In Katz, the Supreme Court
held that a unilateral change by an employer during the
course of a collective bargaining relationship concerning a
matter which is a proper subject of bargaining is an unlawful
refusal to bargain under the NLRA. Thus, an employer may
not unilaterally alter a term or condition of employment
unless the parties reach a new agreement or bargain to
impasse.
The rationale for the Katz rule is simple:
A unilateral change not only violates the plain require-
ment that the parties bargain over "wages, hours, and
other terms and conditions," but also injures the process
of collective bargaining itself. "Such unilateral action
minimizes the influence of organized bargaining. It in-
terferes with the right of self-organization by emphasiz-
ing to the employees that there is no necessity for a
collective bargaining agent."
NLRB v. McClatchy Newspapers, 964 F.2d 1153, 1162 (D.C.
Cir. 1992) (quoting May Dep't Stores Co. v. NLRB, 326 U.S.
376, 385 (1945)).
As noted above, the Katz rule applies in situations where
"an existing agreement has expired and negotiations on a new
one have yet to be completed." Litton, 501 U.S. at 198. In
other words, the unilateral change doctrine is premised on a
statutory right. The right may be waived by contract and it
may be vitiated if the parties reach an impasse in collective
bargaining. And it applies only with respect to mandatory
subjects of bargaining, excluding certain categorical excep-
tions recognized by the courts and the Board. See, e.g.,
Litton, 501 U.S. at 199-200, Acme Die Casting v. NLRB, 93
F.3d 854, 857 (D.C. Cir. 1996). Beyond these conditions,
however, the Katz rule is an inviolate principle of collective
bargaining.
The company does not dispute that severance pay is a
mandatory subject of bargaining; nor does it dispute that
severance pay was an established term or condition of em-
ployment under the EBA. The Katz rule barring unilateral
changes therefore applies. The company had no right, even
after the expiration of the EBA, to terminate or otherwise
modify the severance provision absent an impasse in bargain-
ing or a new agreement with the Union.
The company does not claim that it reached an impasse in
negotiations over severance and it does not contend that the
parties executed a new agreement to replace the EBA. In-
stead, the company claims (1) that the parties expressly
agreed that the severance provision was to terminate with the
expiration of the EBA, or (2) that the Union clearly and
unmistakably waived any right of employees to claim post-
expiration eligibility for severance pay. Bare nuances distin-
guish these arguments. The bottom line, however, is that
both arguments are wrong.
B. The Contract Coverage Doctrine
Honeywell argues that severance pay was "covered" by the
EBA and, under the terms of the parties' agreement, it is
clear that severance benefits terminate with the expiration of
the EBA. Thus, according to Honeywell, the Board had no
business interfering in the parties' dispute over the meaning
of their contract. See, e.g., NLRB v. United Postal Service, 8
F.3d 832, 837 (D.C. Cir. 1993) ("where the employer acts
pursuant to a claim of right under the parties' agreement, the
resolution of the refusal to bargain charge rests on an inter-
pretation of the contract at issue .... [n]ormally, under
federal labor laws, arbitrators and the courts, rather than the
Board, are the primary sources of contract interpretation").
There are two problems with Honeywell's argument.
First, as discussed in part "D." below, the company never
suggested to the Board that this case should have been
resolved pursuant to a contractual grievance procedure.
Therefore, "it is clear that, in this case, the Board had the
authority to interpret the [EBA] to resolve the pending unfair
labor practice charge." Id. Of course the courts remain "the
ultimate arbiter[s] of contract disputes." Id. This is true
because "defer[ring] to the Board's contract interpretation
would risk the development of conflicting principles for inter-
preting collective bargaining agreements." Id. (citations
omitted).
Second, and more importantly, the company is wrong in its
claim that "[t]he status quo obligations of the Act did not
apply to the EBA benefits," because "[t]he Unions had no
right to the continuation of eligibility for those benefits after
the termination date of the agreement." Petitioner's Br. at
32. To support this argument, the company contends that
"[t]he Duration Clause [in the EBA] stated in the plainest
terms both (1) the precise moment in time when the eligibility
to qualify for EBA benefits would terminate and (2) precisely
what would happen to benefit eligibility when the EBA
expired." Id. at 37. As noted above, however, the disputed
severance provision does not say that severance benefits are
terminated at the expiration of the EBA. In fact, the sever-
ance provision does not tie benefits to dates certain, apart
from saying that an employee must have been "laid off
without being recalled for a period of twelve (12) full consecu-
tive months" and been "on the active payroll with one year or
more of seniority on the effective date" of the EBA in order
to be eligible for severance pay. Effects Bargaining Agree-
ment (July 13, 1994), reprinted in J.A. 512-13.
Honeywell's argument rests solely on the terms of the
duration clause, not the severance provision. Under Katz
and Litton, however, an expiration date in a standard con-
tract duration clause without more, cannot defeat the unilat-
eral change doctrine. As the Supreme Court made clear in
Litton, the Katz rule often presupposes the end of a collective
bargaining agreement, ensuring the continuation of existing
benefits beyond the term of the agreement as a matter of law.
We would effectively drain the unilateral change doctrine of
any coherent meaning were we to hold that a general contract
duration clause "covers" and thereby vitiates a Union's statu-
tory claim to continued status quo benefits. We therefore
reject Honeywell's construction of the Katz rule.
Honeywell suggests that this case is unusual, because,
apart from its expiration date, the duration clause in the EBA
also states that
expiration of [the EBA] shall not foreclose the post-
expiration payment to employees of bonuses or other
benefits which accrued to them because of layoff during
the term of this Agreement, or the post-expiration pre-
sentation in a timely fashion of claims regarding matters
arising out of the application of its terms prior to the
expiration date.
Effects Bargaining Agreement (July 13, 1994), reprinted in
J.A. 528. According to Honeywell, this language conclusively
proves that the severance benefit was limited: the Union
insisted on the language, because the Union "necessarily
understood" that eligibility for severance benefits terminated
with the end of the EBA. Petitioner's Br. at 46. However,
the cited language supports no such conclusion. Union offi-
cial David Kelly testified that this language was prompted by
the Union's concern that an employee could be laid off prior
to June 6, 1997, but before the 12-month waiting period to
apply for severance pay had passed, and the company could
then "propose either the elimination or the reduction of those
benefits." Transcript (Oct. 6, 1998), reprinted in J.A. 103.
The Union insisted on these terms so that even after the
EBA expired and the parties bargained to impasse, or
reached a new agreement, employees laid off during the term
of the EBA could continue to receive the severance benefits
as defined under the EBA.
Honeywell is correct in asserting that, in order to be
eligible for severance pay, an employee must be "laid off
without being recalled for a period of twelve (12) full consecu-
tive months" and have been "on the active payroll with one
year or more of seniority on the effective date" of the EBA.
Effects Bargaining Agreement (July 13, 1994), reprinted in
J.A. 512-13. The company is wrong, however, in contending
that eligibility could not be established after June 6, 1997.
Under Katz and Litton, continuation of severance benefits
was ensured absent an impasse in bargaining or a new
agreement. In short, the company's claim that the duration
clause of the EBA somehow superceded the unilateral change
doctrine fails.
C. Waiver
Honeywell's second principal argument is that the express
terms of the EBA waived any employees' right to post-
expiration eligibility for severance. We find no merit in this
claim.
There is no doubt that a union may waive its statutory
protection against unilateral changes in mandatory subjects
of bargaining. Cauthorne Trucking, 256 N.L.R.B. No. 115
(June 19, 1981), enf'd in part, 691 F.3d 1023 (D.C. Cir. 1982).
However, any such waiver must be "clear and unmistakable."
Metro. Edison v. NLRB, 460 U.S. 693, 703 (1983). On the
record in this case, the Board correctly concluded that the
Union did not clearly and unmistakably waive its protection
against post-expiration unilateral termination of severance
benefits by the company.
In arguing for waiver, Honeywell points again to the dura-
tion clause, claiming that the express language of the clause
shows that "the parties decided to terminate eligibility for
severance benefits at midnight on June 6, 1997, and to waive
any statutory right to have eligibility continue indefinitely
thereafter until another round of bargaining took place."
Petitioner's Br. at 45. If these words--which are found in
the company's brief--had been included in the EBA, then
Honeywell's waiver argument might have merit. But the
aforecited words are not in the EBA. The language of the
duration clause in the EBA makes it clear that the Union's
contractual right to severance benefits ended on June 6, 1997;
but the provision is silent on the Union's statutory rights
under Katz and Litton. In other words, the duration clause
in no way evinces a clear and unmistakable waiver by the
Union.
Honeywell also argues that the parties' bargaining history
demonstrates waiver. Honeywell originally offered a declin-
ing balance approach to calculating severance benefits. Un-
der this approach, the severance paid to laid-off employees
would have declined over the term of the contract, reaching
zero when the contract expired. The Union rejected Honey-
well's declining balance plan. Honeywell argues that the
duration clause replaced the declining balance proposal and,
as a result, acceptance of the duration clause reveals that the
Union waived its rights to claim severance benefits after the
EBA expired. This argument fails, just as Honeywell's claim
that the duration clause itself constitutes waiver also fails.
Acceptance of the duration clause, following the Union's
rejection of the declining balance proposal, reveals only that
the Union agreed that its contractual basis for receiving
severance benefits would terminate on June 6, 1997. But this
bargaining history does not demonstrate that the Union
waived its statutory claims for protection from unilateral
change in terms or conditions of employment following expi-
ration of the contract.
Honeywell also points to some communications between the
Union and its members, as if to suggest that the Union
acknowledged that severance benefits ended with the termi-
nation of the EBA. For example, in a document written on
July 21, 1994, the Union advised employees that "[t]he follow-
ing benefits will be provided to all Local 1010 employees and
retirees who are laid off during the agreement." Local 1010
UAW Decision & Effects Agreement, reprinted in J.A. 255.
The statement is ambiguous regarding post-agreement lay-
offs and does not prove that the Union intended to waive its
statutory rights in signing the EBA. Furthermore, in the
same document, in answer to the question "Who Can Get
Severance Bonus?", the Union answered: "any employee with
at least one year of service who is permanently laid off after
the date of this agreement." Id. at 256. In short, there is no
good evidence that the Union waived its claim to protection
from unilateral change following termination of the EBA.
D. Arbitration
In a final, futile gesture to save the day, Honeywell argued
to this court that any dispute between the parties over the
meaning of the severance provision and duration clause in the
EBA should have been submitted to arbitration, not the
NLRB. This is a specious claim.
Disputes that arise under a collective bargaining agreement
can be arbitrated even after the contract itself has expired.
See Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243 (1977)
(holding employees' claim for severance pay arose under the
collective bargaining contract and was subject to arbitration
terms even though it arose after the contract was terminat-
ed). Therefore, employees who were laid off before June 6,
1997, and who had grievances regarding their severance pay,
arguably could have pursued those claims through arbitration
even after the EBA was no longer in effect. However, the
unilateral change doctrine does not apply to arbitration provi-
sions in expired collective bargaining agreements: once the
contractual basis for an arbitration agreement expires, the
arbitration agreement expires. Litton, 501 U.S. at 210. Par-
ties are free to draft a contract agreeing to resolve post-
expiration disputes through arbitration; absent such agree-
ment, however, arbitration is not available. Thus, employees
who were laid off after June 6, 1997--i.e., the employees at
issue in this case--could not have pursued arbitration to
challenge the company's unilateral termination of severance
benefits at the expiration of the EBA.
Furthermore, the company's argument comes too late.
Under s 10(e) of the NLRA, "[n]o objection that has not been
urged before the Board, its member, agent, or agency, 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. s 160(e); see, e.g., Quazite v.
NLRB, 87 F.3d 493, 497-98 (D.C. Cir. 1996) (refusing to
consider employer's argument that Board did not adequately
explain need for bargaining order because employer did not
raise objection before Board). Honeywell did not raise the
availability of grievance procedures and arbitration before the
Board and no "extraordinary circumstances" have been cited
to excuse this failure. Therefore, this court cannot consider
the argument.
The company was silent on the subject of contractual
grievance and arbitration procedures in the three documents
submitted to the Board following the ALJ's ruling. Honey-
well did not invoke the availability of grievance procedures or
arbitration in its Exceptions of Respondent Allied Signal Inc.
to the Decision of the Administrative Law Judge (No. 34-CA-
7898-2), its Brief in Support of Exceptions of Respondent
Allied Signal Inc. to the Decision of the Administrative Law
Judge (No. 34-CA-7898-2), or its Reply Brief of Respondent
Allied Signal Inc. (No. 34-CA-7898-2).
Before this court, the company did not refer to the avail-
ability of contractual grievance and arbitration procedures in
its Preliminary Statement of Issues to be Raised. The matter
was noted in passing in the company's initial brief to this
court, where it was observed that "[d]isputes between em-
ployers and unions over the interpretation of contracts are
matters for federal courts or, when the parties agree, by
arbitration." Petitioner's Br. at 39. And, in its reply brief,
the Company meekly suggested that, "[i]f there is a fair
dispute about the meaning of a contract, with potential conse-
quences that would survive the contract's expiration, nothing
bars a court, acting under Section 301 of the Labor-
Management Relations Act, 29 U.S.C. s 185 (1982), or a
grievance arbitrator from interpreting the contract and pro-
viding relief to the wronged party." Petitioner's Reply Br. at
15. The company never contended that the Board erred in
refusing deferral to arbitration. Even if we could tease such
an argument out of the company's cryptic one-liners in its two
briefs to the court, 29 U.S.C. s 160(e) bars us from consider-
ing the argument.
III. Conclusion
For the foregoing reasons we deny the company's petition
for review of the Board's order.
Honeywell International, Inc. v. National Labor Relations Board
Court: Court of Appeals for the D.C. Circuit
Date filed: 2001-06-29
Citations: 253 F.3d 125, 346 U.S. App. D.C. 421
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