Associated Builders and Contractors, Inc. v. Herman

• Decision Date: 16 February 1999
• Docket Number: 97-5327 and 97-5362,Nos. 97-5300,s. 97-5300
• Citation: 166 F.3d 1248
• Parties: 160 L.R.R.M. (BNA) 2452, 334 U.S.App.D.C. 285 ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al., Appellants/Cross-Appellees, v. Alexis M. HERMAN, Secretary of Labor, and Anthony Swoope, Director, Bureau of Apprenticeship and Training, U.S. Department of Labor, Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1248

166 F.3d 1248

160 L.R.R.M. (BNA) 2452, 334 U.S.App.D.C. 285

ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al., Appellants/Cross-Appellees, v. Alexis M. HERMAN, Secretary of Labor, and Anthony Swoope,

Director, Bureau of Apprenticeship and Training,

U.S. Department of Labor,

Appellees/Cross-Appellants.

Nos. 97-5300, 97-5327 and 97-5362.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 12, 1999.

Decided Feb. 16, 1999.

William W. Osborne, Jr., argued the cause for appellant Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO. With him on the briefs was Marc D. Keffer.

Paul S. Padda, Assistant U.S. Attorney, argued the cause for appellees/cross-appellants U.S. Department of Labor. With him on the briefs were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Gregory W. Addington, Assistant U.S. Attorney, entered an appearance.

William W. Osborne, Jr., Marc D. Keffer and Terry R. Yellig were on the joint brief for amici curiae Building and Construction Trades Department, AFL-CIO, and Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO.

Before: EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Grinnell Fire Protection Systems Co. ("Grinnell") has for some time now been engaged in a labor dispute with employees represented by the Road Sprinkler Fitters Local Union No. 699 ("Union"). The Union has filed unfair labor practice charges with the National Labor Relations Board ("NLRB") claiming that Grinnell unlawfully instituted changes in the terms and conditions of employment (including modifying a joint apprenticeship training program) without first bargaining in good faith to impasse. Because its unionized employees are currently on strike, Grinnell sought permission from the Department of Labor's ("DOL") Bureau of Apprenticeship and Training ("BAT") to train striker replacements under some form of BAT-approved apprenticeship program--either a new program to be administered by Grinnell, or an existing, lawfully registered program administered by another employer. In response to Grinnell's request, BAT deferred judgment on whether to allow Grinnell to implement a new apprenticeship program and it refused to allow other employers to train Grinnell employees under their apprenticeship programs, pending a decision by the NLRB on the yet unresolved unfair labor practice charges. Grinnell sought relief in the District Court, alleging that BAT's decisions were arbitrary, capricious, and contrary to law.

On cross-motions for summary judgment, the District Court held that it was reasonable for BAT to defer judgment on Grinnell's proposal for a new program, but that it was arbitrary and capricious for BAT to preclude Grinnell employees from enrolling in already approved programs. Subsequently, the Union moved to intervene and this motion was denied by the District Court. Both Grinnell and DOL have appealed the District Court's judgment to this court. In a consolidated case, the Union appeals the District Court's denial of its motion to intervene.

We affirm the judgment of the District Court only insofar as it ordered BAT to permit Grinnell employees to enroll in ongoing and lawfully registered apprenticeship programs of other employers. BAT acted without any statutory or regulatory authority in blocking the enrollment of Grinnell employees in these programs. We reverse the District Court, however, insofar as it endorsed BAT's decision to defer consideration of Grinnell's request to register a new apprenticeship program for striker replacements. BAT's decision inexplicably ignored the plain language in the governing regulations that dispenses with any need to defer to the NLRB. Accordingly, we vacate that portion of BAT's decision and remand to the District Court with instructions to remand the case to the agency for prompt disposition of Grinnell's request for registration of a new apprenticeship program. Finally, because the Union has offered no justification for its failure to intervene prior to judgment in the District Court, we affirm the District Court's denial of its motion to intervene.

I. Background

A. Regulatory Background

In accordance with the National Apprenticeship Act ("NAA"), 29 U.S.C. §§ 50-50b, DOL has promulgated and implemented regulations related to the administration of the nation's apprenticeship programs, which offer training to apprentices in certain skilled trades. See 29 C.F.R. pt. 29 (1998). These programs are registered and monitored either through BAT or through a BAT-approved State Apprenticeship Agency or Council ("SAC"). See id. §§ 29.2(o), 29.12. Under DOL regulations implemented pursuant to the Davis-Bacon Act, 40 U.S.C. §§ 276a-276a-5, an employer may pay apprentices wages below the prevailing wage rate "when [the apprentices] are employed pursuant to and individually registered in a bona fide apprenticeship program registered with [BAT], or with a [SAC] recognized by [BAT]." 29 C.F.R. § 5.5(a)(4) (1998).

In order to register an apprenticeship program with BAT or a SAC, a "sponsor," i.e., a person or entity operating an apprenticeship training program, see id. § 29.2(g), must designate an "apprenticeship committee" to administer the program. See id. § 29.2(i). The committee may be "joint"--in which case it is comprised of an equal number of company and employee representatives--or it may be "unilateral"--in which case employee representatives do not participate in its operation. See id. When a sponsor seeks to register an apprenticeship program, it must meet certain eligibility requirements. See id. § 29.3. Once approved, the program must conform to certain regulatory standards. See id. § 29.5.

B. Factual Background

Prior to April 1994, Grinnell and the Union had agreed to, and participated in, a collectively bargained joint apprenticeship program. See Agreement Between National Fire Sprinkler Ass'n, Inc. and Road Sprinkler Fitters Local Union No. 699 ("agreement") at 33, reprinted in Appendix to Brief of Local 699 ("Union App.") 85. The program was administered by a Joint Apprenticeship and Training Committee ("JATC"), which was comprised of an equal number of Grinnell officials and Union agents. See id. at 34, reprinted in Union App. 86.

In April 1994, the Union organized a strike against Grinnell. Grinnell subsequently hired replacement workers. Following contract negotiations, the Union rejected Grinnell's purported "final" contract offer. Grinnell then informed the Union that the terms of its final offer would be implemented on April 14, 1994. The Union responded by filing unfair labor practice charges against Grinnell, alleging that, in violation of the National Labor Relations Act ("NLRA"), the company had unilaterally instituted changes in the terms and conditions of employment without first bargaining in good faith to impasse. See 29 U.S.C. § 158(a)(5) (1994); NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). After a hearing, an Administrative Law Judge ("ALJ") agreed with the Union that Grinnell had violated the NLRA by "implementing the terms of its last contract offer in the absence of a lawful impasse." Grinnell Fire Protection Sys. Co., 5-CA-24521, 5-CA-25227,5-CA-25406, at 32 (Jan. 16, 1997), reprinted in Appendix ("Grinnell App.") 159. The ALJ proposed that Grinnell be "ordered to restore the terms and conditions of employment of unit employees as they existed prior to April 14, 1994, [and to] continue them in effect until the parties reach an agreement or a good-faith impasse." Id. Grinnell appealed the ALJ's ruling to the full NLRB. The NLRB has yet to render a judgment in the case.

As the proceeding before the NLRB has progressed, Grinnell has continued to hire striker replacements and it has sought to train these workers through some form of BAT- or SAC-approved apprenticeship program. Grinnell first tried to use the program that was jointly administered by the JATC. John Walsh, the Director of the JATC--and one of the Union's agents on the committee--responded to the company's request by refusing to approve new individuals into the joint program until Grinnell resumed paying hourly contributions required by the agreement. See Letter from John J. Walsh, Director, Local 699 JATC, to Grinnell Fire Protection (June 6, 1994), reprinted in Union App. 49. Grinnell's President, Jerry Boggess, responded by asserting that Grinnell was, in fact, continuing to make the hourly contributions to the JATC. See Letter from Jerry R. Boggess to Walsh (July 15, 1994), reprinted in Union App. 50-51. The final correspondence in this brief exchange was a letter from Walsh to Boggess, essentially asking for documentation of Grinnell's contributions to the JATC. See Letter from Walsh to Boggess (July 25, 1994), reprinted in Union App. 52. The JATC has yet to approve the enrollment of any of Grinnell's striker replacements. It is also undisputed that neither Grinnell nor the Union is currently participating in the apprenticeship program administered by the JATC.

In June 1995, counsel for Grinnell asked an official at DOL how the ongoing strike would affect Grinnell's ability to enroll its employees either in a new, unilateral apprenticeship program, or in an already approved program that is currently being administered by another employer. See Letter from Donald L. Rosenthal, Counsel for Grinnell, to Charles D. Raymond, Associate Solicitor of Labor (June 2, 1995), reprinted in Grinnell App. 22-24. Anthony Swoope, Director of BAT, responded by stating that BAT would not approve the registration of a new program, nor would it allow Grinnell's replacement workers to enroll in existing programs. See Letter from Swoope to Rosenthal (July 12, 1995), reprinted in Grinnell App. 26-27; see also Letter from Claire Louder, Executive Director, Associated Builders & Contractors, Inc., South Texas...