Rd. Sprinkler Fitters v. Herman, No. 00-5023

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtTatel
Citation234 F.3d 1316
Decision Date22 December 2000
Docket NumberNo. 00-5023
Parties(D.C. Cir. 2000) Road Sprinkler Fitters Local Union 669, Appellant v. Alexis M. Herman, Secretary of Labor, et al., Appellees

Page 1316

234 F.3d 1316 (D.C. Cir. 2000)
Road Sprinkler Fitters Local Union 669, Appellant
v.
Alexis M. Herman, Secretary of Labor, et al., Appellees
No. 00-5023
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2000
Decided December 22, 2000

Page 1317

Appeal from the United States District Court for the District of Columbia (No. 99cv02688)

William W. Osborne, Jr. argued the cause and filed the briefs for appellant. Francis R. Sheed entered an appearance.

Page 1318

Maurice Baskin argued the cause and filed the brief for appellee Grinnell Fire Protection Systems Corporation.

Edward D. Sieger, Attorney, U.S. Department of Labor, argued the cause for the federal appellees. Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence, Stacy M. Ludwig and Heather Jean Kelly, Assistant U.S. Attorneys, were on the brief.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

A striking union challenges the Department of Labor's certification of an apprenticeship program to train replacement workers, arguing that the Department's action conflicts with the National Labor Relations Act, that the agency improperly acted in an NLRA-preempted area, and that the decision rests on an unreasonable reading of Department regulations. Finding neither conflict with nor encroachment upon the NLRA, and deferring to the Department's interpretation of its own regulations, we affirm the district court's award of summary judgment for the government.

I

The largest union of installers of fire protection sprinkler systems, appellant Road Sprinkler jointly operated a collectively bargained apprenticeship training program with an employer organization. Because the program had been certified by the Department of Labor's Bureau of Apprenticeship and Training ("BAT"), participating employers could pay apprentices sub-minimum wages. See 29 C.F.R. S 5.5(a)(4).

In September 1993, one of the employer organization members, appellee Grinnell Fire Protection Systems, began negotiating with Road Sprinkler for a new collective bargaining agreement, seeking, among other things, a new apprenticeship program. Seven months later, after declaring a bargaining impasse, Grinnell unilaterally imposed the terms and conditions of its "final offer," which did not include participation in the joint program.

Claiming that impasse had not been reached and that Grinnell's imposition of its last offer amounted to an unfair labor practice, Road Sprinkler filed a complaint with the NLRB and called a national strike. Grinnell responded by hiring striker replacements. The company also asked the BAT to either certify a new apprenticeship program to train replacement workers or allow their enrollment in programs run by other employers.

Instead of acting on Grinnell's request, the BAT advised the parties that it would make no decision until after the NLRB resolved Road Sprinkler's ULP charges. In support, the BAT pointed to the "union consent" provision of its own regulations:

Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument, provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgment of union agreement or "no objection" to the registration is required.

29 C.F.R. § 29.3(h). According to the BAT, the Board's resolution of the pending ULP proceedings would determine whether Road Sprinkler had a continuing role in the joint apprenticeship program sufficient to trigger section 29.3(h)'s requirement for union consent. This court ruled the BAT delay improper, finding that regardless of what the NLRB might decide, the still-striking union was not participating in the apprenticeship program for purposes of section 29.3(h). Associated Builders and Contractors, Inc. v. Herman, 166 F.3d 1248, 1256 (D.C. Cir. 1999). Finding also that the BAT lacked authority to block replacement workers from participating in programs run by other employers, we remanded

Page 1319

for immediate consideration of Grinnell's certification request. Id. at 1254-55.

Shortly thereafter, the NLRB completed its consideration of Road Sprinkler's ULP charges. Ruling for the union, the Board directed the company to "restore to unit employees the terms and conditions of employment that were applicable prior" to the unfair labor practice. See Grinnell Fire Protect. Sys. Co., 328 N.L.R.B. No. 76, 1999 WL 357628, at *5 (May 28, 1999). At this writing, Grinnell's petition for review remains pending in the Fourth Circuit. Grinnell Fire Protect. Sys., Inc. v. NLRB, No. 99-1754(L) (4th Cir. argued June 8, 2000).

In the meantime, the BAT, proceeding on remand from our earlier decision, changed its position. Despite its previous suggestion that an NLRB order reinstating the joint apprenticeship program would trigger section 29.3(h)'s union consent requirement, the...

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15 practice notes
  • United Bhd. of Carpenters & Joiners of Am., AFL–CIO v. Operative Plasterers' & Cement Masons' Int'l Ass'n of U.S. & Canada, AFL–CIO, Nos. 11–7155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 5, 2013
    ...Because the Board has exclusive jurisdiction over representation questions, see Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1320 (D.C.Cir.2000), they argue that the arbitrators had no authority to decide the dispute between the Carpenters and the Plasterers. But as the ......
  • Trudeau v. Federal Trade Com'n., No. 05-5363.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 28, 2006
    ...by agency action."). 10. See Hill v. Norton, 275 F.3d 98, 103 (D.C.Cir.2001)(APA); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C.Cir.2000) (APA); Five Flags Pipe Line Co. v. DOT, 854 F.2d 1438, 1439 (D.C.Cir.1988) (nonstatutory actions); R.I. Dep't of Envtl. Mgm......
  • American Road & Transp. Builders Ass'n v. Envtl. Prot. Agency, Civil Action 11-1713 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2012
    ...waiver of sovereign immunity permits [the plaintiff's] APA cause of action . . . ."); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C. Cir. 2000) ("28 U.S.C. § 1331 . . . gives federal courts . . . 'jurisdiction of all civil actions arising under the . . . laws . ......
  • Am. Rd. & Transp. Builders Ass'n v. Envtl. Prot. Agency, Civil Action No. 11–1713 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2012
    ...702's waiver of sovereign immunity permits [the plaintiff's] APA cause of action....”); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C.Cir.2000) (“28 U.S.C. § 1331 ... gives federal courts ... ‘jurisdiction of all civil actions arising under the ... laws ... of t......
  • Request a trial to view additional results
15 cases
  • United Bhd. of Carpenters & Joiners of Am., AFL–CIO v. Operative Plasterers' & Cement Masons' Int'l Ass'n of U.S. & Canada, AFL–CIO, Nos. 11–7155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 5, 2013
    ...Because the Board has exclusive jurisdiction over representation questions, see Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1320 (D.C.Cir.2000), they argue that the arbitrators had no authority to decide the dispute between the Carpenters and the Plasterers. But as the ......
  • Trudeau v. Federal Trade Com'n., No. 05-5363.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 28, 2006
    ...by agency action."). 10. See Hill v. Norton, 275 F.3d 98, 103 (D.C.Cir.2001)(APA); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C.Cir.2000) (APA); Five Flags Pipe Line Co. v. DOT, 854 F.2d 1438, 1439 (D.C.Cir.1988) (nonstatutory actions); R.I. Dep't of Envtl. Mgm......
  • American Road & Transp. Builders Ass'n v. Envtl. Prot. Agency, Civil Action 11-1713 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2012
    ...waiver of sovereign immunity permits [the plaintiff's] APA cause of action . . . ."); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C. Cir. 2000) ("28 U.S.C. § 1331 . . . gives federal courts . . . 'jurisdiction of all civil actions arising under the . . . laws . ......
  • Am. Rd. & Transp. Builders Ass'n v. Envtl. Prot. Agency, Civil Action No. 11–1713 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2012
    ...702's waiver of sovereign immunity permits [the plaintiff's] APA cause of action....”); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C.Cir.2000) (“28 U.S.C. § 1331 ... gives federal courts ... ‘jurisdiction of all civil actions arising under the ... laws ... of t......
  • Request a trial to view additional results

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