Rd. Sprinkler Fitters v. Herman, 00-5023

• Decision Date: 22 December 2000
• Docket Number: No. 00-5023,00-5023
• Citation: 234 F.3d 1316
• Parties: (D.C. Cir. 2000) Road Sprinkler Fitters Local Union 669, Appellant v. Alexis M. Herman, Secretary of Labor, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

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

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.

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 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 BAT granted Grinnell's certification request over Road Sprinkler's objection. In doing so, the BAT relied on a different part of section 29.3--subsection (i). That subsection provides for unilateral employer apprenticeship programs "[w]here the employees to be trained have no collective bargaining agent." To support its conclusion that Road Sprinkler did not represent Grinnell's striker replacements for the purposes of subsection (i), the BAT cited a new NLRB decision, Detroit Newspaper, extending the rule that employers need not bargain with striking unions over terms and conditions of employment for replacement workers to unfair labor practice strikes. Detroit Newspaper Agency, 327 N.L.R.B. No. 164, 1999 WL 145905, at *1 (Mar. 15, 1999).

Filing suit in the U.S. District Court here, Road Sprinkler claimed (1) that the BAT decision conflicts with the NLRB's definition of "collective bargaining agent" as well as its remedy for Grinnell's unfair labor practice; (2) that in determining Road Sprinkler's representation status, the BAT improperly acted in an NLRA-preempted area; and (3) that the agency unreasonably interpreted its own regulations in violation of the Administrative Procedure Act, 5 U.S.C. § 706. In response, the Department argued that the BAT's decision has no impact on the labor laws, that in any event, the decision is consistent with Detroit Newspaper, and that the BAT's interpretation of section 29.3 was reasonable and therefore worthy of deference. Agreeing, the district court entered summary judgment for the Department. Road Sprinkler appeals. Our review is de novo. See Everett v. United States, 158 F.3d 1364, 1367 (D.C. Cir. 1998).

II

Before addressing Road Sprinkler's arguments, we must consider Grinnell's claim, not embraced by the Department, that we lack jurisdiction. According to Grinnell, the APA "is not to be interpreted as an implied grant of subject-matter jurisdiction" to the federal courts. See Califano v. Sanders, 430 U.S. 99, 105 (1977). Grinnell overlooks 28 U.S.C. § 1331, which gives federal courts what the APA does not: "jurisdiction of all civil actions arising under the ... laws ... of the United States," including those brought under the APA. See Saavedra-Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999). The company also claims, again without Department support, that Road Sprinkler lacks standing; because Road Sprinkler is not the collective bargaining agent of the replacement workers, Grinnell argues, the union has not been injured by the BAT's failure to seek its consent. This cannot be. Whether Road Sprinkler has a right under BAT regulations to veto Grinnell's new apprenticeship program is precisely the question before us. Recasting such questions as jurisdictional would deny standing to all litigants with...