Honeywell International, Inc. v. National Labor Relations Board

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.