Intl Alli Thtrcl 39 v. NLRB

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2003 Decided July 8, 2003

No. 01-1456

INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES,

GREATER NEW ORLEANS STAGE, MOTION PICTURE,

TELEVISION AND EXHIBITION EMPLOYEES,

LOCAL 39, AFL–CIO,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

FREEMAN DECORATING COMPANY, ET AL.,

INTERVENORS

Consolidated with

01–1504, 01–1509, 02–1035

On Petitions for Review and Cross–Applications

for Enforcement of an Order of the

National Labor Relations Board

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Philip A. Franco and Curtis Mack argued the cause for

petitioners Freeman Decorating Company, et al. With them

on the briefs were William J. Kelly III, William Lurye,

Dannie B. Fogleman and David A. Rosenberg. Robert Mar-

kle, Richard B. Hankins and Peter J. Petesch entered ap-

pearances.

James D. Fagan, Jr. argued the cause and filed the briefs

for petitioner International Alliance of Theatrical and Stage

Employees, Greater New Orleans Stage, Motion Picture,

Television and Exhibition Employees, Local 39, AFL–CIO.

Robert S. Giolito entered an appearance.

James M. Oleske, Jr., Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Robert J. Englehart,

Supervisory Attorney.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Separate opinion filed by Circuit Judge TATEL concurring

in part and dissenting in part.

SENTELLE, Circuit Judge: Several parties petition for re-

view of the National Labor Relations Board’s (NLRB or the

Board) ruling that the petitioning employers in this case

committed an unfair labor practice by refusing to accept

referrals from a local union hiring hall, after the union

engaged in an illegal strike. We reverse the Board and hold

that the hiring hall registrants lost the protection of the

National Labor Relations Act (NLRA or Act) when the union

engaged in an illegal strike. Central to this conclusion, we

hold that each hiring hall registrant was an ‘‘employee who

engage[d] in a strike’’ within the meaning of Section 8(d) of

the Act, 29 U.S.C. § 158(d) (2000), regardless of whether the

registrant was on referral to an employer at the time the

strike was called.

3

I. Background

This petition involves nine employers (Employers)1 and two

unions (Local 39 and the Carpenters),2 each of which chal-

lenges the Board’s ruling. The Employers provide installa-

tion, decorating, and related services for conventions held in

the New Orleans area. Prior to July 1, 1997, Local 39 had

individual contracts with approximately eighty employers,

including the Employers involved in this petition. These

contracts provided that the signatory Employers would hire

workers in the New Orleans area exclusively from Local 39’s

hiring hall. Pursuant to the contract, when one of the

Employers needed labor, it called Local 39’s hiring hall.

Local 39 then called individuals on its referral list to attempt

to fill the request. Employees were not allowed to contact

Employers directly to solicit work. The hiring hall had a

registry of 446 journeymen, who were eligible for member-

ship in Local 39, and 1,885 ‘‘helpers’’ who were not eligible for

membership. Anyone registered with the hiring hall could be

referred to any of the signatory Employers, but a number of

the registrants had never been referred to any of the Em-

ployers involved in this case. Due to the transitory nature of

the convention business, individual employees would often be

referred to an Employer for short periods of time, sometimes

only a single day.

Local 39’s contracts with the Employers were set to expire

on June 30, 1997. In April 1997, Local 39 sent timely notice

to the Employers of its intent to renegotiate the contracts,

and bargaining ensued. However, the parties did not reach

1 Freeman Decorating Co., GES Exposition Services, Inc., Con-

vention Service, Inc. of Pennsylvania, Expo Services, Sho–Aids,

Inc., Czarnowski Display Services, Inc., Renaissance Management.,

Inc., Zenith Labornet, Inc., and W.H. Bower Spangenberg, Inc.

(represented in this petition by its trustee in bankruptcy).

2 International Alliance of Theatrical and Stage Employees,

Greater New Orleans Stage, Motion Picture and Exhibition Em-

ployees, Local 39, AFL–CIO (Local 39) and the United Brotherhood

of Carpenters and Joiners of America, Louisiana Carpenters Re-

gional Council, AFL–CIO (Carpenters).

4

an agreement, and the contracts expired without successor

agreements on June 30, 1997. On that date, at a meeting

attended by 126 of its members, Local 39 voted to go on

strike against the Employers on July 1. At the time of the

strike, only three hiring hall registrants were on referral to

one of the Employers, and none of these three is an alleged

discriminatee in this case.

By July 2, Local 39 had set up picket lines. For the next

three weeks, Local 39 did not refer any of its hiring hall

registrants to the Employers. Despite calls for labor, none of

the hiring hall registrants worked for any of the Employers

or attempted to disassociate themselves from the strike.

Consequently, the Employers were left with no source of

labor during a busy convention that began several days after

the strike. Bargaining continued during the strike and sever-

al contract offers were exchanged and rejected.

Through inquiries with the Federal Mediation and Concilia-

tion Service (FMCS), the Employers learned that Local 39

had failed to file a dispute notice with the FMCS thirty days

before calling a strike, as required by Section 8(d)(3) of the

NLRA, 29 U.S.C. § 158(d)(3). It is undisputed that Local

39’s failure to file the required notice made its strike illegal

under Section 8(d)(4) of the Act.

On July 22, 1997, six of the Employers faxed a ‘‘Notice of

Termination’’ to Local 39, which stated that ‘‘all employees

covered under the Local 39 Labor Agreement with any of the

signatory employers indicated below are hereby terminated

for participating in an illegal strike.’’ Within the week, the

six Employers mailed copies of the termination notice to over

2,600 individuals represented by Local 39, including anyone

who had ever been referred to a job by the Local 39 hiring

hall.

On July 23 or 24, Local 39 attempted to accept any contract

offer that was still on the table from the largest Employer,

GES, but was informed that GES no longer recognized Local

39 and had terminated all ‘‘Local 39 employees.’’ On July 26,

Local 39 sent a letter to all of the Employers purporting to

end its economic strike and attempting to accept the Employ-

5

ers’ contract proposal it had rejected in mid-July. The

Employers responded that the contract proposal had been

withdrawn, that they had no obligation to bargain with Local

39, and that all strikers had been terminated.

Three of the Employers–Zenith, Renaissance, and Eagle–

did not sign the July 22 termination letter, but sent similar

letters to Local 39 in August. They did not, however, send

copies of their letters to the hiring hall registrants, and Local

39 submitted a request to Zenith and Eagle asking for the

names of the individuals affected by the termination notices.

Zenith and Eagle refused to provide that information.

In late 1997, Freeman and GES, the two largest Employ-

ers, signed contracts with the Carpenters Union, which also

operates a hiring hall, to replace Local 39 as their labor

source. In early 1998, in preparation for the Board hearing

in this case, an attorney for GES contacted a number of the

hiring hall registrants who had received termination letters

and questioned them over the telephone.

Local 39 filed an unfair labor practice charge alleging that

the Employers’ and the Carpenters’ actions violated the Act.

On September 28, 2001, the Board issued a decision and

order. The Board found that the Employers violated Sec-

tions 8(a)(3) and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) &

(3), by announcing the terminations of over 2,200 individuals

who had used Local 39’s hiring hall. The Board reasoned

that although the strike was unlawful, the hiring hall regis-

trants were not ‘‘employee[s] who engage[d] in a strike’’

under Section 8(d) and thus did not lose the protection of

Section 8(a) of the Act. 29 U.S.C. § 158(d). They were not

‘‘employee[s],’’ the Board determined, because none of the

registrants was on referral to an Employer at the time the

strike was called. Moreover, even if the registrants were

employees, the Board held that the Employers had failed to

show that any of the hiring hall registrants ‘‘engage[d] in

[the] strike’’ by deliberately withholding labor from the Em-

ployers.

The Board declined, however, to find that the Employers

violated the Act by announcing the terminations of 330 other

hiring hall registrants because the Board deferred to the

6

General Counsel’s decision not to include these individuals in

the unfair labor practice charges.

In addition, the Board ruled that the Employers violated

Sections 8(a)(5) and 8(a)(1) by withdrawing recognition from

Local 39; that Zenith and Eagle violated Sections 8(a)(5) and

8(a)(1) by refusing to provide Local 39 with information

relevant to its representation duties; that Freeman and GES

violated Sections 8(a)(2) and 8(a)(1) by entering into a collec-

tive bargaining agreement with the Carpenters; that the

Carpenters violated 8(b)(1)(A) by acting as the representative

of employees that Local 39 had the exclusive right to repre-

sent; and that GES violated Section 8(a)(1) by interrogating

employees about their union activities.

The Board issued a remedial order requiring the Employ-

ers and the Carpenters to cease and desist from their ‘‘unlaw-

ful’’ conduct. The Employers were ordered to rescind the

announced discharges–i.e., begin to accept referrals from

Local 39; recognize and bargain with Local 39 upon request;

and post remedial notices. The Carpenters and the two

Employers with whom they entered into collective bargaining

agreements (Freeman and GES) were ordered to rescind

those agreements and jointly and severally disgorge certain

dues, fees, and benefit contributions.

In addition, the Board remanded the matter to the ALJ for

a determination of whether individual hiring hall registrants

might also be entitled to instatement and backpay in addition

to the other relief ordered. The Board stayed the remand

proceedings pending the outcome of this petition for review.

The Employers and Carpenters petitioned for review of the

Board’s ruling that they had violated the Act. Local 39

petitioned for review of the Board’s ruling that the Employ-

ers’ termination of 330 of its members was lawful. The

Board filed a cross-application for enforcement of its order.

II. Analysis

A. Standard of Review and Statutory Background

This Court will not disturb an order of the NLRB unless,

reviewing the record as a whole, it appears that the Board’s

7

factual findings are not supported by substantial evidence, 29

U.S.C. § 160(e), or that the Board acted arbitrarily or other-

wise erred in applying established law to the facts at issue.

Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C. Cir.

1994). When the Board’s decision turns on its interpretation

of the NLRA, the familiar two-step Chevron test applies.

Jacoby v. NLRB, 325 F.3d 301, 308 (D.C. Cir. 2003) (citing

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842–45 (1984)).

The NLRA grants statutory rights to both employees and

employers. NLRB v. Town & Country Elec., Inc., 516 U.S. 85,

88 (1995). As relevant here, the Act secures employees’

rights to unionize and engage in union activities by forbidding

employers from interfering with these rights, 29 U.S.C.

§ 158(a)(1)-(2); from discriminating on the basis of union

membership or activity, § 158(a)(3)-(4); and from refusing to

bargain collectively with a duly elected union, § 158(a)(5).

Importantly, the Act grants these rights only to ‘‘employees,’’

as defined by the Act in Section 2(3). Town & Country, 516

U.S. at 89. Section 2(3) states that ‘‘[t]he term ‘employee’

shall include any employee, and shall not be limited to the

employees of a particular employer, unless this subchapter

explicitly states otherwiseTTTT’’ 29 U.S.C. § 152(3). The

Supreme Court and this Court have, consistent with the Act’s

expansive definition covering ‘‘any employee,’’ broadly inter-

preted the term ‘‘employee,’’ holding it to include individuals

outside direct employment relationships, such as job appli-

cants, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 190–93

(1941), and auxiliary choristers who are ‘‘on call’’ to perform

as necessary, Seattle Opera v. NLRB, 292 F.3d 757, 761–65

(D.C. Cir. 2002). See also Town & Country, 516 U.S. at 90–

92 (discussing broad construction of the term ‘‘employee’’).

Most importantly for our purposes, the Supreme Court and

the NLRB have squarely held that hiring hall members are

‘‘employees’’ protected by the Act. See Teamsters Local 357

v. NLRB, 365 U.S. 667 (1961); see also Allied Chem. & Alkali

Workers of Am. v. Pittsburgh Plate Glass Co., 404 U.S. 157,

168 (1971) (noting that Board considers hiring hall registrants

‘‘employees’’ under the Act); Int’l Bhd. of Teamsters, Local

8

Union 104, 325 NLRB No. 121 (1998) (holding that hiring hall

registrants are protected by the Act); Int’l Longshoremen’s

Ass’n, Local 872, 163 NLRB 586 (1967) (same).

In addition to granting rights to employees and employers,

the Act imposes certain responsibilities as well. Central to

this case, Section 8(d)(3) requires a union to notify the

Federal Mediation and Conciliation Service within thirty days

after it notifies the employer of a dispute over the terms of

the contract. 29 U.S.C. § 158(d)(3). This requirement is

designed to provide the parties an opportunity to mediate

their disputes and to avert labor strife. Not surprisingly,

then, the Act provides drastic consequences when a union

goes on strike without first notifying the FMCS. Specifically,

[a]ny employee who engages in a strike within any notice

period specified in this subsection TTT shall lose his

status as an employee of the employer engaged in the

particular labor dispute, for the purposes of sections 158,

159, and 160[.]

29 U.S.C. § 158(d). In other words, if an ‘‘employee TTT

engages in a strike’’ within the FMCS notice period, he

forfeits his rights under the Act, and thus may be lawfully

terminated by his employer. As explained above, it is undis-

puted that Local 39 struck without giving the required notice,

and thus called an unlawful strike. The only question, then,

is whether the individual hiring hall registrants were ‘‘em-

ployee[s] who engage[d] in a strike.’’ If they were, they lost

their status as employees of the Employers and lost the

protections of Section 8(a) of the Act; consequently, the

Employers did not violate Sections 8(a)(1) & (3) by ‘‘terminat-

ing’’ the hiring hall registrants. See United Furniture Work-

ers of Am., AFL–CIO v. NLRB, 336 F.2d 738 (D.C. Cir.

1964). If the hiring hall registrants were not ‘‘employee[s]

who engage[d] in a strike,’’ they retained the protection of

Section 8(a), and the Employers violated the Act if they

terminated the registrants because of anti-union animus.

The Board ruled that the hiring hall registrants were not

‘‘employee[s]’’ within the meaning of Section 8(d) because

none of them was on referral to an Employer at the time the

9

strike was called. To reach this conclusion, the Board inter-

preted ‘‘employee[s]’’ in Section 8(d) more narrowly than the

general statutory definition of employee in Section 2(3). The

Board reasoned that Section 8(d) falls within the exception to

Section 2(3), which states that the meaning of the term

‘‘employee’’ may ‘‘be limited to the employees of a particular

employer’’ if the statute explicitly states the limitation. The

Board held that Section 8(d)’s coverage clause–‘‘any employee

who engages in a strike’’–must be read in light of the loss of

status clause–‘‘an employee of the employer engaged in the

particular labor dispute.’’ Read as a whole, the Board rea-

soned that Section 8(d) states an explicit limitation on the

usual definition of ‘‘employee’’ since ‘‘[o]nly someone who first

has the status of an employee of a particular employer can

lose that status.’’ The Board concluded that none of the

hiring hall registrants were ‘‘employee[s] of the employer

engaged in the particular labor dispute’’ because none was on

referral to an Employer at the time the strike was called, and

thus no ‘‘current employment relationship existed.’’ Conse-

quently, the Board held that the hiring hall registrants re-

tained the protections of Section 8(a)(1) & (3), and that the

Employers violated those sections by terminating them.

B. ‘‘Employee[s]’’

We review the Board’s interpretation of Section 8(d) under

the two-step framework provided in Chevron, 467 U.S. at

842–43. At step one we ask ‘‘whether Congress has directly

spoken to the precise question at issue.’’ Id. at 842. If

Congress unambiguously addressed whether hiring hall regis-

trants fall within Section 8(d), ‘‘that is the end of the matter[,]

for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.’’ Id. at 842–43.

If the statute is ambiguous, we move to Chevron’s second

step and ask whether the Board’s interpretation is ‘‘a permis-

sible construction of the statute’’ to which this Court must

defer. Id. at 843.

At the first step of Chevron, we conclude that Congress did

not unambiguously address the ‘‘precise question at issue.’’

Id. at 842. Section 8(d) does not mention hiring hall regis-

10

trants, nor does the general definition of ‘‘employee’’ in

Section 2(3). To be sure, the Supreme Court has held that

the Act covers hiring hall registrants, but neither this Court

nor the Supreme Court has addressed whether the broad

definition of employee is incorporated in Section 8(d), much

less whether Section 8(d) covers only hiring hall registrants

engaged in a direct employment relationship at the time a

strike is called. Thus, we turn to Chevron step two to

determine whether the Board’s interpretation of Section 8(d)

is reasonable. We conclude that it is not.

First, the Board improperly reads Section 8(d)’s loss of

status clause as a limitation on the term ‘‘any employee.’’

When read in light of the structure and purpose of Section

8(d), however, the loss of status clause is not an explicit

limitation of the term ‘‘employee’’ for purposes of Section 2(3).

Rather, the loss of status clause delineates the extent of the

loss of status that occurs when an employee engages in an

unlawful strike–i.e., the employee only loses his status as ‘‘an

employee of the employer engaged in the particular labor

dispute;’’ he does not lose the Act’s protection for all time or

for all employers. Contrary to the Board’s interpretation,

the loss of status clause does not tell us what type of

employee is capable of losing his status. The coverage clause

of Section 8(d) accomplishes this function, telling us that ‘‘any

employee who engages in a strike’’ will lose the protection of

the Act as to the specified employers. Importantly, ‘‘employ-

ee’’ is explicitly modified only by ‘‘any’’ and ‘‘who engages in a

strike.’’ ‘‘Any’’ signals that ‘‘employee’’ should receive its

broadest statutory definition, which both the Court and the

Board have consistently held to include hiring hall registrants

and other ‘‘on call’’ workers, regardless of whether they are

engaged in a direct employment relationship. See supra at

7–8. Accordingly, the term ‘‘employee’’ includes hiring hall

registrants, if they are capable of ‘‘engag[ing] in a strike.’’

Hiring hall registrants–even those not on referral to a partic-

ular employer–are capable of striking by refusing to work for

any signatory Employer. Therefore, viewed in light of the

structure of Section 8(d) and Court precedent, hiring hall

registrants are ‘‘employees’’ within the meaning of Section

11

8(d), even if they are not on referral to a particular employer.

Inasmuch as the Board’s contrary interpretation of Section

8(d) is in conflict with both interpretive precedent and the

statute’s structure, it is unreasonable.3

Furthermore, the Board’s reading of Section 8(d) renders

the Act internally inconsistent and reads many hiring hall

registrants out of Section 8(d) on an arbitrary basis. The

Board, in essence, creates an entire category of employees

who enjoy NLRA rights, but do not shoulder its responsibili-

ties. Under the Board’s interpretation, all hiring hall regis-

trants are protected by the Act, but registrants only lose

protected status if they happen to be on referral to a particu-

lar employer at the time an unlawful strike is called. The

practical result of the Board’s holding is that many unlawfully

striking hiring hall workers will suffer no consequences from

their unlawful behavior. Besides the internal inconsistency

produced by the Board’s reading, the Board’s reading pro-

duces absurd results in individual cases. In this case, hun-

dreds of registrants unlawfully denied their labor to the

Employers. Yet only three of these strikers forfeited their

rights under the NLRA–those who happened to be on a job

the day the strike was called. This result is utterly arbitrary

when hundreds of registrants had direct employment rela-

tionships with the Employers in the recent past and would

likely have been employed again in the near future but for the

strike. Moreover, unions could easily exploit the statutory

3 While our colleague’s suggestion that ‘‘if the court believes that

section 8(d)‘s plain language, structure, and purpose require that

the section apply to all statutory ‘employees,’ then it should have

rejected the Board’s interpretation at Chevron step one,’’ Dissent at

1–2, has a certain allure, we do not find the statute to be so plainly

unambiguous as to compel our rejection of the Board’s interpreta-

tion at step one. The Supreme Court has from the beginning in its

application of Chevron considered the language, structure, and

purpose of statutes in evaluating the reasonableness of agency

interpretations of ambiguous congressional language. See, e.g.,

NLRB v. United Food & Commercial Workers, 484 U.S. 112, 125

(1987); Immigration & Naturalization Serv. v. Cardoza–Fonseca,

480 U.S. 421, 445–46 & n.29 (1987).

12

gap caused by the Board’s interpretation by initiating an

unlawful strike during a slow referral period and continuing

to withhold labor throughout a busy season. The employer

would then be faced with the distasteful choice of ‘‘terminat-

ing’’ the hiring hall registrants and incurring unfair labor

practice charges or acceding to the union’s demands, no

matter that they were raised unlawfully. Indeed, that hypo-

thetical is close to the facts of this case. Such conduct is

inconsistent with the system of notification and mediation

established in Section 8(d). The Board’s reading upsets the

statutory balance struck by Congress and leads to irrational

results in practice. Consequently, its interpretation is unrea-

sonable under Chevron step two.

C. ‘‘Engages in a strike’’

Having held that hiring hall registrants are ‘‘employee[s]’’

within the meaning of Section 8(d), we similarly reject the

Board’s alternative holding that the hiring hall registrants

retained protection of the Act because the Employers failed

to show that the registrants ‘‘engage[d] in a strike.’’ The

Board held that the Employer was required to produce

evidence that each registrant deliberately withheld labor

when he was given the opportunity to work. We find this

holding contrary to law, arbitrary and capricious, and unsup-

ported by substantial evidence.

By requiring the Employers to produce evidence that each

registrant deliberately withheld labor, the Board acted con-

trary to the plain language of Section 8(d) and longstanding

precedent of the Board and this Court. Perhaps most impor-

tantly, the Board set a standard that could never be met in

the hiring hall context. Under the contract between Local 39

and the Employers, the hiring hall registrants were unable to

contact the Employers directly to seek work. Moreover, the

union controlled the referral process and refused to refer a

single registrant despite the Employers’ repeated request for

workers. It was therefore impossible for the Employers to

demonstrate that each hiring hall registrant deliberately

withheld labor because the Employers’ requests never

reached the registrants, and it is unclear that Employers

13

could ever have directly contacted the hiring hall registrants

while Local 39 purported to represent them. Despite these

facts precluding individualized proof, the Board went so far as

to opine that even picketing hiring hall registrants–who plain-

ly supported the strike–did not engage in the strike unless

the Employers could prove that each one turned down a

request for work from the Employer. This assertion borders

on the absurd. In any event, even if the Board’s standard

were correct, its decision could not stand on the present

record because the ALJ did not allow the Employers to

introduce evidence that each registrant deliberately withheld

labor from the Employers, and indeed scoffed at the notion

that such evidence was necessary.

The hiring hall registrants ‘‘engage[d] in a strike’’ as surely

as traditional employees who walk off the job site. The

deprivation of labor was total. During a busy convention, the

Employers received no workers from their exclusive labor

source, the Local 39 hiring hall. Under such circumstances, to

hold that not a single employee engaged in a strike is

irrational. In its ruling, the Board recognized that its prece-

dent held that individual employees ‘‘engage in a strike’’ when

the union calls an unlawful strike and employees do not

present themselves for work, unless the General Counsel

presents evidence that the employees did not support the

strike. For example, in Bechtel Corp., 200 NLRB 503 (1972),

which involved, among others, hiring hall employees, id. at

505, 507, the Board held that eighteen employees ‘‘engage[d]

in a strike’’ called by their union, despite their claims that

they did not come to work due to an authorized leave of

absence. Id. at 508–13. The Board inferred from their

membership in the striking bargaining unit and their failure

to affirmatively disavow the strike that they engaged in the

strike when they failed to present themselves for work. Id.

Accord Marathon Elec. Mfg. Corp., 106 NLRB 1171 (1953),

enf’d, 223 F.2d 338 (D.C. Cir. 1955). Nonetheless, the Board

contends that Bechtel and Marathon have been undercut by a

line of precedent involving unions engaging in lawful strikes.

See Park Manor Nursing Home, 312 NLRB 763, 766–67

(1993); Toledo (5) Auto/-Truck Plaza, 300 NLRB 676 n.2

14

(1990), aff’d 986 F.2d 1422 (6th Cir. 1993); Texaco, Inc., 285

NLRB 241, 246 (1987); Conoco, Inc., 265 NLRB 819, 821

(1982); Emerson Elec. Co., 246 NLRB 1143, 1143 (1979), enf’d

in relevant part, 650 F.2d 463 (3d Cir. 1981). In these cases,

the Board held that the employer may not infer strike

support from mere absence when there is another plausible

reason for the absence, such as sickness or disability; rather

the Board requires individual proof of strike support in the

case of these lawful strikers. The Board argues that this line

of precedent applies here because individual hiring hall regis-

trants also have reasonable grounds for absence since by

nature of the hiring hall process, at any given time many of

the hiring hall registrants are not on referral to an employer,

regardless of whether a strike has been called.

None of the cases cited by the Board, however, addressed

unlawful strikers, nor even cited Bechtel or Marathon, much

less overruled them. The Board utterly failed to explain why

a standard developed for lawful strikers should be applied to

unlawful strikers. Contrary to the Board’s position in this

case, Board precedent has long recognized the distinction

between lawful strikers–for whom individual proof of strike

support may be required–and unlawful strikers–who are pre-

sumed to ‘‘engage in [the] strike.’’ See Bechtel, 200 NLRB at

513 n.11. The Board obliterated this essential distinction

without explanation. Consequently, the Board acted arbi-

trarily by applying a standard designed to safeguard the

protected conduct of lawful strikers and ignoring relevant

precedent holding that employees represented by a striking

union are presumed to have engaged in the strike. The

Board’s ruling directly contravenes Section 8(d), which pro-

vides that unlawful strikers lose the protection of the Act and

contravenes common sense by effectively presuming that

every single hiring hall registrant has a reasonable excuse for

his absence despite the fact that the Employers were totally

deprived of labor. The Board may not, consistent with

Section 8(d), treat illegally striking hiring hall workers the

same as sick or disabled members of a lawfully striking union

merely because hiring hall workers are not expected to show

up at work every day.

15

By requiring employers to prove that individual hiring hall

registrants deliberately withheld labor, the Board effectively

reads hiring hall workers out of Section 8(d), much as it did

by misinterpreting the term ‘‘employee.’’ In many cases, as

here, it will be impossible for an employer to produce individ-

ualized proof because the union controls the hiring hall refer-

ral process and refuses to pass on employer requests for

work to employees. The result is that a union can call an

unlawful strike with impunity, knowing that its individual

registrants retain protection of the Act. Such a rule turns

Section 8(d) on its head; rather than discouraging strikes

through negotiation and mediation, it encourages strikes by

removing the statutorily prescribed consequences of unlawful

behavior. The Board’s decision is contrary to law, inconsis-

tent with its own precedent, and unsupported by substantial

evidence.

Because we hold that the hiring hall registrants were

‘‘employee[s] who engaged in a strike’’ within the meaning of

Section 8(d)–and thus lost the protection of Section 8 of the

Act–we grant the Employers’ petition for review and deny the

Board’s cross-application for enforcement. The Employers

did not violate Sections 8(a)(1) & (3) by refusing to accept

referrals from Local 39, nor did they violate Sections 8(a)(5)

& (1) by withdrawing recognition from Local 39.

D. Other issues

All other issues raised in the petitions for review are

resolved by our main holding. Because the hiring hall regis-

trants were lawfully terminated and lost the protection of the

Act: (1) Freeman and GES did not violate Sections 8(a)(2) &

(1) by entering into a collective bargaining agreement with

the Carpenters; (2) the Carpenters did not violate Section

8(b)(1)(A) by acting as the representative of employees in the

bargaining unit formerly represented by Local 39; (3) Zenith

and Eagle did not violate Section 8(a)(5) by refusing to

provide Local 39 with information relevant to its representa-

tion duties; and (4) GES did not violate Section 8(a)(1) by

interrogating employees about their union activities. Thus,

we grant the Employers’ and Carpenters’ petitions for review

16

in all respects and deny the Board’s cross-application for

enforcement. Finally, we lack jurisdiction to consider Local

39’s petition for review claiming that the Board should have

included 330 of its members in its remedial order. Not only

does our principal holding render this issue moot, but Local

39 failed to raise the issue before the Board in a motion for

reconsideration and thus may not raise it before this Court.

See 29 U.S.C. § 160(e); Alwin Mfg. Co. v. NLRB, 192 F.3d

133, 143 (D.C. Cir. 1999).

III. Conclusion

For the foregoing reasons, we hold that Local 39’s hiring

hall registrants were ‘‘employee[s] who engage[d] in a strike’’

within the meaning of Section 8(d) of the Act, and thus lost

the protection of the Act. Accordingly, we grant the Employ-

ers’ and the Carpenters’ petitions for review, deny the

Board’s cross-application for enforcement, and dismiss Local

39’s petition for lack of jurisdiction.

So ordered.

1

TATEL, Circuit Judge, concurring in part and dissenting in

part: I agree with the court’s Chevron step one conclusion

that Congress has not spoken to ‘‘the precise question at

issue,’’ Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984): How does section 8(d) of the

National Labor Relations Act apply to hiring halls? But

because the National Labor Relations Board’s resolution of

that question represents a reasonable interpretation of sec-

tion 8(d), and because in rejecting that interpretation the

court has substituted its views of labor policy for those of the

Board, I dissent.

Section 8(d) states that ‘‘[a]ny employee who engages in a

strike within any notice period specified in this section TTT

shall lose his status as an employee of the employer engaged

in the particular labor dispute, for the purposes of sections 8,

9, and 10 of [the NLRA], TTT but such loss of status for such

employee shall terminate if and when he is reemployed by

such employer.’’ 29 U.S.C. § 158(d). NLRA section 2(3)

defines ‘‘employee’’ as ‘‘any employee,’’ providing that the

term ‘‘shall not be limited to the employees of a particular

employer, unless the Act explicitly states otherwise.’’ 29

U.S.C. § 152(3).

Reading section 8(d) as ‘‘explicitly stat[ing] otherwise,’’ the

Board interprets the section as applying only to ‘‘employee[s]

of the employer engaged in the particular labor dispute,’’ in

this case hiring hall registrants actually on referral to an

employer at the time of the strike, rather than to all ‘‘employ-

ees,’’ a category the Supreme Court has held to include hiring

hall registrants, Local 357, Int’l Bhd. of Teamsters v. NLRB,

365 U.S. 667 (1961). Freeman Decorating Co., 336 N.L.R.B.

No. 1, 2001 NLRB LEXIS 798, at *32–33 (Sept. 28, 2001).

The court rejects this interpretation as unreasonable on two

grounds: first, section 8(d)’s plain language, ‘‘[w]hen read in

light of [its] structure and purpose, TTT is not an ‘explicit’

limitation of the term ‘employee,’ ’’ Maj. Op. at 10, and

second, the Board’s interpretation produces results inconsis-

tent with the basic purposes of section 8(d) and the NLRA,

Maj. Op. at 11–12.

With respect to the first rationale, if the court believes that

section 8(d)’s plain language, structure, and purpose require

2

that the section apply to all statutory ‘‘employees,’’ then it

seems to me the court should have rejected the Board’s

interpretation at Chevron step one. See FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000) (considering

the Food, Drug, and Cosmetic Act’s plain language, structure,

and purpose in rejecting, at Chevron step one, the Food and

Drug Administration’s assertion of jurisdiction over tobacco

products). But the court did not do so, and for good reason:

Section 8(d) is far from unambiguous. Although the provision

begins with the phrase ‘‘any employee,’’ its later reference to

loss of status as an ‘‘employee of the employer engaged in the

particular labor dispute’’ suggests that it applies only to those

who can lose such status, namely current ‘‘employees of the

employer engaged in the particular labor dispute.’’ In the

ordinary case—for example, factory workers involved in an

illegal strike—the question whether section 8(d) applies to

‘‘any employee’’ or only to ‘‘employees of the employer en-

gaged in the particular labor dispute’’ makes no difference,

since all illegal strikers are covered by both phrases. See,

e.g., Marathon Elec. Mfg. Corp., 106 N.L.R.B. 1171 (1953),

enforced sub nom. United Elec., Radio & Mach. Workers of

Am., Local 1113 v. NLRB, 223 F.2d 338 (D.C. Cir. 1955)

(applying section 8(d) to factory workers engaged in an illegal

strike). In the hiring hall situation, in contrast, registrants

can be ‘‘employees’’ but not ‘‘employees of the employer

engaged in the particular labor dispute.’’ Under these cir-

cumstances, it should come as no surprise that precisely how

section 8(d) applies to hiring halls is far from clear, particu-

larly since, as the parties agreed at oral argument, section

8(d)’s language and legislative history give no sign that

Congress considered hiring halls when it enacted that section

through the 1947 Taft–Hartley Amendments to the NLRA,

Pub. L. No. 80–101, 61 Stat. 136. In fact, as late as 1957, the

Board had held that hiring halls are illegal per se under the

NLRA, Mountain Pac. Chapter of the Associated Gen. Con-

tractors, Inc., 119 N.L.R.B. 883 (1957), a conclusion not

overruled by the Supreme Court until 1961—fourteen years

after section 8(d)’s enactment, Local 357, 365 U.S. 667.

3

Had Congress considered hiring halls when it enacted

section 8(d), it could have used language that unambiguously

resolved the precise issue we face here. For instance, if

Congress had wished for section 8(d) to apply to all hiring

hall registrants, it would have provided that ‘‘[a]ny employee

who engages in a strike TTT shall not enjoy lose his status as

an employee of the employer engaged in the particular labor

dispute, for the purposes of sections 8, 9, and 10 of [the

NLRA].’’ Or if, in addition to specifying that section 8(d)

applies to all hiring hall registrants, Congress had wished to

adopt this court’s view—that illegal strikers do not ‘‘lose the

Act’s protection for all time or for all employers,’’ Maj. Op. at

10—it would have provided that ‘‘[a]ny employee who engages

in a strike TTT shall not enjoy lose his status as an employee

of the employer engaged in the particular labor dispute, for

the purposes of sections 8, 9, and 10 of [the NLRA].’’ Or if

Congress had wished to adopt the Board’s interpretation—

that section 8(d) applies only to ‘‘employee[s] of the employer

engaged in the particular labor dispute’’—it would have pro-

vided that ‘‘[a]ny employee of the employer engaged in the

particular labor dispute who engages in a strike TTT shall lose

his status as an employee of the employer engaged in the

particular labor dispute, for the purposes of sections 8, 9, and

10 of [the NLRA].’’

Because, as written, section 8(d) falls somewhere in be-

tween the second and third options, this court has no basis for

concluding that the Board acted unreasonably in interpreting

the statute’s direct reference to ‘‘employee[s] of the employer

engaged in the particular labor dispute’’ as constituting sec-

tion 2(3)’s ‘‘explicit’’ limitation on the scope of ‘‘employee.’’

This is especially true given that section 8(d)’s reference to

‘‘employee[s] of the employer engaged in the particular labor

dispute’’ is one of only two instances in the entire NLRA

where the term ‘‘employee’’ is restricted to employees of a

‘‘particular’’ anything. The other, section 8(b)(4)(i)(D), is

hardly more ‘‘explicit.’’ It states that ‘‘forcing or requiring

any employer to assign particular work to employees in a

particular labor organization or in a particular trade, craft, or

class rather than to employees in another labor organization

4

or in another trade, craft, or class’’ is an unfair labor practice.

29 U.S.C. § 158(b)(4)(i)(D).

The Board’s interpretation of section 8(d) seems especially

reasonable in light of the phrase following the section’s loss-

of-status provision: ‘‘such loss of status for such employee

shall terminate if and when he is reemployed by such employ-

er.’’ 29 U.S.C. § 158(d) (emphasis added). The reference to

reemployment, like the earlier reference to loss of status,

suggests that Congress did not intend section 8(d) to apply to

employees having no past or current relationship with partic-

ular employers. Moreover, the return-of-status provision

makes sense only under the Board’s interpretation of section

8(d). Under that interpretation, just the three hiring hall

registrants employed at the time of the strike lose their

NLRA protection, and, pursuant to the return-of-status provi-

sion, those three would regain their protection if the Employ-

ers reemploy them at some future date. In contrast, under

the court’s interpretation, all hiring hall registrants lose their

NLRA protection, but only those who once worked for a

particular employer can regain it; those who never worked

for a particular employer can never regain NLRA protection

since they cannot be ‘‘reemployed by such employer.’’ It

makes little sense to suppose Congress intended remediable

loss-of-status for previous employees of the Employers but

perpetual loss-of-status for all other hiring hall registrants.

Why would Congress grant illegal strikers who once worked

for a particular employer greater protection than illegal strik-

ers who never did?

The court’s second ground for rejecting the Board’s inter-

pretation as unreasonable is that applying section 8(d) only to

hiring hall registrants on referral at the time of the strike

undermines the section’s purpose and ‘‘renders the [NLRA]

internally inconsistent.’’ Maj. Op. at 11. Specifically, the

court points out that the Board’s interpretation means ‘‘many

unlawfully striking hiring hall workers will suffer no conse-

quences from their unlawful behavior,’’ and that ‘‘unions could

easily exploit the statutory gap caused by the Board’s inter-

pretation by initiating an unlawful strike during a slow refer-

ral period and continuing to withhold labor throughout a busy

5

season.’’ Id. at 11–12. Thus, the court concludes, ‘‘[t]he

Board’s reading upsets the statutory balance struck by Con-

gress.’’ Id. at 12.

While it is true that under the Board’s interpretation

‘‘many unlawfully striking hiring hall workers will suffer no

consequences from their unlawful behavior,’’ the court ignores

the fact that under its interpretation many workers with

highly attenuated relationships with the hiring hall at the

time of the strike—or even no relationship at all—will suffer

serious consequences. Indeed, reading the court’s opinion,

one would never know that at the time of the strike approxi-

mately 300 of the workers terminated by the Employers were

not even registered with Local 39 for work referrals. Free-

man Decorating Co., NLRB LEXIS 798, at *9. Nor would

one know that of the 2,331 workers who were registered, only

an unknown subset had ever worked for any of the Employ-

ers in the past. Id. at *31. Nor, finally, would one know that

of the roughly 2,600 terminated workers, the record contains

evidence that only 357 (a figure later revised downward to

330) ‘‘had engaged in picketing activity or otherwise sup-

ported the strike,’’ id. at *50, and only 126 union members

attended the meeting at which the union voted to strike, id. at

*92 n.8. In fact, the record contains no evidence that the vast

majority of the 2,600 terminated workers even knew that the

union was on strike until they received the Employers’ letter

informing them of their termination.

Given these facts—that not all of the terminated workers

were even registered with the hiring hall at the time of the

strike, and that many of the remaining 2,331 terminated

registrants had never worked for the Employers, were not

working for them at the time of the strike, and, even without

the strike, might never have worked for them in the future—

the Board chose to interpret section 8(d)’s scope narrowly.

The Board explained its policy choice as follows:

[T]he issue is which individual workers will lose the

protection of the [NLRA], by virtue of their employ-

ment relationship and their conduct. In concluding

that the [NLRA’s] loss-of-status provision applies

6

only where individual workers can fairly be regarded

as complicit in an unlawful strike,TTTT we believe

that Congress could not have intended the draconian

result that our [dissenting] colleague would permit

in this case.

Freeman Decorating, NLRB LEXIS 798, at *33.

Although the court thinks the Board acted unreasonably by

failing to interpret section 8(d) as punishing every illegally

striking worker, nothing in section 8(d)’s plain language sug-

gests that the provision’s purpose is meting out individualized

punishments. Rather, as the court acknowledges, section

8(d)’s contract modification and termination provisions seem

designed to establish a ‘‘system of notification and mediation,’’

Maj. Op. at 12, including requiring unions to give thirty days’

notice before striking. Restricting section 8(d)’s loss-of-

status penalty to workers actually on referral at the time of a

strike may indeed dull unions’ incentive to give proper notice

and invite strategic behavior, but it does not eliminate the

incentive altogether. Even though the court may believe that

weakening employers’ protection against illegal strikes in

order to protect innocent employees constitutes unwise labor

policy, the purpose of the NLRA is not solely ‘‘to promote the

full flow of commerce,’’ but also ‘‘to prescribe the legitimate

rights of both employees and employers.’’ 29 U.S.C. § 141(b)

(emphasis added). The Board can hardly be accused of

unreasonably subverting the statute’s overall purpose where,

as here, it seeks to balance the competing interests of em-

ployers and employees.

The fundamental point is this: Only the Board, not this

court, has authority to choose on policy grounds between two

alternative interpretations of the NLRA, so long as neither

interpretation departs from the statute’s text or overall pur-

pose. As the Supreme Court has observed, ‘‘[t]he ultimate

problem’’ in federal labor law is ‘‘the balancing of [employees’

and employers’] conflicting legitimate interests.’’ NLRB v.

Truck Drivers Local Union No. 449, 353 U.S. 87, 96 (1957).

‘‘The function of striking that balance to effectuate national

labor policy,’’ the Court continued, ‘‘is often a difficult and

7

delicate responsibility, which the Congress committed primar-

ily to the National Labor Relations Board, subject to limited

judicial review.’’ Id. Because ‘‘ ‘[c]ourts must not enter the

allowable area of the Board’s discretion and must guard

against the danger of sliding unconsciously from the narrow

confines of law into the more spacious domain of policy,’ ’’ id.

at 96 n.28 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 194 (1941))—precisely what this court has done—I would

sustain the Board’s statutorily permissible, reasonable, policy-

conscious interpretation of section 8(d).

Two final points. First, after raising the possibility that

unions might ‘‘exploit the gap caused by the Board’s interpre-

tation’’ by timing illegal strikes to coincide with a ‘‘slow

referral period,’’ the court states that ‘‘[i]ndeed, that hypo-

thetical is close to the facts of this case.’’ Maj. Op. at 12.

Nothing in the record supports this statement. In fact, Local

39’s failure to file the proper notice with the Federal Media-

tion and Conciliation Service seems to have stemmed from a

good faith mistake. As soon as Local 39 learned of its error,

it ‘‘attempted to accept any contract offer that was still on the

table.’’ Maj. Op. at 4.

Second, although my view of section 8(d) makes it unneces-

sary to consider which of the alleged discriminatees ‘‘en-

gage[d] in a strike,’’ I question the court’s conclusion that all

the alleged discriminatees ‘‘engage[d] in a strike.’’ See Maj.

Op. at 12–15. Even if, as the court holds, the Board erred by

refusing to accept the Employers’ proffered evidence about

the discriminatees’ strike activities and by deciding as a legal

matter that none of the alleged discriminatees engaged in a

strike, the court should have remanded to the Board with

instructions to consider the relevant evidence and to articu-

late criteria for determining whether hiring hall registrants

engaged in a strike. See Plumbers & Steamfitters Local 342

v. NLRB, 598 F.2d 216, 222 (D.C. Cir. 1979) (remanding to

Board because ‘‘[w]e think it inconsistent with Congress’

general scheme for judicial review under the Act to address

such complex and important questions of statutory interpreta-

tion without the benefit of the agency’s expertise in the first

instance’’). Instead, the court announces a per se rule that

8

‘‘all hiring hall registrants’’ should be deemed participants in

any illegal strike declared by their hiring hall. Maj. Op at 15.

Not only does this rule unnecessarily constrain the Board’s

ability to interpret section 8(d) in future hiring hall cases, but

the court’s application of the rule to this case ignores the fact

that at the time of the strike roughly 300 discriminatees were

not even ‘‘hiring hall registrants.’’

I concur with the court’s conclusion that Local 39’s argu-

ments on appeal were not properly raised. Maj. Op. at 15–16.