Resort Nursing Home v. National Labor Relations Board

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 28, 2004 Decided November 30, 2004

No. 03-1369

RESORT NURSING HOME AND

KINGSBRIDGE HEIGHTS REHABILITATION CARE CENTER,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

NEW YORK HEALTH AND HUMAN SERVICE UNION

1199/SEIU, AFL–CIO,

INTERVENOR

Consolidated with

03-1422

On Petition for Review and

Cross-Application 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

Joel E. Cohen argued the cause and filed the briefs for

petitioners.

Ruth E. Burdick, Attorney, National Labor Relations

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

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

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Frederick L. Corn-

nell, Jr., Supervisory Attorney.

Daniel J. Ratner argued the cause for intervenor. With

him on the brief was Judith A. Scott.

Before: GINSBURG, Chief Judge, and EDWARDS and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: Resort Nursing Home (‘‘Resort’’)

and Kingsbridge Heights Rehabilitation Care Center (‘‘Kings-

bridge’’) petition for review of an order of the National Labor

Relations Board (‘‘NLRB’’ or ‘‘Board’’), and the Board cross-

applies for enforcement. The Board held that Resort and

Kingsbridge (collectively, ‘‘the Homes’’) committed unfair la-

bor practices in violation of § 8(a)(1) and (5) and § 8(d) of the

National Labor Relations Act (‘‘Act’’), 29 U.S.C. § 158(a)(1),

(a)(5), (d) (2000), by refusing to execute and failing to abide

by a collective bargaining agreement negotiated by New York

Health & Human Services Union 1199/SEIU, AFL-CIO (‘‘Un-

ion’’) and the Greater New York Health Care Facilities

Association (‘‘Greater New York’’ or ‘‘Association’’), a multi-

employer association of which the Homes were members.

See Resort Nursing Home, 340 N.L.R.B. No. 77 (Sept. 30,

2003) (‘‘Decision’’), reprinted in Joint Appendix (‘‘J.A.’’) at

760, available at 2003 WL 22287369. In reaching this conclu-

sion, the Board found that the Homes were bound by the

collective bargaining agreement arrived at through multi-

employer bargaining, because their attempted withdrawal

from the multi-employer bargaining unit was legally ineffec-

tive.

Under Retail Associates, Inc., 120 N.L.R.B. 388 (1958),

withdrawal from multi-employer bargaining is not permitted

after the commencement of negotiations, ‘‘absent unusual

3

circumstances.’’ Id. at 395. In this case, the Association and

the Union commenced negotiations on a new agreement,

without notice to the Homes, more than eight months before

the expiration of the existing contract. The Homes contend

that the early commencement of negotiations justified their

untimely withdrawal from the multi-employer bargaining unit.

Relying on its decision in Chel LaCort, 315 N.L.R.B. 1036

(1994), the Board found no ‘‘unusual circumstances’’ and held

that the Homes were bound by the terms of the parties’ new

agreement.

The Homes now seek review of the Board’s decision, chal-

lenging the Chel LaCort rule as ‘‘misguided and unfair.’’ The

Homes also argue that the Board erred in rejecting their

claim that the Union and the Association colluded to keep

their negotiations secret from the Homes. Finally, the

Homes contend that the collective bargaining agreement is

not binding on them, because it was never ratified by the

Association’s members.

We deny the petition for review and grant the Board’s

cross-application for enforcement. The rule adopted in Chel

LaCort is a reasonable effort by the Board to balance the

competing statutory interests of voluntariness and stability in

collective bargaining relationships, and we thus defer to the

Board’s judgment. We further hold that substantial evidence

supports the Board’s rejection of the Homes’ claim that the

Union and the Association colluded to keep the negotiations

secret. Finally, reviewing the collective bargaining agree-

ment de novo, we conclude that ratification by the Associa-

tion’s members was not required.

I. BACKGROUND

A. The Facts

The facts of this case are fully recounted in the Board’s

decision, see Decision, slip op. at 1, 2-5, J.A. at 760, 761-64, so

we merely summarize the most salient facts here.

Resort and Kingsbridge are nursing homes located, respec-

tively, in Far Rockaway and the Bronx, New York. Although

4

separate corporations, they share common ownership and

control. The Union represents the registered nurses, li-

censed practical nurses, and para-professionals employed by

the Homes, as well as those employed by other nursing

homes in New York and New Jersey. The Association is a

multi-employer association that provides a range of services

to its members, including educational seminars, compliance

review and education regarding occupational safety and

health regulations, market research, legal counsel for labor

grievances and arbitrations, and, most relevant for our pur-

poses, collective bargaining.

In 1997, the Association and the Union negotiated a collec-

tive bargaining agreement that, by its terms, was to remain in

effect until September 30, 2002. At that time, the Homes

were members of the Association and had agreed to be bound

by multi-employer bargaining between the Association and

the Union.

Over time, the Homes increasingly became dissatisfied with

the Association’s representation. In the summer of 2000, the

Homes retained their own labor counsel, Joel Cohen, to

handle grievances, arbitrations, and other matters. On Sep-

tember 7, 2000, after the Association filed a grievance against

the Union on Kingsbridge’s behalf, Cohen advised the parties’

permanent arbitrator (by a letter which he copied to Union

and Association representatives) that he ‘‘represent[ed]

Kingsbridge TTT in all labor matters’’ and that the grievance

filed by the Association ‘‘was sent without my knowledge and

without Kingbridge’s authorization.’’ Although the Associa-

tion objected to Cohen’s letter, asserting that the Association

was authorized to represent Kingsbridge with respect to the

grievance, Cohen subsequently handled all of the grievances

and arbitrations that arose between the Homes and the Union

in 2000 and 2001.

In June and July 2001, the Homes stopped paying member-

ship dues to the Association. On September 7, 2001, the

Association demanded payment of the outstanding dues,

warning the Homes: ‘‘If we do not receive payment from you

by the 21st of September all services will be suspended.’’ By

5

December 13, 2001, the Association informed the Homes that

it had instructed its staff to suspend all services to them.

Meanwhile, sometime prior to January 9, 2002 (i.e., more

than eight months before the existing collective bargaining

agreement was set to expire), the Association and Union

commenced bargaining on a new contract. On January 9, the

Association sent a letter to the Union ‘‘confirm[ing] the intent

of the Association TTT to enter into an extension of the

current collective bargaining agreements.’’ The letter memo-

rialized understandings on the principal terms and conditions

for a new contract, including specific wage rates. After

formal bargaining sessions on January 23 and February 1,

2002, the Union and Association entered into an agreement

renewing the terms of the existing contract through April 30,

2005. The agreement provided for a wage increase to go into

effect on May 1, 2002. The terms of the final agreement –

including the specific wage rates – were substantially identi-

cal to the terms in the January 9 letter of intent. The

agreement also listed the members of the Association, includ-

ing Kingsbridge and Resort.

On January 31, 2002, upon learning of the ongoing negotia-

tions between the Union and the Association, Kingsbridge

advised the Union ‘‘that at this time Greater New York has

discontinued servicing our facility, and as such, will not be

negotiating on our behalf.’’ Similarly, on February 11, 2002,

Resort wrote to the Union, stating: ‘‘I am certain you are

aware of the fact that the TTT Association has discontinued all

services for Resort. I would therefore like to remind you

that [the Association] will no longer be negotiating any collec-

tive bargaining agreements on our behalf.’’

The Union, for its part, maintained that the Homes were

bound by the terms of the new agreement. On April 24,

2004, the Union filed an unfair labor practice charge against

the Homes, alleging that their refusal to execute and abide by

the agreement was unlawful under the Act.

B. Withdrawal from Multi-employer Bargaining Units

Until 1958, the NLRB permitted both employers and un-

ions to abandon multi-employer bargaining units at any time,

6

even in the middle of bargaining. Charles D. Bonanno Linen

Serv., Inc. v. NLRB, 454 U.S. 404, 410 (1982) (collecting

NLRB decisions). In Retail Associates, however, the Board

established a set of rules regulating withdrawal from multi-

employer bargaining units, as follows:

We [will] refuse to permit the withdrawal of an

employer or a union from a duly established mul-

tiemployer bargaining unit, except upon adequate

written notice given prior to the date set by the

contract for modification, or to the agreed-upon date

to begin the multiemployer negotiations. Where

actual bargaining negotiations based on the existing

multiemployer unit have begun, we [will] not permit,

except on mutual consent, an abandonment of the

unit upon which each side has committed itself to the

other, absent unusual circumstances.

120 N.L.R.B. at 395. In reaching this decision, the Board

relied upon ‘‘the fundamental purpose of the Act of fostering

and maintaining stability in bargaining relationships’’:

While mutual consent of the union and employers

involved is a basic ingredient supporting the appro-

priateness of a multiemployer bargaining unit, the

stability requirement of the Act dictates that reason-

able controls limit the parties as to the time and

manner that withdrawal will be permitted from an

established multiemployer bargaining unit.

Id. at 393.

Following the decision in Retail Associates, the Board

determined that ‘‘unusual circumstances’’ that would justify

withdrawal after the commencement of bargaining normally

would be found only when an employer is subject to extreme

financial pressures or when a bargaining unit is substantially

fragmented. Charles D. Bonanno Linen, 454 U.S. at 411 &

n.6 (citing authorities). Apart from these circumstances, the

Board has construed ‘‘unusual circumstances’’ very narrowly.

See Decision, slip op. at 6, J.A. at 765 (describing Board

decisions refusing to find unusual circumstances). Most per-

7

tinent for this case, the Board in Chel LaCort addressed the

‘‘situation[ ] where the multiemployer association fails, either

deliberately or otherwise, to inform its employer-members of

the start of negotiations.’’ 315 N.L.R.B. at 1036. Noting

that the ‘‘unusual circumstances’’ exception ‘‘has historically

been limited to only the most extreme situations,’’ id., the

Board decided that the situation in that case did not warrant

an extension of the exception. Id. at 1036-37.

C. Proceedings Below

After a trial on the record in which the facts detailed above

were established, the Administrative Law Judge (‘‘ALJ’’)

issued his decision. See Decision, slip op. at 2-9, J.A. at 761-

68. He noted that ‘‘there is no dispute about the fact that

neither [Resort nor Kingsbridge] sent any type of written

communications to the Union or to the Association prior to

the commencement of negotiations that they were withdraw-

ing their authorizations to have the Association bargain on

their behalf.’’ Id., slip op. at 3, J.A. at 762. The ALJ

determined that the Homes neither knew nor had reason to

know of the early commencement of negotiations, id., slip op.

at 5, 7, J.A. at 764, 766, but he noted that, under Chel LaCort,

this did not constitute ‘‘unusual circumstances’’ justifying an

untimely withdrawal, id., slip op. at 6-8, J.A. at 765-67.

Therefore, because the Homes’ attempt to withdraw was

legally insufficient, the ALJ concluded that their refusal to

execute and abide by the agreement negotiated by the Associ-

ation and Union violated § 8(a)(1), (a)(5), and (d) of the Act.

Id., slip op. at 8, J.A. at 767.

After exceptions were filed, the Board affirmed the ALJ’s

rulings, findings, and conclusions. Id., slip op. at 1, J.A. at

760. The Homes now petition for review, and the Board

cross-applies for enforcement.

II. ANALYSIS

A. The Chel LaCort Rule

The Homes do not dispute that they failed to provide

adequate written notice of withdrawal prior to the commence-

8

ment of bargaining between the Union and the Association.

Accordingly, the Homes concede that, under Retail Associ-

ates, they are bound by the results of the multi-employer

bargaining if ‘‘unusual circumstances’’ do not exist. The

Homes, however, challenge the rule adopted by the Board in

Chel LaCort, arguing that the early commencement of negoti-

ations without notice should constitute ‘‘unusual circum-

stances’’ justifying their untimely withdrawal.

We will uphold a Board rule as long as it is rational and

consistent with the Act, even if we would have formulated a

different rule had we sat on the Board. NLRB v. Curtin

Matheson Scientific, Inc., 494 U.S. 775, 787 (1990); Finerty v.

NLRB, 113 F.3d 1288, 1291 (D.C. Cir. 1997). In the context

of multi-employer bargaining, the Supreme Court has specifi-

cally instructed that, through statutory silence, Congress

‘‘intended to leave to the Board’s specialized judgment’’ the

resolution of the inevitable questions concerning multi-

employer bargaining bound to arise in the future. Charles D.

Bonanno Linen, 454 U.S. at 409 (citing NLRB v. Truck

Drivers Local Union No. 499, 353 U.S. 87, 96 (1957) (‘‘Buffalo

Linen’’)). In other words, the court has no business second-

guessing the Board’s judgment in this area unless it infringes

the Act or defies reason. We conclude that the Chel LaCort

rule is ‘‘rational and consistent with the Act,’’ Curtin Mathe-

son Scientific, 494 U.S. at 787, and must therefore be upheld.

The Supreme Court has observed that, in regulating with-

drawal from multi-employer units, the Board has been re-

quired to balance conflicting interests:

The Board has recognized the voluntary nature of

multiemployer bargaining. It neither forces em-

ployers into multiemployer units nor erects barriers

to withdrawal prior to bargaining. At the same

time, it has sought to further the utility of multiem-

ployer bargaining as an instrument of labor peace by

limiting the circumstances under which any party

may unilaterally withdraw during negotiations.

9

Charles D. Bonanno Linen, 454 U.S. at 412. In that case,

the Court refused to upset the Board’s decision not to accept

a bargaining impasse as an unusual circumstance justifying

an untimely withdrawal. The Court emphasized that it is for

the Board, ‘‘employing its expertise in the light of experience

TTT to balance the ‘conflicting legitimate interests’ in pursuit

of the ‘national policy of promoting labor peace through

strengthened collective bargaining.’ ’’ Id. at 413 (quoting

Buffalo Linen, 353 U.S. at 95, 96). Although ‘‘[t]he Board

might have struck a different balance from the one it has,’’

the Court concluded, ‘‘assessing the significance of impasse

and the dynamics of collective bargaining is precisely the kind

of judgment that Buffalo Linen ruled should be left to the

Board.’’ Id.

We have similarly held that where the Board balances

competing statutory interests – such as the interests in

voluntariness and stability implicated by the rules regulating

withdrawal from multi-employer bargaining – ‘‘[i]t is not the

role of the court to promulgate new rules, or exceptions to

existing rules, in order to effectuate one statutory purpose

TTT at the expense of another.’’ Terrace Gardens Plaza, Inc.

v. NLRB, 91 F.3d 222, 228 (D.C. Cir. 1996). Instead, once we

conclude that the Board’s rule is ‘‘reasonably calculated to

reconcile those potentially conflicting objectives, our job is at

an end.’’ Id.

In Chel LaCort, the Board explained that the Retail Asso-

ciates rules rest on the Act’s ‘‘fundamental purpose of foster-

ing and maintaining stability of bargaining relationships,’’ and

that the ‘‘unusual circumstances’’ exception ‘‘has historically

been limited to only the most extreme situations.’’ Chel

LaCort, 315 N.L.R.B. at 1036. In deciding that the ‘‘unusual

circumstances’’ exception should not be extended to situations

where a multi-employer association fails to inform an employ-

er of the commencement of negotiations, the Board explained

that ‘‘[w]hether and to what extent a multiemployer associa-

tion communicates with its members is an internal association

matter which is properly and readily resolved by and between

the multiemployer association and its members.’’ Id. at 1036-

37. The Board was unwilling to ‘‘effectively TTT impos[e] a

10

notice requirement on the multiemployer association and

insert[ ] [itself] into the association/member relationship un-

necessarily and with uncertain consequences.’’ Id. at 1037.

The Board further recognized that ‘‘imposing such a notice

requirement on the multiemployer association might actually

have the effect of imposing such a requirement on the union,

for the only way the union could be sure that such notice was

given and that the employer-members would be bound would

be to give such notice itself.’’ Id. at 1037 n.6. We think that

this explanation is ‘‘both clear and reasonable,’’ Epilepsy

Found. of N.E. Ohio v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir.

2001), and provides ample justification for the Board’s posi-

tion.

The Homes argue, however, that in adopting the Chel

LaCort rule, the Board gave undue weight to ‘‘stability’’ at

the expense of ‘‘voluntariness.’’ We disagree. The balance

struck by the Chel LaCort Board sufficiently preserves the

statutory interest in voluntariness and is therefore entitled to

deference.

For one thing, the Chel LaCort situation does not arise

until after an employer voluntarily delegates bargaining au-

thority to a multi-employer association. As the Chel LaCort

Board itself noted, an employer can always protect itself

through its arrangement with the association. For example,

an employer could require the association to provide notice

before commencing negotiations. Although it is true that,

under Chel LaCort, an employer would be bound even if an

association violated its agreement with the employer, this is

analogous to the result that would obtain under common law

agency principles. Cf. Wittlin v. Giacalone, 171 F.2d 147, 148

(D.C. Cir. 1948) (‘‘Where an agent is clothed with either real

or apparent authority to act, proof of secret instructions is not

a good defense to defeat the rights of innocent third par-

ties.’’). See generally 3 AM. JUR. 2D Agency §§ 75-78, 262

(2002) (describing liability of principal to third parties based

on apparent authority of agent). As is often the case in

principal-agent situations, the employer’s remedy would be

against its agent.

11

Moreover, at any time (prior to the commencement of

negotiations), an employer who becomes dissatisfied with the

multi-employer association may revoke its delegation of bar-

gaining authority. In this case, for example, the Homes

clearly had become disenchanted with the Association’s repre-

sentation by the summer or fall of 2001. At that time, the

Homes could have sent notice of their withdrawal from multi-

employer bargaining, and there would have been no question

of their being bound by the subsequently negotiated agree-

ment. It does not matter whether the Homes reasonably

could have anticipated that bargaining would commence early.

Nothing prevented the Homes from fully protecting them-

selves from an unexpected agreement by giving notice of

withdrawal in June of 2001 when they stopped paying Associ-

ation dues.

Indeed, any employer who wishes to ensure that it will not

be bound by an unexpected agreement may simply revoke its

delegation of bargaining authority immediately after signing a

contract. The Homes acknowledge the availability of this

option for an employer that does not trust its multi-employer

association, but argue that this process would undermine the

very stability in bargaining relationships that the Board

claims to advance. See Reply Br. for Pet’rs at 8. But it is

not for us to predict whether the prospect of employers

withdrawing as a matter of course would undermine stability

more than a requirement of notice would. Such an assess-

ment ‘‘is precisely the kind of judgment that TTT should be

left to the Board.’’ Charles D. Bonanno Linen, 454 U.S. at

413.

In sum, the Board articulated a defensible justification for

the rule in Chel LaCort. The Homes’ argument that the rule

violates the fundamental statutory interest in voluntariness

fails inasmuch as the rule applies only after an employer has

voluntarily agreed to be bound by the fruits of multi-

employer bargaining. Given this starting point, it was per-

fectly reasonable for the Board to place the burden of with-

drawal on employers who voluntarily elect association repre-

sentation in multi-employer bargaining. If an employer is

dissatisfied with the representation of its multi-employer

12

association, it retains its remedies against the association

under contract and agency law.

B. The Board’s Finding Regarding Collusion

Noting that there was ‘‘no evidence’’ of any ‘‘collusion or

conspiracy involving the Union,’’ the Chel LaCort Board left

open the possibility that such evidence might be sufficient to

show ‘‘unusual circumstances.’’ 315 N.L.R.B. at 1036-37 n.5.

The Homes argue that the Board erred in rejecting their

claim in this case that ‘‘the Union and the Association collud-

ed to keep their negotiations a secret.’’ See Decision, slip op.

at 8, J.A. at 767.

The Board’s findings of fact are ‘‘conclusive’’ if ‘‘supported

by substantial evidence on the record considered as a whole.’’

29 U.S.C. § 160(e)-(f) (2000). Substantial evidence means

‘‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’’ Evergreen Am. Corp. v.

NLRB, 362 F.3d 827, 837 (D.C. Cir. 2004) (internal quotation

marks omitted). Thus, we reverse for lack of substantial

evidence ‘‘only when the record is so compelling that no

reasonable factfinder could fail to find to the contrary.’’ Id.

(internal quotation marks omitted). We conclude that sub-

stantial evidence supports the Board’s rejection of the Homes’

claim of collusion.

At the outset, we note that, inasmuch as the employer in

Chel LaCort was provided no notice of the commencement of

negotiations, see 315 N.L.R.B. at 1036, it is clear that the

‘‘collusion’’ contemplated by that case entails something more

than a mere failure (even if deliberate) to provide such notice.

Since its decision in the instant case, the Board has clarified

that ‘‘[t]he ‘collusion or conspiracy’ referred to by the Chel

Board’s dictum clearly contemplates actions by the union and

the employer association that are deliberately intended to

prevent an employer from exercising its right to withdraw.’’

D.A. Nolt, Inc., 340 N.L.R.B. No. 152, 2003 WL 22970620, at

*4 (Dec. 15, 2003). On the record before us, we hold that it

was reasonable for the Board to conclude that the Association

and Union did not deliberately collude to prevent the Homes

from exercising their right to withdraw.

13

The evidence pressed by the Homes is unavailing. In

arguing for a finding of collusion, the Homes principally point

to the early start of negotiations, the occurrence of substan-

tial negotiations prior to the formal negotiation sessions on

January 23 and February 1, 2002, the Association’s knowl-

edge that some members may have been unaware of the

negotiations, and the fact that the only participant in the

negotiations on the Association’s behalf was its executive

director. These alleged facts, even if true, do not compel a

finding of impermissible collusion, for the simple reason that

a mere failure to provide notice, even if deliberate, is insuffi-

cient to find proscribed collusion.

The Board determined that the early commencement and

quick pace of the negotiations resulted from the parties’

concern that, after the terrorist attacks in New York on

September 11, 2001, ‘‘State money might be diverted to other

purposes and inasmuch as much or most of the money

derived especially by nursing homes comes from State fund-

ing, via Medicaid, it would be a good idea to finalize collective-

bargaining agreements (together with discussion with State

officials), so that the Union and the employers would be able

to go to the State legislature to lobby, ahead of other suppli-

cants, for allocations from the upcoming State budget.’’ Deci-

sion, slip op. at 3, J.A. at 762. This finding was directly

supported by testimony from the Union’s attorney and execu-

tive vice president, as well as the Association’s executive

director. See Hr’g Tr. at 39, 108-10, 252-54, 276-79, reprinted

in J.A. at 45, 114-16, 260-62, 286-89. In accepting this

explanation, the Board reasonably concluded that the parties

had not impermissibly colluded or conspired to deliberately

prevent the Holmes from exercising their right to withdraw

from the multi-employer bargaining unit.

C. Ratification

Finally, the Homes argue that the collective bargaining

agreement is not binding upon them because it was never

ratified. Resolution of this matter turns on the meaning of

the agreement’s ratification clause, which provides:

14

This agreement is subject to ratification by the 1199

membership, 1199 and the Association.

2002 Memorandum of Agreement Between the Union and the

Association at 6, reprinted in J.A. at 493. At oral argument,

counsel for the Homes acknowledged that their objection is

and always has been only that the members of the Association

did not ratify the agreement – not that the Association itself

did not ratify it. See Recording of Oral Argument at 42:18-

43:03, 46:57-47:41.

In contrast to the deference owed the Board’s findings of

fact and interpretations of the Act, we accord no deference to

the Board’s interpretation of collective bargaining agree-

ments. Commonwealth Communications, Inc. v. NLRB, 312

F.3d 465, 468 (D.C. Cir. 2002). Having reviewed the contract

de novo, we reject the Homes’ suggestion that the disputed

collective bargaining agreement was subject to ratification by

the Association’s members.

The ratification clause, by its plain language, does not

require ratification by the members of the Association. On

its face, the ratification clause requires ratification only by

the Union, the Union’s members, and the Association. The

separate references to the Union and the Union’s member-

ship stand in stark contrast to the single reference to the

Association. This undermines the Homes’ argument that the

requirement of ratification by the Association really means

ratification by the Association’s members. Ratification by

‘‘the Association’’ is not the same as ratification by ‘‘the

Association’s members.’’

The Homes do not claim that a contract that provides for

‘‘ratification by TTT the Association’’ is somehow unlawful.

Rather, they argue that this interpretation of the ratification

clause is implausible. It makes no sense, they claim, to

require ratification by the Association itself when the Associa-

tion, through its executive director, is already a signatory to

the agreement. The Homes’ argument fails for two reasons.

First, as already noted, the clause expressly requires ratifica-

tion by the Union (as distinct from the Union membership)

even though the Union was also a signatory to the agreement.

15

More fundamentally, it is simply not implausible or absurd to

require ratification by the Association, as there are a variety

of ways in which an association might structure the process of

ratifying a contract negotiated by its agent. For example, an

association might authorize its board of directors to ratify a

collective bargaining agreement negotiated by an officer.

Alternatively, as claimed to be the arrangement here, an

association might authorize its executive director to affirm the

agreement after an informal process of consultation and

deliberation. See Hr’g Tr. at 280-82, J.A. at 290-92 (testimo-

ny of Bart Lawson, executive director of the Association).

The parties to collective bargaining agreements are free to

‘‘ratify’’ agreements as they see fit within the bounds of the

law. There are no absolutely right and wrong ways to

achieve ratification, nor is there any binding norm which

compels only one view of ratification. We therefore conclude

that the collective bargaining agreement at issue here does

not require ratification by the Association’s members and

reject the Homes’ argument that the agreement is void for

lack of such ratification.

III. CONCLUSION

For the foregoing reasons, we deny the petition for review

and grant the Board’s cross-application for enforcement.