Chevron Mining, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2011 Decided July 3, 2012

No. 10-1382

CHEVRON MINING, INC., FORMERLY KNOWN AS THE

PITTSBURGH & MIDWAY COAL MINING COMPANY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 11-1006

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Eugene Scalia argued the cause for petitioner. With him

on the briefs were Olusola Ayanbule and Amir C. Tayrani.

MacKenzie Fillow, Attorney, National Labor Relations

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

were David S. Habenstreit, Assistant General Counsel, and

Usha Dheenan, Supervisory Attorney. Jeffrey J. Barham,

Attorney, entered an appearance.

2

Deborah Stern argued the cause and filed the brief for

amicus curiae United Mine Workers of America in support of

respondent.

Before: TATEL and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Senior Circuit Judge

WILLIAMS.

GRIFFITH, Circuit Judge: In 2005, Chevron Mining, Inc.

amended its employee bonus plan in response to the decision

of the United Mine Workers of America to call “memorial

period” work stoppages. The National Labor Relations Board

concluded that the amendment was an unfair labor practice,

and we agree.

I

Before the Board, the parties agreed on a set of facts,

exhibits, and issues presented. We rely on those stipulations.

The United Mine Workers of America (the Union) and

Chevron Mining, Inc. (CMI) are parties to separate collective

bargaining agreements (CBAs) at four mines, including the

North River Mine in Alabama where this dispute arose. Since

1978, the CBAs have included a clause that gives the Union

the ability to call “memorial periods.” 1 A memorial period,

1

The agreements are substantially identical to the National

Bituminous Coal Wage Agreement (NBCWA), which serves as a

model for the industry and is negotiated periodically between the

Union and the Bituminous Coal Operators Association. The

3

which may last one or more days at one or more mines, is an

unpaid work stoppage.

In 1995, the Union and CMI executed a Letter of

Agreement allowing Union-represented employees to

participate in CMI’s employee bonus plan. The plan provides

bonus payouts based on financial and safety achievements at

an employee’s mine. The Agreement gives CMI the authority

to change the bonus plan unilaterally and provides that

disputes over such changes are not arbitrable. If the Union

objects, its sole recourse is to quit the Agreement.

In February and July of 2004, the Union, after providing

proper notice, called six memorial days at the North River

Mine to place economic pressure on CMI over ongoing

grievances that were being arbitrated. Stipulation of Facts

¶ 31 [hereinafter “Stip.”]. (The record does not reveal the

nature of those grievances.) The work stoppages cost CMI

$1.5 to $2.5 million in pre-tax profit, but CMI took no

immediate action in response.

On February 3, 2005, CMI amended the bonus plan to

provide that no financial achievement bonus would be paid to

Union-represented employees at any mine where the Union

calls a memorial day that doesn’t cover all mines in the same

district, 2 “regardless of whether that mine has met all of its

financial targets under the Plan in that year.” Id. ¶ 33. At the

same time, citing its parent company’s “best year ever in

2004,” CMI offered a one-time 6% bonus that paid $700,000

to Union-represented employees at the North River Mine. Id.

NBCWA has contained an identical “memorial periods” provision

since 1971.

2

“Districts are part of the Union’s organizational structure that

have geographic boundaries, although the boundaries are not

related to the location of a single employer’s mines.” Stip. ¶ 16.

4

¶ 30. Since then, the Union has called only district-wide

memorial days, so no bonuses have gone unpaid because of

the amendment.

In April 2005, the Union filed charges with the NLRB

alleging that CMI’s amendment to the bonus plan was

retaliation for the Union’s exercise of its contractual right to

call memorial day work stoppages at the North River Mine.

The General Counsel issued a complaint in October 2005, and

the parties stipulated to the following issue presented:

Whether, under Wright Line, [252 N.L.R.B. 1083

(1980),] the Employer violated Sections 8(a)(3) and (1)

of the Act by amending its collectively-bargained bonus

plan, which generally permits unilateral Employer

amendment or modification of the plan, to deny a mine’s

Union-represented employees financial bonuses under the

plan if the Union called a Memorial Day at that mine,

pursuant to the “Memorial Periods” provision of the

parties’ underlying collective bargaining agreement, on a

non-UMWA District wide basis.

Parties’ Stmt. of Issues Presented.

In a decision issued in September 2010, the Board

concluded that the amendment to the bonus plan was an unfair

labor practice. The Board determined that the Union’s use of

memorial periods to place economic pressure on CMI in

support of pending grievances was protected activity. The

Board then found a violation under Wright Line and rejected

CMI’s defenses as either unconvincing or barred by the

stipulation. CMI filed a petition for review in this Court, and

the Board filed a cross-application for enforcement. We take

jurisdiction over the application and petition under 29 U.S.C.

§§ 160(e) and (f), respectively.

5

II

We must first determine whether the employees’

participation in the 2004 memorial days was protected under

the National Labor Relations Act, 29 U.S.C. §§ 151-169. It is

well-established that the exercise of a right grounded in a

CBA is protected by the Act. See NLRB v. City Disposal Sys.,

Inc., 465 U.S. 822, 829 (1984) (reaching this conclusion

based on section 7 of the Act’s protection of “the right to . . .

bargain collectively”). Action taken to discourage the exercise

of such a right violates section 8(a)(3), 29 U.S.C. § 158(a)(3),

which makes it an unfair labor practice for an employer “to

discourage” participation in protected union activities by

“discriminat[ing] in regard to hire or tenure of employment or

any term or condition of employment,” see Radio Officers’

Union v. NLRB, 347 U.S. 17, 39-40 (1954), and also violates

section 8(a)(1), 29 U.S.C. § 158(a)(1), which makes it

unlawful for an employer “to interfere with, restrain, or

coerce employees in the exercise of” protected rights, see

Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983).

The question before us is whether the CBA permits these

memorial period work stoppages, which were called to

pressure CMI about arbitrable Union grievances.

It is also well-established that an agreement to arbitrate

labor disputes “gives rise to an implied obligation not to strike

over such disputes.” Gateway Coal Co. v. United Mine

Workers of Am., 414 U.S. 368, 381 (1974); see also Boys

Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 248

(1970) (“[A] no-strike obligation, express or implied, is the

quid pro quo for an undertaking by the employer to submit

grievance disputes to the process of arbitration.”). This rule

reflects the policy favoring “the arbitral process as a substitute

for economic warfare.” Teamsters’ Local v. Lucas Flour Co.,

369 U.S. 95, 105 (1962). The parties remain free, of course, to

6

“expressly negate any implied no-strike obligation” through

an “explicit expression” of their intent to do so. Gateway

Coal, 414 U.S. at 382. The Union argues that the memorial

period clause does just that.

The clause reads: “The [Union] may designate memorial

periods not exceeding a total of ten (10) days during the term

of this agreement at any mine or operation provided it shall

give reasonable notice to the Employer.” On the one hand, the

text does not, by its terms, limit the purposes for which

memorial periods may be called. The sole limits on their use

are procedural: only ten days of work stoppage may be called

during the contract term, and reasonable notice of each must

be given. On the other hand, CMI argues that the term

“memorial period” itself implies a limitation. Relying on the

dictionary definition of “memorial,” CMI urges that a

memorial period can only be called “to commemorate the

death of a miner or a mining disaster.” Pet’r’s Br. 26; see

WEBSTER’S II NEW COLLEGE DICTIONARY 700 (3d ed. 2005)

(defining “memorial” as “[s]omething, as a monument or a

holiday, designed or established to preserve the memory of a

person or event”). CMI also notes that the memorial periods

clause appears in the CBA just before a provision for plant

“closing following fatal accident.” 3 To CMI, this placement

reinforces the idea that both provisions are meant to

commemorate death and disasters. But these are also the only

two provisions in the CBA that expressly allow work

stoppages. Thus, the placement might only reflect that both

provisions permit work stoppages, not that they allow work

stoppages for the same purpose. Because the text does not

3

That provision reads, “In addition to the memorial period

provisions to be designated under section (j) work shall cease at any

mine on any shift during which a fatal accident occurs.” Joint

Motion for Submission of Case Ex. C, at 191.

7

speak directly to the question of the purposes for which a

memorial period may be called, we must turn to extrinsic

evidence of the parties’ intent. See Wilson & Sons Heating &

Plumbing v. NLRB, 971 F.2d 758, 761 (D.C. Cir. 1992); Local

Union 1395, Int’l Bhd. of Elec. Workers v. NLRB, 797 F.2d

1027, 1036 (D.C. Cir. 1986) (“[T]he words parties use in

drafting contracts are only evidence of their intent; the words

are not themselves the parties’ intent.”).

Before the Board, the parties stipulated that “[t]he history

and purpose of the Memorial Periods Clause was addressed

in” a district court opinion, two arbitration decisions, and a

memorandum from the Board’s Division of Advice, each of

which the parties incorporated into their Stipulation of Facts.

Stip. ¶ 17. Both parties used these materials in making their

arguments, and the Board relied upon them to conclude the

CBA authorized the Union to use memorial periods to strike.

See Pittsburgh & Midway Coal Mining Co. (P&M), 355

N.L.R.B. 1210, 1213 (2010).

Each of the materials addresses the history and purpose

of the NBCWA’s identical memorial periods clause. Most

relevant is the district court decision, Arch of W. Va. v. Mine

Workers Local Union 5958, C.A. No. 2:96-2008 (S.D. W. Va.

Nov. 25, 1996), which addressed the very question before us.

Arch involved a dispute over whether employees could miss

work at the start of deer hunting season despite a company

policy that prohibited more than 15% of the workforce from

taking off the same day. Even though the dispute was subject

to arbitration, “Union representatives threatened to call a

‘memorial period’ [on four days] if [the company] did not

make concessions on the deer hunting issue.” Id. at *4 ¶ 8.

When the employer did not concede, the Union notified the

employer it was calling the memorial days. Id. at *4 ¶¶ 9-10.

The employer sought injunctive relief establishing that

8

memorial days could not be called in connection with

arbitrable disputes, but the court held that they could even

though the CBA contained an implied no-strike obligation

under Gateway Coal. In so holding, the court explained that:

[The CBA] gives the Union a unilateral right to call a

memorial period, which should be untrammeled and

uninfringed by court scrutiny, as has been shown by the

lengthy history of memorial periods’ inclusion in

NBCWA contracts, case authority, and arbitration

decisions. . . . It is not the Court’s role to scrutinize the

motivation for calling memorial periods. . . . [T]he

unilateral right to call memorial periods is a bargaining

chip that the Union can use in an often ‘fractious’

relationship that exists between labor and management in

the coal industry.

Id. at *5-6 (emphasis added). 4

All the other stipulated materials also cut against CMI’s

reading of the clause, but none contradicts Arch. CMI

repeatedly quoted to us language from one of the arbitration

decisions indicating that a “memorial period is commonly

understood to be a time set aside to observe the memory of a

particular event or person,” but consistently omitted the rest

of the paragraph, which reads:

[B]ut in recent years, memorial periods under this

provision have been used to provide Employees with

4

The memorial days in Arch were ultimately used to bypass

arbitration altogether rather than to apply pressure in an ongoing

dispute. But the real power of memorial periods as interpreted by

Arch and the Board is the threat to use them to apply pressure in an

ongoing dispute, see NLRB v. Lion Oil Co., 352 U.S. 282, 291

(1957), as was done by the Union in Arch.

9

time off work to participate in certain activities deemed

important by the International Union, and have also been

used to provide a cooling off period in the course of a

work stoppage in the coal fields. There is no limitation in

the contract which restricts the purpose for which a

memorial period may be used, just as long as reasonable

notice of the designation is given to the Employer.

Peabody Coal Co., Arb. No. 88-23-91-72, *7 (Nov. 8, 1991)

(emphasis added). And in the other arbitration decision the

employer and union agreed and the arbitrator concluded that

“[c]ontractually, the union has the right to call memorial days

without giving a reason for the call.” United Mine Workers

Dist. 17, Local 781 v. E. Associated Coal Corp., Arb. No. 02-

17-04-176, *16 (Feb. 28, 2005).

The memorandum from the Board’s Division of Advice

took the view that “the Union has called memorial periods for

a wide range of purposes: to mourn the death of miners and to

commemorate mining disasters as well as to obtain unpaid

leave for unit employees during negotiations for a new

contract or close to the expiration of an existing contract.”

Joint Motion for Submission of Case Ex. L, at 2. The

memorandum also noted that other regional divisions of the

Board had concluded that the Union does not violate its duty

to bargain in good faith by using memorial days to “apply[]

economic pressure in support of its bargaining position.” Id.

at 2 n.2. The memorandum again indicates that memorial days

can be used for more than memorializing: they are a

permissible means to apply economic pressure against the

company during bargaining.

Read together, the materials that the parties agreed

“address” the “history and purpose of the clause” show

unambiguously that a memorial period may be called to strike

10

over an arbitrable dispute. As counsel for the Union explained

at oral argument, the NBCWA’s memorial period clause was

negotiated in 1971 in response to the problem of debilitating

wildcat strikes. 5 The clause gives the Union a contractually

limited and controlled method to channel employee

displeasure and thereby avoid such disruption, to the benefit

of both the Union and employers. Oral Arg. Tr. 30-32.

CMI now argues that little or no weight should be given

to these materials because the stipulation itself “does not state

that the decisions correctly ‘addressed’ the clause’s history or

purpose.” See Pet’r’s Reply Br. 6 (emphasis in original). This

argument is too clever by half and fails to account for the only

credible explanation for the stipulation: that the parties meant

that these materials should be used as reliable extrinsic

evidence of their intent. “[S]tipulations, like other contracts,

must be interpreted in light of the circumstances under which

the agreement was made.” Nat’l Audubon Soc’y, Inc. v. Watt,

678 F.2d 299, 307 (D.C. Cir. 1982). 6

5

See Julius G. Getman, The Protection of Economic Pressure

by Section 7 of the National Labor Relations Act, 115 U. PA. L.

REV. 1195, 1244 n.197 (1967) (“‘Wildcat’ is a vague concept

which is used primarily to describe strikes in breach of a no-strike

clause or strikes to which the union is opposed.”).

6

Our dissenting colleague thinks the parties’ stipulation is

meaningless. To make that point, he creates a hypothetical in which

unnamed parties for unknown reasons agree that “the history and

purpose of the United States Constitution is addressed in Max

Farrand’s THE FRAMING OF THE CONSTITUTION OF THE UNITED

STATES (1913).” He thinks that such an agreement is “parallel” to

the stipulation we must construe. The only “parallel” we can see is

the use of the phrase “the history and purpose is addressed in.” The

dissent overlooks the circumstances of the stipulation in this case

and who made it. The hypothetical would be more “parallel” to the

stipulation in our case if one could imagine that those who drafted

11

CMI also argues that the materials referenced in the

stipulation should be disregarded because each lacks

precedential effect in this court. It is no doubt true that we

would not rely as heavily on these materials if the parties had

not agreed that we must. The issue is not a question of

precedence but of the parties’ intent, and the stipulation was

designed to answer that question of fact. Even if the dissent

were right that Arch’s broad view of the proper use of

memorial periods is dicta (and we disagree that it is), the

parties have agreed that Arch addresses the meaning of their

clause. That fact gives the discussion in Arch authority, not its

legal reasoning or precedential weight.

It is significant as well that when the Union called

memorial days in support of pending grievances in this case,

CMI did not even suggest that the CBA had been breached or

that the Union had committed an unfair labor practice. CMI

sought neither injunctive relief (as the employer did in Arch)

nor damages for the losses it sustained. Instead, CMI

amended the bonus plan to deter the exercise of the Union’s

right to call memorial days in the future. Nothing in CMI’s

reaction at the time indicates it thought the Union’s calling for

memorial day work stoppages was not authorized by the

CBA.

and ratified the Fourth Amendment stipulated that controversies

over the meaning of “seizure” should be resolved by resort to four

specific documents that discussed the term’s “history and purpose.”

In this unlikely scenario, we imagine our dissenting colleague

would agree that the referenced materials would be due

considerable weight. And if one of them provided a clear answer to

the question at hand and was not contradicted by any other, it

would be quite helpful. That is how we view Arch on the question

of the meaning of “memorial periods.”

12

Although the text of the CBA may be inconclusive, the

discussion of the memorial periods clause in the stipulated

materials and CMI’s response to the work stoppages “make[]

clear the meaning of the contract.” See Whiting v. AARP, 637

F.3d 355, 363 (D.C. Cir. 2011). This extrinsic evidence shows

that, in this contract, “memorial periods” is a term of art with

a specific meaning: a contractually authorized work stoppage

that can be called for any reason, no reason, or for the specific

reason of placing economic pressure on an employer in

connection with an arbitrable dispute. CMI presented no

extrinsic evidence showing a contrary meaning. The clause is

a clear expression that the parties agreed the Union could call

a limited number of work stoppages in connection with

arbitrable disputes. It is “a limited exception to [the] . . .

implied no-strike obligation.” Gateway Coal, 414 U.S. at 385.

Finally, CMI raises the strained argument that the work

stoppages were not protected because the Union’s designation

of memorial days is not really employee activity. CMI relies

on Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which held

that certain actions by union organizers who were not

employees were not protected. That principle does not apply,

however, to action by a union selected to represent

employees. See Venetian Casino Resort, LLC v. NLRB, 484

F.3d 601, 609 n.7 (D.C. Cir. 2007) (“[I]t would be a curious

and myopic reading of the Act’s core provisions to hold that,

although employees are free to join unions and to work

through unions for purposes of ‘other mutual aid or

protection,’ the conduct of the unions they form and join for

those purposes is not protected by the Act.” (quoting

Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 29 (D.C.

Cir. 2001)) (internal quotation marks omitted)). In any event,

as the Board pointed out, here the CMI employees themselves

urged the Union to call the memorial days and decided

13

individually whether to participate. Their participation in the

2004 memorial days was protected by the Act.

III

The parties also stipulated that we use the test set forth by

the Board in Wright Line to determine whether CMI’s

amendment to the bonus plan violates sections 8(a)(3) and (1)

of the Act. These sections ban “adverse employment action

[taken] to discourage union activity,” Ark Las Vegas Rest.

Corp. v. NLRB, 334 F.3d 99, 104 (D.C. Cir. 2003), and

motive is our chief inquiry, Am. Ship Bldg. Co. v. NLRB, 380

U.S. 300, 311 (1965) (“It has long been established that a

finding of violation under [section 8(a)(3)] will normally turn

on the employer’s motivation.”). The Wright Line test

determines whether an employer’s motive for adverse action

is unlawful. See Wright Line, 252 N.L.R.B. at 1089; see also

NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983)

(approving the Wright Line test). Under Wright Line, the

General Counsel is required to “make a prima facie showing

sufficient to support the inference that protected conduct was

a ‘motivating factor’ in the employer’s decision” to take

adverse action. Wright Line, 251 N.L.R.B. at 1089. The

burden then shifts to the employer to show, by a

preponderance of the evidence, that it would have taken the

same action even if the employees had not engaged in

protected activity. Id. We uphold a Board finding supported

by “substantial evidence on the record considered as a

whole.” 29 U.S.C. § 160(e); Southwire Co. v. NLRB, 820 F.2d

453, 459 (D.C. Cir. 1987).

The Board found that the General Counsel had met his

initial burden because “it is undisputed that the employees’

memorial day work stoppages were a motivating factor in

[CMI’s] decision to modify its bonus plan.” P&M, 355

14

N.L.R.B. at 1211. Indeed, the parties stipulated that the

amendment to the bonus plan “was implemented in response

to the Memorial Days called by the Union at the North River

Mine in 2004,” and that the amendment “was intended to

communicate to the Union that because such Memorial Days

imposed financial consequences on the Employer, the Union-

represented employees would also be required to bear

financial consequences in the form of the loss of the bonus

they might otherwise expect.” Stip. ¶¶ 34, 36.

CMI argues that it would have amended the bonus plan

even had the Union never called the memorial days. CMI was

not looking backward when it amended the plan, but forward,

so the explanation goes. Memorial days cost everyone dearly.

Decreased productivity decreases revenue which decreases

profits. Discouraging these work stoppages would increase

profits and bonuses for the employees. The Board rejected the

claim that CMI was motivated only by these business

concerns because, “[s]imply put, [CMI] acknowledges

modifying the employees’ bonus plan, in a restrictive manner,

as a result of the North River employees’ protected activity.”

P&M, 355 N.L.R.B. at 1214. CMI was, in fact, looking

backward, and there is no doubt the Board was correct on this

score. The question under Wright Line is not just whether the

employer’s action also served some legitimate business

purpose, but whether the legitimate business motive would

have moved the employer to take the challenged action absent

the protected conduct. Sw. Merch. Corp. v. NLRB, 53 F.3d

1334, 1339 n.7 (D.C. Cir. 1995) (explaining that in “dual

motive” cases, “in which the employer acts with a legitimate

and an illegitimate motive[,] the purpose is to determine

whether the legitimate motive would have caused the action

on its own”). Given CMI’s concession, the Board reasonably

concluded that CMI did not make that showing.

15

Because CMI admitted that the amendment to the bonus

plan was motivated by protected activity, the Board also

reasonably discounted CMI’s reliance upon evidence that it

was not generally hostile to the Union, such as the one-time

6% bonus and CMI’s longstanding relationship with the

Union. Some Wright Line cases consider such circumstantial

evidence, but it can never trump a showing that a particular

action was taken because of protected activity. Where that is

established — and here it is conceded by CMI — evidence

that the employer is not generally hostile to the union is of

little avail. The emphasis is always on the employer’s

motivation for the particular act that discouraged union

activity. The ultimate inquiry is whether there is a “link, or

nexus, between the employees’ protected activity and the

adverse employment action.” Tracker Marine, LLC, 337

N.L.R.B. 644, 646 (2002); see also Parsippany Hotel Mgmt.

Co. v. NLRB, 99 F.3d 413, 424 (D.C. Cir. 1996) (assessing

evidence of general anti-union animus to conclude that a

particular employee was discharged “because of his union

activity”). Although it is unusual for an employer to directly

acknowledge taking adverse action because of protected

activity, CMI did so here. Cf. E.C. Waste, Inc., 348 N.L.R.B.

565, 574 (2006) (finding a section 8(a)(3) violation where the

employer changed its annual bonus practice and specifically

admitted that its motivation for the change was that the

affected employees had voted to be represented by a union).

Even so, CMI argues that amending the plan was a

permissible economic weapon to counter the employees’

protected activity, much like a lockout in response to a strike.

This economic weapon defense has been developed in

bargaining cases applying the framework set out in NLRB v.

Great Dane Trailers, Inc., 388 U.S. 26 (1967). The Board

“decline[d] to consider this argument,” however, stating that

“the alternative Great Dane analysis” was “inconsistent with

16

the terms of the stipulation” that the case be decided under

Wright Line. P&M, 355 N.L.R.B. at 1214. In any event, the

Board held, CMI could not benefit from the economic weapon

defense because its amendment to the plan was “precisely”

the type of “selective sanction” directed “only [at] those

employees who engage in protected conduct” that the Board

forbids. Id. at 1214 n.11 (citing Schenk Packing Co., 301

N.L.R.B. 487, 490-91 (1991) (finding the grant of bonuses

only to employees who chose not to engage in protected strike

activity unlawful)).

CMI objects to the Board’s “selective sanction” holding

in its brief to this court, but did not do so before the Board. It

thus runs headlong into section 10(e) of the Act, which

provides that “[n]o objection that has not been urged before

the Board . . . 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. § 160(e).

Although the Board raised the selectivity theory on its own,

CMI was obliged to seek reconsideration or rehearing before

the Board if it wished to challenge that ruling on appeal. See

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-

66 (1982); Flying Food Group, Inc. v. NLRB, 471 F.3d 178,

185 (D.C. Cir. 2006) (“Where, as here, a petitioner objects to

a finding on an issue first raised in the decision of the

Board . . . the petitioners must file a petition for

reconsideration with the Board to permit it to correct the error

(if there was one).”).

But the Board, curiously, failed to raise the section 10(e)

argument before us, and so we must ask whether its limitation

is “jurisdictional.” The Supreme Court has recently cautioned

courts to distinguish carefully between jurisdictional

conditions, which cannot be waived or forfeited by the

parties, and mere claim-processing rules or elements of a

17

cause of action, which can. See Reed Elsevier, Inc. v.

Muchnick, 130 S. Ct. 1237, 1243-44 (2010); Arbaugh v. Y &

H Corp., 546 U.S. 500, 510-14 (2006). An examination of the

“condition’s text, context, and relevant historical treatment,”

Reed Elsevier, 130 S. Ct. at 1246, makes it clear that section

10(e) falls on the jurisdictional side of the divide.

First, section 10(e)’s text is virtually identical to section

313 of the Federal Power Act, which we have held is a model

of the “clear and unequivocal statement” required to make

exhaustion a jurisdictional prerequisite. EEOC v. Lutheran

Soc. Servs., 186 F.3d 959, 962-63 (D.C. Cir. 1999); see Platte

River Whooping Crane Critical Habitat Maint. Trust v.

FERC, 876 F.2d 109, 113 (D.C. Cir. 1989) (“Neither FERC

nor this court has authority to waive these statutory

requirements.”). 7 And although we have not previously been

presented with this precise question, we have repeatedly

indicated that section 10(e) is jurisdictional in the true sense

of the word. See, e.g., W&M Props. of Conn., Inc. v. NLRB,

514 F.3d 1341, 1345 (D.C. Cir. 2008) (describing section

10(e) as a “jurisdictional bar” in the face of which we are

“powerless . . . to consider arguments not made to the

Board”); Parkwood Developmental Ctr., Inc. v. NLRB, 521

F.3d 404, 410 (D.C. Cir. 2008) (explaining that section 10(e)

meant “we have no jurisdiction to entertain [a] claim”); Alwin

Mfg. Co. v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999) (“A

court of appeals altogether ‘lacks jurisdiction to review

objections that were not urged before the Board.’” (quoting

Woelke, 456 U.S. at 666)). By “speak[ing] to the power of the

court rather than to the rights or obligations of the parties,”

7

Section 313 provides that “[n]o objection to the order of the

[Federal Energy Regulatory] Commission shall be considered by

the court unless such objection shall have been urged before the

Commission in the application for rehearing unless there is

reasonable ground for failure so to do.” 16 U.S.C. § 825l.

18

the text displays the hallmark of a true jurisdiction-limiting

provision. See Landgraf v. USI Film Prods., 511 U.S. 244,

274 (1994).

Looking next to the statutory context, the Court in Reed

Elsevier and Arbaugh found it significant that the

requirements at issue there were “located in . . . provision[s]

‘separate’ from those granting federal courts subject-matter

jurisdiction.” Reed Elsevier, 130 S. Ct. at 1245-46. By

contrast, section 10(e) not only bars arguments not made to

the Board but also grants and defines the jurisdiction of courts

of appeals over petitions for enforcement of Board orders. See

W&M Props., 514 F.3d at 1345 (“Section 10 . . . creates and

limits our jurisdiction to review the Board’s orders.”).

Finally, section 10(e)’s purpose also indicates it is

jurisdictional. It “is intended to further ‘the salutary

policy . . . of affording the Board [the] opportunity to consider

on the merits questions to be urged upon review of its order,’”

Elastic Stop Nut Div. of Harvard Indus. v. NLRB, 921 F.2d

1275, 1284 (D.C. Cir. 1990) (quoting Marshall Field & Co. v.

NLRB, 318 U.S. 253, 256 (1943)), and “is an example of

Congress’s recognition that ‘. . . courts should not topple over

administrative decisions unless the administrative body has

not only erred but has erred against objection made at the time

appropriate under its practice,’” id. (quoting United States v.

L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). See

also Cast N. Am. (Trucking) Ltd. v. NLRB, 207 F.3d 994,

1000 (7th Cir. 2000) (“This is a jurisdictional bar, designed to

allow the NLRB the first opportunity to consider objections

and to ensure that reviewing courts receive the full benefit of

the NLRB’s expertise.”). Section 10(e)’s bar is far from mere

“claim-processing rules” such as most statutes of limitation.

See Arbaugh, 546 U.S. at 510.

19

The text, context, and purpose of section 10(e), as well as

our precedent addressing both it and similar statutes,

demonstrate that it is an unavoidable limitation on our

jurisdiction. We are thus powerless to consider CMI’s

objections to the Board’s selective sanction holding despite

the Board’s failure to raise section 10(e).

IV

CMI raises two more defenses to the section 8(a)(3)

charge and objects to the Board’s chosen remedy. First, CMI

argues that the Union waived its ability to bring an unfair

labor practice charge by giving CMI the unilateral right to

modify the bonus plan in the Letter of Agreement. However,

the Board was correct that the unilateral right to amend the

plan was not a license to amend the plan for unlawful reasons.

P&M, 355 N.L.R.B. at 1214 (citing Reno Hilton Resorts v.

NLRB, 196 F.3d 1275, 1281 (D.C. Cir. 1999)). There is no

indication in the record that the Union intended to waive its

section 8(a)(3) rights by entering into the Agreement, and a

waiver of statutory rights must be “clear and unmistakable.”

Gannett Rochester Newspapers v. NLRB, 988 F.2d 198, 203

(D.C. Cir. 1993). “[C]ourts may ‘not infer from a general

contractual provision that the parties intended to waive a

statutorily protected right unless the undertaking is explicitly

stated.’” Id. (quoting Metro. Edison Co., 460 U.S. at 708).

CMI had no right to amend the plan with the intent to

discourage future protected activity. See Reno Hilton, 196

F.3d at 1281 (“[T]he record is devoid of evidence to infer,

much less show, that the Union waived its § 8(a)(3) rights by

entering into the agreement.”).

Second, according to CMI, the fact that no employee was

denied a bonus under the amendment shows that it did not

“actually affect the terms or conditions of employment” as

20

required to find a section 8(a)(3) violation. Pet’r’s Br. 41-42

(quoting NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 212

(4th Cir. 2005), which found that a mere counseling letter

advising an employee to change his behavior was not a

change in a term or condition of employment). The Board

rejected that argument, and so do we. The plan amendment

altered terms governing employee bonus eligibility by placing

a financial penalty on the future exercise of protected activity.

Indeed, as the Board noted, the Union’s decision not to call

memorial days that were not district-wide likely demonstrates

the chilling effect of this new term of employment. P&M, 355

N.L.R.B. at 1214 n.8.; see also Ford Motor Co., 131 N.L.R.B.

1462, 1487 (1961) (“It is not necessary . . . for the employee

to have an actual monetary loss.”).

Lastly, CMI objects to the Board’s backpay remedy

because no employee was denied a bonus. This objection,

however, is premature. Although CMI is correct that the

Board must tailor remedies to actual losses, it is well-

established that “compliance proceedings provide the

appropriate forum” to consider objections to the relief

ordered. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984);

see also Ark Las Vegas, 334 F.3d at 107 (“[W]e ‘leav[e] until

the compliance proceedings more specific calculations as to

the [relief], if any, due.’” (quoting Sure-Tan, 467 U.S. at 902)

(alterations in original)).

V

For the foregoing reasons, CMI’s petition for review is

denied and the Board’s cross-application for enforcement is

granted.

So ordered.

WILLIAMS, Senior Circuit Judge, dissenting: Collective

Bargaining Agreements (“CBAs”) between the United Mine

Workers of America (“UMWA”) and Chevron Mining allow

the union, on reasonable notice to the employer, to “designate

memorial periods not exceeding a total of ten (10) days during

the term of this Agreement.” Joint Appendix (“J.A.”) 96. The

CBAs also contain provisions requiring arbitration of

disputes. Under established authority, see Gateway Coal Co.

v. United Mine Workers of Am., 414 U.S. 368, 381 (1974),

such provisions forbid strikes, as the court recognizes, see

Maj. Op. at 5. The NLRB nonetheless construed the

memorial-period clauses to create a de facto exception to the

strike ban, and the court affirms. The conclusions of both the

agency and the court violate the established principle (most

familiar to us from anti-discrimination laws) that a right to do

a thing at will, or for no reason at all, does not normally

encompass a right to do it for reasons that contradict rights

reserved to another party (here, the employer’s right not to be

subject to strikes while the CBAs are in effect). See Wal-

Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2560-61 (2011)

(“[I]f the employer can show that it took an adverse

employment action against an employee for any reason other

than discrimination, the court cannot order the hiring,

reinstatement, or promotion of an individual as an employee,

or the payment to him of any backpay.”) (internal quotation

marks and citation omitted); Hawkins v. PepsiCo, Inc., 203

F.3d 274, 282 (4th Cir. 2000) (noting that an employer’s

“blunt” and even “unfair” behavior does not in itself support

“an actionable claim of discrimination”).

To reach its conclusion, the court makes a rather odd use

of a stipulation that the parties agreed on before the Board,

namely, that “[t]he history and purpose of the Memorial

Periods Clause was addressed” in various named documents.

J.A. 12-13 ¶ 17. The court (1) gives this provision a far more

powerful meaning than its text will bear; (2) selects one

2

document from among the four for a wholly dominant role,

namely one district court decision, Arch of W. Va. v. Mine

Workers Local Union 5958, C.A. No. 2:96-2008 (S.D. W. Va.

Nov. 25, 1996) (“Arch”); and (3) misreads that one document.

First, the stipulation appears to mean no more than would a

parallel statement about Farrand’s: “The history and purpose

of the United States Constitution is addressed in Max

Farrand’s THE FRAMING OF THE CONSTITUTION OF THE UNITED

STATES (1913).” This would not license a constitutional

interpreter to exalt one passage in Farrand’s above all others,

or to disregard ordinary principles of law such as the one

noted above—that a right to do something for no reason

commonly doesn’t entail a right to do it in ways or for

purposes that frustrate another party’s established rights. The

parties’ stipulation did not require the Board (or us) to pitch

such principles overboard. Second, while the court says that

the other three documents don’t contradict its reading of Arch,

it is equally true that none of them hints at anything like the

view the court here ascribes to Arch.

Third and most important, the court’s preferred item, the

district court decision in Arch, provides only the most dubious

support for the court’s conclusion. The union there sought

employer permission “to allow any individuals employed at

[specified plants] to go deer hunting during the first week of

the deer hunting season.” Id. at *3-4 ¶ 6. When it did not

receive this permission, the union first “threatened to call a

‘memorial period,’” on Monday, Tuesday, Wednesday, and

Saturday, November 25, 26, 27, and 30, 1996, if the employer

did not make concessions on the deer hunting issue. When it

did not, the union called a memorial period for those days. Id.

at *4 ¶¶ 8-10. The Arch decision does not specify this, but it

strongly suggests that the union members used the memorial

days simply as an alternate means to take the deer hunting

leave that their employer had refused. Indeed, the Board, in

the decision under review in this case (which bears Chevron’s

3

prior name, see Petitioner’s Br. i), recognized this aspect of

Arch, saying that the union there used memorial periods to

“take advantage of the opening of hunting season.”

Pittsburgh & Midway Coal Mining Co., 355 NLRB 1210,

1213 (2010); but cf. id. at 1213 (saying that the union’s

purpose was “to further its position in a dispute over a

contractual attendance rule”). (In 2011 the deer hunting

season opened November 21 and closed December 3, see

WEST VIRGINIA DEP’T OF NAT. RES., HUNTING AND TRAPPING:

JULY 2011 - JUNE 2012 REGULATIONS SUMMARY (2011),

available at http://www.wvdnr.gov/hunting/Regs1112/2011_

Hunting_Regs.pdf). Thus the union members in Arch seem to

have used the memorials for sport rather than for a strike.

The Arch decision contains, to be sure, far broader

language than the case warranted. Having said that the clause

entitled the union to exercise its right to memorial days for

“good or bad reasons,” it simply leapt to a characterization of

the right as “a bargaining chip that the Union can use in an

often ‘fractious’ relationship . . . between labor and

management.” Arch, at *6 ¶ 6. It never considered or alluded

to the principle that prevents a party from using broadly

formulated rights to sweep aside rights held by others. The

upshot, then, of the court’s opinion here is to subordinate that

principle to a district court’s dictum.