Reply Brief — Brent Electric Company, Inc., Petitioner v. International Brotherhood of Electrical Workers Local Union No. 584

NO. 24-511

In the

Supreme Court of the United States

BRENT ELECTRIC COMPANY, INC.,

Petitioner,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION NO. 584,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

REPLY BRIEF OF PETITIONER

Mark E. Hunt

Counsel of Record

Michael D. Oesterle

Mason C. Rush

KING & BALLOW

26 Century Boulevard

Suite NT 700

Nashville, TN 37214

(615) 259-3456

mhunt@kingballow.com

January 14, 2025

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

CORPORATE DISCLOSURE STATEMENT

Brent Electric Company, Inc. has no parent corporation, and no publicly held company owns 10% or

more of its stock.

ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ............. i

TABLE OF AUTHORITIES ...................................... iii

REPLY BRIEF OF PETITIONER ............................. 1

I.

This Case Remains Live Because Brent

Electric Has a Personal Stake and Concrete

Interest in the Outcome Before This Court .... 1

II. The Tenth Circuit Erred in Failing to

Apply This Court’s Clear and

Unmistakable Waiver Standard ...................... 5

III. This Court Has Recognized the Right to

Refuse Permissive Subjects of Bargaining

Under Section 8(d) of the NLRA...................... 8

IV. The Tenth Circuit’s Opinion Creates a

Substantial Circuit Split .................................. 9

CONCLUSION.......................................................... 12

iii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) ............................................. 7

American Metal Prods , Inc. v. Sheet Metal

Workers International Ass’n, Local No.

104, 794 F.2d 1452 (9th Cir. 1986) ................... 10

Chafin v. Chafin,

568 U.S. 165 (2013) ......................................... 1, 4

Consumer Asphalt & Concrete Co.,

295 N.L.R.B. 749 (1989) ...................................... 9

Ellis v. Bhd. of Ry.,

466 U.S. 435 (1984) ......................................... 1, 4

Endurance Environmental Solutions, LLC,

373 N.L.R.B. No 141 (2024) ................................ 7

Erie v. Pap’s A.M.,

529 U.S. 277 (2000) ............................................. 1

John Deklewa & Sons,

282 N.L.R.B. 1375 (1987) .................................... 9

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) ............................................. 1

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) ............................................. 1

Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988) ............................................. 7

Livadas v. Bradshaw,

512 U.S. 107 (1994) ............................................. 7

iv

TABLE OF AUTHORITIES – Continued

Page

Local 58, Int’l Bhd. of Elec. Workers v. Se

Michigan Chapter, Nat’l Elec. Contractors

Ass’n, Inc., 43 F.3d 1026 (6th Cir. 1995) ...... 6, 10

Lucky Brand Dungarees, Inc. v. Marcel

Fashions Grp., Inc., 590 U.S. 405 (2020) ............ 4

Mastro Plastics Corp. v. NLRB,

350 U.S. 270 (1956) ............................................. 5

Metro. Edison Co. v. NLRB,

460 U.S. 693 (1983) ......................................... 5, 7

MOAC Mall Holdings LLC v. Transform

Holdco LLC, 598 U.S. 288 (2023) ................... 1, 4

NLRB v. Borg-Warner Corp., Wooster Division,

356 U.S. 342 (1958) ....................................... 8, 10

NLRB v. Sheet Metal Workers Int’l Ass’n, Local

Union No. 38, 575 F.2d 394

(2nd Cir. 1978) ..................................... 6, 8, 10, 11

Sheet Metal Workers Int’l Ass’n Local 14 v.

Alrdich Air Conditioning, 717 F.2d 456

(8th Cir. 1983) ............................................... 7, 10

Sheet Metal Workers Local Union No. 20 v.

Baylor Heating & Air Conditioning,

877 F.2d 547 (7th Cir. 1989) ......................... 7, 11

Sheet Metal Workers Local Union No. 54 v.

E.F. Etie Sheet Metal Co., 1 F.3d 1464

(5th Cir. 1993) ........................................... 8, 9, 10

Sheet Metal Workers, Local Union No. 24 v.

Architectural Metal Works, Inc., 259 F.3d

418 (6th Cir. 2001) ............................................ 11

v

TABLE OF AUTHORITIES – Continued

Page

Wright v. Universal Maritime Service Corp.,

525 U.S. 70 (1998) ............................................... 7

STATUTES

29 U.S.C. § 158(a)(5) ................................................... 9

29 U.S.C. § 158(b)(3) ............................................... 8, 9

29 U.S.C. § 158(d) ..................................... 5, 6, 8, 9, 11

29 U.S.C. § 158(f) .................................................... 8, 9

1

REPLY BRIEF OF PETITIONER

I.

This Case Remains Live Because Brent

Electric Has a Personal Stake and Concrete

Interest in the Outcome Before This Court

The Union’s Brief in Opposition presents the

same mootness arguments expressly rejected by the

Tenth Circuit in its August 6, 2024 opinion (which the

Union later describes as “unimpeachable”). Petitioner’s

Appendix (“App.”) at 10a-17a; Brief in Opposition

(“Opp.”) at 5-7, 15. While Brent Electric respectfully

submits that the Tenth Circuit did err concerning the

question presented to this Court, it did not err in its

prefatory ruling on the fundamental issue of its

Article III jurisdiction to hear the appeal.

For a case to remain live, “the parties must

‘continue to have a “personal stake”’ in the ultimate

disposition of the lawsuit.” Chafin v. Chafin, 568 U.S.

165, 172 (2013) (quoting Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 478 (1990)). “A case becomes moot only

when it is impossible for a court to grant ‘any effectual

relief whatever’ to the prevailing party.” Knox v.

SEIU, Local 1000, 567 U.S. 298, 307, (2012) (quoting

Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); some

quotation marks omitted). “[A]s long as the parties

have a concrete interest, however small, in the outcome

of the litigation, the case is not moot.” Ellis v. Bhd. of

Ry., 466 U.S. 435, 442 (1984); MOAC Mall Holdings

LLC v. Transform Holdco LLC, 598 U.S. 288, 295

(2023).

The Union again advances its theory that the

case is rendered moot by Brent Electric’s compliance

2

with the 2021 CBA imposed upon it by the CIR. Opp.5.

However, Brent Electric was never obligated to risk

the potential liability for breaching the 2021 CBA should

the CIR Decision be affirmed. Additionally, the Tenth

Circuit correctly observed that any compliance by Brent

Electric with permissive terms of the 2021 CBA was

involuntary and found that “Brent has vigorously

preserved its objections to the 2021 CBA at all stages

of the litigation.” App.14a. Specifically,

Brent refused to sign the 2021 CBA until the

district court forced it to do so, fearing that

signing it might indicate voluntary compliance.

Brent’s filing of a complaint in district court

to vacate the CIR award, its later motion to

stay enforcement, and its appeal suffice to

demonstrate that any compliance was involuntary.

App.14a.1 The Tenth Circuit therefore dismissed the

Union’s argument of mootness by compliance. The

Union’s argument fares no better at this stage.

The Tenth Circuit further found that “even if the

Union were correct that Brent voluntarily complied

with the 2021 CBA, its mootness challenge would still

fail because, if successful in this appeal, Brent could

seek remedies that would have real-world consequences.” App.14a (emphasis added). For example,

If we invalidate the 2021 CBA, Brent could

claim reimbursement of a $750 premium for

1 As the record demonstrates, Brent Electric commenced the

underlying action in the United States District Court for the

Northern District of Oklahoma on June 8, 2021, even before it

received the final CIR Decision on June 28, 2021. Pet.9.

3

a surety bond, plus interest. Brent could also

seek reimbursement of around $5,156.48

in contributions it has made to the LaborManagement Cooperation Committee (LMCC)

and National Labor Management Cooperation

Committee (NLMCC) funds “pursuant to unlawfully imposed permissive provisions” in

the 2021 CBA.

App.15a. The expiration of the 2021 CBA has no bearing

on this. Opp.5 (arguing mootness based on expiration

of the 2021 CBA). The Union’s protest that “[t]he court

of appeals did not assert that Brent had actually made

either of these claims” ignores that Brent Electric is

not able to make such claims, in any venue, unless and

until it is determined that the provisions which required

Brent Electric to incur these expenses were unlawfully

imposed upon Brent Electric.2 “[A]ll of Brent’s avenues

for potential relief depend on the outcome of this appeal,

meaning our decision carries real-world consequences.

[ . . . ] If we decide in Brent’s favor, then Brent may seek

such relief and initiate those proceedings; without such

a decision, Brent may not.” App.15a-16a (emphasis

added).

Absent this Court’s resolution of the question presented in Brent Electric’s favor, any claim by Brent

Electric for recovery of the surety bond premium or the

fund contributions would be barred under a

2 As noted above, the Tenth Circuit has already made the factual

finding that Brent Electric’s compliance with the permissive

terms of the 2021 CBA was not voluntary. App.13a-14a. Thus,

the question before this Court is the purely legal question of

“Whether a collective bargaining agreement awarded through

interest arbitration is enforceable as to nonmandatory subjects

of bargaining contained therein.” Pet.i.

4

straightforward application of the doctrine of issue

preclusion, “which precludes a party from relitigating

an issue actually decided in a prior case and necessary

to the judgment.” Lucky Brand Dungarees, Inc. v. Marcel

Fashions Grp., Inc., 590 U.S. 405, 412 (2020). The

Union’s complaint that “the court offered no explanation

of why” a ruling in Brent Electric’s favor “would be a

precondition to the Company advancing such claims”

is thus perplexing. Opp.6. If the Court answers the

question presented in the negative, Brent Electric will

then have a basis to bring claims for reimbursement

of expenses incurred pursuant to unlawfully imposed

permissive subjects of bargaining. This is more than

sufficient to constitute a “personal stake” or “concrete

interest” in the outcome of this dispute. Chafin, 568

U.S. at 172; Ellis, 466 U.S. at 442.

The Union also appears to suggest that Brent

Electric has not requested a reversal and remand of

the case to the Tenth Circuit. Opp.7, n.1. Yet, Brent

Electric’s petition clearly argues that, for the reasons

stated therein, the Tenth Circuit erred in affirming

the district court’s dismissal of its complaint and

award of summary judgment in favor of the Union. In

that regard, Brent Electric seeks the typical appellate

relief of reversal, and where a party “simply seeks

typical appellate relief [ . . . ] it cannot be said that

the parties have no concrete interest[.]” MOAC Mall

Holdings, 598 U.S. at 289 (quotation marks omitted).

For these reasons, the Union’s mootness arguments

must fail again.

5

II. The Tenth Circuit Erred in Failing to Apply

This Court’s Clear and Unmistakable Waiver

Standard

The Union alleges that Brent Electric “has abandoned its contract interpretation argument and asserts

only that [ . . . ] an award imposing permissive subjects

would be void as against public policy.” Opp.8. To the

contrary, Brent Electric has maintained at all times

that Section 1.02(d) of the 2018 CBA could only be found

to include permissive subjects if it constituted a “clear

and unmistakable waiver” of Brent Electric’s statutory

rights under Section 8(d) of the NLRA. Petition (“Pet.”)

at 32 (citing Metro. Edison Co. v. NLRB, 460 U.S. 693,

708 (1983) (the Court “will not infer from a general

contractual provision that the parties intended to waive

a statutorily protected right unless the undertaking is

‘explicitly stated’” (quoting Mastro Plastics Corp. v.

NLRB, 350 U.S. 270, 283 (1956))). Brent Electric’s

petition argues that the Tenth Circuit “erred in

finding that Section 1.02(d) of the 2018 CBA constituted

an agreement [ . . . ] to submit permissive subjects of

bargaining to the CIR” as the result of its erroneous

conclusion that the right to exclude permissive subjects

of bargaining under Section 8(d) of the NLRA lacked

the requisite support of positive law. Pet.13, 32–33;

App.55a. In other words, the Tenth Circuit failed to

apply the appropriate “clear and unmistakable waiver

standard” because it did not recognize the well-defined,

dominant public policy at issue:

[W]e hold that an interest arbitration provision

of a collective bargaining agreement is void

as contrary to public policy, insofar as it applies

to nonmandatory subjects. The effect to be

given to collective bargaining agreements is

6

a matter of federal law, to be determined on

the basis of national labor policy. It is an

important element of national labor policy

that a party need not bargain, and need not

agree, concerning nonmandatory issues. [ . . . ]

[A]s applied to nonmandatory subjects, an

interest arbitration provision is contrary to

national labor policy because it deprives the

parties of their right to insist on excluding

nonmandatory subjects from the collective

bargaining agreement.

NLRB v. Sheet Metal Workers Int’l Ass’n, Local Union

No. 38, 575 F.2d 394, 398–99 (2nd Cir. 1978) (emphasis

added) (citations omitted).

In finding that Brent Electric agreed to submit

permissive subjects of bargaining to the CIR, the Tenth

Circuit failed to acknowledge that the interest arbitration language of the 2018 CBA is substantially the

same as the language considered by other circuit courts

involved in the present circuit split. None of these

circuit courts found that such language can be read to

include permissive subjects of bargaining or constitute

a “clear and unmistakable” waiver of a party’s Section

8(d) rights. See, e.g., Local 58, Int’l Bhd. of Elec. Workers

v. Se Michigan Chapter, Nat’l Elec. Contractors Ass’n,

Inc., 43 F.3d 1026, 1029 (6th Cir. 1995) (“Art. I, Sec.

2(D) provides: ‘Unresolved issues in negotiations that

remain on the 20th of the month preceding the next

regular meeting of the Council on Industrial Relations,

may be submitted jointly or unilaterally . . . ’”); Local

Union No. 38, 575 F.2d at 396 (involving an interest

arbitration which allowed submission to the NJAB

“any controversy or dispute arising out of the failure

of the parties to negotiate a renewal of this agree-

7

ment[.]”); Sheet Metal Workers Int’l Ass’n Local 14 v.

Alrdich Air Conditioning, 717 F.2d 456, 457 (8th Cir.

1983) (same); Sheet Metal Workers Local Union No. 20

v. Baylor Heating & Air Conditioning, 877 F.2d 547,

551 (7th Cir. 1989) (same). To construe the general

language of Section 1.02(d) of the 2018 CBA as a waiver

of the statutorily-protected right to exclude permissive

subjects would be contrary to the rule of this Court

that such waiver must be explicitly stated and clear

and unmistakable.

Significantly, the National Labor Relations Board

(“Board”), which largely dictates federal labor policy,

recently readopted the “clear and unmistakable waiver”

standard in its December 10, 2024 decision in Endurance Environmental Solutions, LLC, 373 N.L.R.B. No

141 (2024). In Endurance, the Board found that the

“clear and unmistakable waiver” standard “achieves

consistency with Supreme Court and Board precedent

and realigns Board law with the standard applied by

the majority of courts of appeals[.]” 373 N.L.R.B. at 2.

The Board observed that “since Metropolitan Edison,

the Supreme Court has repeatedly affirmed [ . . . ] the

principle that a contractual waiver of a statutorily

protected right must be ‘explicitly stated’ and ‘clear

and unmistakable.’” Id. at 8 (citing 14 Penn Plaza LLC

v. Pyett, 556 U.S. 247 (2009); Wright v. Universal

Maritime Service Corp., 525 U.S. 70, 79–80, 82 (1998);

Livadas v. Bradshaw, 512 U.S. 107, 125 (1994); Lingle

v. Norge Division of Magic Chef, Inc., 486 U.S. 399,

409, n.9 (1988)). The Board found that the Court’s precedent reflects “the principle that statutorily protected

rights are too important to be surrendered through

less-than-explicit waivers in a collective bargaining

agreement.” Endurance, 373 N.L.R.B. at 8.

8

III. This Court Has Recognized the Right to

Refuse Permissive Subjects of Bargaining

Under Section 8(d) of the NLRA

The Union would limit the holding of NLRB v. BorgWarner Corp., Wooster Division, 356 U.S. 342 (1958)

to prohibiting a party from “insisting upon” permissive

subjects of bargaining (or stated otherwise, from refusing to enter an agreement without the inclusion of

certain permissive subjects of bargaining). Borg-Warner

Corp., 356 U.S. at 344, 349; Opp.9. However, the Court

in Borg-Warner Corp. not only defined insistence upon

permissive subjects of bargaining as an unfair labor

practice, but it also described the right of parties

under Section 8(d) of the NLRA “to bargain or not to

bargain, and to agree or not to agree” to permissive

subjects. 356 U.S. at 349 (emphasis added); Local

Union No. 38, 575 F.2d at 398–99; see also Sheet Metal

Workers Local Union No. 54 v. E.F. Etie Sheet Metal Co.,

1 F.3d 1464, 1476 (5th Cir. 1993) (“preserving parties’

freedom to exclude nonmandatory subjects from labor

agreements was an important goal of national labor

policy.”). “That Local 584 was not guilty of the unfair

labor practice described in Borg-Warner“ is irrelevant

to Brent Electric’s right to refuse permissive subjects

of bargaining. Opp.10.

The Union argues that the rights afforded by Section 8(d) were not applicable to Brent Electric because

“[t]he statutory duty to bargain imposed on employers

and unions by the NLRA [ . . . ] does not apply to the

negotiation of Section 8(f) agreements.” Opp.1. The

Union claims that it was not “at the time of the arbitration a ‘representative of [Brent’s] employees subject

to the provisions of section 9(a).” Opp.10 (quoting 29

U.S.C. § 158(b)(3)). The Union is mistaken. It is well-

9

established that the parties to a Section 8(f) agreement

do have statutory bargaining obligations during the

term of the agreement. See John Deklewa & Sons, 282

N.L.R.B. 1375, 1377–78 (1987) (“a collective-bargaining

agreement permitted by Section 8(f) shall be enforceable

through the mechanisms of Section 8(a)(5) and Section

8(b)(3)”); see generally Consumer Asphalt & Concrete

Co., 295 N.L.R.B. 749 (1989) (finding that a Section

8(f) employer violated Section 8(a)(5) by transferring

operations during the term of the agreement without

bargaining over the decision or the effects of the

decision, contrary to its Section (8)(d) duty).3 Here,

the record clearly demonstrates that the unlawful CIR

Decision was first issued on May 19, 2021, well within

the term of the 2018 CBA. App.130a. Accordingly, the

statutorily protected right of Brent Electric was never

subject to expiration during the relevant period.4

IV. The Tenth Circuit’s Opinion Creates a

Substantial Circuit Split

The Union reluctantly concedes the existence of a

circuit split due to the impossibility of reconciling the

Tenth Circuit’s decision with Sheet Metal Workers

Local Union No. 54 v. E.F. Etie Sheet Metal Co., 1 F.3d

1464 (5th Cir. 1993). Opp.12. While the Union tries to

3 The Fifth Circuit in E.F. Etie also held that where a local union

and a Section 8(f) employer “could not agree on mandatory issues[,]”

the union “had a right to invoke the NJAB and enforce its award”

(with regard to mandatory subjects only). 1 F.3d at 1476.

4 The Union also fails to account for Article I, Section 1.02(c) of

the 2018 CBA (an “evergreen” clause), by which the 2018 CBA

continued beyond May 31, 2021. Thus, the statutory bargaining

obligations under Section 8(d) of the NLRA, as well as Brent

Electric’s right to refuse permissive subjects of bargaining, likewise

continued.

10

distinguish cases involving a second-generation interest

arbitration provision, E.F. Etie did not involve a secondgeneration interest arbitration provision. Nonetheless,

the Fifth Circuit held that “an interest arbitration

provision [is] void as contrary to public policy insofar

as it applied to nonmandatory subjects” categorically.

1 F.3d at 1476 (citing Aldrich Air Conditioning, 717

F.2d 456 and American Metal Prods., 794 F.2d 1452).

This plainly contradicts the Tenth Circuit’s opinion,

which simply disagreed with the Fifth Circuit in E.F.

Etie. App.56a. (stating that E.F. Etie and other cases

“rest on dubious foundations”). Thus, the Union

argues that there is no substantial circuit split as the

other relevant precedents, in the Union’s view, only

establish that an interest arbitration award violates

public policy if it imposes a second-generation interest

arbitration provision. Opp.12. To reach this conclusion,

the Union is forced to misconstrue the holdings of the

Second, Fifth, Sixth, Seventh, Eighth, and Ninth

Circuits, all of which agree with the public policy

rationale which E.F. Etie is based upon.5 Pet.14-24.

For example, the Sixth Circuit in Local 58 held that

“the law is clear that an arbitrator may not use an

interest arbitration clause as a means of self-perpetuation” because “interest arbitration as to nonmandatory subjects is ‘void as contrary to public policy.’”

575 F.2d at 1030 (citing Local Union No. 38, 575 F.2d

at 394). Relying on Local 58 and Borg-Warner Corp.,

the Sixth Circuit later reiterated that “[t]he law of the

Sixth Circuit forbids including, in any arbitratorfashioned labor contract legitimated by a contractual

‘interest arbitration’ clause, any contractual term which

5 The Union’s error was accepted by the Tenth Circuit. App.51a.

11

does not address a legally mandatory subject of collective

bargaining[.]” Sheet Metal Workers, Local Union No.

24 v. Architectural Metal Works, Inc., 259 F.3d 418, 430

(6th Cir. 2001) (first emphasis added). In Baylor Heating

& Air Conditioning, the Seventh Circuit likewise held

that an “[a]rbitrator could not impose an interest arbitration clause, a nonmandatory bargaining item, on the

parties against their will.” 877 F.2d at 556 (emphasis

added). An arbitrator may not impose a secondgeneration interest arbitration provision because the

imposition of any permissive subject of bargaining,

including a second-generation interest arbitration provision, is contrary to Section 8(d) absent a clear and

unmistakable waiver.

The Union also attempts to distinguish the Second

Circuit’s Local 38 decision, which involved a secondgeneration interest arbitration provision and industry

fund provisions, on the basis that it arose out of the

context of a union’s unfair labor practices. Opp.13-14.

However, as discussed above, a party’s Section 8(d)

right to refuse permissive subjects of bargaining does

not come into existence only upon the other party

committing an unfair labor practice. The principle

that, “as applied to nonmandatory subjects, an interest

arbitration provision is contrary to national labor

policy because it deprives the parties of their right to

insist on excluding nonmandatory subjects from the

collective bargaining agreement” does not depend on

a party’s unlawful insistence on permissive subjects of

bargaining. Local 38, 575 F.2d at 399.

12

CONCLUSION

The Union has failed to demonstrate why review

of the decision below is not warranted. Brent Electric’s

petition for a writ of certiorari should be granted.

Respectfully submitted,

Mark E. Hunt

Counsel of Record

Michael D. Oesterle

Mason C. Rush

KING & BALLOW

26 Century Boulevard

Suite NT 700

Nashville, TN 37214

(615) 259-3456

mhunt@kingballow.com

Counsel for Petitioner

January 14, 2025