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.