Associated Builders & Contractors, Inc. v. Herman , 166 F.3d 1248 ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 1999 Decided February 16, 1999
No. 97-5300
Associated Builders and Contractors, Inc., et al.,
Appellants/Cross-Appellees
v.
Alexis M. Herman, Secretary of Labor, and
Anthony Swoope, Director,
Bureau of Apprenticeship and Training,
U.S. Department of Labor,
Appellees/Cross-Appellants
Consolidated with
97-5327, 97-5362
Appeals from the United States District Court
for the District of Columbia
(No. 96cv02625)
Maurice Baskin argued the cause and filed the briefs for
appellants/cross-appellees Associated Builders and Contrac-
tors, Inc., et al. John C. Hardwick, Jr., entered an appear-
ance.
William W. Osborne, Jr., argued the cause for appellant
Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO.
With him on the briefs was Marc D. Keffer.
Paul S. Padda, Assistant U.S. Attorney, argued the cause
for appellees/cross-appellants U.S. Department of Labor.
With him on the briefs were Wilma A. Lewis, U.S. Attorney,
and R. Craig Lawrence, Assistant U.S. Attorney. Gregory
W. Addington, Assistant U.S. Attorney, entered an appear-
ance.
William W. Osborne, Jr., Marc D. Keffer and Terry R.
Yellig were on the joint brief for amici curiae Building and
Construction Trades Department, AFL-CIO, and Road
Sprinkler Fitters Local Union 669, U.A., AFL-CIO.
Before: Edwards, Chief Judge, Silberman and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Grinnell Fire Protection Systems
Co. ("Grinnell") has for some time now been engaged in a
labor dispute with employees represented by the Road
Sprinkler Fitters Local Union No. 699 ("Union"). The Union
has filed unfair labor practice charges with the National
Labor Relations Board ("NLRB") claiming that Grinnell un-
lawfully instituted changes in the terms and conditions of
employment (including modifying a joint apprenticeship train-
ing program) without first bargaining in good faith to im-
passe. Because its unionized employees are currently on
strike, Grinnell sought permission from the Department of
Labor's ("DOL") Bureau of Apprenticeship and Training
("BAT") to train striker replacements under some form of
BAT-approved apprenticeship program--either a new pro-
gram to be administered by Grinnell, or an existing, lawfully
registered program administered by another employer. In
response to Grinnell's request, BAT deferred judgment on
whether to allow Grinnell to implement a new apprenticeship
program and it refused to allow other employers to train
Grinnell employees under their apprenticeship programs,
pending a decision by the NLRB on the yet unresolved unfair
labor practice charges. Grinnell sought relief in the District
Court, alleging that BAT's decisions were arbitrary, capri-
cious, and contrary to law.
On cross-motions for summary judgment, the District
Court held that it was reasonable for BAT to defer judgment
on Grinnell's proposal for a new program, but that it was
arbitrary and capricious for BAT to preclude Grinnell em-
ployees from enrolling in already approved programs. Sub-
sequently, the Union moved to intervene and this motion was
denied by the District Court. Both Grinnell and DOL have
appealed the District Court's judgment to this court. In a
consolidated case, the Union appeals the District Court's
denial of its motion to intervene.
We affirm the judgment of the District Court only insofar
as it ordered BAT to permit Grinnell employees to enroll in
ongoing and lawfully registered apprenticeship programs of
other employers. BAT acted without any statutory or regu-
latory authority in blocking the enrollment of Grinnell em-
ployees in these programs. We reverse the District Court,
however, insofar as it endorsed BAT's decision to defer
consideration of Grinnell's request to register a new appren-
ticeship program for striker replacements. BAT's decision
inexplicably ignored the plain language in the governing
regulations that dispenses with any need to defer to the
NLRB. Accordingly, we vacate that portion of BAT's deci-
sion and remand to the District Court with instructions to
remand the case to the agency for prompt disposition of
Grinnell's request for registration of a new apprenticeship
program. Finally, because the Union has offered no justifica-
tion for its failure to intervene prior to judgment in the
District Court, we affirm the District Court's denial of its
motion to intervene.
I. Background
A.Regulatory Background
In accordance with the National Apprenticeship Act
("NAA"), 29 U.S.C. ss 50-50b, DOL has promulgated and
implemented regulations related to the administration of the
nation's apprenticeship programs, which offer training to
apprentices in certain skilled trades. See 29 C.F.R. pt. 29
(1998). These programs are registered and monitored either
through BAT or through a BAT-approved State Apprentice-
ship Agency or Council ("SAC"). See id. ss 29.2(o), 29.12.
Under DOL regulations implemented pursuant to the Davis-
Bacon Act, 40 U.S.C. ss 276a-276a-5, an employer may pay
apprentices wages below the prevailing wage rate "when [the
apprentices] are employed pursuant to and individually regis-
tered in a bona fide apprenticeship program registered with
[BAT], or with a [SAC] recognized by [BAT]." 29 C.F.R.
s 5.5(a)(4) (1998).
In order to register an apprenticeship program with BAT
or a SAC, a "sponsor," i.e., a person or entity operating an
apprenticeship training program, see id. s 29.2(g), must des-
ignate an "apprenticeship committee" to administer the pro-
gram. See id. s 29.2(i). The committee may be "joint"--in
which case it is comprised of an equal number of company
and employee representatives--or it may be "unilateral"--in
which case employee representatives do not participate in its
operation. See id. When a sponsor seeks to register an
apprenticeship program, it must meet certain eligibility re-
quirements. See id. s 29.3. Once approved, the program
must conform to certain regulatory standards. See id. s 29.5.
B.Factual Background
Prior to April 1994, Grinnell and the Union had agreed to,
and participated in, a collectively bargained joint apprentice-
ship program. See Agreement Between National Fire
Sprinkler Ass'n, Inc. and Road Sprinkler Fitters Local Un-
ion No. 699 ("agreement") at 33, reprinted in Appendix to
Brief of Local 699 ("Union App.") 85. The program was
administered by a Joint Apprenticeship and Training Com-
mittee ("JATC"), which was comprised of an equal number of
Grinnell officials and Union agents. See id. at 34, reprinted
in Union App. 86.
In April 1994, the Union organized a strike against Grin-
nell. Grinnell subsequently hired replacement workers. Fol-
lowing contract negotiations, the Union rejected Grinnell's
purported "final" contract offer. Grinnell then informed the
Union that the terms of its final offer would be implemented
on April 14, 1994. The Union responded by filing unfair labor
practice charges against Grinnell, alleging that, in violation of
the National Labor Relations Act ("NLRA"), the company
had unilaterally instituted changes in the terms and condi-
tions of employment without first bargaining in good faith to
impasse. See 29 U.S.C. s 158(a)(5) (1994); NLRB v. Katz,
369 U.S. 736, 743 (1962). After a hearing, an Administrative
Law Judge ("ALJ") agreed with the Union that Grinnell had
violated the NLRA by "implementing the terms of its last
contract offer in the absence of a lawful impasse." Grinnell
Fire Protection Sys. Co., 5-CA-24521, 5-CA-25227,
5-CA-25406, at 32 (Jan. 16, 1997), reprinted in Appendix
("Grinnell App.") 159. The ALJ proposed that Grinnell be
"ordered to restore the terms and conditions of employment
of unit employees as they existed prior to April 14, 1994, [and
to] continue them in effect until the parties reach an agree-
ment or a good-faith impasse." Id. Grinnell appealed the
ALJ's ruling to the full NLRB. The NLRB has yet to render
a judgment in the case.
As the proceeding before the NLRB has progressed, Grin-
nell has continued to hire striker replacements and it has
sought to train these workers through some form of BAT- or
SAC-approved apprenticeship program. Grinnell first tried
to use the program that was jointly administered by the
JATC. John Walsh, the Director of the JATC--and one of
the Union's agents on the committee--responded to the com-
pany's request by refusing to approve new individuals into the
joint program until Grinnell resumed paying hourly contribu-
tions required by the agreement. See Letter from John J.
Walsh, Director, Local 699 JATC, to Grinnell Fire Protection
(June 6, 1994), reprinted in Union App. 49. Grinnell's Presi-
dent, Jerry Boggess, responded by asserting that Grinnell
was, in fact, continuing to make the hourly contributions to
the JATC. See Letter from Jerry R. Boggess to Walsh (July
15, 1994), reprinted in Union App. 50-51. The final corre-
spondence in this brief exchange was a letter from Walsh to
Boggess, essentially asking for documentation of Grinnell's
contributions to the JATC. See Letter from Walsh to Bog-
gess (July 25, 1994), reprinted in Union App. 52. The JATC
has yet to approve the enrollment of any of Grinnell's striker
replacements. It is also undisputed that neither Grinnell nor
the Union is currently participating in the apprenticeship
program administered by the JATC.
In June 1995, counsel for Grinnell asked an official at DOL
how the ongoing strike would affect Grinnell's ability to enroll
its employees either in a new, unilateral apprenticeship pro-
gram, or in an already approved program that is currently
being administered by another employer. See Letter from
Donald L. Rosenthal, Counsel for Grinnell, to Charles D.
Raymond, Associate Solicitor of Labor (June 2, 1995), reprint-
ed in Grinnell App. 22-24. Anthony Swoope, Director of
BAT, responded by stating that BAT would not approve the
registration of a new program, nor would it allow Grinnell's
replacement workers to enroll in existing programs. See
Letter from Swoope to Rosenthal (July 12, 1995), reprinted in
Grinnell App. 26-27; see also Letter from Claire Louder,
Executive Director, Associated Builders & Contractors, Inc.,
South Texas Chapter, to Dwight Green, Grinnell Fire Protec-
tions Systems (Aug. 31, 1995), reprinted in Grinnell App. 29
(administrator of already approved program explaining to
Grinnell executive that the local branch of BAT "has refused
to register any apprentices employed by [Grinnell] in ABC-
South Texas Chapter's registered apprenticeship program").
Swoope's letter--which the parties treated as a policy state-
ment--relied heavily upon an interpretation of BAT Circular
95-06. The District Court, however, subsequently vacated
the policy statement and the circular upon which it was
based, because the circular had not been drafted pursuant to
notice and comment rule making. See Associated Builders &
Contractors, Inc. v. Reich, 922 F. Supp. 676, 681-82 (D.D.C.
1996) ("ABC I"). The parties have not contested this action.
Grinnell again petitioned BAT to register a new, unilateral
program to train striker replacements. BAT again refused to
approve registration of a new program, this time citing only
the Union's objection to the proposed program and the pend-
ing NLRB complaint. See Letter from Isadore H. Gross, Jr.,
Regional Director, BAT, to Kenneth L. Bitner, Grinnell Dis-
trict General Manager (Aug. 30, 1995), reprinted in Grinnell
App. 28. It is undisputed that BAT also actively blocked the
enrollment of Grinnell's striker replacements in established,
lawfully registered programs. It did so by directing other
employers not to train Grinnell employees under their ap-
proved programs. See, e.g., Affidavit of Michael J. Friedman,
Grinnell Consultant, at 8 (Jan. 9., 1996), reprinted in Grinnell
App. 39 (stating that "all efforts ... to register Grinnell
employees as apprentices in existing third party programs[ ]
have been denied by Defendant BAT"). As a result of BAT's
refusal to allow other employers to train Grinnell employees
under their approved programs, Grinnell was forced to for-
mally request permission from BAT for its replacement work-
ers to enroll in the existing programs.
BAT rejected this request in the ad hoc decision under
review in this case, asserting that Grinnell must defer regis-
tering a new program and decline from enrolling employees
in existing programs, until the NLRB renders a judgment as
to whether Grinnell bargained to impasse before implement-
ing the terms of its final contract offer. The ad hoc decision
was issued through a series of virtually identical letters from
BAT to various Grinnell executives and other employers who
sought to train Grinnell employees. See, e.g., Letter from
Gross to Bitner (May 30, 1996) ("Ad Hoc Decision"), reprint-
ed in Grinnell App. 82I-82K (amended June 10, 1996). In the
ad hoc decision, BAT acknowledged that it was not relying
upon any BAT circulars, and that "the applicable statute,
regulations, and policies do not specifically address" Grinnell's
requests. Ad Hoc Decision at 1, reprinted in Grinnell App.
82I. Nevertheless, BAT purported to justify its decision to
"defer" by reference to 29 C.F.R. s 29.3(h).
Section 29.3(h), in its entirety, reads as follows:
Under a program proposed for registration by an
employer or employers' association, where the standards,
collective bargaining agreement or other instrument,
provides for participation by a union in any manner in
the operation of the substantive matters of the appren-
ticeship program, and such participation is exercised,
written acknowledgment of union agreement or no objec-
tion to the registration is required. Where no such
participation is evidenced and practiced, the employer or
employers' association shall simultaneously furnish to the
union, if any, which is the collective bargaining agent of
the employees to be trained, a copy of its appplication
[sic] for registration and of the apprenticeship program.
The registration agency shall provide a reasonable time
period of not less than 30 days nor more than 60 days for
receipt of union comments, if any, before final action on
the application for registration and/or approval.
BAT held that the outcome of the case currently pending
before the NLRB will be determinative of BAT's decision
whether to grant Grinnell's requests. According to BAT,
where a collective bargaining agreement provides for union
participation in the operation of an apprenticeship program,
s 29.3(h) requires the consent of the union before an employ-
er may register an apprenticeship program. Whether the
agreement between Grinnell and the Union is still in effect is
a matter that must be determined by the NLRB. If the
NLRB affirms the ruling of the ALJ, the terms of the
agreement will continue to be in effect, and BAT cannot
register a new program without the Union's consent. But if
the NLRB holds that Grinnell indeed bargained to impasse,
the terms of the last offer would be operative and a unilateral
program would be permissible. "[B]ecause ... BAT was
unable to act upon [Grinnell's requests] without effectively
determining the merits of the unfair labor practice charge," it
deferred approval of any of Grinnell's requests. Brief for
Appellees/Cross-Appellants at 9.
As for Grinnell's request to enroll its employees in existing
programs, BAT acknowledged that "[s] 29.3(h) is only appli-
cable to the situation where an employer seeks to register a
new apprenticeship program." Ad Hoc Decision at 2, re-
printed in Grinnell App. 82J. This notwithstanding, BAT
held that the "intent" of s 29.3(h)--which, according to BAT,
is "to protect the union's right to participate in the existing
joint apprenticeship programs"--applies "with equal force" to
an employer's request to register its employees in existing
programs. Id. Accordingly, BAT refused to allow Grinnell
employees to enroll in these programs until the NLRB deter-
mined whether the agreement was still in effect.
In November 1996, Grinnell filed the instant lawsuit in
District Court, alleging that BAT's ad hoc decision was
arbitrary, capricious, and contrary to law. On September 19,
1997, upon consideration of cross-motions for summary judg-
ment, the District Court held that it was reasonable and
lawful for BAT to defer consideration of Grinnell's request to
register a new, unilateral program. See Associated Builders
& Contractors, Inc. v. Reich, 978 F. Supp. 338, 341-42
(D.D.C. 1997) ("ABC II"). However, the court held that to
the extent that the ad hoc decision prevented Grinnell's
employees from entering existing programs, it went "much
too far." Id. at 342. The court asserted that this part of the
ad hoc decision violated the intent and purpose of the NAA--
which is, according to the court, "to further the interest of
apprentices and this Nation by ensuring that men and women
entering a particular labor market receive appropriate and
needed apprenticeship training"--and it "certainly gives the
appearance that [BAT is] taking sides in the labor dispute."
Id. Accordingly, it vacated that portion of BAT's decision
and ordered BAT to "permit Grinnell employees to partici-
pate in existing external approved apprenticeship programs."
Id.
On October 3, 1997, the Union filed a motion to intervene in
the District Court, which was opposed by Grinnell. Before
the District Court had ruled on the Union's motion, both
Grinnell and DOL filed appeals to this court. Subsequently,
on December 19, 1997, the District Court denied the Union's
motion to intervene. See Associated Builders & Contractors,
Inc. v. Reich, No. 96-2625 (D.D.C. Dec. 19, 1997) (order),
reprinted in Union App. 26-27. The court held that it could
no longer exercise jurisdiction over the case, because the
parties had already appealed to this court. See id. On
December 29, 1997, the Union moved in this court to inter-
vene on appeal. In March 1998, a motions panel of this court
denied the Union's motion to intervene on appeal, allowed the
Union to participate as amicus curiae, and consolidated the
Union's appeal of the District Court's denial of the motion to
intervene with Grinnell's and DOL's appeals of the District
Court's decision on the merits in ABC II.
On appeal, Grinnell challenges the District Court's determi-
nation that the ad hoc decision was reasonable with respect to
its request to register the unilateral program, but urges
affirmance of the District Court's determination that DOL's
application of the ad hoc decision to existing programs went
"too far." DOL challenges the latter ruling, but urges affir-
mance of the former. The Union has filed an amicus brief in
support of DOL's position, and also challenges the District
Court's denial of its motion to intervene.
II. Analysis
A.Standard of Review
In a case like the instant one, in which the District Court
reviewed an agency action under the Administrative Proce-
dure Act ("APA"), we review the administrative action direct-
ly. See Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir.
1997); Gas Appliance Mfrs. v. Department of Energy, 998
F.2d 1041, 1045 (D.C. Cir. 1993). In other words, we accord
no particular deference to the judgment of the District Court.
See Gas Appliance Mfrs., 998 F.2d at 1045. Rather, on an
independent review of the record, we will uphold BAT's ad
hoc decision unless we find it to be "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. s 706(2)(A) (1994). In determining whether the
action is "in accordance with law," we must "give an agency's
interpretation of its own regulation 'controlling weight unless
it is plainly erroneous or inconsistent with the regulation.' "
Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir.
1998) (quoting Stinson v. United States, 508 U.S. 36, 45
(1993)).
B.BAT's Refusal to Allow Grinnell Employees to Enroll in
Existing Programs
BAT has conceded throughout this litigation that it has
directed other employers with already approved apprentice-
ship programs not to enroll Grinnell employees in those
programs. See, e.g., ABC II, 978 F. Supp. at 342. We agree
with the District Court that BAT had no statutory or regula-
tory authority to block Grinnell employees from participating
in existing apprenticeship programs at other companies.
The ad hoc decision itself cites only s 29.3(h) for authority,
but acknowledges, as it must, that "[s] 29.3(h) is only applica-
ble to the situation where an employer seeks to register a
new apprenticeship program with BAT." Ad Hoc Decision at
2, reprinted in Grinnell App. 82J. Section 29.3 is entitled,
"Eligibility and procedure for Bureau registration of a pro-
gram." 29 C.F.R. s 29.3 (emphasis added). Nothing in
s 29.3--indeed, nothing in Part 29 of the applicable regula-
tions--grants BAT the authority to block one company's
employees from enrolling in already registered apprentice-
ship programs of another company. Thus, to the extent that
BAT was relying upon its interpretation of s 29.3(h) for its
authority to block such enrollments, that interpretation was
plainly erroneous.
DOL's brief to this court cited no authority--other than
s 29.3(h)--in support of BAT's position, and counsel gave no
basis for the authority when questioned at oral argument.
The only justification even mentioned at oral argument--that
BAT might have been motivated by a desire to give the Union
an advantage in the ongoing labor dispute--is certainly not a
valid one, as counsel for DOL had to concede. See Chamber
of Commerce v. Reich, 74 F.3d 1322, 1337-38 (D.C. Cir. 1996).
Therefore, we affirm the District Court's grant of summary
judgment in favor of Grinnell on this point, although we do so
for slightly different reasons than those articulated by the
District Court. The District Court held that BAT's refusal to
allow Grinnell employees to enroll in existing programs violat-
ed the NAA because it "effectively punish[es] innocent work-
ers." ABC II, 978 F. Supp. at 342. However, we see no need
to interpret the NAA here. Instead, we affirm the District
Court's decision and order on this point because BAT simply
had no lawful authority to do what it did. See University of
the Dist. of Columbia Faculty Ass'n/NEA v. District of
Columbia Fin. Responsibility and Management Auth., 163
F.3d 616, 621 (D.C. Cir. 1998); Railway Labor Executives'
Ass'n v. National Mediation Bd., 29 F.3d 655, 659 (D.C. Cir.
1994) (en banc).
C.BAT's Deferral of Grinnell's Request to Register a New,
Unilateral Program
Grinnell's request to register a new, unilateral apprentice-
ship program, separate and distinct from the program previ-
ously established pursuant to the collective bargaining agree-
ment, does implicate s 29.3(h), because Grinnell is seeking to
register a program with BAT. BAT deferred ruling on
Grinnell's request, on the assumption that there is an issue
under s 29.3(h), namely, whether the Union's consent was
required before BAT could approve the request. If the
Union's consent was not required, BAT agreed that Grinnell's
request for registration should be approved. See Brief for
Appellees/Cross-Appellants at 20. However, BAT's interpre-
tation of s 29.3(h) apparently led it to believe that it could not
determine whether the Union's consent was required until
after the NLRB decided whether the parties' agreement was
still in effect. Therefore, BAT chose to stay its hand, pend-
ing the outcome of the case before the NLRB.
Grinnell, however, contends that it must be permitted to
train striker replacements under apprenticeship programs,
and that s 29.3(h) should not be read to provide the Union
with veto power over any attempt on Grinnell's part to offer
apprenticeship training. In support of its position, Grinnell
raises an issue that BAT, in the decisions at issue here, and
DOL, in its arguments to the District Court and this court,
mostly ignore.
As Grinnell points out, s 29.3(h) requires a union's consent
to registration of a new program only where the "collective
bargaining agreement or other instrument, provides for par-
ticipation by [the] union in any manner in the operation of the
substantive matters of the apprenticeship program, and such
participation is exercised." (emphasis added). Grinnell ar-
gues that since the Union is not currently participating in the
operation of the JATC (because it is on strike), its consent is
not required before BAT may approve Grinnell's unilateral
program--regardless of whether the agreement is still in
effect. Grinnell claims that s 29.3(h) was drafted to account
for precisely this situation; it points out that the provision
goes on to state that "[w]here no such participation is evi-
denced and practiced,"--i.e., for example, when the union is
on strike--the union's consent is not required. Such an
interpretation comports with common sense, according to
Grinnell, because a contrary reading of the section would
mean that "a union is able to block an employer's effort to
obtain certified training for replacement apprentices during a
strike, even as the Union refuses to participate in a joint
program." Brief of Appellants at 27-28.
BAT never addressed the meaning of the phrases "and
such participation is exercised" and "where no such partic-
ipation is evidenced and practiced" in its ad hoc decision, and
DOL inexplicably failed to respond to Grinnell's interpreta-
tion in its brief to this court. What little is offered by the
agency is blatantly disingenuous. Throughout this litigation,
BAT and counsel for DOL have consistently misrepresented
the language of s 29.3(h). In Swoope's affidavit submitted to
the District Court, he summarized s 29.3(h) as requiring
union consent where the collective bargaining agreement
provides for union participation in the apprenticeship pro-
gram, "and that participation has been exercised." Declara-
tion of Anthony Swoope, Director, BAT, at 3 (Dec. 18, 1996),
reprinted in Grinnell App. 123 (emphasis added). In other
words, Swoope substituted "has been exercised" for "is exer-
cised." BAT made precisely the same misrepresentation in
its ad hoc decision. See Ad Hoc Decision at 2, reprinted in
Grinnell App. 82J. To complete the circle, counsel for DOL
also used the "has been exercised" language in its brief to this
court. See Brief for Appellees/Cross-Appellants at 17.
These misstatements hardly can be viewed as simple over-
sights.
Obviously, "is exercised" does not mean the same thing as
"has been exercised." There is no doubt that the Union's
participation in the JATC program "has been exercised." If
that were the language of s 29.3(h), it would clearly support
BAT's position, because the Union and Grinnell both actively
participated in the JATC program prior to the commence-
ment of the strike in April 1994. But that is not the language
of the regulation. We do not see how BAT can require the
Union's consent to the establishment of a new apprenticeship
program under s 29.3(h) in the face of the "and such partic-
ipation is exercised" and "where no such participation is
evidenced and practiced" language in the regulation. BAT
may have an answer, but it has failed to provide it.
Because the agreement has expired, the JATC program
may or may not exist, depending upon whether Grinnell had
bargained in good faith to impasse before implementing the
terms of its final offer. There is no question, however, that
the Union is not currently participating in the JATC pro-
gram. The Union represented at oral argument that it will
certainly participate in the JATC program if the NLRB finds
that Grinnell did not bargain in good faith to impasse, in
which case the agreement is still in effect. Section 29.3(h),
however, requires that the Union participation "is exercised,"
not that it might be exercised pending the outcome of a case
before the NLRB, nor, as BAT and DOL would have it, that
it has been exercised at some point in the past. Section
29.3(h) is quite clear that "[w]here no such participation is
evidenced and practiced," union consent is not required.
It is true that this court must defer to a "reasonable"
agency interpretation of its own regulation, even if that
interpretation is not "the one that the court would have
adopted in the first instance." Belco Petroleum Corp. v.
FERC, 589 F.2d 680, 685 (D.C. Cir. 1978). However, BAT's
path from "is exercised" to "has been exercised" has yet to be
explained and is, at best, incomprehensible. Accordingly, we
vacate this portion of BAT's ad hoc decision with instructions
to the District Court to remand to the agency for prompt
disposition of Grinnell's request for registration of a new,
unilateral program. If the agency cannot articulate a legiti-
mate basis for denying registration--and BAT's desire to give
one side an advantage in an ongoing labor dispute is not a
legitimate basis--Grinnell's request should be granted.
There is no reason to defer a decision until the NLRB has
ruled. Even assuming that the agreement is still in effect,
there is no doubt that under s 29.3(h), it "provides for
participation by [the] union ... in the operation of the
substantive matters of the apprenticeship program." The
only issue is whether that participation "is exercised." Noth-
ing that the NLRB decides will be dispositive with respect to
that issue. Moreover, insofar as the NLRA is concerned--
that is, insofar as Grinnell has committed an unfair labor
practice--the NLRB will provide the appropriate remedy if
one is warranted.
D.The Denial of the Union's Motion to Intervene
The Union did not move to intervene in the District Court
until October 3, 1997, several weeks after the District Court
issued its decision in ABC II. The District Court ruled that
it was constrained to deny the Union's motion for want of
jurisdiction, because both Grinnell and DOL had already
appealed to this court. We decline to decide whether the
District Court had jurisdiction to grant the Union's motion.
Compare Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d
298, 299 (5th Cir. 1984) (holding that district court was
without jurisdiction to grant motion to intervene once appeal
had been filed), with Halderman v. Pennhurst State Sch. &
Hosp., 612 F.2d 131, 134 (3d Cir. 1979) (en banc) (holding that
filing of appeal did not divest district court of jurisdiction to
grant motion to intervene). Instead, we affirm the denial of
the Union's motion on the ground that the motion was
untimely.
Rule 24 of the Federal Rules of Civil Procedure states that
any motion for intervention must be "timely." Fed R. Civ. P.
24(a). The Supreme Court has said that "[t]imeliness is to be
determined from all the circumstances. And it is to be
determined by the court in the exercise of its sound discre-
tion; unless that discretion is abused, the court's ruling will
not be disturbed on review." NAACP v. New York, 413 U.S.
345, 366 (1973) (footnote omitted). If the motion was not
timely, there is no need for the court to address the other
factors that enter into an intervention analysis. See id. at
369. Where, as here, the District Court has not made any
factual findings with respect to the timeliness issue (because
it denied the motion on jurisdictional grounds), we "must
make our own determination." Cook v. Boorstin, 763 F.2d
1462, 1468 (D.C. Cir. 1985).
A motion for "intervention after judgment will usually be
denied where a clear opportunity for pre-judgment interven-
tion was not taken." Dimond v. District of Columbia, 792
F.2d 179, 193 (D.C. Cir. 1986); see also Massachusetts Sch. of
Law v. United States, 118 F.3d 776, 783 n.5. (D.C. Cir. 1997)
("[S]ome would-be intervenors may inexcusably neglect to try
to enter the proceedings before judgment, at a time when
notice of their arguments would have enabled the district
court to avert the alleged errors. Then, post-judgment inter-
vention for the purpose of challenging those supposed defects
on appeal would rightly be denied as untimely."). Here, the
Union offers no reason whatsoever for its failure to intervene
prior to judgment.
The Union cites two cases that reversed denials of motions
to intervene, United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977), and Dimond. In those cases, however, the necessity
of intervention did not arise until after judgment had been
entered. In United Airlines, the would-be intervenor found
out only after final judgment that the plaintiffs did not plan to
appeal the denial of class certification. See United Airlines,
432 U.S. at 393-94. In Dimond, "the potential inadequacy of
[the existing parties'] representation came into existence only
at the appellate stage." Dimond, 792 F.2d at 193. In this
case, the Union sought to intervene simply because it wished
to advance a particular argument on appeal that DOL had not
explicitly advanced in the District Court. The Union has
offered no reason, and no reason is apparent from the record,
why it could not have sought intervention prior to judgment.
Accordingly, given the presumption that post-judgment mo-
tions to intervene will be denied, we affirm the District
Court's denial of the Union's motion. If the Union wishes to
intervene in further proceedings, i.e., on remand, it may raise
the issue at the appropriate time.
III. Conclusion
For the reasons stated above, we affirm in part and reverse
in part the judgment of the District Court, and remand for
further proceedings consistent with this opinion.
So ordered.