2ND CIRCUIT UPHOLDS NLRB RULING BUT GIVES CONSENT JUDGE A BACKDOOR.BERMAN GONE

116-0495-ag(L)
The Cement League, et al. v. NLRB, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
 

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the21st day of April, two thousand seventeen.

 PRESENT: JOHN M. WALKER, JR.,
7 DENNIS JACOBS,
 BARRINGTON D. PARKER,
Circuit Judges.

- - - - - - - - - - - - - - - - - - - -X
THE CEMENT LEAGUE, NEW YORK CITY AND
VICINITY DISTRICT COUNCIL OF
CARPENTERS,
 Petitioners–
Cross-Respondents,
 -v.- 16-0495-ag(L),
 16-0972-ag(XAP)

NATIONAL LABOR RELATIONS BOARD,
Respondent–
 Cross-Petitioner,

NORTHEAST REGIONAL COUNCIL OF CARPENTERS,
Intervenor.




 FOR PETITIONERS–CROSS-RESPONDENTS:
 MICHAEL SALGO; New York, NY.
James M. Murphy, Gillian Costello;
Spivak Lipton LLP, New York, NY.
Andrew D. Roth, Adam Bellotti;
 Bredhoff & Kaiser PLLC,
Washington, DC.
 Paul Salvatore, Andrew E. Rice;
 Proskauer Rose LLP, New York, NY.

FOR RESPONDENT–CROSS-PETITIONER:

KYLE A. DECANT, Robert J.
Englehart; National Labor
Relations Board, Washington, DC.

 FOR INTERVENOR:
 RAYMOND G. HEINEMAN; Kroll
Heineman Carton, Iselin, NJ.


Petition for review of an order of the National Labor
Relations Board.

 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petitions for review are DENIED, the cross-petition for enforcement is GRANTED and the issuance of the mandate is HELD IN ABEYANCE; the Clerk of Court is directed to deliver a copy of this order to U.S. District Judge Richard M. Berman, and the mandate SHALL NOT ISSUE until the lesser of days from the issuance of this order or until the parties advise this court as to Judge Berman’s view whether this order
 bears upon matters that are within the jurisdiction of his
 supervision of a consent order in United States v. NYC Council, No. 1:90-cv-5722. This order shall be subject to any further measures that may be appropriate in light of such views as he may express.

 Petitioners–Cross-Respondents New York City and Vicinity
 District Council of Carpenters (“NYC Council”) and The Cement League petition this court for review of a decision and order of the National Labor Relations Board (“NLRB” or the “Board”), which held that a provision of the collective bargaining agreement (“CBA”) between the NYC Council and The Cement League violates the National Labor Relations Act (“NLRA”) and ordered that the provision not be enforced. The NLRB, joined by Intervenor Northeast Regional Council of Carpenters  Council”), cross-petitions for enforcement of the NLRB’s order. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
 
The NYC Council and the Northeast Council are regional
councils--i.e., intermediate bodies--of the United Brotherhood
 of Carpenters & Joiners of America. The NYC Council is composed
of union locals principally within New York City, and the
 Northeast Council is composed of union locals principally in
 northern New Jersey, upstate New York, and on Long Island. The
Cement League is an employer association that bargains on behalf
of its membership, which includes large construction contractors
 doing business in New York City.
The Cement League has, over many years, executed a series
 of CBAs with the NYC Council. Several versions of the CBA have
provided that covered employers could select fifty percent of
 their employees from any source, without regard to union
 membership, and had to hire the other fifty percent from an
out-of-work list that is maintained by the NYC Council but is
 open to nonmembers. A recent modification of the CBA afforded
 employers complete discretion to hire anybody they wish without
 use of the out-of-work list if and only if the people they hire
are members of the NYC Council. Employers who hire nonmembers
 must still match their selected employees one-to-one with hires
33 from the out-of-work list.
 Given this “full-mobility” provision, an employer that has
 a regular crew of employees and undertakes a project in New York
 City covered by the CBA has an incentive to encourage its
 employees to join the NYC Council in order to bypass the
requirement of matching them one-to-one with hires from the
 out-of-work list. (Members of the Northeast Council can
Case 16-495, Document 170-1, 04/21/2017, 2016332, Page3 of 5
4
 transfer their membership easily and freely.) The Northeast
 Council challenged the provision as an unfair labor practice
 before the NLRB, on the ground that it effectuates a hiring
 preference based on membership in the NYC Council, in violation
 of § 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)). That subsection
prohibits employers from interfering with, restraining, or
 coercing employees in the exercise of their § 7 rights under
 the NLRA, including the right to join or refrain from joining
 a labor organization. Following a hearing, the administrative
 law judge (“ALJ”) found that The Cement League’s CBA violated
 the NLRA as alleged. The NYC Council, joined by The Cement
League, filed exceptions, and in February 2016, the NLRB issued
its decision agreeing with the ALJ.
 The Cement League and NYC Council have petitioned for  of that NLRB decision and the NLRB has cross-petitioned for
 enforcement. The Northeast Council has intervened in support
 of the NLRB.
“Our review is deferential: This court reviews the Board’s
 legal conclusions to ensure that they have a reasonable basis
 in law. In so doing, we afford the Board a degree of legal
 leeway.” Long Island Head Start Child Dev. Servs. v. NLRB, 460
F.3d 254, 257 (2d Cir. 2006) (internal quotation marks omitted).
We uphold “the NLRB’s legal determinations if not arbitrary and
 capricious.” Id. (internal quotation marks omitted).
Neither The Cement League nor the NYC Council argued before
The ALJ that the challenged provision of their CBA comports with
 the NLRA; nor, after the ALJ concluded that the provision
violates the NLRA, did either of them file an exception to that
conclusion. We are therefore statutorily barred from
 considering any challenge to that ruling now “unless the failure
 or neglect to urge such objection shall be excused because of
 extraordinary circumstances.” 29 U.S.C. § 160(e).
Petitioners point to no extraordinary circumstance. We
 therefore accept as uncontested for purposes of this proceeding
that the enforcement of the challenged provision of the CBA
 violates the NLRA.
 The NYC Council and The Cement League’s only argument is
 that any violation is merely technical or de minimis and was
Case 16-495, Document 170-1, 04/21/2017, 2016332, Page4 of 5
5
 in any event validated by court order. They contend that the
 challenged provision furthers the anticorruption objectives of
a consent decree that the NYC Council entered in 1994 to settle
 a civil RICO action brought by the Department of Justice. The
 U.S. District Court for the Southern District of New York
 (Berman, J.) monitors that consent decree and must review any
 CBA that the NYC Council enters; acting in that capacity, the
8 district court approved the CBA in question. The NYC Council and The Cement League argue that the NLRB should defer to that approval, notwithstanding any technical NLRA violation. The NLRB rejected that argument, reasoning that the district court did not consider compliance with the NLRA and did not premise approval upon it; that the challenged provision did not appear to have been approved on the basis of an anticorruption  purpose or effect; and that any such anticorruption goal could  be served instead by NLRA-compliant hiring provisions. To the extent that the NLRB is correct about the district court’s analysis, the NLRB’s order has a reasonable basis in law and is not arbitrary and capricious.
 

 Accordingly, and subject to any further measures that may be appropriate in light of such views as U.S. District Judge Richard M. Berman may express, we hereby DENY the petition for review of the NLRB’s decision, GRANT the cross-petition for enforcement of the order, and the issuance of the mandate is HELD IN ABEYANCE; the Clerk of Court is directed to deliver a copy of this order to U.S. District Judge Richard M. Berman, and the mandate SHALL NOT ISSUE until the lesser of 30 days from the issuance of this order or until the parties advise this court as to Judge Berman’s view whether this order bears upon matters that are within the jurisdiction of his supervision of a consent order in United States v. NYC Council, No. 1:90-cv-5722.
 

FOR THE COURT:
 

CATHERINE O’HAGAN WOLFE, CLERK