In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2329

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL

UNION 16, AFL-CIO,

Respondent.

____________

Application for Enforcement From

National Labor Relations Board.

No. 25-CB-8630

____________

ARGUED SEPTEMBER 8, 2005—DECIDED OCTOBER 12, 2005

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

ROVNER, Circuit Judges.

FLAUM, Chief Judge. Petitioner National Labor Relations

Board (“NLRB” or “Board”) petitions this Court for enforcement of its order declaring that the International Brotherhood of Electrical Workers, Local Union 16, AFL-CIO (“the

Union” or “IBEW”) committed an unfair labor practice

under § 8(b)(1)(A) of the National Labor Relations Act, 29

U.S.C. § 158(b)(1)(A) (“NLRA” or “Act”). Because the board’s

decision is supported by substantial evidence and has a

reasonable basis in law, we enter judgment enforcing the

Board’s order.
2 No. 04-2329

1 A “union security clause” is a clause in a CBA that requires

all employees to be members of the union and to have paid

applicable dues and fees. NLRB v. Arthur Sarnow Candy Co., 40

F.3d 552, 554 n.2 (2d Cir. 1994).

I. Background

The Union is a party to two collective bargaining agreements (“CBAs”) that are relevant to this case. The first

relevant CBA is between the Union and the Evansville

Division of the National Electrical Contractors Association

(“NECA”). The NECA Agreement covers nearly all work

performed by the Union’s members in southwestern Indiana

and one county in Illinois. Signatories to that document

agree to hire electrical workers exclusively through the

Union’s referral or “hiring hall” system. That system

requires the Union to maintain a list of eligible electricians,

categorized by experience and skill level, who are available

to work. Signatory employers to the CBA agree to advise

the Union when they require electricians. The Union then

refers members from its list; those who have been out of

work the longest are dispatched first.

The NECA Agreement also contains the following union

security clause:1

All Employees in the bargaining unit who are members of the Union in good standing on the effective date

of this Agreement as a condition of employment must

maintain their membership in good standing for the life

of this Agreement.

Any Employee who is not a member of the Union, and

any Employee who is hired after the effective date of

this Agreement or the date of its execution, shall

be required to join the Union eight (8) days following

the effective date of this Agreement or the date of its

execution or following the date of his employment
No. 04-2329 3

whichever is the latter and may be required as a

condition of his employment maintain [sic] his membership in good standing for the life of this Agreement.

The second CBA relevant to this case is an agreement

between the Union and Koester Contracting Corporation

(“Koester”). The Toyota Corporation awarded Koester a

substantial contract to construct a truck manufacturing

plant in Gibson County, Indiana. A collective bargaining

agreement between the Union and Koester governs the

work that the Union does for Koester and other contractors

in constructing the plant (“Toyota Agreement”). The Toyota

Agreement states that it “represents the complete understanding of the parties.” It also provides that “the terms and

conditions of this Project Agreement shall supersede and

override terms and conditions of any and all other national,

area, or local collective bargaining agreements.” Like the

NECA Agreement, the Toyota Agreement contemplates that

signatories will hire employees through a union referral

system. It states, moreover, that contractors performing

work at the Toyota plant “agree to recognize and be bound

by the legal referral facilities maintained by the union(s)

and shall notify the appropriate union either in writing or

by telephone when workmen are required.” The Toyota

Agreement does not, however, contain a union security

clause nor mention the NECA Agreement.

Darvin Collins was a member of the Union. In August

of 2002, a project that he was working on ended. Out of

work, he registered on the Union’s referral list. On August

19, 2002, ACCL Enterprises, a construction contractor

working under Koester’s Toyota Agreement, contacted the

Union and requested that it refer an available electrician

for work on the Toyota project. Collins was qualified for the

position and next in line for referral; however, he owed the

Union $64.70 in back dues. The Union informed him that it

would not refer him for the Toyota project until he paid the
4 No. 04-2329

2 The application for enforcement was filed on May 24, 2004. The

(continued...)

back dues. Collins refused to pay. The Union’s assistant

business manager informed Collins that the Union would

not refer him for the Toyota project until he fully satisfied

his dues obligation.

In response to the Union’s action, the General Counsel for

the National Labor Relations Board issued a complaint against the Union, alleging that the Union’s refusal

to refer Collins was an unfair labor practice. On September

4, 2003, Administrative Law Judge Ira Sandron ruled in

favor of the Board, concluding that the governing CBA did

not contain a union security clause and, therefore, the

Union could not refuse to refer Collins. Additionally, the

ALJ found that the Toyota Agreement did not incorporate

the NECA Agreement’s union security clause. The ALJ held

that the Union’s actions violated 29 U.S.C. § 158(b)(1)(A)

and ordered the Union to pay Collins two days of missed

wages. The Board affirmed the ALJ’s order with minor

revisions. The Board now petitions this Court for enforcement of the order and the Union has responded with an

answer and objections.

II. Discussion

In this case, the Board seeks to enforce its ruling that the

Union has committed an unfair labor practice in violation

of 29 U.S.C. § 158 (b)(1)(A). An agency that seeks enforcement of its decision must file the record with the circuit

court clerk “within 40 days after it files an application for

enforcement.” FED. R. APP. P. 17(a). In this case, the Board

did not file the administrative record until 74 days after the

application for enforcement was filed.2

 Lawyers appearing
No. 04-2329 5

2 (...continued)

administrative record was filed on August 6, 2004. 

3 The Board’s alleges that it contacted the Clerk’s Office by

telephone on July 7, 2004 and was following directions from the

clerk’s office, but fails to note that no contact was made between

the Board and the clerk’s office until after the 40-day period

for filing had expired.

before this Court are responsible for knowing and following

all applicable procedural rules.3

In this case, however, the Court will excuse the late filing

by the Board. There has been no demonstration of prejudice

to the Union as a result of the delay. Moreover, other than

the time limits on filing an appeal, “a court of appeals

may—to expedite its decision or for other good

cause—suspend any provision of [the Federal Rules of

Appellate Procedure] in a particular case.” FED R. APP. P. 2;

see also FED R. APP. P. 26(b). The infraction in this case was

harmless and dismissal would be an inappropriate sanction.

Cf. Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir. 1989)

(dismissal may be avoided despite failure to file a transcript

if the transcript is subsequently filed and the court can

engage in meaningful review).

This Court has jurisdiction to review applications for

enforcement and petitions for review of Board decisions

pursuant to sections 10(e) and (f) of the National Labor

Relations Act, 29 U.S.C. § 160(e)-(f). This Court will uphold

decisions by the Board if they are supported by substantial evidence and the Board’s conclusions have a reasonable

basis in the law. See, e.g., Ryder Truck Rental v. NLRB, 401

F.3d 815, 825 (7th Cir. 2005). There are no questions of fact

in this case, no witnesses were presented and the parties

stipulated to all relevant facts. Instead, this case turns on

the NLRB’s interpretation of two collective bargaining

agreements. The Board has no special expertise in inter-
6 No. 04-2329

preting contracts. Accordingly, this Court reviews the

Board’s interpretations of collective bargaining agreements

de novo. Litton Financial Printing Div. v. NLRB, 501 U.S.

190, 202-03 (1991); NLRB v. Cook County School Bus, Inc.,

283 F.3d 888, 892 (7th Cir. 2002); Chicago Tribune Co. v.

NLRB, 974 F.2d 933, 937 (7th Cir. 1992).

Section 9(a) of the NLRA grants unions the exclusive

power to represent all employees in a particular bargaining

unit. 29 U.S.C. § 159(a). The Supreme Court has held that

the grant of this power imposes a concomitant duty upon

the union to represent all members of the collective bargaining unit fairly. Breininger v. Sheet Metal Workers Int’l

Ass’n Local Union No. 6, 493 U.S. 67, 86-87 (1989). The

implied duty of fair representation obligates the union “to

serve the interests of all members without hostility or

discrimination toward any, to exercise its discretion with

complete good faith and honesty, and to avoid arbitrary

conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967) (citing

Humphrey v. Moore, 375 U.S. 335, 342 (1964)).

Section 8(b)(1)(A) of the NLRA declares that “[i]t shall be

an unfair labor practice for a labor organization or its

agents to restrain or coerce employees in the exercise of the

rights guaranteed in section 157 of this title.” 29 U.S.C. §

158(b)(1)(A). Section 157 of Title 29 guarantees employees

“the right . . . to bargain collectively through representatives of their own choosing.” 29 U.S.C. § 157. The NLRB has

read § 157’s right of representation to include “the right to

be free from unfair or irrelevant or invidious treatment by

their exclusive bargaining agent in matters affecting their

employment.” Miranda Fuel Co., 140 N.L.R.B. 181, 185

(1962). In other words, although the duty of fair representation arises out of § 159(a), the breach of that duty

“restrain[s] or coerce[s]” an employee’s rights under § 157,

thereby constituting an unfair labor practice under §

158(b)(1)(A). Miranda Fuel Co., 140 N.L.R.B. at 185-86. The
No. 04-2329 7

Seventh Circuit generally has approved of this doctrine. See

Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976).

The duty of fair representation extends to a union’s

administration of an exclusive hiring hall agreement. See

Lewis v. Local Union No. 100 of Laborers’ Int’l Union of

N. Am., 750 F.2d 1368, 1375-76 (7th Cir. 1984). A union

is presumed to have breached its duty of fair representation

if, in the administration of a hiring hall agreement, it

refuses to refer a member who is eligible under that

agreement. Int’l Union of Operating Engineers Local 406,

262 N.L.R.B. 50, 57 (1982). A union may rebut this presumption by showing that it was acting pursuant to a valid

union security clause in the controlling collective bargaining

agreement. Iron Workers Local 118, 257 N.L.R.B. 564 (1981)

(“A valid union-security clause can be enforced at the hiring

hall level by a refusal to refer an employee whose dues are

in arrears, so long as the employee has already worked for

the statutory grace period in the bargaining unit to which

the collective-bargaining agreement containing the union-security clause applies.”).

The question therefore becomes whether the controlling

collective bargaining agreement contains a union security

clause. The parties agree that the Toyota Agreement

controls and that it does not contain an explicit union

security clause. The Union argues, however, that the NECA

Agreement’s union security clause is incorporated into the

Toyota Agreement by reference.

There is a great deal of evidence to support the Board’s

finding that the NECA union security clause was not

incorporated into the Toyota Agreement. First, the Toyota

agreement neither makes explicit mention of a union

security clause nor does it make any explicit reference to

the NECA Agreement. “When interpreting a contract, we

cannot read terms into the language that are not expressly

stated[.]” GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d

615, 622 (7th Cir. 1995).
8 No. 04-2329

Second, any claim that the NECA Agreement is implicitly

adopted is refuted by the plain language of the Toyota

Agreement. The Toyota Agreement contains an integration clause. This clause prohibits the adoption of any

additional provisions by implication. See RESTATEMENT

(FIRST) OF CONTRACTS § 228 (1932). The integration

clause specifically states that “the terms and conditions of

[the Toyota Agreement] shall supersede and override terms

and conditions of any and all other national, area, or local

collective bargaining agreements. It is understood that this

is a self-contained, stand alone [sic], Agreement.” The

parties’ intent to avoid implicit adoption of any other

agreements is also demonstrated by language contained

in the preamble of the Toyota Agreement, which states that

“[t]his Agreement represents the complete understanding of

the parties.” Where the parties’ express language prohibits

additional terms from being read into the contract, there is

a presumption that the contract is complete in and of itself.

See Brooklyn Bagel Boys, Inc. v. Earthgrains Refrigerated

Dough Prod., Inc., 212 F.3d 373, 380 (2000); see also

Bozetarnik v. Mahland, 195 F.3d 77, 83 (2d Cir. 1999)

(agreement with an integration clause precludes “incorporation into the contract of implied terms that are inconsistent

with the contract”).

Third, any references in the Toyota Agreement to “legal

referral facilities maintained by the union(s)” does not

necessitate an incorporation of previous agreements

governing those facilities. While the Toyota agreement does

state that the “execution contractors agree to recognize and

be bound by the legal referral facilities maintained by the

union(s) and shall notify the appropriate union either in

writing or by telephone when workmen are required,” this

clause is not sufficient to incorporate the NECA Agreement’s union security clause into the Toyota agreement.

The irreconcilable terms and conditions separating the

two collective bargaining agreements extends beyond
No. 04-2329 9

their differences as to the existence of a union security

clause. For example, although both agreements allow an

employer to hire employees outside of the referral system

when the Union cannot provide enough workers to fill the

employer’s request, the agreements treat these workers

differently. The NECA Agreement requires that employees

hired outside of the referral system work only temporarily.

The Toyota Agreement, however, allows the employer to

keep such employees indefinitely. The two agreements

also differ as to the order of layoffs. The NECA Agreement requires an employer to lay off the least experienced

workers first. The Toyota Agreement grants the employer

sole discretion to decide the order of layoffs.

Any reasonable reading of the Toyota Agreement reveals

that it does not implicitly or explicitly incorporate the

NECA Agreement’s union security clause or any other

union security clause. Thus, the Board was correct to find

that the Union cannot defend its refusal to refer Collins

on the ground that it was enforcing a union security clause.

A final argument raised by the Union is that it lawfully

refused to refer Collins on the ground that it was enforcing a “uniformly applied referral rule designed to maintain the integrity of the hiring hall.” Because this argument

was raised for the first time in the Union’s reply brief, we

will not address its merits. An argument raised for the first

time in a reply brief is forfeited. Leber v. Universal Music &

Video Distrib., Inc., 332 F.3d 452, 453 (7th Cir. 2003); J.S.

Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1035 n.2 (7th

Cir. 2005).

III. Conclusion

Substantial evidence supports the NLRB’s finding that

the Union committed an unfair labor practice under the

National Labor Relations Act by refusing to refer Collins.

Therefore, we ENFORCE the NLRB’s order in full.
10 No. 04-2329

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-12-05