UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ASSOC BLDRS CONTRS

v.

HERMAN, ALEXIS


97-5300a

D.C. Cir. 1999


*	*	*


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


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


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


mittee ("JATC"), which was comprised of an equal number of  Grinnell
officials and Union agents. See id. at 34, reprinted  in Union App.


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


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


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


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 


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


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


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


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


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


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


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


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


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


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


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.