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


RD SPRINKLER 669

v.

HERMAN, ALEXIS


00-5023a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: A striking union challenges the  Department of
Labor's certification of an apprenticeship pro- gram to train
replacement workers, arguing that the Depart- ment's action conflicts
with the National Labor Relations Act,  that the agency improperly
acted in an NLRA-preempted  area, and that the decision rests on an
unreasonable reading  of Department regulations. Finding neither
conflict with nor  encroachment upon the NLRA, and deferring to the
Depart- ment's interpretation of its own regulations, we affirm the 
district court's award of summary judgment for the govern- ment.


I


The largest union of installers of fire protection sprinkler  systems,
appellant Road Sprinkler jointly operated a collec- tively bargained
apprenticeship training program with an  employer organization.
Because the program had been certi- fied by the Department of Labor's
Bureau of Apprenticeship  and Training ("BAT"), participating
employers could pay  apprentices sub-minimum wages. See 29 C.F.R. s


In September 1993, one of the employer organization mem- bers, appellee
Grinnell Fire Protection Systems, began nego- tiating with Road
Sprinkler for a new collective bargaining  agreement, seeking, among
other things, a new apprentice- ship program. Seven months later,
after declaring a bargain- ing impasse, Grinnell unilaterally imposed
the terms and  conditions of its "final offer," which did not include
partic- ipation in the joint program.


Claiming that impasse had not been reached and that  Grinnell's
imposition of its last offer amounted to an unfair 


labor practice, Road Sprinkler filed a complaint with the  NLRB and
called a national strike. Grinnell responded by  hiring striker
replacements. The company also asked the  BAT to either certify a new
apprenticeship program to train  replacement workers or allow their
enrollment in programs  run by other employers.


Instead of acting on Grinnell's request, the BAT advised  the parties
that it would make no decision until after the  NLRB resolved Road
Sprinkler's ULP charges. In support,  the BAT pointed to the "union
consent" provision of its own  regulations:


Under a program proposed for registration by an em- ployer 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 ob- jection" to the
registration is required.


29 C.F.R. s 29.3(h). According to the BAT, the Board's  resolution of
the pending ULP proceedings would determine  whether Road Sprinkler
had a continuing role in the joint  apprenticeship program sufficient
to trigger section 29.3(h)'s  requirement for union consent. This
court ruled the BAT  delay improper, finding that regardless of what
the NLRB  might decide, the still-striking union was not participating
in  the apprenticeship program for purposes of section 29.3(h). 
Associated Builders and Contractors, Inc. v. Herman, 166  F.3d 1248,
1256 (D.C. Cir. 1999). Finding also that the BAT  lacked authority to
block replacement workers from partici- pating in programs run by
other employers, we remanded for  immediate consideration of
Grinnell's certification request.  Id. at 1254-55.


Shortly thereafter, the NLRB completed its consideration  of Road
Sprinkler's ULP charges. Ruling for the union, the  Board directed the
company to "restore to unit employees the  terms and conditions of
employment that were applicable  prior" to the unfair labor practice.
See Grinnell Fire Protect. 


Sys. Co., 328 N.L.R.B. No. 76, 1999 WL 357628, at *5 (May  28, 1999).
At this writing, Grinnell's petition for review  remains pending in
the Fourth Circuit. Grinnell Fire Pro- tect. Sys., Inc. v. NLRB, No.
99-1754(L) (4th Cir. argued  June 8, 2000).


In the meantime, the BAT, proceeding on remand from our  earlier
decision, changed its position. Despite its previous  suggestion that
an NLRB order reinstating the joint appren- ticeship program would
trigger section 29.3(h)'s union consent  requirement, the BAT granted
Grinnell's certification request  over Road Sprinkler's objection. In
doing so, the BAT relied  on a different part of section
29.3--subsection (i). That  subsection provides for unilateral
employer apprenticeship  programs "[w]here the employees to be trained
have no  collective bargaining agent." To support its conclusion that 
Road Sprinkler did not represent Grinnell's striker replace- ments for
the purposes of subsection (i), the BAT cited a new  NLRB decision,
Detroit Newspaper, extending the rule that  employers need not bargain
with striking unions over terms  and conditions of employment for
replacement workers to  unfair labor practice strikes. Detroit
Newspaper Agency, 327  N.L.R.B. No. 164, 1999 WL 145905, at *1 (Mar.


Filing suit in the U.S. District Court here, Road Sprinkler  claimed
(1) that the BAT decision conflicts with the NLRB's  definition of
"collective bargaining agent" as well as its reme- dy for Grinnell's
unfair labor practice; (2) that in determining  Road Sprinkler's
representation status, the BAT improperly  acted in an NLRA-preempted
area; and (3) that the agency  unreasonably interpreted its own
regulations in violation of  the Administrative Procedure Act, 5
U.S.C. s 706. In re- sponse, the Department argued that the BAT's
decision has  no impact on the labor laws, that in any event, the
decision is  consistent with Detroit Newspaper, and that the BAT's
inter- pretation of section 29.3 was reasonable and therefore worthy 
of deference. Agreeing, the district court entered summary  judgment
for the Department. Road Sprinkler appeals. Our  review is de novo.
See Everett v. United States, 158 F.3d  1364, 1367 (D.C. Cir. 1998).


II


Before addressing Road Sprinkler's arguments, we must  consider
Grinnell's claim, not embraced by the Department,  that we lack
jurisdiction. According to Grinnell, the APA "is  not to be
interpreted as an implied grant of subject-matter  jurisdiction" to
the federal courts. See Califano v. Sanders,  430 U.S. 99, 105 (1977).
Grinnell overlooks 28 U.S.C. s 1331,  which gives federal courts what
the APA does not: "jurisdic- tion of all civil actions arising under
the ... laws ... of the  United States," including those brought under
the APA. See  Saavedra-Bruno v. Albright, 197 F.3d 1153, 1162 (D.C.
Cir.  1999). The company also claims, again without Department 
support, that Road Sprinkler lacks standing; because Road  Sprinkler
is not the collective bargaining agent of the replace- ment workers,
Grinnell argues, the union has not been in- jured by the BAT's failure
to seek its consent. This cannot  be. Whether Road Sprinkler has a
right under BAT regula- tions to veto Grinnell's new apprenticeship
program is pre- cisely the question before us. Recasting such
questions as  jurisdictional would deny standing to all litigants with
unmer- itorious claims. See Warth v. Seldin, 422 U.S. 490, 498 (1975) 
(standing requires only that litigants allege a legally cogniza- ble


Having satisfied ourselves that we have jurisdiction, we  turn to Road
Sprinkler's first claim--that the BAT's determi- nation that the union
does not represent the striker replace- ment workers violates the
NLRB's established rule that a  bargaining unit is composed of all
employees, including "non- strikers, strikers, returning strikers and
striker replacements  employed at the time of the refusal to bargain."
Nat'l Uphol- stering Co., 311 N.L.R.B. 1204, 1210 (1993). Because the 
NLRB has exclusive jurisdiction to make representation deci- sions
within the meaning of the NLRA, see Pittsburgh Plate  Glass Co. v.
NLRB, 313 U.S. 146, 155 (1941) ("[A]fter [an  NLRB representation
order] the employer may not be com- pelled by any other agency of the
government to perform any  acts inconsistent with that order."), the
union also argues that  the BAT's departure from the National
Upholstering defini- tion encroaches on an NLRA-preempted area. We


The BAT has done nothing more than resolve Road Sprin- kler's
representation status under agency regulations, not  under the NLRA.
Simply determining the circumstances in  which Grinnell may legally
pay sub-minimum wages to ap- prentices, the BAT's action in no way
interferes with the  NLRB's area of concern: union authority to
bargain about  the provisions (including those relating to
apprenticeship  training programs) of collective bargaining
agreements. See  Washington Serv. Contractors Coalition v. Dist. of
Columbia,  54 F.3d 811, 816-17 (D.C. Cir. 1995) (holding that labor
law  preemption does not apply to laws that regulate employment 
without "disturb[ing] the labor dispute resolution system  established
by the NLRA."). Because the BAT and NLRB  concern themselves with
different questions, the phrase "col- lective bargaining agent" need
not mean the same to each.  Given the BAT's broad discretion to
interpret its own regula- tions, see Buffalo Crushed Stone, Inc. v.
Surface Transp. Bd.,  194 F.3d 125, 128 (D.C. Cir. 1999), we defer to
its decision  that Road Sprinkler is not the replacement workers'


Even if the BAT had to follow NLRB precedent, moreover,  Road
Sprinkler's argument would fail. Although replacement  workers are
technically members of the collective bargaining  unit and hence
eligible to vote in representation elections, see  National
Upholstering, 311 N.L.R.B. at 1210, the NLRB has  now made clear in
Detroit Newspaper that employers need  not bargain with unions
striking over unfair labor practices  about terms and conditions of
employment for replacement  workers. In light of Detroit Newspaper, we
agree with the  BAT that it would be "anomalous ... [to] deny [the
company]  registration to [its] program on the premise that [it] was 
legally required to bargain with the union over apprenticeship  terms
applicable to such workers." Letter from Anthony  Swoope, Director,
BAT, to William J. Osborne, Jr., Atty. for  Appellant 2 (Oct. 3,
1999). Road Sprinkler's response--that  Detroit Newspaper changed only
the subjects of bargaining  and not the definition of "collective
bargaining agent"--is  technically correct. But Road Sprinkler ignores
the funda- mental proposition underlying Detroit Newspaper: that


ing unions should have no authority to negotiate over terms  and
conditions of employment for replacement workers.


Detroit Newspaper also answers Road Sprinkler's second  argument: that
the BAT's switch from reliance on subsection  (h) to subsection (i)
was arbitrary and capricious. It  switched, the BAT explains, because
after Detroit Newspaper,  it no longer considered Road Sprinkler the
replacement work- ers' collective bargaining agent within the meaning
of subsec- tion (i). How could it be arbitrary and capricious for an 
agency to change its position in response to new legal devel-


Equally without merit is Road Sprinkler's related challenge  that the
BAT's understanding of the relationship between  subsections (h) and
(i) is unreasonable. Reading subsection  (i) as creating a residual
category that allows unilateral  employer programs only where
subsection (h) does not apply,  Road Sprinkler claims that section
29.3 requires the BAT to  first determine the need for union consent
under subsection  (h). But the agency sees the relationship between
subsec- tions (h) and (i) quite differently: when subsection (i)
permits  a unilateral employer program, subsection (h) need not be 
considered. Faced with two reasonable interpretations of a  regulatory
scheme, we defer to the agency's. See Arrow Air,  Inc. v. Dole, 784
F.2d 1118, 1126 (D.C. Cir. 1986).


Finally, Road Sprinkler argues that the BAT's certification  of
Grinnell's apprenticeship program conflicts with the NLRB  remedy for
the company's unfair labor practice. By requir- ing the employer to
reinstate the terms and conditions of  employment as they existed
before the violation, Road Sprin- kler claims that the NLRB has
obliged the company to enroll  striker replacements in the
jointly-administered apprentice- ship program. Road Sprinkler confuses
BAT certification  with Grinnell's use of its new unilateral program.
The BAT  has merely given the company a means of training striker 
replacements. Whether Grinnell's decision to train replace- ment
workers in this new program would violate the remedial  order is a


The order of the district court is affirmed.


So ordered.