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.