CHEVRON MINING, INC., formerly known as The Pittsburgh & Midway Coal Mining Company, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 10-1382, 11-1006.
United States Court of Appeals, District of Columbia Circuit.
Decided July 3, 2012.
Rehearing En Banc Denied Nov. 28, 2012.
687 F.3d 1318
Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Argued Oct. 18, 2011.
III. Conclusion
We conclude substantial evidence supports the Board‘s findings that the Union was not responsible for the Fund‘s cancellation of the employees’ health benefits and that the cancellation broke any impasse in bargaining. For that reason, and because the other defenses Atrium offers lack merit, we hold Atrium violated
So ordered.
Eugene Scalia argued the cause for petitioner. With him on the briefs were Olusola Ayanbule and Amir C. Tayrani.
MacKenzie Fillow, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were David S. Habenstreit, Assistant General Counsel, and Usha Dheenan, Supervisory Attorney. Jeffrey J. Barham, Attorney, entered an appearance.
Deborah Stern argued the cause and filed the brief for amicus curiae United Mine Workers of America in support of respondent.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
GRIFFITH, Circuit Judge:
In 2005, Chevron Mining, Inc. amended its employee bonus plan in response to the decision of the United Mine Workers of America to call “memorial period” work stoppages. The National Labor Relations Board concluded that the amendment was an unfair labor practice, and we agree.
I
Before the Board, the parties agreed on a set of facts, exhibits, and issues presented. We rely on those stipulations.
In 1995, the Union and CMI executed a Letter of Agreement allowing Union-represented employees to participate in CMI‘s employee bonus plan. The plan provides bonus payouts based on financial and safety achievements at an employee‘s mine. The Agreement gives CMI the authority to change the bonus plan unilaterally and provides that disputes over such changes are not arbitrable. If the Union objects, its sole recourse is to quit the Agreement.
In February and July of 2004, the Union, after providing proper notice, called six memorial days at the North River Mine to place economic pressure on CMI over ongoing grievances that were being arbitrated. Stipulation of Facts ¶ 31 [hereinafter “Stip.“]. (The record does not reveal the nature of those grievances.) The work stoppages cost CMI $1.5 to $2.5 million in pre-tax profit, but CMI took no immediate action in response.
On February 3, 2005, CMI amended the bonus plan to provide that no financial achievement bonus would be paid to Union-represented employees at any mine where the Union calls a memorial day that doesn‘t cover all mines in the same district,2 “regardless of whether that mine
In April 2005, the Union filed charges with the NLRB alleging that CMI‘s amendment to the bonus plan was retaliation for the Union‘s exercise of its contractual right to call memorial day work stoppages at the North River Mine. The General Counsel issued a complaint in October 2005, and the parties stipulated to the following issue presented:
Whether, under Wright Line, 251 N.L.R.B. 1083 (1980), the Employer violated Sections 8(a)(3) and (1) of the Act by amending its collectively-bargained bonus plan, which generally permits unilateral Employer amendment or modification of the plan, to deny a mine‘s Union-represented employees financial bonuses under the plan if the Union called a Memorial Day at that mine, pursuant to the “Memorial Periods” provision of the parties’ underlying collective bargaining agreement, on a non-UMWA District wide basis.
Parties’ Stmt. of Issues Presented.
In a decision issued in September 2010, the Board concluded that the amendment to the bonus plan was an unfair labor practice. The Board determined that the Union‘s use of memorial periods to place economic pressure on CMI in support of pending grievances was protected activity. The Board then found a violation under Wright Line and rejected CMI‘s defenses as either unconvincing or barred by the stipulation. CMI filed a petition for review in this Court, and the Board filed a cross-application for enforcement. We take jurisdiction over the application and petition under
II
We must first determine whether the employees’ participation in the 2004 memorial days was protected under the
The clause reads: “The [Union] may designate memorial periods not exceeding a total of ten (10) days during the term of this agreement at any mine or operation provided it shall give reasonable notice to the Employer.” On the one hand, the text does not, by its terms, limit the purposes for which memorial periods may be called. The sole limits on their use are procedural: only ten days of work stoppage may be called during the contract term, and reasonable notice of each must be given. On the other hand, CMI argues that the term “memorial period” itself implies a limitation. Relying on the dictionary definition of “memorial,” CMI urges that a memorial period can only be called “to commemorate the death of a miner or a mining disaster.” Pet‘r‘s Br. 26; see WEBSTER‘S II NEW COLLEGE DICTIONARY 700 (3d ed.2005) (defining “memorial” as “[s]omething, as a monument or a holiday, designed or established to preserve the memory of a person or event“). CMI also notes that the memorial periods clause appears in the CBA just before a provision for plant “closing following fatal accident.”3 To CMI, this placement reinforces the idea that both provisions are meant to commemorate death and disasters. But these are also the only two provisions in the CBA that expressly allow work stoppages. Thus, the placement might only reflect that both provisions permit work stoppages, not that they allow work stoppages for the same purpose. Because the text does not speak directly to the question of the purposes for which a memorial period may be called, we must turn to extrinsic evidence of the parties’ intent. See Wilson & Sons Heating & Plumbing v. NLRB, 971 F.2d 758, 761 (D.C.Cir.1992); Local Union 1395, Int‘l Bhd. of Elec. Workers v. NLRB, 797 F.2d 1027, 1036 (D.C.Cir.1986) (“[T]he words parties use in drafting contracts are only evidence of their intent; the words are not themselves the parties’ intent.“).
Before the Board, the parties stipulated that “[t]he history and purpose of the Memorial Periods Clause was addressed in” a district court opinion, two arbitration decisions, and a memorandum from the Board‘s Division of Advice, each of which the parties incorporated into their Stipulation of Facts. Stip. ¶ 17. Both parties used these materials in making their arguments, and the Board relied upon them to conclude the CBA authorized the Union to use memorial periods to strike. See Pittsburgh & Midway Coal Mining Co. (P & M), 355 N.L.R.B. 1210, 1213 (2010).
[The CBA] gives the Union a unilateral right to call a memorial period, which should be untrammeled and uninfringed by court scrutiny, as has been shown by the lengthy history of memorial periods’ inclusion in NBCWA contracts, case authority, and arbitration decisions.... It is not the Court‘s role to scrutinize the motivation for calling memorial periods.... [T]he unilateral right to call memorial periods is a bargaining chip that the Union can use in an often ‘fractious’ relationship that exists between labor and management in the coal industry.
Id. at *5-6 (emphasis added).4
All the other stipulated materials also cut against CMI‘s reading of the clause, but none contradicts Arch. CMI repeatedly quoted to us language from one of the arbitration decisions indicating that a “memorial period is commonly understood to be a time set aside to observe the memory of a particular event or person,” but consistently omitted the rest of the paragraph, which reads:
[B]ut in recent years, memorial periods under this provision have been used to provide Employees with time off work to participate in certain activities deemed important by the International Union, and have also been used to provide a cooling off period in the course of a work stoppage in the coal fields. There is no limitation in the contract which restricts the purpose for which a memorial period may be used, just as long as reasonable notice of the designation is given to the Employer.
Peabody Coal Co., Arb. No. 88-23-91-72, *7 (Nov. 8, 1991) (emphasis added). And in the other arbitration decision the employer and union agreed and the arbitrator concluded that “[c]ontractually, the union has the right to call memorial days without giving a reason for the call.” United Mine Workers Dist. 17, Local 781 v. E. Associated Coal Corp., Arb. No. 02-17-04-176, *16 (Feb. 28, 2005).
The memorandum from the Board‘s Division of Advice took the view that “the Union has called memorial periods for a wide range of purposes: to mourn the death of miners and to commemorate min-
Read together, the materials that the parties agreed “address” the “history and purpose of the clause” show unambiguously that a memorial period may be called to strike over an arbitrable dispute. As counsel for the Union explained at oral argument, the NBCWA‘s memorial period clause was negotiated in 1971 in response to the problem of debilitating wildcat strikes.5 The clause gives the Union a contractually limited and controlled method to channel employee displeasure and thereby avoid such disruption, to the benefit of both the Union and employers. Oral Arg. Tr. 30-32.
CMI now argues that little or no weight should be given to these materials because the stipulation itself “does not state that the decisions correctly ‘addressed’ the clause‘s history or purpose.” See Pet‘r‘s Reply Br. 6 (emphasis in original). This argument is too clever by half and fails to account for the only credible explanation for the stipulation: that the parties meant that these materials should be used as reliable extrinsic evidence of their intent. “[S]tipulations, like other contracts, must be interpreted in light of the circumstances under which the agreement was made.” Nat‘l Audubon Soc‘y, Inc. v. Watt, 678 F.2d 299, 307 (D.C.Cir.1982).6
CMI also argues that the materials referenced in the stipulation should be disregarded because each lacks precedential effect in this court. It is no doubt true that we would not rely as heavily on these materials if the parties had not agreed that we must. The issue is not a question of precedence but of the parties’ intent, and the stipulation was designed to answer that question of fact. Even if the dissent
It is significant as well that when the Union called memorial days in support of pending grievances in this case, CMI did not even suggest that the CBA had been breached or that the Union had committed an unfair labor practice. CMI sought neither injunctive relief (as the employer did in Arch) nor damages for the losses it sustained. Instead, CMI amended the bonus plan to deter the exercise of the Union‘s right to call memorial days in the future. Nothing in CMI‘s reaction at the time indicates it thought the Union‘s calling for memorial day work stoppages was not authorized by the CBA.
Although the text of the CBA may be inconclusive, the discussion of the memorial periods clause in the stipulated materials and CMI‘s response to the work stoppages “make[] clear the meaning of the contract.” See Whiting v. AARP, 637 F.3d 355, 363 (D.C.Cir.2011). This extrinsic evidence shows that, in this contract, “memorial periods” is a term of art with a specific meaning: a contractually authorized work stoppage that can be called for any reason, no reason, or for the specific reason of placing economic pressure on an employer in connection with an arbitrable dispute. CMI presented no extrinsic evidence showing a contrary meaning. The clause is a clear expression that the parties agreed the Union could call a limited number of work stoppages in connection with arbitrable disputes. It is “a limited exception to [the] ... implied no-strike obligation.” Gateway Coal, 414 U.S. at 385.
Finally, CMI raises the strained argument that the work stoppages were not protected because the Union‘s designation of memorial days is not really employee activity. CMI relies on Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which held that certain actions by union organizers who were not employees were not protected. That principle does not apply, however, to action by a union selected to represent employees. See Venetian Casino Resort, LLC v. NLRB, 484 F.3d 601, 609 n. 7 (D.C.Cir.2007) (“[I]t would be a curious and myopic reading of the Act‘s core provisions to hold that, although employees are free to join unions and to work through unions for purposes of ‘other mutual aid or protection,’ the conduct of the unions they form and join for those purposes is not protected by the Act.” (quoting Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 29 (D.C.Cir.2001)) (internal quotation marks omitted)). In any event, as the Board pointed out, here the CMI employees themselves urged the Union to call the memorial days and decided individually whether to participate. Their participation in the 2004 memorial days was protected by the Act.
III
The parties also stipulated that we use the test set forth by the Board in Wright Line to determine whether CMI‘s amendment to the bonus plan violates sections 8(a)(3) and (1) of the Act. These sections ban “adverse employment action [taken] to discourage union activity,” Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 104 (D.C.Cir.2003), and motive is our chief inquiry, Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 311 (1965) (“It has long been established that a finding of violation under [section 8(a)(3)] will normally turn on the employer‘s motivation.“). The Wright Line test determines whether an employer‘s motive for adverse action is unlawful. See Wright Line, 251 N.L.R.B. at 1089; see also NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983) (approving the Wright Line test). Under Wright Line, the General Counsel is required to “make a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer‘s decision” to take adverse action. Wright Line, 251 N.L.R.B. at 1089. The burden then shifts to the employer to show, by a preponderance of the evidence, that it would have taken the same action even if the employees had not engaged in protected activity. Id. We uphold a Board finding supported by “substantial evidence on the record considered as a whole.”
The Board found that the General Counsel had met his initial burden because “it is undisputed that the employees’ memorial day work stoppages were a motivating factor in [CMI‘s] decision to modify its bonus plan.” P & M, 355 N.L.R.B. at 1211. Indeed, the parties stipulated that the amendment to the bonus plan “was implemented in response to the Memorial Days called by the Union at the North River Mine in 2004,” and that the amendment “was intended to communicate to the Union that because such Memorial Days imposed financial consequences on the Employer, the Union-represented employees would also be required to bear financial consequences in the form of the loss of the bonus they might otherwise expect.” Stip. ¶¶ 34, 36.
CMI argues that it would have amended the bonus plan even had the Union never called the memorial days. CMI was not looking backward when it amended the plan, but forward, so the explanation goes. Memorial days cost everyone dearly. Decreased productivity decreases revenue which decreases profits. Discouraging these work stoppages would increase profits and bonuses for the employees. The Board rejected the claim that CMI was motivated only by these business concerns because, “[s]imply put, [CMI] acknowledges modifying the employees’ bonus plan, in a restrictive manner, as a result of the North River employees’ protected activity.” P & M, 355 N.L.R.B. at 1214. CMI was, in fact, looking backward, and there is no doubt the Board was correct on this score. The question under Wright Line is not just whether the employer‘s action also served some legitimate business purpose, but whether the legitimate business motive would have moved the employer to take the challenged action absent the protected conduct. Sw. Merch. Corp. v. NLRB, 53 F.3d 1334, 1339 n. 7 (D.C.Cir.1995) (explaining that in “dual motive” cases, “in which the employer acts with a legitimate and an illegitimate motive[,] the purpose is to determine whether the legitimate motive would have caused the action on its own“). Given CMI‘s concession, the Board reasonably concluded that CMI did not make that showing.
Because CMI admitted that the amendment to the bonus plan was motivated by protected activity, the Board also reasonably discounted CMI‘s reliance upon evidence that it was not generally hostile to the Union, such as the one-time 6% bonus and CMI‘s longstanding relationship with the Union. Some Wright Line cases consider such circumstantial evidence, but it can never trump a showing that a particular action was taken because of protected activity. Where that is established—and here it is conceded by CMI—evidence that the employer is not generally hostile to the union is of little avail. The emphasis is always on the employer‘s motivation for the particular act that discouraged union
Even so, CMI argues that amending the plan was a permissible economic weapon to counter the employees’ protected activity, much like a lockout in response to a strike. This economic weapon defense has been developed in bargaining cases applying the framework set out in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). The Board “decline[d] to consider this argument,” however, stating that “the alternative Great Dane analysis” was “inconsistent with the terms of the stipulation” that the case be decided under Wright Line. P & M, 355 N.L.R.B. at 1214. In any event, the Board held, CMI could not benefit from the economic weapon defense because its amendment to the plan was “precisely” the type of “selective sanction” directed “only [at] those employees who engage in protected conduct” that the Board forbids. Id. at 1214 n. 11 (citing Schenk Packing Co., 301 N.L.R.B. 487, 490-91 (1991) (finding the grant of bonuses only to employees who chose not to engage in protected strike activity unlawful)).
CMI objects to the Board‘s “selective sanction” holding in its brief to this court, but did not do so before the Board. It thus runs headlong into section 10(e) of the Act, which provides that “[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”
But the Board, curiously, failed to raise the section 10(e) argument before us, and so we must ask whether its limitation is “jurisdictional.” The Supreme Court has recently cautioned courts to distinguish carefully between jurisdictional conditions, which cannot be waived or forfeited by the parties, and mere claim-processing rules or elements of a cause of action, which can. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 1243-44 (2010); Arbaugh v. Y & H Corp., 546 U.S. 500, 510-14 (2006). An examination of the “condition‘s text, context, and relevant historical treatment,” Reed Elsevier, 130 S.Ct. at 1246, makes it clear that section 10(e) falls on the jurisdictional side of the divide.
Looking next to the statutory context, the Court in Reed Elsevier and Arbaugh found it significant that the requirements at issue there were “located in ... provi-sion[s] ‘separate’ from those granting federal courts subject-matter jurisdiction.” Reed Elsevier, 130 S.Ct. at 1245-46. By contrast, section 10(e) not only bars arguments not made to the Board but also grants and defines the jurisdiction of courts of appeals over petitions for enforcement of Board orders. See W & M Props., 514 F.3d at 1345 (“Section 10 ... creates and limits our jurisdiction to review the Board‘s orders.“).
Finally, section 10(e)‘s purpose also indicates it is jurisdictional. It “is intended to further ‘the salutary policy ... of affording the Board [the] opportunity to consider on the merits questions to be urged upon review of its order,‘” Elastic Stop Nut Div. of Harvard Indus., Inc. v. NLRB, 921 F.2d 1275, 1284 (D.C.Cir.1990) (quoting Marshall Field & Co. v. NLRB, 318 U.S. 253, 256 (1943)), and “is an example of Congress‘s recognition that ‘... courts should not topple over administrative decisions unless the administrative body has not only erred but has erred against objection made at the time appropriate under its practice,‘” id. (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). See also Cast N. Am. (Trucking) Ltd. v. NLRB, 207 F.3d 994, 1000 (7th Cir.2000) (“This is a jurisdictional bar, designed to allow the NLRB the first opportunity to consider objections and to ensure that reviewing courts receive the full benefit of the NLRB‘s expertise.“). Section 10(e)‘s bar is far from mere “claim-processing rules” such as most statutes of limitation. See Arbaugh, 546 U.S. at 510.
The text, context, and purpose of section 10(e), as well as our precedent addressing
IV
CMI raises two more defenses to the section 8(a)(3) charge and objects to the Board‘s chosen remedy. First, CMI argues that the Union waived its ability to bring an unfair labor practice charge by giving CMI the unilateral right to modify the bonus plan in the Letter of Agreement. However, the Board was correct that the unilateral right to amend the plan was not a license to amend the plan for unlawful reasons. P & M, 355 N.L.R.B. at 1214 (citing Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1281 (D.C.Cir.1999)). There is no indication in the record that the Union intended to waive its section 8(a)(3) rights by entering into the Agreement, and a waiver of statutory rights must be “clear and unmistakable.” Gannett Rochester Newspapers v. NLRB, 988 F.2d 198, 203 (D.C.Cir.1993). “[C]ourts may ‘not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated.‘” Id. (quoting Metro. Edison, 460 U.S. at 708). CMI had no right to amend the plan with the intent to discourage future protected activity. See Reno Hilton, 196 F.3d at 1281 (“[T]he record is devoid of evidence to infer, much less show, that the Union waived its § 8(a)(3) rights by entering into the agreement.“).
Second, according to CMI, the fact that no employee was denied a bonus under the amendment shows that it did not “actually affect the terms or conditions of employment” as required to find a section 8(a)(3) violation. Pet‘r‘s Br. 41-42 (quoting NLRB v. Air Contact Transp., Inc., 403 F.3d 206, 212 (4th Cir.2005), which found that a mere counseling letter advising an employee to change his behavior was not a change in a term or condition of employment). The Board rejected that argument, and so do we. The plan amendment altered terms governing employee bonus eligibility by placing a financial penalty on the future exercise of protected activity. Indeed, as the Board noted, the Union‘s decision not to call memorial days that were not district-wide likely demonstrates the chilling effect of this new term of employment. P & M, 355 N.L.R.B. at 1214 n. 8.; see also Ford Motor Co., 131 N.L.R.B. 1462, 1487 (1961) (“It is not necessary ... for the employee to have an actual monetary loss.“).
Lastly, CMI objects to the Board‘s backpay remedy because no employee was denied a bonus. This objection, however, is premature. Although CMI is correct that the Board must tailor remedies to actual losses, it is well-established that “compliance proceedings provide the appropriate forum” to consider objections to the relief ordered. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984); see also Ark Las Vegas, 334 F.3d at 107 (“[W]e ‘leav[e] until the compliance proceedings more specific calculations as to the [relief], if any, due.‘” (quoting Sure-Tan, 467 U.S. at 902) (alterations in original)).
V
For the foregoing reasons, CMI‘s petition for review is denied and the Board‘s cross-application for enforcement is granted.
So ordered.
Collective Bargaining Agreements (“CBAs“) between the United Mine Workers of America (“UMWA“) and Chevron Mining allow the union, on reasonable notice to the employer, to “designate memorial periods not exceeding a total of ten (10) days during the term of this Agreement.” Joint Appendix (“J.A.“) 96. The CBAs also contain provisions requiring arbitration of disputes. Under established authority, see Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368, 381 (1974), such provisions forbid strikes, as the court recognizes, see Maj. Op. at 1322-23. The NLRB nonetheless construed the memorial-period clauses to create a de facto exception to the strike ban, and the court affirms. The conclusions of both the agency and the court violate the established principle (most familiar to us from anti-discrimination laws) that a right to do a thing at will, or for no reason at all, does not normally encompass a right to do it for reasons that contradict rights reserved to another party (here, the employer‘s right not to be subject to strikes while the CBAs are in effect). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (“[I]f the employer can show that it took an adverse employment action against an employee for any reason other than discrimination, the court cannot order the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.“) (internal quotation marks and citation omitted); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282 (4th Cir.2000) (noting that an employer‘s “blunt” and even “unfair” behavior does not in itself support “an actionable claim of discrimination“).
To reach its conclusion, the court makes a rather odd use of a stipulation that the parties agreed on before the Board, namely, that “[t]he history and purpose of the Memorial Periods Clause was addressed” in various named documents. J.A. 12-13 ¶ 17. The court (1) gives this provision a far more powerful meaning than its text will bear; (2) selects one document from among the four for a wholly dominant role, namely one district court decision, Arch of W. Va. v. Mine Workers Local Union 5958, C.A. No. 2:96-2008 (S.D.W.Va. Nov. 25, 1996) (”Arch“); and (3) misreads that one document. First, the stipulation appears to mean no more than would a parallel statement about Farrand‘s: “The history and purpose of the United States Constitution is addressed in MAX FARRAND‘S THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1913).” This would not license a constitutional interpreter to exalt one passage in Farrand‘s above all others, or to disregard ordinary principles of law such as the one noted above—that a right to do something for no reason commonly doesn‘t entail a right to do it in ways or for purposes that frustrate another party‘s established rights. The parties’ stipulation did not require the Board (or us) to pitch such principles overboard. Second, while the court says that the other three documents don‘t contradict its reading of Arch, it is equally true that none of them hints at anything like the view the court here ascribes to Arch.
Third and most important, the court‘s preferred item, the district court decision in Arch, provides only the most dubious support for the court‘s conclusion. The union there sought employer permission “to allow any individuals employed at [specified plants] to go deer hunting during the first week of the deer hunting season.” Id. at *3-4 ¶ 6. When it did not receive this permission, the union first “threatened to call a ‘memorial period,‘” on Monday, Tuesday, Wednesday, and Saturday, November 25, 26, 27, and 30, 1996, if the employer did not make concessions
The Arch decision contains, to be sure, far broader language than the case warranted. Having said that the clause entitled the union to exercise its right to memorial days for “good or bad reasons,” it simply leapt to a characterization of the right as “a bargaining chip that the Union can use in an often ‘fractious’ relationship ... between labor and management.” Arch, at *6 ¶ 6. It never considered or alluded to the principle that prevents a party from using broadly formulated rights to sweep aside rights held by others. The upshot, then, of the court‘s opinion here is to subordinate that principle to a district court‘s dictum.
STEPHEN F. WILLIAMS
SENIOR CIRCUIT JUDGE