                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 04-2329
NATIONAL LABOR RELATIONS BOARD,
                                                   Petitioner,
                             v.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL
UNION 16, AFL-CIO,
                                                  Respondent.
                       ____________
               Application for Enforcement From
                National Labor Relations Board.
                        No. 25-CB-8630
                       ____________
 ARGUED SEPTEMBER 8, 2005—DECIDED OCTOBER 12, 2005
                   ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
ROVNER, Circuit Judges.
  FLAUM, Chief Judge. Petitioner National Labor Relations
Board (“NLRB” or “Board”) petitions this Court for enforce-
ment of its order declaring that the International Brother-
hood of Electrical Workers, Local Union 16, AFL-CIO (“the
Union” or “IBEW”) committed an unfair labor practice
under § 8(b)(1)(A) of the National Labor Relations Act, 29
U.S.C. § 158(b)(1)(A) (“NLRA” or “Act”). Because the board’s
decision is supported by substantial evidence and has a
reasonable basis in law, we enter judgment enforcing the
Board’s order.
2                                                No. 04-2329

                      I. Background
  The Union is a party to two collective bargaining agree-
ments (“CBAs”) that are relevant to this case. The first
relevant CBA is between the Union and the Evansville
Division of the National Electrical Contractors Association
(“NECA”). The NECA Agreement covers nearly all work
performed by the Union’s members in southwestern Indiana
and one county in Illinois. Signatories to that document
agree to hire electrical workers exclusively through the
Union’s referral or “hiring hall” system. That system
requires the Union to maintain a list of eligible electricians,
categorized by experience and skill level, who are available
to work. Signatory employers to the CBA agree to advise
the Union when they require electricians. The Union then
refers members from its list; those who have been out of
work the longest are dispatched first.
  The NECA Agreement also contains the following union
security clause:1
      All Employees in the bargaining unit who are mem-
    bers of the Union in good standing on the effective date
    of this Agreement as a condition of employment must
    maintain their membership in good standing for the life
    of this Agreement.
      Any Employee who is not a member of the Union, and
    any Employee who is hired after the effective date of
    this Agreement or the date of its execution, shall
    be required to join the Union eight (8) days following
    the effective date of this Agreement or the date of its
    execution or following the date of his employment


1
  A “union security clause” is a clause in a CBA that requires
all employees to be members of the union and to have paid
applicable dues and fees. NLRB v. Arthur Sarnow Candy Co., 40
F.3d 552, 554 n.2 (2d Cir. 1994).
No. 04-2329                                                 3

    whichever is the latter and may be required as a
    condition of his employment maintain [sic] his member-
    ship in good standing for the life of this Agreement.
  The second CBA relevant to this case is an agreement
between the Union and Koester Contracting Corporation
(“Koester”). The Toyota Corporation awarded Koester a
substantial contract to construct a truck manufacturing
plant in Gibson County, Indiana. A collective bargaining
agreement between the Union and Koester governs the
work that the Union does for Koester and other contractors
in constructing the plant (“Toyota Agreement”). The Toyota
Agreement states that it “represents the complete under-
standing of the parties.” It also provides that “the terms and
conditions of this Project Agreement shall supersede and
override terms and conditions of any and all other national,
area, or local collective bargaining agreements.” Like the
NECA Agreement, the Toyota Agreement contemplates that
signatories will hire employees through a union referral
system. It states, moreover, that contractors performing
work at the Toyota plant “agree to recognize and be bound
by the legal referral facilities maintained by the union(s)
and shall notify the appropriate union either in writing or
by telephone when workmen are required.” The Toyota
Agreement does not, however, contain a union security
clause nor mention the NECA Agreement.
  Darvin Collins was a member of the Union. In August
of 2002, a project that he was working on ended. Out of
work, he registered on the Union’s referral list. On August
19, 2002, ACCL Enterprises, a construction contractor
working under Koester’s Toyota Agreement, contacted the
Union and requested that it refer an available electrician
for work on the Toyota project. Collins was qualified for the
position and next in line for referral; however, he owed the
Union $64.70 in back dues. The Union informed him that it
would not refer him for the Toyota project until he paid the
4                                                    No. 04-2329

back dues. Collins refused to pay. The Union’s assistant
business manager informed Collins that the Union would
not refer him for the Toyota project until he fully satisfied
his dues obligation.
  In response to the Union’s action, the General Counsel for
the National Labor Relations Board issued a com-
plaint against the Union, alleging that the Union’s refusal
to refer Collins was an unfair labor practice. On September
4, 2003, Administrative Law Judge Ira Sandron ruled in
favor of the Board, concluding that the governing CBA did
not contain a union security clause and, therefore, the
Union could not refuse to refer Collins. Additionally, the
ALJ found that the Toyota Agreement did not incorporate
the NECA Agreement’s union security clause. The ALJ held
that the Union’s actions violated 29 U.S.C. § 158(b)(1)(A)
and ordered the Union to pay Collins two days of missed
wages. The Board affirmed the ALJ’s order with minor
revisions. The Board now petitions this Court for enforce-
ment of the order and the Union has responded with an
answer and objections.


                         II. Discussion
  In this case, the Board seeks to enforce its ruling that the
Union has committed an unfair labor practice in violation
of 29 U.S.C. § 158 (b)(1)(A). An agency that seeks enforce-
ment of its decision must file the record with the circuit
court clerk “within 40 days after it files an application for
enforcement.” FED. R. APP. P. 17(a). In this case, the Board
did not file the administrative record until 74 days after the
application for enforcement was filed.2 Lawyers appearing


2
    The application for enforcement was filed on May 24, 2004. The
                                                     (continued...)
No. 04-2329                                                     5

before this Court are responsible for knowing and following
all applicable procedural rules.3
   In this case, however, the Court will excuse the late filing
by the Board. There has been no demonstration of prejudice
to the Union as a result of the delay. Moreover, other than
the time limits on filing an appeal, “a court of appeals
may—to expedite its decision or for other good
cause—suspend any provision of [the Federal Rules of
Appellate Procedure] in a particular case.” FED R. APP. P. 2;
see also FED R. APP. P. 26(b). The infraction in this case was
harmless and dismissal would be an inappropriate sanction.
Cf. Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir. 1989)
(dismissal may be avoided despite failure to file a transcript
if the transcript is subsequently filed and the court can
engage in meaningful review).
  This Court has jurisdiction to review applications for
enforcement and petitions for review of Board decisions
pursuant to sections 10(e) and (f) of the National Labor
Relations Act, 29 U.S.C. § 160(e)-(f). This Court will uphold
decisions by the Board if they are supported by substan-
tial evidence and the Board’s conclusions have a reasonable
basis in the law. See, e.g., Ryder Truck Rental v. NLRB, 401
F.3d 815, 825 (7th Cir. 2005). There are no questions of fact
in this case, no witnesses were presented and the parties
stipulated to all relevant facts. Instead, this case turns on
the NLRB’s interpretation of two collective bargaining
agreements. The Board has no special expertise in inter-


2
  (...continued)
administrative record was filed on August 6, 2004.
3
  The Board’s alleges that it contacted the Clerk’s Office by
telephone on July 7, 2004 and was following directions from the
clerk’s office, but fails to note that no contact was made between
the Board and the clerk’s office until after the 40-day period
for filing had expired.
6                                               No. 04-2329

preting contracts. Accordingly, this Court reviews the
Board’s interpretations of collective bargaining agreements
de novo. Litton Financial Printing Div. v. NLRB, 501 U.S.
190, 202-03 (1991); NLRB v. Cook County School Bus, Inc.,
283 F.3d 888, 892 (7th Cir. 2002); Chicago Tribune Co. v.
NLRB, 974 F.2d 933, 937 (7th Cir. 1992).
  Section 9(a) of the NLRA grants unions the exclusive
power to represent all employees in a particular bargaining
unit. 29 U.S.C. § 159(a). The Supreme Court has held that
the grant of this power imposes a concomitant duty upon
the union to represent all members of the collective bar-
gaining unit fairly. Breininger v. Sheet Metal Workers Int’l
Ass’n Local Union No. 6, 493 U.S. 67, 86-87 (1989). The
implied duty of fair representation obligates the union “to
serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary
conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967) (citing
Humphrey v. Moore, 375 U.S. 335, 342 (1964)).
  Section 8(b)(1)(A) of the NLRA declares that “[i]t shall be
an unfair labor practice for a labor organization or its
agents to restrain or coerce employees in the exercise of the
rights guaranteed in section 157 of this title.” 29 U.S.C. §
158(b)(1)(A). Section 157 of Title 29 guarantees employees
“the right . . . to bargain collectively through representa-
tives of their own choosing.” 29 U.S.C. § 157. The NLRB has
read § 157’s right of representation to include “the right to
be free from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting their
employment.” Miranda Fuel Co., 140 N.L.R.B. 181, 185
(1962). In other words, although the duty of fair representa-
tion arises out of § 159(a), the breach of that duty
“restrain[s] or coerce[s]” an employee’s rights under § 157,
thereby constituting an unfair labor practice under §
158(b)(1)(A). Miranda Fuel Co., 140 N.L.R.B. at 185-86. The
No. 04-2329                                                 7

Seventh Circuit generally has approved of this doctrine. See
Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976).
   The duty of fair representation extends to a union’s
administration of an exclusive hiring hall agreement. See
Lewis v. Local Union No. 100 of Laborers’ Int’l Union of
N. Am., 750 F.2d 1368, 1375-76 (7th Cir. 1984). A union
is presumed to have breached its duty of fair representation
if, in the administration of a hiring hall agreement, it
refuses to refer a member who is eligible under that
agreement. Int’l Union of Operating Engineers Local 406,
262 N.L.R.B. 50, 57 (1982). A union may rebut this pre-
sumption by showing that it was acting pursuant to a valid
union security clause in the controlling collective bargaining
agreement. Iron Workers Local 118, 257 N.L.R.B. 564 (1981)
(“A valid union-security clause can be enforced at the hiring
hall level by a refusal to refer an employee whose dues are
in arrears, so long as the employee has already worked for
the statutory grace period in the bargaining unit to which
the collective-bargaining agreement containing the un-
ion-security clause applies.”).
  The question therefore becomes whether the controlling
collective bargaining agreement contains a union security
clause. The parties agree that the Toyota Agreement
controls and that it does not contain an explicit union
security clause. The Union argues, however, that the NECA
Agreement’s union security clause is incorporated into the
Toyota Agreement by reference.
  There is a great deal of evidence to support the Board’s
finding that the NECA union security clause was not
incorporated into the Toyota Agreement. First, the Toyota
agreement neither makes explicit mention of a union
security clause nor does it make any explicit reference to
the NECA Agreement. “When interpreting a contract, we
cannot read terms into the language that are not expressly
stated[.]” GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d
615, 622 (7th Cir. 1995).
8                                               No. 04-2329

   Second, any claim that the NECA Agreement is implicitly
adopted is refuted by the plain language of the Toyota
Agreement. The Toyota Agreement contains an integra-
tion clause. This clause prohibits the adoption of any
additional provisions by implication. See RESTATEMENT
(FIRST) OF CONTRACTS § 228 (1932). The integration
clause specifically states that “the terms and conditions of
[the Toyota Agreement] shall supersede and override terms
and conditions of any and all other national, area, or local
collective bargaining agreements. It is understood that this
is a self-contained, stand alone [sic], Agreement.” The
parties’ intent to avoid implicit adoption of any other
agreements is also demonstrated by language contained
in the preamble of the Toyota Agreement, which states that
“[t]his Agreement represents the complete understanding of
the parties.” Where the parties’ express language prohibits
additional terms from being read into the contract, there is
a presumption that the contract is complete in and of itself.
See Brooklyn Bagel Boys, Inc. v. Earthgrains Refrigerated
Dough Prod., Inc., 212 F.3d 373, 380 (2000); see also
Bozetarnik v. Mahland, 195 F.3d 77, 83 (2d Cir. 1999)
(agreement with an integration clause precludes “incorpora-
tion into the contract of implied terms that are inconsistent
with the contract”).
  Third, any references in the Toyota Agreement to “legal
referral facilities maintained by the union(s)” does not
necessitate an incorporation of previous agreements
governing those facilities. While the Toyota agreement does
state that the “execution contractors agree to recognize and
be bound by the legal referral facilities maintained by the
union(s) and shall notify the appropriate union either in
writing or by telephone when workmen are required,” this
clause is not sufficient to incorporate the NECA Agree-
ment’s union security clause into the Toyota agreement.
  The irreconcilable terms and conditions separating the
two collective bargaining agreements extends beyond
No. 04-2329                                                 9

their differences as to the existence of a union security
clause. For example, although both agreements allow an
employer to hire employees outside of the referral system
when the Union cannot provide enough workers to fill the
employer’s request, the agreements treat these workers
differently. The NECA Agreement requires that employees
hired outside of the referral system work only temporarily.
The Toyota Agreement, however, allows the employer to
keep such employees indefinitely. The two agreements
also differ as to the order of layoffs. The NECA Agree-
ment requires an employer to lay off the least experienced
workers first. The Toyota Agreement grants the employer
sole discretion to decide the order of layoffs.
  Any reasonable reading of the Toyota Agreement reveals
that it does not implicitly or explicitly incorporate the
NECA Agreement’s union security clause or any other
union security clause. Thus, the Board was correct to find
that the Union cannot defend its refusal to refer Collins
on the ground that it was enforcing a union security clause.
  A final argument raised by the Union is that it lawfully
refused to refer Collins on the ground that it was enforc-
ing a “uniformly applied referral rule designed to main-
tain the integrity of the hiring hall.” Because this argument
was raised for the first time in the Union’s reply brief, we
will not address its merits. An argument raised for the first
time in a reply brief is forfeited. Leber v. Universal Music &
Video Distrib., Inc., 332 F.3d 452, 453 (7th Cir. 2003); J.S.
Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1035 n.2 (7th
Cir. 2005).


                     III. Conclusion
  Substantial evidence supports the NLRB’s finding that
the Union committed an unfair labor practice under the
National Labor Relations Act by refusing to refer Collins.
Therefore, we ENFORCE the NLRB’s order in full.
10                                        No. 04-2329

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-12-05
