                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                  No. 17-2497, 17-2930
                                    _____________

                     NATIONAL LABOR RELATIONS BOARD,
                                    Respondent/Cross-Petitioner

                                            v.

                  MIDLAND ELECTRICAL CONTRACING CORP.
                                    Petitioner/Cross-Respondent
                             ______________

                         On Application for Enforcement and
                       Cross-Petition for Review of an Order of
                         the National Labor Relations Board
                    (NLRB-1 Nos. 29-CA-144562 & 29-CA-144584)
                                   _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 9, 2018
                                  ______________

              Before: McKEE, VANASKIE ∗ and SILER •, Circuit Judges.

                              (Opinion filed: May 28, 2019)




∗
 The Honorable Thomas I. Vanaskie retired from the Court on January 1, 2019 after the
submission of this case, but before the filing of the opinion. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12.
•
 The Honorable Eugene Edward Siler, Jr., Senior Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
                               _______________________

                                         OPINION ∗*
                               ___________________________________

McKEE, Circuit Judge.

       The National Labor Relations Board seeks enforcement of a Board order issued

against Midland Electric Contracting Corporation on June 6, 2017. Midland cross-petitions

for review of the order and asserts that the Board’s findings are unsupported by substantial

evidence.

       We review the Board’s findings of fact and legal conclusions. 1 The Board’s findings

of fact are presumed conclusive if supported by substantial evidence. 2 The Board’s legal

conclusions are upheld if based on a “reasonably defensible” construction of the National

Labor Relations Act. 3

                                               I.

       The Board Order resulted from Midland’s attempted withdrawal from a collective

bargaining association—the Building Industry Electrical Contractors Association (the

Association). In June 2010, Midland became a member of the Association by executing a

“Membership Agreement” which designated the Association as Midland’s bargaining

representative in all negotiations with the United Electrical Workers of America, IUJAT,


∗*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  We have jurisdiction to review final Board orders under 29 U.S.C. § 160(e) and (f).
2
  29 U.S.C. § 160(e).
3
  Quick v NLRB, 245 F.3d 231, 241 (3d Cir. 2001) (quoting Ford Motor Co. v. NLRB,
441 U.S. 488, 497 (1979)).
                                               2
Local 363 (the Union), and bound Midland to any future agreement between the

Association and the Union. The “Membership Agreement” specified that “resignation

from the Association must be in writing and served on the Association by certified mail

no less than 90 days prior to the date of expiration of the agreement between the

Association and [the Union].”

       Following execution of the “Membership Agreement,” Midland, the Association,

and the Union executed the “Assumption Agreement” under which Midland assumed a

2008–2011 CBA between the Association and the Union. The Assumption Agreement

provided that, “the Association shall, on behalf of [Midland], negotiate successor

[CBAs], amendments, renewals, and extensions” and bound Midland to all future CBAs

unless Midland properly terminated the relationship in accordance with termination

provisions in the active CBA.

       Following the expiration of the 2008–2011 CBA, the Association and the Union

executed a successor CBA with a term of December 1, 2011 through November 30, 2014.

That 2011–2014 CBA provided that it would remain in force for its term “unless either

party gives written notice to the other party. . . at least sixty (60) days prior to the date of

[its] expiration [ ], that it desires to modify or amend and/or re-negotiate same.” In

August 2014, the Association and the Union began negotiations for another successor

CBA which was to run from December 1, 2014 through November 30, 2017. On

September 4, Midland sent a withdrawal notice to the Association and the Union stating

it would not renew the operative CBA beyond November 30, 2014. At the time of this

notice, Midland ceased making payments under the 2011–2014 CBA and now claims it is

                                                3
not bound to the 2014–2017 CBA based on its purportedly timely withdrawal.

       An ALJ found that Midland failed to timely withdraw from the Association, was

bound to the 2014–2017 CBA, and had violated Section 8(a)(5), (a)(1), and (d) of the

Act. The Board adopted the judge’s findings and ordered Midland to cease and desist

from refusing to bargain collectively with the Union. The NLRB then petitioned for

enforcement of the Board Order and Midland cross-petitioned for review.

                                            II.

       Midland argues that it is not bound to the 2014–2017 CBA because: (1) the

“Assumption Agreement” demonstrates consent between the Union, the Association, and

Midland to allow withdrawal after the commencement of negotiations; and (2) Midland

timely withdrew in compliance with the procedures set forth in the “Assumption

Agreement,” which it asserts superseded the “Membership Agreement.”

       We agree with the ALJ that Midland was bound to the 2014–2017 CBA based on

its failure to withdraw prior to the commencement of negotiations for the successor CBA

in August 2014. Midland failed to expressly raise its argument that the “Assumption

Agreement” establishes consent to permit withdrawal in both its exceptions to the ALJ’s

findings and its supporting brief. It is the well-established practice of the NLRB to adopt

an ALJ’s findings in such circumstances. 4 Accordingly, the Board appropriately adopted




4
 29 C.F.R. § 102.46(a)(1)(ii); Holsum de Puerto Rico, Inc., 344 N.L.R.B. 694, 694 n. 1
(2005) (disregarding an argument that respondent’s failed to raise in its exceptions or
supporting brief).

                                             4
the ALJ’s findings. 5

       We also reject Midland’s second argument because substantial evidence supports

the NLRB’s determination that Midland failed to comply with applicable contractual

withdrawal provisions contained in the “Membership Agreement.” A withdrawal is

timely if based “upon adequate written notice given prior to the date set by the contract.” 6

Here, the “Membership Agreement” unambiguously provided a 90-day notice

requirement prior to the expiration of the 2011–2014 CBA in order for Midland to timely

withdraw. 7 Midland argues that the “Assumption Agreement” superseded the

“Membership Agreement” and therefore, the 60-day withdrawal provision contained in

the “Assumption Agreement” is controlling. 8

       A contract supersedes a prior contract between the same parties if the agreements


5
  The Board briefly assessed the insufficiency of the argument on the merits. It is an
established Board principle that once negotiations involving an existing multiemployer
unit have begun, an employer-member may not withdraw from the multiemployer
association absent mutual consent or unusual circumstances. Retail Assocs., Inc., 120
N.L.R.B. 388, 395 (1958). The Board rejected Midland’s argument that the “Assumption
Agreement” establishes sufficient consent to permit withdrawal.
6
  Retail Assocs., Inc., 120 N.L.R.B. at 395.
7
  The Membership Agreement provides “[r]esignation from the Association must be in
writing and served on the Association by certified mail no less than 90 days prior to the
day of the expiration of the agreement between the Association and [the Union].”
8
  The “Assumption Agreement” provides that Midland “agrees to be bound by any and all
amendments, renewals, and/or extensions of the above referenced Association [CBAs]
unless and until this Agreement is properly terminated by either [Midland] or the Union
in accordance with the renewal and/or Termination Provisions of the Association
[CBA].” Article 38 of the 2011–2014 CBA provides that the agreement “shall remain and
continue in full force and effect…from year to year thereafter, unless either party gives
written notice to the other by certified mail, return receipt requests, at least sixty (60)
days prior to the date of expiration of this Agreement, that it desires to modify or amend
and/or re-negotiate same.” JA 3, 11; 175, 196-97.

                                             5
“completely cover the same subject matter” but contain inconsistent terms. 9 The Board

correctly concluded that the “Membership Agreement” and the “Assumption Agreement”

did not cover the same subject matter. 10 We also agree that the “Assumption Agreement”

only applied to the 2011–2014 CBA and the “Membership Agreement” was the

controlling document with regard to the relationship between Midland and the

Association.

       In essence, Midland attempts to use the “Assumption Agreement”—a document

relating to a specific CBA—to withdraw from the Association itself. Withdrawal from a

multiemployer bargaining association is distinct from terminating a CBA. 11 Even if

Midland complied with the 60-day notice requirement of the “Assumption Agreement”

such notice would only relate to the 2011–2014 CBA and nothing more. There is

substantial evidence that Midland is bound to the 2014–2017 CBA based on its failure to

timely withdraw under the “Membership Agreement.”

                                          III.

       For the foregoing reasons, we will grant the National Labor Relations Board’s

petition for enforcement in full.


9
  Unique Art Mfg. Co., 83 N.L.R.B. 1250, 1251 (1949).
10
   The Board determined that the “Membership Agreement” related to the relationship
between Midland and the Association and conferred a specific right for the Association to
enter into CBAs on Midland’s behalf. Conversely, the Board explained that the
“Assumption Agreement” “overwhelmingly focuses on the CBA, and [Midland’s] and
Union’s obligations thereunder, and is devoid of any specific references to [Midland’s]
membership in the Association.”
11
   Rome Elec. Sys., 349 N.L.R.B. 745, 747 (2007) (“an employer’s withdrawal of
negotiating authority from a multiemployer association is an action distinct from
terminating a contract”).
                                            6
