                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                             ________________________               U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                           July 18, 2008
                                    No. 07-13132                       THOMAS K. KAHN
                              ________________________                       CLERK

                                 NLRB No. 10-CA-35458

NATIONAL LABOR RELATIONS BOARD,

                                                                                   Petitioner,

                                           versus


ROME ELECTRICAL SYSTEMS, INC.,

                                                                                Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                            National Labor Relations Board
                             _________________________

                                      (July 18, 2008)

Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:


       *
         Honorable C. Roger Vinson, Senior United States District Judge for the Northern
District of Florida, sitting by designation.
      This case is before us on an application to enforce an order of the National

Labor Relations Board (“the Board”). The Board held in its order that the

Respondent, Rome Electrical Systems, Inc., did not give timely notice of its intent

to withdraw from the International Brotherhood of Electrical Workers (“IBEW” or

“the union”) and the Atlanta Electrical Contractors Association (“AECA”). The

Respondent was thus found to have violated Section 8(a)(5) of the National Labor

Relations Act (“the Act”), which makes it an unfair labor practice for an employer

to refuse to bargain collectively with the representatives of its employees. See 29

U.S.C. § 158(a)(5). The Respondent contends here, as it did before the Board, that

IBEW and AECA are estopped from arguing that its withdrawal was untimely.

                                I. BACKGROUND

      IBEW is an electrical industry labor union. AECA is an Atlanta-based trade

association which, inter alia, represents electrical construction employers in

collective bargaining in the state of Georgia. The Respondent is a small family

business engaged as an electrical contractor in the building and construction

industry. It is owned and operated by Danny and Ruby Bollen, and, at all times

relevant, it employed four electricians who worked in and around Rome, Georgia.

It appears that Rome is much smaller and in a different economic market than

Atlanta.

                                          2
      In or about December 1989, while working on a union site, Ruby Bollen

signed a “Letter of Assent-A,” which authorized AECA to be the Respondent’s

collective bargaining representative “for all matters contained in or pertaining to

the current and any subsequently approved labor agreement between [AECA] and

[IBEW].” The Respondent was not then --- nor did it later become --- an actual

member of AECA. The letter of assent contained an automatic-renewal provision

(a so-called “evergreen clause”), which provided:

      This authorization . . . shall remain in effect until terminated by the
      undersigned employer giving written notice to [AECA] and to
      [IBEW] at least one hundred fifty (150) days prior to the then current
      anniversary date of the applicable approved labor agreement.

(Emphasis added). As the above emphasized language indicates, if the Respondent

desired to withdraw AECA’s collective bargaining authority, it was required under

the letter of assent to give 150 days written notice to both AECA and the union.

      After signing the letter of assent, the Respondent was covered by a series of

collective bargaining agreements that AECA negotiated with IBEW on its behalf.

The pertinent agreements are: (i) a 3-year contract, effective from September 1,

2000, through August 31, 2003, and (ii) a 1-year extension of that contract,

effective from September 1, 2003, through August 31, 2004 (“the CBA”). At the

heart of this dispute is an alleged conflict created by the evergreen clause in the



                                          3
letter of assent and a separate evergreen clause in the CBA. Specifically, Section

1.02(a) of the CBA provided:

       Either party or an Employer withdrawing representation from the
       Chapter or not represented by the Chapter, desiring to change or
       terminate this Agreement must provide written notification at least 90
       days prior to the expiration date of the Agreement or any anniversary
       date occurring thereafter.1

       On September 28, 2003, the Respondent wrote to IBEW that it was going to

terminate its affiliation with the union “as a Signatory Contractor” on November 1,

2003. This letter was sent only to IBEA; not to AECA. On October 21, 2003,

IBEW’s business manager, Lonnie Plott, responded that “[u]nder the terms of the

[CBA], the September 28, 2003 notice was not timely. Pursuant to Section 102(a),

your firm should have given at least 90 days notice prior to the expiration date of

the agreement for termination.” The Respondent wrote back to IBEW, rescinded

its notice, and stated its intent to remain with the union as a signatory contractor.2


       1
         The Board explained in its order that the notice language in Section 1.02(a) of the CBA
was different from the notice language in prior labor contracts. The Board further explained that
while it was well-settled law that withdrawal of bargaining authority under a letter of assent was
“an action distinct from” terminating those prior contracts, it was an issue of first impression
whether the recent version of Section 1.02(a) superceded or merged with the letter of assent,
which would mean that the two actions were not distinct. In other words, the Respondent was “an
Employer withdrawing representation from [AECA] or not represented by [AECA], desiring to
change or terminate this agreement,” and only required to give at least 90 days notice under the
CBA. As will be shown, this argument has not been properly raised on appeal and, even if it had
been properly raised, it would still fail.
       2
           The record reflects that only AECA and IBEW were signatory parties to the CBA.

                                                4
      On May 27, 2004 --- which was 97 days before expiration of the one-year

extension of the CBA --- the Respondent wrote to both IBEW and AECA and

stated its intent to terminate its affiliation with the union and withdraw from

AECA on August 31, 2004. The Respondent asserts that this action was taken due

to economic necessity, and each of its four electrician employees signed a petition

asking to be relieved of any union obligations. By letter of June 1, 2004, however,

AECA informed the Respondent that “Atlanta Electrical Contractors Association

is a voluntary association of which you are not a member” and, therefore, the

Respondent’s relationship with AECA was “governed by the Letter of Assent

signed by your Company.” According to AECA, the withdrawal notice was

untimely under the letter of assent because written notice was required “at least

one hundred fifty (150) days prior to the then current anniversary of the applicable

approved labor agreement.” AECA explained that the 90-day notice provision in

the CBA applied to the termination of that particular labor agreement.

      The Respondent honored the CBA until August 31, 2004, at which point it

withdrew from AECA; attempted to bargain with IBEW on an individual basis;

and unilaterally altered its employees’ terms and conditions of employment,

including changes to pay rates and contributions to IBEW’s fringe benefit funds.

On September 1, 2004, AECA and IBEW signed a 3-year extension of the CBA.

                                          5
      IBEW filed charges with the Board, seeking to keep the Respondent bound

by the CBA and subsequent extension and to have it pay benefit contributions in

accordance therewith. The Respondent protested the charges, arguing merger and

estoppel. It also argued that its first notice of withdrawal from the union (which

was sent to IBEW in September 2003 and subsequently rescinded) gave IBEW and

AECA adequate and timely notice of its intent to withdraw. A three-member panel

of the Board ruled in favor of the union and AECA.

      Specifically, with respect to the Respondent’s estoppel argument, the Board

explained that there were two separate and distinct matters to be “borne in mind,”

to wit: “the contract between the Respondent and the Union, and the agency

relationship between the Respondent and the AECA. The former had a 90-day

cancellation provision, and the latter had a 150-day cancellation provision.” The

Board noted that the Respondent’s letter of September 2003, “reasonably read,

referred only to the contract. It spoke of a termination of its affiliation with the

Union as a signatory contractor. Further, the letter was sent only to the Union, not

to the AECA.” These facts, according to the Board, reasonably implied that “only

the contract was involved;” and since IBEW’s response dated October 21 likewise

referred only to the CBA, “it was unreasonable and incorrect for the Respondent to

treat the union’s letter of October 21 as an indication that the 90-day period

                                           6
applied to the agency relationship between the Respondent and AECA.” Thus,

             given the imprecision of the Respondent’s own 2003
             notice, it would be highly unfair to read the statements in
             Plott’s letter . . . as referring to the required notice period
             for terminating AECA’s agency. Moreover, as the
             General Counsel points out, Plott’s statements were
             accurate. It would therefore be even less fair to treat the
             Plott letter as an affirmative representation, on which the
             Respondent reasonably could have relied, that the notice
             period for terminating the agency was 90 rather than 150
             days.

The Board now seeks to have its order enforced.

                           II. STANDARD OF REVIEW

      We have jurisdiction under 29 U.S.C. § 160(e) to review and enforce orders

issued by the Board, but our role in this context is a “narrow” and “limited” one.

See, e.g., Georgia Power Co. v. NLRB, 427 F.3d 1354, 1357-58 (11th Cir. 2005);

accord NLRB v. Hayden Elec., Inc., 693 F.2d 1358, 1362 n.4 (11th Cir. 1982)

(recognizing that there is “limited judicial review” of orders issued by the Board

and that courts should be “slow to overturn” them). “Traditionally, we accord

considerable deference to the Board’s expertise in applying [the Act] to the labor

controversies that come before it.” Visiting Nurse Health System, Inc. v. NLRB,

108 F.3d 1358, 1360 (11th Cir. 1997). We will sustain the Board’s decision if it is

“rational, consistent with [the Act], and supported by substantial evidence.”



                                            7
Georgia Power, supra, 427 F.3d at 1357-58; see also Int’l Bhd. of Boilermakers v.

NLRB, 127 F.3d 1300, 1306 (11th Cir. 1997).

                                 III. DISCUSSION

      At the outset, we recognize that the “Letter of Assent-A” and the CBA are

two very distinct documents that address different subject matters and serve

different purposes. The letter of assent “is the standard form used by [IBEW] for

the delegation of bargaining rights by employers.” Local 257, IBEW v. Grimm,

786 F.2d 342, 344 (8th Cir. 1986). Several courts, including this one, have noted

that under the terms of the same or substantially similar letters of assent, an

employer seeking to reclaim its bargaining authority must give written notice to

the union and to the bargaining unit to whom the authority was given at least 150

days before the then current anniversary date of the labor agreement. Id. at 346;

see also Hayden, supra, 693 F.2d at 1363 & n.6. In the absence of timely and

proper notice, the delegation of bargaining authority will continue. See NLRB v.

Black, 709 F.2d 939, 941 (5th Cir. 1983) (the failure to timely withdraw authority

under the Letter of Assent-A bound employer to subsequent agreement); Grimm,

supra, 786 F.2d at 345 (“employer’s assignment of bargaining authority under the

Letter of Assent-A is an ongoing delegation, ending only on formal termination”).

This result only makes sense. Because multi-employer bargaining units like AECA

                                          8
“are creatures of mutual consent,” the ability to withdraw from such a unit is

necessarily “limited by the agreement of the parties.” See Sheet Metal Workers

Int’l Assoc., Local 104 v. Simpson Sheet Metal, Inc., 954 F.2d 554, 555 (9th Cir.

1992). Thus, to be effective, “withdrawal must be carried out as specified in the

agreement” of the parties. See id. (emphasis added) (citing cases); see also, e.g.,

Grimm, supra, 786 F.2d at 345-46 (termination of letter of assent requires strict

compliance with the terms set out in that document); NLRB v. Hartman, 774 F.2d

1376, 1384 (9th Cir. 1985) (withdrawal from bargaining unit was timely where the

withdrawal notice was sent to association “within the time period set forth in the

contract”); Black, supra, 709 F.2d at 941 (order of the Board enforced where “the

Company failed to provide the requisite notice to withdraw its designation of

NECA as its bargaining representative” 150 days before the agreement expired);

Hayden, supra, 693 F.2d at 1363-65 (employer may withdraw bargaining authority

“for any reason prior to the date set for renegotiation of an existing contract [if]

adequate written notice” is given under the contract; it must “timely withdraw . . .

in accordance with the terms of the letters of assent”); Nelson Elec. v. NLRB, 638

F.2d 965, 967-68 (6th Cir. 1981) (employer may withdraw from bargaining unit

“only at an appropriate time” as set forth in letter of assent, that is, “150 days prior

to the current anniversary date of the agreement”). Cf. Haas Elec., Inc. v. NLRB,

                                           9
299 F.3d 23, 27 (1st Cir. 2002) (“[A] stated intent to withdraw from multiemployer

bargaining is effective only if it is both timely and unequivocal.”).

      The CBA, by contrast, establishes the terms and conditions of employment,

such as union wages, fringe benefits, and hours. The 90-day notice period

contained in Section 1.02(a) of the CBA governs the act of changing or

terminating the CBA itself --- not the separate and distinct act of withdrawing

AECA’s bargaining authority. As the Board noted in its order, Section 1.02(a)

does not refer to, or make any mention of, how an employer may withdraw

representation from AECA, and it presumably would have done so if the CBA

were intended to govern that issue. Indeed, it is notable that Section 1.02(a) is

satisfied by 90 days notice to the union alone. If it were intended to apply to the

withdrawal of AECA’s agency authority, one would reasonably expect that it

would have required notice to AECA as well. The 90-day notice provision in the

CBA was obviously not intended to apply to the withdrawal of bargaining

authority from AECA.

      Therefore, in order to withdraw from AECA, the Respondent was required

to give 150 days notice under the letter of assent, even though there was a separate

90 day notice provision in the CBA. See, e.g., Sheet Metal Worker, Int’l Ass’n ,

Local Union No. 24 v. Architectural Metal Works, Inc., 259 F.3d 418, 427 n.9 (6th

                                          10
Cir. 2001) (employer’s attempt to withdraw from CBA was ineffective because it

“did not give proper notice to the Union and the Association at least 150 days” in

advance as required by the letter of assent, notwithstanding that there was a

separate 90 day notice provision in the CBA); IBEW, Local 26 v. AdVin Electric,

Inc., 98 F.3d 161, 162-64 (4th Cir. 1996) (applying letter of assent’s 150-day

period to determine the timeliness of employer’s withdrawal, while noting the

separate 90-day period for contract termination in the CBA).

       The Respondent does not appear to dispute that its actions --- withdrawing

from AECA, attempting to directly bargain with the union individually, and

changing the terms and conditions of its workers’ employment --- were improper

if its withdrawal was untimely. Nor does it dispute that it gave only 97 days notice

to AECA and the union. The Respondent contends, however, that IBEW and

AECA should be estopped from contending that its notice was untimely because

IBEW gave “written representation and directive” that in order to terminate the

CBA it need only give 90 days notice in accordance with Section 1.02(a). Because

estoppel is the only defense properly raised by the Respondent, resolution of this

case depends on whether estoppel is available on the facts presented.3


       3
         The Respondent only raises the estoppel argument in its brief, but, during the course of
presenting that argument, it states in passing that it also “renews the defenses it raised in the
Board case.” See Resp. Brief at 9 (emphasis added). To the extent that this single statement is

                                                11
       “Estoppel is an equitable doctrine invoked to avoid injustice in particular

cases.” Heckler v. Community Health Services of Crawford County, 467 U.S. 51,

59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984). To be invoked, it must be shown that

the person against whom it is asserted made a “definite misrepresentation of fact,”

that was detrimentally relied upon and caused another to change position, and such

reliance “must have been reasonable in that the party claiming the estoppel did not

know nor should it have known that its adversary’s conduct was misleading.”

Heckler, supra, 467 U.S. at 59. The doctrine is based on the maxim that “no man

may take advantage of his own wrong.” Glus v. Brooklyn Eastern Dist. Terminal,

359 U.S. 231, 232, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959). This presupposes,

therefore, that the party to be estopped acted intentionally or, at the very least,

with knowledge that his actions were wrong. Cf. National Cos. Health Benefit

Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558, 1572 (11th Cir. 1991)

(explaining that the elements of estoppel include that the party to be estopped

“misrepresented material facts” even though he was “aware of the true facts”),



intended to put the merger and “timely notice” issues before the court, it is plainly insufficient.
See, e.g., Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised
in the briefs are considered abandoned.”); see also Access Now, Inc. v. Southwest Airlines, Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (issues on appeal “should be specifically and clearly
identified in the brief;” they must be “plainly and prominently” indicated; and if an argument is
not “fully briefed,” then “evaluating its merits would be improper”) (citation and some quotation
marks omitted). In any event, those arguments are without merit, as fully discussed above.

                                                12
abrogated on other grounds by, Geissal v. Moore Medical Corp., 524 U.S. 74, 118

S. Ct. 1869, 141 L. Ed. 2d 64 (1998).

      Preliminarily, the letter upon which the Respondent bases its estoppel claim

came from IBEW, not AECA. The Respondent has not explained why AECA is

responsible for IBEW’s letter, nor has it identified any alleged misrepresentation

by AECA. Regardless, estoppel is unavailable here because what IBEW advised

the Respondent in October 2003 was not a “definite misrepresentation of fact,” but

rather it was a true statement and was appropriate under the circumstances. The

Respondent indicated in its September 2003 letter that it wanted to withdraw “as a

Signatory Contractor,” and the letter was sent to the union directly. There was no

mention of AECA or of its existing agency relationship. Reasonably interpreted,

therefore, the Respondent was attempting to withdraw only from the CBA. Under

the terms of that agreement, the Respondent was required to give the union at least

90 days notice, which it plainly did not do in its letter of September 28, 2003. The

Board explained that because the statement from IBEW was true and accurate

based on the wording of the specific agreement issue, it would be unfair “to treat

the [IBEW] letter as an affirmative representation, on which the Respondent

reasonably could have relied, that the notice period for terminating the agency was

90 rather than 150 days.” The Board thus concluded that estoppel could not lie,

                                         13
and this conclusion is reasonable and supported by substantial evidence.

      Moreover, assuming arguendo that there was a definite misrepresentation of

fact, there is no evidence (nor does the Respondent even suggest) that IBEW acted

intentionally or with knowledge that what it told the Respondent was wrong or

misleading. Again, the Respondent sent its original notice only to the union, and it

spoke of withdrawing as a “signatory contractor.” It did not mention or reference

AECA or its bargaining authority. IBEW responded and cited the 90-day provision

in the CBA. The ambiguity in both letters is perhaps unfortunate, but, as indicated

by the Board, it would be unfair to allow the Respondent to capitalize on its own

imprecision. And in any event, estoppel is available only where the party seeking

relief did not know, nor could have reasonably known, of the “true facts.” Here,

the Respondent could have learned of the 150-day notice requirement merely by

reviewing the letter of assent that it signed and, presumably, still had in its

possession. Therefore, the Board did not err in rejecting the Respondent’s estoppel

defense.

                                 IV. CONCLUSION

      For the foregoing reasons, the order is

ENFORCED




                                          14
