          United States Court of Appeals
                        For the First Circuit


No. 11-1818

                 NATIONAL LABOR RELATIONS BOARD,

                     Petitioner, Cross-Respondent,

                                  v.

       INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 251,

                     Respondent, Cross-Petitioner.


  ON APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR REVIEW
     OF A FINAL ORDER OF THE NATIONAL LABOR RELATIONS BOARD


                                Before

                          Lynch, Chief Judge,
                      Souter,* Associate Justice,
                       and Lipez, Circuit Judge.


     David A. Seid, with whom Ruth E. Burdick was on brief, for
petitioner.
     Marc B. Gursky, with whom Elizabeth Wiens and Gursky Law
Associates were on brief, for respondent.
     Thomas J. McAndrew, with whom Thomas J. McAndrew & Associates
were on brief, for intervenor J.H. Lynch & Sons, Inc.



                            August 14, 2012


__________________

*    The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             LIPEZ, Circuit Judge.            This case is before us upon an

application for enforcement, and a cross-petition for review, of an

order   of   the    National      Labor    Relations    Board    ("NLRB"     or    the

"Board").     Although the dispute between the parties has involved

many issues, there is one central issue in this appeal -- whether

a May 28, 1999 letter of agreement (the "May 1999 agreement")

between the International Brotherhood of Teamsters, Local 251

("Local 251" or the "union") and J.H. Lynch & Co. ("Lynch")

violated section 8(e) of the National Labor Relations Act (the

"Act"), 29 U.S.C. § 158(e), by impermissibly preventing Lynch from

doing   business         with    two    third-party     subcontractors.            The

Administrative Law Judge ("ALJ") who originally heard the case

found that the agreement did not violate section 8(e) with respect

to one subcontractor, but did with respect to the other.                          Upon

review, the NLRB, emphasizing the plain terms of the May 1999

agreement,      found     that    the     agreement's    application       to     both

subcontractors violated section 8(e) of the Act and entered a

remedial order.

             The Board now applies for enforcement of its order.                    In

turn,   Local      251   petitions      for   limited   review    of   the      NLRB's

decision, arguing that the NLRB erred in reversing the ALJ and

that, because more than 10 years passed between the events in

question and the NLRB's decision, it would be inappropriate to

enforce the decision.


                                          -2-
              We conclude that the NLRB erred in finding that the May

1999 agreement violated section 8(e) of the Act with respect to one

of the subcontractors.       In light of contradictory evidence in the

record that the Board failed to consider, the plain text of the May

1999 agreement is not substantial evidence supporting the Board's

conclusion that the agreement had an impermissible intent. Rather,

as the ALJ found, the evidence in the record indicates that the

agreement was intended to preserve union jobs at Lynch, a lawful

purpose under the Act.       Therefore, we reverse the Board's finding

with respect to this aspect of the May 1999 agreement.                However,

the union does not challenge the Board's finding as it relates to

the   other    subcontractor,    and     thus   the   Board   is   entitled   to

enforcement of that aspect of its order. Accordingly, we grant the

Board's application for enforcement only as to the agreement's

prohibition on Lynch's use of that second subcontractor.

                                        I.

A.    The Dispute

              Lynch is a highway construction general contractor with

facilities in Rhode Island, and a signatory of the Construction

Industries      of   Rhode   Island's     ("CIRI")    collective    bargaining

agreement with Local 251.         CIRI is an association representing

construction industry employers in Rhode Island. As of 2000, there

were approximately 100 Rhode Island employers who had joined the

CIRI collective bargaining agreement with Local 251 and were thus


                                        -3-
bound by its terms.       Local 251 is the Teamsters local union with

jurisdiction over Rhode Island and portions of Massachusetts.

Local 251 is the longtime representative of truck drivers employed

by Lynch, although the number of members in Local 251's bargaining

unit at Lynch has been steadily declining. Lynch employed 26 Local

251 members in 1995, 16 in 1997, and only 10 in 2001.          According to

Local 251's vice president and business agent, Joseph Boyajian,

this decline is part of a concerted effort on the part of Lynch to

replace   its   unionized    drivers   with   non-union   subcontractors.

Before the ALJ, he testified that, each time a truck driver

retired, Lynch would sell a truck and replace that person with a

subcontractor, gradually reducing the number of bargaining unit

employees.

           Lynch acknowledged that hiring subcontractor drivers was

a common practice, noting that during particularly busy times it

would hire as many as 30 to 40 additional trucks each day.           These

additional      drivers     were   employed     by   several     different

subcontractors, many of which were non-union employers.           Boyajian

was especially troubled by Lynch's use of two subcontractors,

Northeast Transportation, Inc. ("Northeast") and Cullion Excavating

Corp. ("Cullion"), because these two subcontractors did not pay the

prevailing rate to their drivers.1            The collective bargaining


     1
       The prevailing rate is the rate of compensation, including
wages and benefits, established by the terms of the collective
bargaining agreement. An agreement requiring the employer to pay

                                    -4-
agreement   ("CBA")   between   Local   251   and   CIRI   provides   that

employers are not permitted to use subcontractors unless employees

of the subcontractors are paid the prevailing rate.             Over the

course of several years, Boyajian complained to Lynch about its use

of subcontractors, especially Northeast, that did not pay the

prevailing rate.   Finally, in May 1999, Local 251 filed grievances

with the NLRB complaining that the use of subcontractors who failed

to pay the prevailing rate was a violation of the union's CBA with

CIRI.2

            After these grievances were filed, Boyajian met with

David Lynch, the president of Lynch, and Billy Cabral, Lynch's

controller, to discuss the issue.       At the meeting, Lynch promised

not to use Northeast or Cullion, and he subsequently sent a May 28,

1999 letter to Boyajian memorializing the agreement between the

parties.    In relevant part, this letter states:

            The    trucking     services of Northeast
            Transportation Corp. and Cullion Excavating
            Corp. will not be utilized.       Should a
            particular project come along that requires


any subcontractors the prevailing rate (also known as a "union
standards" clause) removes the economic incentive for an employer
to subcontract work done by union members.
     2
       The version of the CBA included in the record is that which
was in effect from May 1, 2000, to April 30, 2003. This version
contains a provision requiring that any subcontracting done by CIRI
signatories comply with the terms of the CBA, including the wages,
hours and working conditions established by the CBA. Although the
parties did not provide the CBA that was in effect in May 1999,
Local 251 asserts that it had a similar provision, and Lynch does
not dispute this fact.

                                  -5-
            excessive trucking and we are not able to
            supplement our fleet adequately, we will
            notify you of the situation to allow us to
            amicably resolve the problem.  The Employer
            acknowledges the Union's right to strike to
            enforce this Agreement.

This agreement is the primary subject of the dispute between the

parties at this stage.

            In April 2001, Boyajian learned that Lynch was again

using    Northeast   for    trucking    services,      even   though   Northeast

drivers still were not being paid the prevailing rate. After Lynch

indicated that it intended to continue to use Northeast, Local 251

members went on strike on April 16, 2001, at Lynch locations in

Cumberland    and    East   Providence.         Lynch    sought    a   temporary

restraining    order   enjoining       the   strike,    which   was    eventually

resolved by the union's agreement to end the strike on April 23,

2001.    In a separate lawsuit, Lynch sought money damages against

Local 251 for what it alleged to be an illegal strike.3

B.   The ALJ's Decision

            Immediately following the strike, Lynch filed several

charges against Local 251 with the NLRB alleging violations of

section 8(b)(4)(ii)(A) & (B) and 8(e) of the Act.4                These charges


     3
      The suit seeking damages, J.H. Lynch & Sons v. Int'l Bhd. of
Teamsters, Local 251, No. 01-193 (D.R.I. filed Apr. 20, 2001), is
currently in abeyance awaiting resolution of this appeal.
     4
       Generally, section 8(e) makes it unlawful for any labor
organization and employer "to enter into any contract or agreement,
express or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from . . . doing business with any other

                                       -6-
were consolidated with those filed by another employer and the case

referred to an administrative law judge.           With regard to the

charges brought by Lynch, the major issue was whether the parties'

May   1999    agreement   violated    section   8(e)    of   the   Act   by

impermissibly preventing Lynch from doing business with a third

party.   As described in greater detail below, such an agreement is

valid if its objective is the preservation of work for bargaining

unit employees -- such an agreement involves primary activity.           In

contrast, if the purpose of the agreement is to further union

objectives with respect to a third party (e.g., pressuring the

third party to accept unionization of its employees), it involves

secondary activity and violates section 8(e).          Thus, the focus of

the ALJ was an inquiry into Local 251's motives in entering into

the May 1999 agreement.

             After eight days of hearings, held between August and

December of 2001, the ALJ issued his decision on April 25, 2002.

He found that the May 1999 agreement, memorialized by Lynch's May

28, 1999 letter, violated section 8(e) of the Act with regard to

Cullion, but not Northeast.      The written decision explains that

"the May 1999 agreement is secondary activity with regards to

Cullion because the Union has not established that Cullion was


person." 29 U.S.C. § 158(e). Relatedly, section 8(b)(4)(ii)(A) &
(B) make it an unfair labor practice for a union to seek to coerce
an employer into an agreement that would violate section 8(e) or
coerce a third-party employer into recognizing the union.      Id.
§ 158(b)(4)(ii)(A) & (B)

                                     -7-
performing work traditionally performed by Lynch's bargaining unit

employees."    In contrast, the ALJ found that the Northeast drivers

hired by Lynch were doing bargaining unit work.         Therefore,

           the . . . agreement and the Union's efforts to
           enforce it with regard to Northeast in April
           2001,    were   valid    efforts   at    'work
           preservation' . . . .      [Accordingly, the]
           dispute with Lynch over the use of Northeast
           trucks [is] a primary dispute and therefore I
           find that the parties' May 1999 agreement with
           regard to Northeast did not violate Section
           8(e).   Similarly, I find that the Union's
           efforts to enforce this agreement in April
           2001 did not violate Section 8(b)(4).

C.   The NLRB's Decision

           The NLRB reversed the ALJ's decision with respect to

Northeast.     While it applied the same legal standard, and stated

that it did not intend to disturb the ALJ's findings of fact, the

NLRB found that "the May 1999 agreement [between Local 251 and

Lynch] violated Section 8(e) on its face without regard to whether

the work covered by the agreement was work traditionally performed

by employees in the unit."

           In reaching this conclusion, the NLRB focused on the fact

that the May 1999 agreement singled out two companies, Northeast

and Cullion.     It acknowledged that "an agreement that permits an

employer to subcontract bargaining unit work only to subcontractors

that   honor   the   economic   terms    of   the   collective-bargaining

agreement serves a lawful primary purpose -- eliminating any

economic incentive to take work away from employees in the unit."


                                   -8-
However, it found that the May 1999 agreement was more akin to a

union     signatory   clause,     which     forbids      an    employer     from

subcontracting work to any person not party to an agreement with

the union.       Focusing on the text of the agreement, the NLRB

concluded that it was intended to achieve union objectives with

respect    to   Northeast   and   Cullion    and   was   not   aimed   at   work

preservation at Lynch.       Accordingly, it found that the agreement

violated section 8(e) of the Act.          Because the NLRB found that the

May 1999 agreement was unlawful, it also found that Local 251

violated section 8(b)(4)(ii)(A) & (B) of the Act by attempting to

enforce the agreement through its April 2001 strike.

            To remedy these violations, the Board's order requires

Local 251 to cease and desist from seeking to enforce the May 1999

agreement and from attempting to obtain any similar agreement with

other employers.      Additionally, the order requires Local 251 to

post a remedial notice at its office, and to distribute the notice

to members, as well as send the notice to the NLRB regional

director who will seek to post the notice at each of the affected

companies.

            With this background in mind, we turn to the legal

standards governing our review of the Board's decision and order.




                                     -9-
                                      II.

A.    The Substantial Evidence Standard

            We are typically deferential in reviewing decisions of

the NLRB.      "As the Board is primarily responsible for developing

and applying a coherent national labor policy, we accord its

decisions considerable deference."           Yesterday's Children, Inc. v.

NLRB, 115 F.3d 36, 44 (1st Cir. 1997) (quoting NLRB v. Bos. Dist.

Council of Carpenters, 80 F.3d 662, 665 (1st Cir. 1996)) (internal

quotation marks omitted).        This deference means that "[w]e may not

substitute our judgment for the Board's when the choice is 'between

two   fairly     conflicting     views,     even   though   the   court   would

justifiably have made a different choice had the matter been before

it de novo.'"      Id. (quoting Universal Camera Corp. v. NLRB, 340

U.S. 474, 488 (1951)).         Thus, although "[w]e review the Board's

conclusion[s] of law de novo," we "take the Board's findings of

fact to be 'conclusive if supported by substantial evidence on the

record considered as a whole.'"           Posadas de P.R. Assoc., Inc. v.

NLRB, 243 F.3d 87, 90 (1st Cir. 2001) (quoting NLRB v. Beverly

Enters.-Mass., Inc., 174 F.3d 13, 21 (1st Cir. 1999)) (citation

omitted); see also 29 U.S.C. § 160(e) ("The findings of the Board

with respect to questions of fact if supported by substantial

evidence    on    the   record     considered      as   a   whole   shall    be

conclusive.").




                                     -10-
          "Substantial evidence is 'such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.'"

Posadas de P.R., 243 F.3d at 90 (quoting Beverly Enters., 174 F.3d

at 21).   In considering whether a conclusion is supported by

substantial evidence, "[w]e must take contradictory evidence in the

record into account."         Howard Johnson Co. v. NLRB, 702 F.2d 1, 2

(1st Cir. 1983) (quoting Universal Camera, 340 U.S. at 487-88).

Thus, the Board "is not free to prescribe what inferences from the

evidence it will accept and reject, but must draw all those

inferences that the evidence fairly demands." Allentown Mack Sales

and Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998).

          In a case such as this, where the Board and its appointed

examiner, or ALJ, reach different conclusions, the Supreme Court

has instructed that "[t]he 'substantial evidence' standard is not

modified in any way."         Universal Camera, 340 U.S. at 496.          The

examiner's findings and written decision are simply part of the

record that the reviewing court must consider in determining

whether the Board's decision is supported by substantial evidence.

Id. at 493.      However, when the ALJ and Board reach different

conclusions     there   is,     necessarily,    evidence    in   the   record

contradicting    the    Board's   conclusion.     This     circumstance   has

implications for our review of the Board's decision.             In Universal

Camera, the Supreme Court explained that "evidence supporting a

conclusion may be less substantial when an impartial, experienced


                                     -11-
examiner who has observed the witnesses and lived with the case has

drawn conclusions different from the Board's than when he has

reached the same conclusion."    Id. at 496.    Putting the Supreme

Court's observation into practice, we have stated that "where the

board has reached a conclusion opposite of that of the ALJ, our

review is slightly less deferential than it would be otherwise."

Haas Elec., Inc. v. NLRB, 299 F.3d 23, 28-29 (1st Cir. 2002)

(quoting C.E.K. Indus. Mech. Contractors, Inc. v. NLRB, 921 F.2d

350, 355 (1st Cir. 1990)) (internal quotation marks omitted).

B.   Section 8(e) of the Act

           As noted, section 8(e) of the Act makes it unlawful for

any labor organization and employer "to enter into any contract or

agreement, express or implied, whereby such employer ceases or

refrains or agrees to cease or refrain from . . . doing business

with any other person."   29 U.S.C. § 158(e).   However, the Supreme

Court has held that this provision of the Act is intended to reach

only agreements with secondary objectives, not those with primary

purposes protected by the Act. NLRB v. Int'l Longshoremen's Ass'n,

447 U.S. 490, 504 (1980).   As we have previously explained,

           [t]he basic test for distinguishing between
           primary and secondary activity is whether the
           union's conduct was "addressed to the labor
           relations of the [employer against whom the
           pressure is exerted] vis-a-vis his own
           employees," and therefore primary, or whether
           the union's conduct against a neutral employer
           was "tactically calculated to satisfy union
           objectives    elsewhere,"     and    therefore
           secondary.

                                -12-
John B. Cruz Constr. Co., Inc. v. United Bhd. of Carpenters and

Joiners of Am., Local 33, 907 F.2d 1228, 1230 (1st Cir. 1990)

(second alteration in original) (quoting Nat'l Woodwork Mfrs. Ass'n

v. NLRB, 386 U.S. 612, 645 (1967)) (citations omitted).

          The Supreme Court has observed that "[a]mong the primary

purposes protected by the Act is 'the purpose of preserving for

contracting employees themselves work traditionally done by them.'"

Longshoremen, 447 U.S. at 504 (quoting NLRB v. Pipefitters, 429

U.S. 507, 517 (1977)).      It has established a two-part test for

identifying an agreement intended to serve this purpose, stating

"[f]irst, it must have as its objective the preservation of work

traditionally performed by employees represented by the union[,

and,] [s]econd, the contracting employer must have the power to

give the employees the work in question."        Id.

          With regard to the first element of this test, it is the

intended purpose of an agreement, not its effect, that determines

whether the    agreement   has a   permissible primary     object.     In

Longshoremen, the Court explained that "[t]he effect of work

preservation   agreements    on    the    employment   opportunities   of

employees not represented by the union, no matter how severe, is of

course irrelevant to the validity of the agreement so long as the

union had no forbidden secondary purpose to affect the employment

relations of the neutral employer." 477 U.S. at 507 n.22 (emphasis

added); see also In re Bituminous Coal Wage Agreements, 756 F.2d


                                   -13-
284, 289 (3d Cir. 1985) ("So long as the union has no forbidden

secondary purpose to affect the employment relations of an outside

employer, the agreement is valid even though it adversely affects

the   employment    opportunities       of   non-represented   workers.").

However, if an agreement is motivated by any secondary purpose,

even if it be merely one purpose of many, it is in violation of

section 8(e).     See Local Union No. 25, Int'l Bhd. of Teamsters v.

NLRB, 831 F.2d 1149, 1153 (1st Cir. 1987) ("It is not necessary

that the only object of the guild's actions be a secondary one; so

long as an object is to pressure a neutral employer, the violation

is complete.").    As to the second element of the test, the Supreme

Court explained that "if the contracting employer has no power to

assign the work, it is reasonable to infer that the agreement has

a secondary objective, that is, to influence whoever does have such

power over the work."       Longshoremen, 447 U.S. at 504-05.

          As a result of this framework, there is an important

distinction   between   a    "union    standards"   clause   and   a   "union

signatory" clause:

          Union standards clauses prohibiting employers
          from contracting work normally performed by
          its union employees to others who are paid
          less than union wages are widely held to be
          permissible under the NLRA. Union signatory
          clauses on the other hand, prohibiting
          employers from contracting work to others not
          signatory   to   the  collective   bargaining
          agreement or otherwise approved by the Union,
          have been held to be illegal secondary
          pressure that violates the NLRA.


                                      -14-
Va. Sprinkler Co., Inc. v. Road Sprinkler Fitters Local Union No.

669, 868 F.2d 116, 121 (4th Cir. 1989) (citation omitted); see also

NLRB v. Hotel and Rest. Emps. and Bartenders' Union, Local 531, 623

F.2d 61, 67 (9th Cir. 1980) (collecting cases).                 Union standards

clauses remove the incentive for an employer to give bargaining

unit work to subcontractors.              Because the pressure generated by

such an     agreement      is   focused    upon   the primary    employer, and

benefits the employees of that employer, such a clause is lawful.

See Hotel and Rest. Emps., 623 F.2d at 67.              In contrast, "clauses

requiring [union] affiliation or approval are directed at more than

work preservation -- they are generally viewed as an effort to

expand the union's sphere of influence by impermissible secondary

pressure."      Gen.    Truck     Drivers,    Chauffeurs,   Warehousemen      and

Helpers of Am., Local 957 v. NLRB, 934 F.2d 732, 736-37 (9th Cir.

1991) (quoting Hotel and Rest. Emps., 623 F.2d at 67).

            Finally, the Court has emphasized that the question of

whether an agreement is a valid attempt to preserve bargaining unit

work requires     consideration       of    all   surrounding    circumstances.

Longshoremen, 447 U.S. at 504.            Because of the holistic nature of

the inquiry, the NLRB and reviewing courts must often look beyond

the face of the agreement itself.            The Third Circuit has explained

that "it is often difficult, if not impossible, to determine from

the wording     of   the    clause   the     union's   'tactical   object,'   or

'design.'    More than the document itself is generally needed for


                                      -15-
that analysis."      Bituminous Coal, 756 F.2d at 290 (citations

omitted).    Thus, no rigid, per se rule may be applied, and "the

fact that work preservation aims are not apparent from a reading of

the provisions does not establish that they are or are not present.

The inability to discern this purpose from the clause itself does

not make it violative of § 8(e)."           Id. at 290 n.4.       Rather,

circumstances surrounding the agreement must be considered, and

"[a]s a general proposition, [those] circumstances might include

the remoteness of the threat of displacement by the banned product

or services, the history of labor relations between the union and

the employers who would be boycotted, and the economic personality

of the industry."    Nat'l Woodwork, 386 U.S. at 644 n.38.

                                   III.

A.   The May 1999 Agreement

            In   reversing   the   ALJ's   decision   on   the   May   1999

agreement, the NLRB focused exclusively on the language of the

agreement, and particularly on the fact that Northeast and Cullion

were identified by name in the agreement.5       It explained that "we


     5
       Our analysis focuses on the agreement's prohibition against
subcontracting with Northeast. Without elaboration, the ALJ found
that the May 1999 agreement violated section 8(e) of the Act with
respect to Cullion because the union failed to establish that
Cullion subcontractors were doing bargaining unit work. The union
did not take issue with this conclusion before the NLRB and does
not raise the issue here. Accordingly, we consider only whether
the agreement's prohibition against subcontracting to Northeast
violated the Act. Furthermore, Northeast is the more significant
of the two subcontractors identified in the May 1999 agreement.
Boyajian testified that, after the May 1999 agreement, Lynch ceased

                                   -16-
find that the May 1999 agreement violated section 8(e) on its face

without regard to whether the work covered by the agreement was

work traditionally performed by employees in the bargaining unit."

Thus, the NLRB concluded that the agreement violated section 8(e)

regardless of the circumstances surrounding the negotiation of the

agreement and whether the agreement was actually intended to

preserve union jobs.   However, because significant record evidence

of these surrounding circumstances indicated that the May 1999

agreement did not have an impermissible purpose, the plain text of

the agreement is not substantial evidence supporting the Board's

conclusion.

          As just noted, the Supreme Court has instructed that

"[w]hether an agreement is a lawful work preservation agreement

depends on 'whether, under all the surrounding circumstances, the

Union's objective was preservation of work for bargaining unit

employees, or whether the agreement was tactically calculated to

satisfy union objectives elsewhere.'"    Longshoremen, 447 U.S. at

504 (emphasis added) (quoting Nat'l Woodwork, 386 U.S. at 644-45).

Although the NLRB's decision recites this important principle, it

ignores record evidence shedding light on the intent behind the May



using Cullion, and thus all negotiations between the parties after
that point focused on Northeast.      The April 2001 strike was
triggered by Lynch's continued use of Northeast, and thus the
question of whether the union's conduct in connection with the
strike violated section 8(b)(4) of the Act turns on whether the
prohibition on using Northeast was valid.

                                -17-
1999 agreement and focuses instead on the specific identification

of Northeast and Cullion by name in the agreement, and on the fact

that   the   agreement    did    not   bar    all    subcontracting     or   limit

subcontracting to companies that paid the prevailing rate:

             The May 1999 agreement did not wholly prohibit
             J.H. Lynch from subcontracting work performed
             by its own employees.       Nor did it limit
             subcontracting to companies that paid their
             employees wages and benefits commensurate with
             those required by J.H. Lynch's collective-
             bargaining agreement with the Respondent.
             Rather, it permitted subcontracting generally,
             but prohibited it only to two specific
             companies . . . , both of which were not
             parties to an agreement with [Local 251].
             That the May 1999 agreement does not bar all
             subcontracting or name any other companies -
             despite the fact that [Local 251] was aware
             J.H. Lynch used other subcontractors - belies
             [Local 251's] contention that its primary
             dispute was with J.H. Lynch and not with
             Northeast or Cullion.

             However,    the    circumstances       surrounding   the   May 1999

agreement indicate that it was intended to enforce the union

standards clause in the collective bargaining agreement between the

parties, and thus preserve union jobs.               Most importantly, record

evidence indicated that Northeast and Cullion were identified by

name in the May 1999 agreement because they were the only two

subcontractors that failed to pay the prevailing rate.

             Lynch and the Board make much of the fact that the union

was aware that Lynch used other subcontractors aside from Northeast

and Cullion.      Lynch argues that, given this fact, singling out

those two companies indicates that the May 1999 agreement was

                                       -18-
intended to achieve union objectives with those companies and not

to preserve work at Lynch.              However, the relevant inquiry is not

whether Lynch used other subcontractors, but whether Lynch used

other subcontractors that failed to pay the prevailing rate. There

is record evidence, in the form of testimony at the hearings before

the ALJ, that, as of May 1999, these were the only subcontractors

used by Lynch that failed to pay the prevailing rate.                    Lynch and

the Board have pointed to no evidence to the contrary.                         Thus

understood, identification of these two companies in the May 1999

agreement is consistent with the proposition that the union's

primary dispute was with Lynch, and not with these two companies.

          Additionally,           the     NLRB   failed    to     consider     other

surrounding circumstances showing that the agreement was intended

to preserve Local 251 jobs at Lynch.               In particular, the NLRB's

decision ignores      evidence      regarding     repeated      meetings     between

Boyajian and Lynch officials concerning the use of subcontractors

who did not pay the prevailing rate.              Boyajian testified that he

raised the issue several times between 1997 and 1999, and that the

gist of these conversations was that Lynch's use of Northeast

drivers who    did    not    receive      the prevailing        rate   was   costing

bargaining unit jobs.        In fact, David Lynch testified that during

the 2001 strike intended to enforce the May 1999 agreement, he met

with Boyajian and the parties reached a tentative agreement.

Describing    the    terms   of    the     agreement,     Lynch   testified    that


                                         -19-
Boyajian told him that Lynch could not use Northeast, but "if you

are going to use Northeast, you have to pay health and welfare to

use them and you'll be all set."                Similarly, Boyajian testified

that the understanding between the parties was that Lynch was not

absolutely prohibited from using Northeast, but that, if it chose

to use Northeast, it would pay drivers the prevailing rate.                     This

is powerful evidence that the May 1999 agreement was intended to

preserve Local       251   jobs    at   Lynch,     rather than      achieve union

objectives with respect to Northeast.                 None of this evidence is

discussed in the NLRB's decision.

            The factors identified by the Court in National Woodwork

also    suggest   that     this    agreement       was   intended    to   preserve

bargaining unit work. See 386 U.S. at 644 n.38 (identifying threat

of     displacement,     history    of     labor      relations,    and   economic

personality of the industry as factors to be considered).                    Local

251 members faced a real threat of displacement by Northeast

subcontractors, as illustrated by the diminishing size of the Local

251     bargaining     unit   at    Lynch       and    the   increased    use    of

subcontractors.      The Board never mentions this fact.             Furthermore,

there is nothing in the record suggesting a history of strained

labor relations between Local 251 and Northeast, and no reason to

believe that the union had some reason for specifically targeting

Northeast.     In contrast, there is a long history, extensively

documented in the record, of disputes between the union and Lynch


                                         -20-
concerning   the   use   of   subcontractors   that   did   not    pay   the

prevailing rate.

           As the NLRB acknowledged in its decision, "an agreement

that permits an employer to subcontract bargaining unit work only

to subcontractors that honor the economic terms of the collective-

bargaining agreement serves a lawful primary purpose -- eliminating

any economic incentive to take work away from employees in the

unit."   In this case, the May 1999 agreement between Local 251 and

Lynch is precisely this sort of agreement. It identified Northeast

and Cullion by name because, at that time, those were the only

subcontractors that did not pay the prevailing wage.               Thus the

agreement was tailored to directly address the practice that the

union believed threatened bargaining unit work and violated the

collective bargaining agreement.6

           Therefore,    both    prongs   of   the    Court's     test   for

identifying lawful work preservation agreements are present here --

the objective of the agreement is to preserve bargaining unit work

and the party with whom the agreement is made, Lynch, has the power

to assign employees the work in question.        See Longshoremen, 447


     6
       We note that the May 1999 agreement is memorialized in an
informal letter from David Lynch to Boyajian. Given this fact, it
is all the more likely that this letter reflects the parties'
discussions about the use of these particular subcontractors that
did not pay the prevailing wage, and it is unsurprising that such
a letter is not a precisely worded expression of the complete
understanding between the parties. It is an oddity of this case
that the union is held liable for the specific language in a letter
authored by the employer.

                                  -21-
U.S. at 504.    The NLRB reached a different conclusion only because

it focused on the face of the agreement and ignored evidence of the

surrounding circumstances.          In light of these circumstances, the

plain text of the May 1999 agreement is not substantial evidence

supporting the Board's conclusion. See Howard Johnson, 702 F.2d at

2 (stating that substantial evidence review requires that one "take

contradictory       evidence   in   the   record   into   account"     (quoting

Universal Camera, 340 U.S. at 487-88)).            Accordingly, we reverse

the Board's decision with respect to that portion of the May 1999

agreement concerning Northeast and we reinstate the finding of the

ALJ that the May 1999 agreement did not violate section 8(e) of the

Act with respect to Northeast.

          Finally, both the ALJ and the Board note that, because

the 2001 strike was intended to enforce the May 1999 agreement, the

lawfulness     of   the   strike    depends   on   the    lawfulness    of   the

agreement.     Thus, the ALJ found that the 2001 strike did not

violate section 8(b)(4) of the Act, while the Board found that it

did.   Because we conclude that the Board's decision was not

supported by substantial evidence, and that the May 1999 agreement

did not violate section 8(e) of the Act with respect to Northeast,

we also conclude that the 2001 strike, which concerned only the use

of Northeast subcontractors, did not violate section 8(b)(4) of the

Act.




                                      -22-
B.       Portions of the ALJ's Decision Unaddressed by the Board

                The Board chose not to address certain issues raised by

the parties in its initial review of the ALJ's decision.                            In

particular, it declined to consider issues raised by Local 251's

alleged        threats    to   strike      or   conduct   informational    picketing

targeting other employers.                  The ALJ found that these threats

violated section 8(b)(4)(ii)(B) of the Act, but the NLRB explained

that "[w]e find it unnecessary to pass on the judge's findings that

the [union] also violated Sec. 8(b)(4)(B) by . . . threats [to

other employers] . . . .                Even if those alleged violations were

found, they would be cumulative to the other 8(b)(4)(B) threat

.    .    .    [based    on    the   May   1999    agreement],    which   we    find."

Similarly, the Board also declined to consider an argument that the

strike was unlawful because it sought to enforce another provision

of the CIRI collective bargaining agreement that was itself alleged

to   be       unlawful,   explaining       that    because   it   found   the   strike

unlawful on other grounds it need not reach this issue.

                For whatever reason, the Board has not asked that the

case be remanded for it to consider these previously bypassed

issues if we reject any portion of its application for enforcement.

Accordingly, we decline to do so and deem any such argument waived.

See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) ("[W]e deem

abandoned all arguments that have not been briefed and developed on

appeal.").         We make exceptions to the waiver doctrine only in


                                            -23-
"exceptional" circumstances.            See Banco Bilbao Vizcaya Arg. v.

Wiscovitch-Rentas, 625 F.3d 34, 41 (1st Cir. 2010) (quoting Nat'l

Ass'n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir.

1995)) (internal quotation mark omitted).                No such circumstances

are present here.        It took the NLRB nine years to decide this case

in the first instance, and, when it did so, it declined to consider

all of the issues raised, dismissing many as cumulative. Giving it

another opportunity to consider these previously ignored issues

would cause inequity to the parties awaiting final resolution of

this   dispute,    see    id.,    and   the      Board   has   not   pressed    any

exceptional circumstances that would cause us to deviate from our

usual application of waiver rules.

C.   Enforcement of the Remaining Portion of the Board's Order

           Finally, because Local 251 has not challenged the NLRB's

decision that the May 1999 agreement violated section 8(e) of the

Act with respect to its prohibition against use of Cullion, we

conclude that the Board is entitled to enforcement of that portion

of its order.     Accordingly, we grant the Board's application for

enforcement of its order insofar as the order bars the May 1999

agreement's     prohibition      on   use   of    Cullion   subcontractors      and

requires Local 251 to take remedial action.

           We     find     unpersuasive        the   union's     argument      that

enforcement of the Board's order is inappropriate because of the

passage of time. As the Supreme Court has explained, "[i]nordinate


                                        -24-
delay in any case is regrettable, but Congress has introduced no

time limitation into the Act except that in [section] 10(b)."7

NLRB v. Katz, 369 U.S. 736, 748 n.16 (1962).        That said, if the

passage   of   time   leads   to   changed   circumstances   rendering

enforcement of the Board's order unfair, unnecessary, or otherwise

inappropriate, we will decline to enforce an order of the Board.

See NLRB v. LaVerdiere's Enters., 933 F.2d 1045, 1054-55 (1st Cir.

1991); Emhart Indus. v. NLRB, 907 F.2d 372, 379 (2d Cir. 1990)

("[W]e must withhold enforcement of orders that will not effectuate

any reasonable policy of the act, even where the problems with the

order are caused primarily by the lapse of time.").

          Despite the lengthy delay here, the union has failed to

demonstrate that changed circumstances make enforcement unfair,

unnecessary, or inappropriate.      In order to justify a decision not

to enforce an order, courts have previously identified events such

as decertification of the union, closure of the relevant plant, or

an agreement between the parties resolving the dispute.       See NLRB

v. Mountain Country Food Store, Inc., 931 F.2d 21, 22-23 (8th Cir.

1991); Emhart, 907 F.2d at 379-80.        The union has identified no

such facts in this case.




     7
      In relevant part, section 10(b) of the Act provides that "no
complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person
against whom such charge is made." 29 U.S.C. § 160(b).

                                   -25-
          In our assessment of the Board's decision to bypass a

number of issues raised by the ALJ's decision, we noted that the

passage of time was a relevant factor in our decision not to remand

the case to the Board for resolution of those issues.     There we

were confronted with the likelihood of another lengthy delay.8   In

contrast, here we ask not whether another delay is acceptable, but

rather whether the time already passed renders enforcement of the

Board's order inappropriate.   As noted, the union has failed to

show why that is the case here.

                                  IV.

          For the reasons set forth, we grant Local 251's cross-

petition for review of the Board's order.   Having done so, we deny

the Board's application for enforcement of its order with respect

to the May 1999 agreement's prohibition on use of Northeast.

However, we grant the application for enforcement of the order

insofar as the order bars the May 1999 agreement's prohibition on

use of Cullion subcontractors and requires Local 251 to take

remedial action.   The parties shall bear their own costs.

          So ordered.




     8
       Our conclusion regarding the status of the May 1999
agreement affirms the lawfulness of the union's 2001 strike against
Lynch, and thus allows for resolution of the suit concerning this
strike currently pending before the United States District Court
for the District of Rhode Island.

                               -26-
