253 F.3d 125 (D.C. Cir. 2001)
Honeywell International, Inc., Petitionerv.National Labor Relations Board, RespondentInternational Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Intervenor
No. 00-1171
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2001Decided June 29, 2001

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Philip Allen Lacovara argued the cause for petitioner  Honeywell International, Inc. With him on the briefs was  Charles P. O'Connor.
Harold P. Coxson and Stanley R. Strauss were on the brief  for amicus curiae Council on Labor Law Equality.
David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent.  With him on the brief were John H. Ferguson, Associate General Counsel,  and Aileen A. Armstrong, Deputy Associate General Counsel. David S. Habenstreit, Attorney, entered an appearance.
Thomas W. Meiklejohn was on the brief for intervenor  International Union, United Automobile, Aerospace & Agricultural Implement Workers of America.
Before:  Edwards, Chief Judge, Sentelle and Randolph,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
Honeywell International Inc.  ("Honeywell") petitions for review from a decision of the  National Labor Relations Board ("NLRB" or "Board") holding that the company violated   8(a)(1) and (5) of the  National Labor Relations Act ("NLRA" or "Act") by unilaterally terminating severance benefits allegedly owed to bargaining unit employees.  In 1994, Honeywell purchased Textron's  military and commercial engine manufacturing operations at  the Stratford Army Engine Plant in Stratford, Connecticut. At the time of the sale, Honeywell assumed the collective  bargaining agreements that had been executed by Textron  and the International Union, United Automobile, Aerospace  and Agricultural Implement Workers of America ("UAW" or  "Union"), and its Local 376 and Local 1010.  The collective  bargaining arrangement consisted of a core agreement, a  Competitiveness Agreement ("CA"), covering relocation decisions, and an Effects Bargaining Agreement ("EBA"), covering insurance, pension, severance, and other such benefits to  deal with the economic impact and effects of a potential sale  of Textron assets.  At issue before us is whether the severance benefits under the EBA were subject to the rule enunciated in NLRB v. Katz, 369 U.S. 736 (1962).


2
Pursuant to Katz, it is generally held that, absent impasse  or waiver, "an employer's unilateral change during the course  of a collective bargaining relationship of a matter that is a  mandatory subject of bargaining is a per se violation of the  [NLRA]."  The Developing Labor Law 266-69 (Christopher  T. Hexter et al., eds., 3d ed. 1999 Cumulative Supplement). "The Katz doctrine has been extended as well to cases where,  as here, an existing agreement has expired and negotiations  on a new one have yet to be completed."  Litton Fin.  Printing Div. v. NLRB, 501 U.S. 190, 198 (1991).  Severance  pay is indisputably a mandatory subject of bargaining;  it was  an established term of employment under the parties' EBA; and it is not among the categorical exceptions to the Katz rule  noted in Litton.  It is therefore clear that Honeywell was  barred from unilaterally terminating severance benefits at the  expiration of the EBA, absent an impasse in bargaining with  the Union or a waiver by the Union of the right to claim  severance benefits on behalf of bargaining unit employees. The Board properly found no exception to the Katz rule in  this case.


3
In challenging the Board's decision, Honeywell contends,  first, that the "contract coverage" doctrine should trump the  unilateral change doctrine in this case.  In other words,  Honeywell argues that, by the terms of the parties' agreement, severance benefits expired with the termination of the  EBA.  This argument fails, because severance benefits in the  EBA are not limited to a time certain.  The EBA contains a  contract duration clause at the end of the document.  Under  Katz, however, an expiration date in a standard contract  duration clause cannot defeat the unilateral change doctrine. Indeed, as the Court made clear in Litton, the Katz rule often  presupposes the end of a collective bargaining agreement and  guarantees the continuation of existing benefits as a matter of  law.  To hold that a general contract duration clause "covers"  and vitiates a Union's statutory claim to continued status quo  benefits, would be to drain the unilateral change doctrine of  any coherent meaning.


4
Honeywell also claims that the express terms of the EBA  clearly and unmistakably waived any right to post-expiration  eligibility for severance.  We agree with the Board that this  argument fails.  Honeywell's final argument, suggesting that  this dispute should have been settled in arbitration, is foreclosed by 29 U.S.C.  160(e).


5
Accordingly, we deny Honeywell's petition for review of the  Board's order.

I. Background

6
In 1993, Honeywell, known at the time as Allied Signal,  entered into negotiations to purchase Textron Inc., which  produced mainly helicopter and tank engines for military and  commercial purposes at the Stratford Army Engine Plant in  Stratford, Connecticut.  In 1994, Textron began negotiating  new collective bargaining agreements with the UAW and its  Local 376 and Local 1010.  Although Textron owned the  business at the time of the labor negotiations, Honeywell  committed to adopting the agreements if they were competitive.  AlliedSignal Aerospace, 330 N.L.R.B. No. 176 at 4  (Apr. 12, 2000).


7
After Honeywell and Textron announced the intended sale,  the Union demanded to bargain over the effects on bargaining unit employees.  Transcript (Oct. 6, 1998), reprinted in  J.A. 98. Formal negotiations over the EBA took place between May 20 and July 13, 1994.  During these negotiations,  "the Union gave Textron an 'Effects Proposal' which included  severance pay calculated on the basis of 40 hours of [pay] for  each year of employment, with a graduated payment scale  based on [an employee's] number of years of service."  AlliedSignal Aerospace, at 4.  The severance proposal was  tied to a Supplementary Unemployment Benefit Plan  ("SUB") that was in existence in the parties' expiring collective bargaining contract.  Id.  In the past, money in the SUB  "had run out because of the large number of layoffs in 1991  and 1992.  The union team was looking for an alternative to  the SUB plan and thus [was] interested in working out a  severance program."  Id. at 5.


8
As a part of its Effects Proposal, the Union suggested that  employees laid off because of the sale or laid off in the threeyear period before the sale, and impacted by the sale, should  be eligible for severance benefits.  Effects Proposal (May 20, 1994), reprinted in J.A. 599-606.  Textron responded on May  28 with a "declining balance" proposal.  Under this plan, the employees laid off earliest would receive the greatest severance pay;  the pay would gradually decrease over the period  of the agreement, declining to zero benefits upon expiration of  the EBA.  AlliedSignal Aerospace at 5.  This proposal also  maintained a modified version of the SUB plan.  Company  Proposal (May 28, 1994), reprinted in J.A. 608-10.  The  employer's plan stipulated that only employees who had  worked at least one year prior to the sale and who were laid  off as a direct result of a transfer of bargaining unit work  would be eligible for severance benefits.  Id. at 609.


9
The Union rejected the company's proposal, because, under  existing seniority rules, the most junior employees were laid  off first and would therefore receive the most in severance  benefits.  AlliedSignal Aerospace at 5;  Transcript (Oct.  6,  1998), reprinted in J.A. 150.  However, the Union indicated  that it was willing to adopt the eligibility criteria proposed by  Textron.  Employees on the active payroll with at least one  year of employment at the time of purchase by Honeywell,  and who were subsequently laid off as a direct result of a  transfer of bargaining unit operations by the company, would  be eligible for severance pay.


10
On June 2, Textron responded with a revised draft which  retained the "declining balance" plan and included a duration  clause stating that the EBA would "remain in effect until the  date of expiration of the new 1994 labor agreement between  the parties, but not thereafter unless renewed or extended in  writing by the parties."  AlliedSignal Aerospace at 5;  Company Proposal (June 2, 1994), reprinted in J.A. 691-705.  The  Union rejected the duration clause.  David Kelly, thenpresident of Local 1010, testified that the Union was concerned about employees laid off shortly before the EBA  expired.  Employees had to wait 12 months after being laid  off to apply for severance benefits.  Under the terms of the  proposed duration clause, the Union was concerned that if an  employee was laid off six months before the end of the  agreement, the employee would not be able to apply for  benefits.  AlliedSignal Aerospace at 5-6;  Transcript (Oct. 6,  1998), reprinted in J.A. 103.


11
Textron subsequently proposed the addition of the following language:


12
It is understood that expiration of this Agreement shall not foreclose the post-expiration payment to employees of bonuses or other benefits which accrued to them because of lay off during the term of this agreement, or the post-expiration presentation in a timely fashion of claims regarding matters arising out of the application of its terms prior to the expiration date.


13
AlliedSignal Aerospace at 6.  The company also removed the  declining balance provision, increased the severance benefit to  45 hours per year of service, and agreed that any employee  with at least one year of seniority on the effective date of the  agreement would be eligible for severance.  Id.  Final and  Definitive Company Proposal (June 5, 1994), reprinted in J.A.  827.


14
The parties signed the EBA draft on June 9, 1994.  This  included an agreement by Local 1010 waiving its "right to  bargain over any future work transfer, reduction in the  working force (regardless of its scope), and any partial or  total shutdown or closure of the Stratford Plant."  AlliedSignal Aerospace at 6.  The EBA also suspended the SUB fund  during the term of the new agreement.  Id. at 5 n.9.


15
Subsequently, an internal company planning document  dealing with plant relocation was leaked to the Union.  The  document stated:  "Best assumption today is that the Army  will not buy any new tank engines.  We need to evaluate the  barriers to closing the plant in case that it eventually becomes  expedient."  Id. at 6;  Internal Memorandum (June 6, 1994),  reprinted in J.A. 204-07.  When Union officials expressed  concerns over the possibility of relocation, the parties negotiated the CA and revised the EBA, deleting the waiver  provision.  Transcript (Oct. 6, 1998), reprinted in J.A. 60-62. The final version of the EBA was signed by the company and  Local 1010 on July 13 and ratified on July 21, 1994.  Local  376 signed the EBA on July 28, 1994.  In October 1994,Honeywell purchased Textron and assumed these agreements.


16
The eligibility portion of the severance provision in the  EBA provides that:


17
... employees who are hereafter laid off shall be eligible for a severance bonus ... as specified in this Section.... An employee who shall be laid off without being recalled for a period of twelve (12) full consecutive months thereafter shall be entitled to a severance bonus if the employee was on the active payroll with one year or more of seniority on the effective date of this Agreement, or was on leave of absence granted or approved in accordance with the terms of the collective bargaining agreement on such date....


18
This severance bonus shall be payable to an otherwise eligible employee who is laid off after the effective date of this Agreement by either [Textron] or AlliedSignal [Honeywell], provided that an asset sale by [Textron] to such AlliedSignal shall, in fact, occur.


19
Effects Bargaining Agreement (July 13, 1994), reprinted in  J.A. 512-13.  There is nothing in the severance provision  saying that severance benefits are terminated at the expiration of the EBA, or on any other date for that matter. Rather, the severance provision merely states that an employee must have been "laid off without being recalled for a  period of twelve (12) full consecutive months" and been "on  the active payroll with one year or more of seniority on the  effective date" of the EBA in order to be eligible for severance pay.  Id.


20
The duration clause appearing at the end of the EBA  specifies that the EBA expires on June 6, 1997, unless the  agreement is renewed in writing.  The EBA's duration clause  reads as follows:


21
The Effects Bargaining Agreement shall be effective as of May 30, 1994, and shall remain in effect until midnight on June 6, 1997, but not thereafter unless renewed or extended in writing by the parties.  It is understood that expiration of this Agreement shall not foreclose the postexpiration payment to employees of bonuses or other benefits which accrued to them because of layoff during the term of this Agreement, or the post-expiration presentation in a timely fashion of claims regarding matters arising out of the application of its terms prior to the expiration date.


22
Id. at 528.  This clause mirrors the "June 6, 1997" expiration  date in the parties' core collective bargaining agreement.


23
In September 1995, Honeywell announced that it intended  to close the Stratford plant and terminate the CA.  Allied Signal Aerospace at 8.  The Company was unclear, however,  regarding whether employees would be paid severance benefits after the expiration of the EBA.  For example, in January 1997, Honeywell wrote a letter to employees saying that  "[q]uestions concerning layoffs after June 6, cannot be answered at this time, nor can we advise you of what benefits  will be available after June 6.  Benefits such as severance pay  are subjects for negotiation."  Id. at 9.


24
There is some dispute over when Honeywell first informed  the Union that it intended to terminate severance benefits as  of June 7, 1997.  It is certain, however, that the Union had  notice as of May 1997, when Allan Bocik, the company's vice  president for labor relations, told Union officials that severance under the EBA would not continue after June 6, 1997.


25
The company informed the Union on June 13, 1997 that the  decision to close the Stratford plant was final.  Severance  benefits were paid to employees who were laid off during the  term of the EBA, but denied to employees laid off after June  6, 1997.


26
The Union filed a complaint with the NLRB alleging that  the company violated   8(a)(1) and (5) by unilaterally terminating severance benefits under the EBA.  The ALJ determined that Honeywell had unilaterally changed the terms and  conditions of employment in violation of  8(a)(1) and (5) of  the NLRA when it cut off severance benefits on June 7, 1997. With one member dissenting, the Board affirmed the ALJ's  decision and held that Honeywell had a statutory obligation to maintain the status quo.  The Board held that the contract  coverage doctrine did not apply and that the Union had not  waived any right to employees' post-expiration eligibility for  severance pay.

II. Discussion
A. Unilateral Change Doctrine

27
Under the NLRA, the obligation to bargain collectively  includes the duty to "confer in good faith with respect to  wages, hours, and other terms and conditions of employment."  29 U.S.C.  158 (d).  In Katz, the Supreme Court  held that a unilateral change by an employer during the  course of a collective bargaining relationship concerning a  matter which is a proper subject of bargaining is an unlawful  refusal to bargain under the NLRA.  Thus, an employer may  not unilaterally alter a term or condition of employment  unless the parties reach a new agreement or bargain to  impasse.

The rationale for the Katz rule is simple:

28
A unilateral change not only violates the plain requirement that the parties bargain over "wages, hours, and other terms and conditions," but also injures the process of collective bargaining itself.  "Such unilateral action minimizes the influence of organized bargaining.  It interferes with the right of self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent."


29
NLRB v. McClatchy Newspapers, 964 F.2d 1153, 1162 (D.C.  Cir. 1992) (quoting May Dep't Stores Co. v. NLRB, 326 U.S.  376, 385 (1945)).


30
As noted above, the Katz rule applies in situations where  "an existing agreement has expired and negotiations on a new  one have yet to be completed."  Litton, 501 U.S. at 198.  In  other words, the unilateral change doctrine is premised on a  statutory right.  The right may be waived by contract and it  may be vitiated if the parties reach an impasse in collective bargaining.  And it applies only with respect to mandatory  subjects of bargaining, excluding certain categorical exceptions recognized by the courts and the Board.  See, e.g.,  Litton, 501 U.S. at 199-200, Acme Die Casting v. NLRB, 93  F.3d 854, 857 (D.C. Cir. 1996).  Beyond these conditions,  however, the Katz rule is an inviolate principle of collective  bargaining.


31
The company does not dispute that severance pay is a  mandatory subject of bargaining;  nor does it dispute that  severance pay was an established term or condition of employment under the EBA.  The Katz rule barring unilateral  changes therefore applies.  The company had no right, even  after the expiration of the EBA, to terminate or otherwise  modify the severance provision absent an impasse in bargaining or a new agreement with the Union.


32
The company does not claim that it reached an impasse in  negotiations over severance and it does not contend that the  parties executed a new agreement to replace the EBA.  Instead, the company claims (1) that the parties expressly  agreed that the severance provision was to terminate with the  expiration of the EBA, or (2) that the Union clearly and  unmistakably waived any right of employees to claim postexpiration eligibility for severance pay.  Bare nuances distinguish these arguments.  The bottom line, however, is that  both arguments are wrong.

B. The Contract Coverage Doctrine

33
Honeywell argues that severance pay was "covered" by the  EBA and, under the terms of the parties' agreement, it is  clear that severance benefits terminate with the expiration of  the EBA.  Thus, according to Honeywell, the Board had no  business interfering in the parties' dispute over the meaning  of their contract.  See, e.g., NLRB v. United Postal Service, 8  F.3d 832, 837 (D.C. Cir. 1993) ("where the employer acts  pursuant to a claim of right under the parties' agreement, the  resolution of the refusal to bargain charge rests on an interpretation of the contract at issue .... [n]ormally, under  federal labor laws, arbitrators and the courts, rather than the  Board, are the primary sources of contract interpretation").


34
There are two problems with Honeywell's argument. First, as discussed in part "D." below, the company never  suggested to the Board that this case should have been  resolved pursuant to a contractual grievance procedure. Therefore, "it is clear that, in this case, the Board had the  authority to interpret the [EBA] to resolve the pending unfair  labor practice charge."  Id.  Of course the courts remain "the  ultimate arbiter[s] of contract disputes."  Id.  This is true  because "defer[ring] to the Board's contract interpretation  would risk the development of conflicting principles for interpreting collective bargaining agreements."  Id. (citations  omitted).


35
Second, and more importantly, the company is wrong in its  claim that "[t]he status quo obligations of the Act did not  apply to the EBA benefits," because "[t]he Unions had no  right to the continuation of eligibility for those benefits after  the termination date of the agreement."  Petitioner's Br. at  32.  To support this argument, the company contends that  "[t]he Duration Clause [in the EBA] stated in the plainest  terms both (1) the precise moment in time when the eligibility  to qualify for EBA benefits would terminate and (2) precisely  what would happen to benefit eligibility when the EBA  expired."  Id. at 37.  As noted above, however, the disputed  severance provision does not say that severance benefits are  terminated at the expiration of the EBA.  In fact, the severance provision does not tie benefits to dates certain, apart  from saying that an employee must have been "laid off  without being recalled for a period of twelve (12) full consecutive months" and been "on the active payroll with one year or  more of seniority on the effective date" of the EBA in order  to be eligible for severance pay.  Effects Bargaining Agreement (July 13, 1994), reprinted in J.A. 512-13.


36
Honeywell's argument rests solely on the terms of the  duration clause, not the severance provision.  Under Katz  and Litton,however, an expiration date in a standard contract duration clause without more, cannot defeat the unilateral change doctrine.  As the Supreme Court made clear in  Litton, the Katz rule often presupposes the end of a collective  bargaining agreement, ensuring the continuation of existing benefits beyond the term of the agreement as a matter of law. We would effectively drain the unilateral change doctrine of  any coherent meaning were we to hold that a general contract  duration clause "covers" and thereby vitiates a Union's statutory claim to continued status quo benefits.  We therefore  reject Honeywell's construction of the Katz rule.


37
Honeywell suggests that this case is unusual, because,  apart from its expiration date, the duration clause in the EBA  also states that


38
expiration of [the EBA] shall not foreclose the postexpiration payment to employees of bonuses or other benefits which accrued to them because of layoff during the term of this Agreement, or the post-expiration presentation in a timely fashion of claims regarding matters arising out of the application of its terms prior to the expiration date.


39
Effects Bargaining Agreement (July 13, 1994), reprinted in  J.A. 528.  According to Honeywell, this language conclusively  proves that the severance benefit was limited:  the Union  insisted on the language, because the Union "necessarily  understood" that eligibility for severance benefits terminated  with the end of the EBA.  Petitioner's Br. at 46.  However,  the cited language supports no such conclusion.  Union official David Kelly testified that this language was prompted by  the Union's concern that an employee could be laid off prior  to June 6, 1997, but before the 12-month waiting period to  apply for severance pay had passed, and the company could  then "propose either the elimination or the reduction of those  benefits."  Transcript (Oct. 6, 1998), reprinted in J.A. 103. The Union insisted on these terms so that even after the  EBA expired and the parties bargained to impasse, or  reached a new agreement, employees laid off during the term  of the EBA could continue to receive the severance benefits  as defined under the EBA.


40
Honeywell is correct in asserting that, in order to be  eligible for severance pay, an employee must be "laid off  without being recalled for a period of twelve (12) full consecutive months" and have been "on the active payroll with one year or more of seniority on the effective date" of the EBA. Effects Bargaining Agreement (July 13, 1994), reprinted in  J.A. 512-13.  The company is wrong, however, in contending  that eligibility could not be established after June 6, 1997. Under Katz and Litton, continuation of severance benefits  was ensured absent an impasse in bargaining or a new  agreement.  In short, the company's claim that the duration  clause of the EBA somehow superceded the unilateral change  doctrine fails.

C. Waiver

41
Honeywell's second principal argument is that the express  terms of the EBA waived any employees' right to postexpiration eligibility for severance.  We find no merit in this  claim.


42
There is no doubt that a union may waive its statutory  protection against unilateral changes in mandatory subjects  of bargaining.  Cauthorne Trucking, 256 N.L.R.B. No. 115  (June 19, 1981), enf'd in part, 691 F.3d 1023 (D.C. Cir. 1982). However, any such waiver must be "clear and unmistakable." Metro. Edison v. NLRB, 460 U.S. 693, 703 (1983).  On the  record in this case, the Board correctly concluded that the  Union did not clearly and unmistakably waive its protection  against post-expiration unilateral termination of severance  benefits by the company.


43
In arguing for waiver, Honeywell points again to the duration clause, claiming that the express language of the clause  shows that "the parties decided to terminate eligibility for  severance benefits at midnight on June 6, 1997, and to waive  any statutory right to have eligibility continue indefinitely  thereafter until another round of bargaining took place."  Petitioner's Br. at 45.  If these words--which are found in  the company's brief--had been included in the EBA, then  Honeywell's waiver argument might have merit.  But the  aforecited words are not in the EBA.  The language of the  duration clause in the EBA makes it clear that the Union's  contractual right to severance benefits ended on June 6, 1997; but the provision is silent on the Union's statutory rights under Katz and Litton.  In other words, the duration clause  in no way evinces a clear and unmistakable waiver by the  Union.


44
Honeywell also argues that the parties' bargaining history  demonstrates waiver.  Honeywell originally offered a declining balance approach to calculating severance benefits.  Under this approach, the severance paid to laid-off employees  would have declined over the term of the contract, reaching  zero when the contract expired.  The Union rejected Honeywell's declining balance plan.  Honeywell argues that the  duration clause replaced the declining balance proposal and,  as a result, acceptance of the duration clause reveals that the  Union waived its rights to claim severance benefits after the  EBA expired.  This argument fails, just as Honeywell's claim  that the duration clause itself constitutes waiver also fails. Acceptance of the duration clause, following the Union's  rejection of the declining balance proposal, reveals only that  the Union agreed that its contractual basis for receiving  severance benefits would terminate on June 6, 1997.  But this  bargaining history does not demonstrate that the Union  waived its statutory claims for protection from unilateral  change in terms or conditions of employment following expiration of the contract.


45
Honeywell also points to some communications between the  Union and its members, as if to suggest that the Union  acknowledged that severance benefits ended with the termination of the EBA.  For example, in a document written on  July 21, 1994, the Union advised employees that "[t]he following benefits will be provided to all Local 1010 employees and  retirees who are laid off during the agreement."  Local 1010  UAW Decision & Effects Agreement, reprinted in J.A. 255. The statement is ambiguous regarding post-agreement layoffs and does not prove that the Union intended to waive its  statutory rights in signing the EBA.  Furthermore, in the  same document, in answer to the question "Who Can Get  Severance Bonus?", the Union answered:  "any employee with  at least one year of service who is permanently laid off after  the date of this agreement."  Id. at 256.  In short, there is no  good evidence that the Union waived its claim to protection  from unilateral change following termination of the EBA.

D. Arbitration

46
In a final, futile gesture to save the day, Honeywell argued  to this court that any dispute between the parties over the  meaning of the severance provision and duration clause in the  EBA should have been submitted to arbitration, not the  NLRB.  This is a specious claim.


47
Disputes that arise under a collective bargaining agreement  can be arbitrated even after the contract itself has expired. See Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243 (1977)  (holding employees' claim for severance pay arose under the  collective bargaining contract and was subject to arbitration  terms even though it arose after the contract was terminated).  Therefore, employees who were laid off before June 6,  1997, and who had grievances regarding their severance pay,  arguably could have pursued those claims through arbitration  even after the EBA was no longer in effect.  However, the  unilateral change doctrine does not apply to arbitration provisions in expired collective bargaining agreements:  once the  contractual basis for an arbitration agreement expires, the  arbitration agreement expires.  Litton, 501 U.S. at 210.  Parties are free to draft a contract agreeing to resolve postexpiration disputes through arbitration;  absent such agreement, however, arbitration is not available.  Thus, employees  who were laid off after June 6, 1997--i.e., the employees at  issue in this case--could not have pursued arbitration to  challenge the company's unilateral termination of severance  benefits at the expiration of the EBA.


48
Furthermore, the company's argument comes too late. Under  10(e) of the NLRA, "[n]o objection that has not been  urged before the Board, its member, agent, or agency, shall  be considered by the court, unless the failure or neglect to  urge such objection shall be excused because of extraordinary  circumstances."  29 U.S.C.   160(e);  see, e.g., Quazite v.  NLRB, 87 F.3d 493, 497-98 (D.C. Cir. 1996) (refusing to  consider employer's argument that Board did not adequately  explain need for bargaining order because employer did not  raise objection before Board).  Honeywell did not raise the  availability of grievance procedures and arbitration before the Board and no "extraordinary circumstances" have been cited  to excuse this failure.  Therefore, this court cannot consider  the argument.


49
The company was silent on the subject of contractual  grievance and arbitration procedures in the three documents  submitted to the Board following the ALJ's ruling.  Honeywell did not invoke the availability of grievance procedures or  arbitration in its Exceptions of Respondent Allied Signal Inc.  to the Decision of the Administrative Law Judge (No. 34-CA7898-2), its Brief in Support of Exceptions of Respondent  Allied Signal Inc. to the Decision of the Administrative Law  Judge (No.  34-CA-7898-2), or its Reply Brief of Respondent  Allied Signal Inc. (No. 34-CA-7898-2).


50
Before this court, the company did not refer to the availability of contractual grievance and arbitration procedures in  its Preliminary Statement of Issues to be Raised. The matter  was noted in passing in the company's initial brief to this  court, where it was observed that "[d]isputes between employers and unions over the interpretation of contracts are  matters for federal courts or, when the parties agree, by  arbitration."  Petitioner's Br. at 39.  And, in its reply brief,  the Company meekly suggested that, "[i]f there is a fair  dispute about the meaning of a contract, with potential consequences that would survive the contract's expiration, nothing  bars a court, acting under Section 301 of the Labor Management Relations Act, 29 U.S.C.  185 (1982), or a  grievance arbitrator from interpreting the contract and providing relief to the wronged party."  Petitioner's Reply Br. at  15.  The company never contended that the Board erred in  refusing deferral to arbitration.  Even if we could tease such  an argument out of the company's cryptic one-liners in its two  briefs to the court, 29 U.S.C.  160(e) bars us from considering the argument.

III. Conclusion

51
For the foregoing reasons we deny the company's petition  for review of the Board's order.

