NLRB v. Boston District

• Court: Court of Appeals for the First Circuit
• Decided: April 10, 1996
• Docket: 95-1762
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 95-1762



                           NATIONAL LABOR RELATIONS BOARD,



                                     Petitioner,



                                          v.



                        BOSTON DISTRICT COUNCIL OF CARPENTERS,

                   AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS

                        AND JOINERS OF AMERICA AND CARPENTERS

                         LOCAL UNION NO. 33, AFFILIATED WITH

                     UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

                                 OF AMERICA, AFL-CIO,



                                     Respondent.



                                                     
                                 ____________________



                            ON PETITION FOR ENFORCEMENT OF



                                   AN ORDER OF THE



                            NATIONAL LABOR RELATIONS BOARD



                                                     
                                 ____________________



                                        Before



                                Cyr, Boudin and Stahl,



                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________


Christopher N. Souris, with whom Feinberg, Charnas & Birmingham
             _____________________            ______________________________

        was on brief for respondent.

             Christopher W. Young, Attorney, with whom Frederick L. Feinstein,
             ____________________                      ______________________

        General Counsel, Linda Sher, Associate General Counsel, Aileen A.
                         __________                             _________

        Armstrong, Deputy Associate General Counsel, and Frederick C. Havard,
        _________                                        ___________________

        Supervisory Attorney, were on brief for petitioner.


____________________



                                    April 10, 1996

                                                     
                                 ____________________



CYR, Circuit Judge.  The National Labor Relations Board
                    CYR, Circuit Judge.
                         _____________



          petitions  for  enforcement of  its  order  directing the  Boston



          District Council of Carpenters  ("Union") to execute a collective



          bargaining  agreement  ("CBA")  with  the  charging  party  Curry



          Woodworking,  Inc.  ("Curry").    As we  conclude  that  there is



          substantial evidentiary support for the Board order, we grant the



          petition for enforcement. 



                                          I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    The Union, a "labor organization" within the meaning of



          the National Labor Relations Act ("NLRA"), see 29 U.S.C.   152(5)
                                                     ___



          (1994),  is the  central  governing body  for  nine local  unions



          affiliated with the United Brotherhood of Carpenters & Joiners of



          America.  The Union exercises the collective bargaining authority



          of its constituent locals in negotiating a CBA, known as a Master



          Agreement ("MA"), with several  multiemployer associations.  Once



          a MA  has been negotiated with  these multiemployer associations,



          the Union customarily offers the same MA to other area employers,



          including those which neither  belong to a multiemployer associa-



          tion nor otherwise participate in negotiations.  These nonpartic-



          ipating employers may bind themselves to the negotiated MA simply



          by executing what are  known as "me too" acceptances,  which give



          rise to prehire agreements authorized under NLRA   8(f).1 


____________________



               129 U.S.C.    158(f) (1994).   See C.E.K.  Indus. Mechanical
                                                  _________________________

          Contractors  v. NLRB, 921 F.2d 350, 356-59 (1st Cir. 1990), for a
          ___________     ____

          discussion of prehire agreements.



                                          2



Curry  was  formed in  1990  and, on  August  23, 1990,



          became a "me too" signatory to its first MA with the Union, which



          covered Curry's  four unionized  installers but not  its thirteen



          nonunion  architectural millworkers.   The  Union and  the multi-



          employer  associations subsequently  executed  a new  MA for  the



          period August  1, 1991 to  May 31,  1993, which  Curry joined  on



          August 14, 1991.  In  order to foreclose any continuation  of the



          1991-93 MA beyond its term, in March 1993 the Union advised Curry
                     ______ ___ ____



          that it intended to negotiate changes in the next MA.  As the May



          31, 1993, expiration  date approached, the  Union and the  multi-



          employer associations again negotiated a  successor MA    for the



          period June 1, 1993, through September 30, 1997.



                    On  May 28,  1993,  the Union  offered  the new  MA  to



          approximately  135  "me  too"  employers,  including  Curry,  and



          advised:  "Unless this  office receives a duly authorized  Accep-



          tance of Agreement by June 4,  1993, your company will be consid-
                             __ ____ __  _____ ____ _______ ____ __ _______



          ered not  to  have a  collective  bargaining agreement  with  the
          ____ ___  __  ____ _  __________  __________ _________  ____  ___



          [Union]."   (emphasis added).   On June 22,  Curry signed, dated,
          _______                            ____ __



          and mailed its Acceptance of Agreement to the Union.  On June 23,



          a  Union  representative  called  Curry to  inquire  whether  its



          acceptance form had been signed.  Although the  Union representa-



          tive voiced no concern or objection upon learning that the accep-



          tance  had been mailed, the  Union never executed  a successor MA



          with Curry. 



                    Curry continued to utilize its unionized  installers to



          perform work throughout June  and July 1993, before the  wage and
                                                       ______


3



benefit  increases under  the new  MA  were to  take effect.   On



          August 2, however, one  day after the wage and  benefit increases



          under  the new MA  went into  effect, the  Union refused  to sell



          Curry  fringe benefit stamps, which  employers include in the pay



          envelopes  of  their unionized  employees  as  evidence that  the



          employer has  made the  appropriate contributions to  the Union's



          collection agency.  As a practical matter, without fringe benefit



          stamps Curry was unable  to retain the services of  its unionized



          installers.2   Curry complained  to Union  officials but  was ad-



          vised  that  the Union  believed it  had  no legal  obligation to



          execute a new MA with  Curry, and would not do so  unless Curry's



          architectural millworkers were unionized. 



                    After Curry  filed  an  unfair  labor  practice  charge



          against the Union, the Board issued a complaint alleging that the



          Union had violated NLRA   8(b)(3) by failing to execute and honor



          the  terms of  the new MA.3   The  Union denied  the charge.   An



          administrative law judge ("ALJ") concluded that the May 28 letter



          did not  constitute a  binding offer  by the Union,  and, in  the

                              
          ____________________



               2Although the new MA  had not been executed with  four other

          employers  by August  1,  those employers  eventually worked  out

          their differences with the Union.  In the end, Curry was the only

          former  signatory with  which the  Union did  not enter  into the

          1993-97 MA. 



               3"It shall be an unfair labor practice for a labor organiza-

          tion or its agents .  . . to refuse to bargain  collectively with

          an employer . . . ."  29 U.S.C.    158(b)(3) (1994).  The duty to

          engage in  collective bargaining includes  the duty to  execute a

          written  contract,  upon  request,  incorporating  any agreement.

          NLRB  v. Auciello Iron  Works, Inc., 980 F.2d  804, 808 (1st Cir.
          ____     __________________________

          1992) (citing NLRB  v. Strong,  393 U.S. 357,  359, 362  (1969)),
                        ____     ______

          opinion  after remand, 60 F.3d 24 (1st Cir. 1995), cert. granted,
          _______  _____ ______                              _____ _______

          116 S. Ct. 805 (1996).  



                                          4



alternative, that it  had expired by its terms  on June 4, before



          it was accepted by Curry. 



                      The Board  rejected the finding that  the Union offer



          expired  on June 4, because (1) the Union had expected to receive



          many  acceptances after June 4;  (2) the Union  did receive post-



          June 4 acceptances from  almost half the "me too"  employers with



          whom it later executed the new MA; (3) the Union made a systemat-



          ic effort to contact employers, including Curry, from whom it had



          not received acceptances by June 4; and (4) the May 28 letter did



          not explicitly state that the offer  to execute the new MA  would



          expire on June 4.  Carpenters Local  33, 316 N.L.R.B. 367, 369-70
          ______             ____________________



          (1995), 1995 WL 72412, at *3-4.  The Board accordingly ruled that



          the Union had violated  NLRA   8(b)(3) and  ordered the Union  to



          execute the new MA with Curry.  Id. at 370, 1995 WL 72412, at *4-
                                          ___



          5.


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                    As the  Board is  primarily responsible  for developing



          and  applying a  coherent national  labor policy, NLRB  v. Curtin
                                                            ____     ______



          Matheson Scientific, Inc.,  494 U.S. 775,  786 (1990), we  accord
          _________________________



          its  decisions  considerable  deference.   Fall  River  Dyeing  &
                                                     ______________________



          Finishing Corp. v.  NLRB, 482 U.S. 27, 42 (1987).   Thus, we will
          _______________     ____



          enforce the order if the  Board correctly applied the law  and if



          its findings of fact are  supported by substantial evidence based



          on the record as a whole.  NLRB v. Auciello Iron Works, Inc., 980
                                     ____    _________________________



          F.2d 804, 807 (1st Cir. 1992),  opinion after remand, 60 F.3d  24
                                          ____________________



                                          5



(1st Cir. 1995), cert. granted, 116 S. Ct. 805 (1996); 29  U.S.C.
                           _____ _______



             160(e) (1994).   The evidence relied  on by the  Board must be



          adequate to enable a reasonable mind to consider it sufficient to



          support  the  Board's conclusion.    Auciello, 980  F.2d  at 807.
                                               ________



          Accordingly,  we must take  into account  whatever in  the record



          evidence fairly  detracts from the Board's  factual findings, and



          examine it in the light furnished by the entire record, including



          the  ALJ's findings and any other evidence opposed to the Board's



          view.   C.E.K.  Indus.  Mechanical Contractors v.  NLRB, 921 F.2d
                  ______________________________________     ____



          350, 355 (1st  Cir. 1990);  Universal Camera Corp.  v. NLRB,  340
                                      ______________________     ____



          U.S. 474, 488  (1951).  Yet we  may not "substitute our  judgment



          for  the Board's when the choice is `between two fairly conflict-



          ing views, even though [we] would justifiably have made a differ-



          ent choice had the matter been before [us]  de novo.'"  Auciello,
                                                      __ ____     ________



          980 F.2d at 808 (quoting Universal Camera, 340 U.S. at 488).  
                                   ________________



                    With the analytic  framework in place,  we turn to  the



          only issue in the case:  whether the Board supportably determined



          that  the May 28 Union  offer to Curry did  not expire on June 4.



          The Union mounts a  plain language argument based on  the express



          terms  of the  May 28  letter, whereas  the Board  emphasizes the



          broader context within which the offer was made.  



                    The argument advanced by  the Union    that it  had the



          right to  shape the terms  of its  offer to Curry,  see, e.g.,  1
                                                              ___  ____



          Arthur L. Corbin, Corbin  On Contracts   2.14 (Joseph  M. Perillo
                            ____________________



          ed., 1993), is not readily dismissed in the  face of the language



          it  used in  the May  28 letter  to Curry:   "Unless  this office


6



receives  a duly  authorized Acceptance of  Agreement by  June 4,



          1993,  [Curry] will be considered  not to have  a collective bar-



          gaining agreement with  the [Union]."   Yet for  all its  literal



          force  the plain language argument  must contend with the settled



          labor  law principle  that a  CBA is  not just  another contract.



          John Wiley & Sons v. Livingston, 376 U.S. 543, 550 (1964).
          _________________    __________



                    The  prevailing  rule,  in  this  and  other  circuits,



          provides that technical rules  of contract interpretation are not



          necessarily  binding on  the Board  in the  collective bargaining



          context, Auciello,  980 F.2d  at 808, even  though it is  free to
                   ________



          apply general contract principles so as to foster the established



          federal labor  policy favoring  collective bargaining.   Thus, we



          have held that "'[i]n the collective bargaining context, an offer



          will remain on the table unless the  offeror explicitly withdraws



          it or unless circumstances  arise that would lead the  parties to



          reasonably believe  that the  offeror has withdrawn  the offer.'"



          Id. (quoting NLRB v. Burkhart Foam, Inc., 848 F.2d  825, 830 (7th
          ___          ____    ___________________



          Cir. 1988)).   The Board urges us to  apply the same rule in this



          case.



                    Although  myriad cases involve  rejections and counter-



          offers,  there is a notable  lack of appellate  authority on what



          constitutes  an express withdrawal of  an offer in the collective



          bargaining context.  For example, in Auciello, unlike the present
                                               ________



          case, the company placed  no express time limit  on its offer  to



          the union, instead  contending that  the union  had rejected  the



          company offer simply  by "storming out" of a  bargaining session.


7



This  court found that the  Board sensibly had  concluded that "a



          mere  uncommunicated, unilateral  judgment  by  the Company  that



          rejection had occurred would, by itself, be ineffective to remove



          its proposal from  the table."   Id. at 809.   The nature of  the
                                           ___



          dispute in  Auciello, and  other cases, see,  e.g., Williamhouse-
                      ________                    ___   ____  _____________



          Regency of  Del., Inc. v.  NLRB, 915 F.2d 631,  633-35 (11th Cir.
          ______________________     ____



          1990) (company revived terminated offer); Pepsi-Cola Bottling Co.
                                                    _______________________



          v.  NLRB, 659  F.2d  87, 90  (8th Cir.  1981)  (company offer  at
              ____



          beginning  of a  strike did  not imply  a condition  of immediate
                                           _____



          acceptance), is materially  different from  the present  dispute,



          which  turns principally on an interpretation of the terms of the



          written offer itself.  



                    Our  research discloses that the Board consistently has



          acknowledged  that an  offeror  may impose  an explicit  temporal



          limit on  an offeree's right to  accept an offer to  enter into a



          CBA.   For  example,  in J.  Hofert Co.,  269  N.L.R.B. 520,  520
                                   ______________



          (1984), 1984 WL 36313, at *1, the Board found  that the following



          language unequivocally  limited a contract  offer at the  time it



          was  made:   "This  proposal will  be  open through  Wednesday [7



          October 1981] after which date it will be withdrawn if it has not



          been accepted."  The Board later followed J. Hofert Co. in ruling
                                                    _____________



          that "a party . . . may condition [its] offer  upon acceptance by



          a specified deadline, thereby precluding the making of a contract



          if the  other party fails  to accept prior  to the deadline.   In



          such a case, the offer is construed as  being withdrawn if accep-



          tance  does  not come  by the  expressed  deadline."   Inner City
                                                                 __________


8



Broadcasting  Corp.,  281 N.L.R.B.  1210,  1216  (1986), 1986  WL
          ___________________



          54460,  at *10.   Although we find  J. Hofert Co.  and Inner City
                                              _____________      __________



          Broadcasting  instructive,  we nonetheless  agree with  the Board
          ____________



          that  the language  of the  Union offer in  this case  imposed no



          unequivocal temporal limitation on  the offeree's right to accept



          the offer,  thus leaving  the offer  open  to the  interpretation



          given it by the Board.  



                    1. The Language of the Offer
                    1. The Language of the Offer
                       _________________________



                    The May 28 letter stated that unless the Union received



          an Acceptance of Agreement by June 4, the offeree would  "not . .



          .  have a collective bargaining  agreement" with the  Union.  The



          ALJ found  this language  sufficiently definite to  terminate the



          right to  accept on  June 4.   The  Board disagreed, because  the



          "letter  does not state specifically that execution by June 4 was
                   ____ ___ _____ ____________



          a condition of acceptance or that the offer would be withdrawn on



          that date."   Carpenters Local 33,  316 N.L.R.B. at 369,  1995 WL
                        ___________________



          72412, at *4 (emphasis added).  



                    As the Board supportably determined, there is a signif-



          icant difference    particularly  in the context of this  case   



          between stating  that the parties  will not be  cooperating under



          any  CBA unless  Curry accepts  the  Union offer  by  June 4  and



          stating that  the offer to enter  into a new CBA  expires on June
                                                   ___



          4.4   The Board  reasonably construed  the temporal  reference in

                              
          ____________________



               4At oral argument,  the Board conceded that  the Union would

          have had no obligation to enter into a new MA  with Curry had its

          May 28 letter expressly stated that the offer expired on  June 4.

          Its concession is consistent  with the Board precedents discussed

          above.  See supra p. 8.
                  ___ _____



                                          9



the  Union  offer  to  mean that  the  parties'  labor-management



          relations would be subject neither to the MA which expired on May



          31, nor to the proposed new MA, unless the offer were accepted by



          Curry by  June 4.  The  Union, on the other  hand, interprets the



          May  28 letter as  foreclosing any  subsequent acceptance  of the



          Union offer by Curry after June 4.  Although  the language itself



          might accommodate either interpretation, depending on the context



          in which used, it  is the Union interpretation, not  the Board's,



          which  goes somewhat  beyond the  literal purport  of the  offer.



          That is to say, in a nutshell, the literal language  of the offer



          was ambiguous as to  the consequences of an offeree's  failure to
                                   ____________



          accept by June  4.  As to this critical  matter, it was eminently



          reasonable for the Board  to look to any relevant prior course of



          dealing among the parties.



                    2. The Course of Dealing
                    2. The Course of Dealing
                       _____________________



                    Accordingly, the Board examined relevant prior dealings



          among the  parties with a  view to informing the  language of the



          offer, especially their prior practice regarding "late" acceptan-



          ces.   Their prior practice provided strong support for the Board



          finding that the May  28 offer is most faithfully  interpreted as



          enabling its acceptance for a reasonable time after June 4 unless



          withdrawn  by the Union before acceptance.  For example, the 1991



          Union offer,  expressed in  virtually identical terms,  stated as



          follows:  "Unless this  office receives a duly authorized  Accep-



          tance of Agreement by July 31, 1991, your company will be consid-



          ered  to be a company which does not have a collective bargaining


10



agreement with the [Union]."  Significantly, Curry did not accept



          the  1991 offer until August 14, 1991.   Given the parties' prior



          practice of submitting and  honoring "late" acceptances, we think



          the Board permissibly  concluded that the Union had not unambigu-



          ously announced in  its May 28 offer an intention  to depart from



          its prior practice regarding "late" acceptances.   



                    Other  circumstantial evidence lends similar support to



          the Board decision.   First, the Union anticipated that  it would



          receive  acceptances  before and  after  June  4, and  ultimately



          executed the new  MA with  every employer except  Curry, some  of



          whom accepted well after  Curry.  Second, the Union's  efforts to



          contact  Curry, and other companies that had not accepted by June



          4,  likewise indicates that the Union did  not regard June 4 as a



          firm deadline for acceptance.  Although the other evidence is not



          entirely inconsistent  with the  Union contention that  the Curry



          acceptance was untimely, neither the evidence nor the language of



          the  offer clearly indicated  that the Union  offer terminated on



          June 4.   In such a case, we  will not disturb the Board's choice



          between  permissible conflicting  views, C.E.K.  Contractors, 921
                                                   ___________________



          F.2d at 355, particularly where the literal language of the offer



          and the course of dealing evidence provide strong support for the



          Board interpretation.  Finally, the strong public policy favoring



          collective  bargaining  agreements  as  the  preferred  means  of



          fostering  industrial  peace appears  well  served  by the  Board



          ruling in the instant context.  Local 24, Int'l Bhd. of Teamsters
                                          _________________________________



          v. Oliver, 358 U.S. 283, 295 (1958).
             ______


11



III
                                         III



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    In sum, the Board  acted well within the bounds  of its



          considerable  discretion.   Viewed  in its  entirety, the  record



          contains  substantial evidentiary support  for the interpretation



          that the Union offer did  not expire by its own terms on  June 4.



          Moreover,  viewed in light of  the prior dealings  among the par-



          ties, especially their prior  practice of submitting and honoring



          "late" acceptances, as well as  the strong public policy favoring



          collective bargaining, we conclude that the June 22 acceptance by



          Curry was not time-barred.  



                    Accordingly, the petition for enforcement is GRANTED.
                    Accordingly, the petition for enforcement is GRANTED.
                                 ___ ________ ___ ___________ __ _______



                    SO ORDERED.
                    SO ORDERED.
                    __ _______


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