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.
12