International Brotherhood of Electrical Workers, Local 176 v. Balmoral Racing Club, Inc. And Balmoral Park Trot, Inc.

MANION, Circuit Judge,

dissenting.

The issue on appeal is relatively straightforward: Does the collective bargaining agreement between Balmoral and Local 176 cover the former World Wide camera workers? The court’s opinion turns on the last sentence of the IBEW International President’s otherwise confusing letter. Not surprisingly, he concluded: “Yes, cameramen are under the jurisdic*409tion of the IBEW and Local 176. But m the absence of modification or novation of the parties’ collective bargaining agreement (CBA), the cameramen are clearly not covered. The record demonstrates that until September 1996 both parties interpreted the CBA as only covering electrical work. See Restatement of Contracts § 201(1) (1981) (noting that “[wjhere the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.”). The threshold question then is whether Balmoral’s decision to temporarily hire the camera workers constituted a modification or novation of the parties’ CBA, thus bringing the camera workers within its coverage. It is well established that collective bargaining agreements may be altered by the post-signing acts of the party sought to be bound. See, e.g., Transp.-Communication Employees Union v. Union Pacific R.R. Co., 385 U.S. 157, 160-61, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966) (holding that “[i]n order to interpret ... [a collective bargaining] agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements.”). See also Anheuser-Busch, Inc. v. Local Union No. 744, 280 F.3d 1133, 1146 (7th Cir.2002) (Easterbrook, J., dissenting);. Inti Bus. Lists, Inc. v. American Telephone and Telegraph, 147 F.3d 636, 641 (7th Cir.1998); Matuszak v. Torrington Co., 927 F.2d 320, 324 (7th Cir.1991). In concluding that the cameramen are covered by the CBA, the court interpreted the language of the agreement without reference to or consideration of the parties’ clearly established understanding of its scope. See Restatement of Contracts § 201 cmt. c (1981) (noting that “[t]he objective of interpretation in the general law of contracts is to carry out the understanding of the parties rather than to impose obligations on them contrary to their understanding: the courts do not make a contract for the parties.’ ”). The IBEW’s International President may have a great deal of discretion under the terms of the CBA, but he does not have the authority to modify the basis upon which the agreement was originally struck. Perhaps a remand would be in order to fill this gap. In any event, because I believe that genuine issues of material fact remain with respect to the issue of whether a modification or novation of the agreement occurred, I respectfully dissent.