N.L.R.B. v. International Broth. of Elec. Workers, Local Union No. 22, 84-1430
| Decision Date | 28 November 1984 |
| Docket Number | No. 84-1430,84-1430 |
| Citation | 748 F.2d 348 |
| Parties | 117 L.R.R.M. (BNA) 3343, 102 Lab.Cas. P 11,263 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 22, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.
David D. Weinberg, Washington, D.C., for respondent.
Before HEANEY, ROSS and BRIGHT, Circuit Judges.
The National Labor Relations Board (Board) petitions for enforcement of an order, 268 NLRB 111 (1983), finding that the International Brotherhood of Electrical Workers, Local Union No. 22 (Union) violated section 8(b)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(3), by failing to execute a written contract incorporating terms allegedly agreed upon by the Union and Electronic Sound, Inc. (Company). The Board ordered the Union to execute a contract and to give the contract retroactive effect until expiration or disapproval by the International Brotherhood of Electrical Workers (International).
The Union argues that the order should be set aside because it is unsupported by substantial evidence. Specifically, the Union contends that the Board, which adopted the findings of an administrative law judge (ALJ), erred in concluding that (1) on June 24, 1982, the Union and the Company reached an agreement; (2) the Company did not engage in further negotiations on June 26; (3) approval by the International was a condition subsequent to the contract; and (4) Company misconduct did not taint the bargaining process. For the reasons discussed below, we enforce the Board's order.
The Company is a corporation engaged in the installation of communications systems. Since approximately 1966, the Union has represented the Company's employees in collective bargaining agreements. This dispute arises out of 1982 contract negotiations.
On May 25, June 16 and June 21 of 1982, Earl Oliver, the Union's business representative In late June, Oliver informed the employees that he would not execute a contract incorporating the terms of the June 24 discussion. By letter of June 30, Oliver requested further negotiations with Van Roy. Although Oliver testified that Van Roy agreed to negotiate, Van Roy testified that he informed Oliver that he refused to enter further negotiations because an agreement had already been reached. On July 9, Company counsel mailed Oliver a letter, enclosing a written contract incorporating the terms of the June 24 discussion and requested that Oliver execute the contract. On July 19, Oliver responded by requesting further negotiations. Oliver stated that Union had not reached agreement on June 24 and that the tendered contract did not accurately reflect certain provisions. On July 26, the parties and their counsel met. The Union sought to negotiate, but the Company refused, stating that it believed an agreement had already been reached. The Company offered to modify the contract language to reflect the agreement reached on June 24. The Union refused.
and Daniel Van Roy, the Company's owner, met to discuss the terms of a contract to replace the expiring 1979 contract. Van Roy sought significant concessions, which the Union rejected. On June 24 Oliver met with six or seven employees to discuss the status of the negotiations. After rejecting the Company's terms, the employees proposed new terms. In the presence of the employees, Oliver telephoned Van Roy to present the proposal. Van Roy agreed to the terms with the exception of one and presented a counter proposal. Oliver informed Van Roy that after he discussed the proposal with the employees, he would contact Van Roy. About thirty minutes later Oliver telephoned Van Roy. After further bargaining, Oliver, while Van Roy was on the telephone, polled the employees as to each term. The employees unanimously agreed to each term. The evidence is conflicting as to what Oliver then told Van Roy. Oliver testified that he informed Van Roy that the employees agreed to the terms; Oliver denied stating that the Union agreed to the terms. However, Van Roy testified that Oliver stated, "It looks like we have a contract. No, we do have a contract." Three employees who were present during the telephone conversation corroborated Van Roy's testimony
The Union argues that an agreement was not reached on June 24 because Oliver did not expressly inform Van Roy that the Union assented to the terms. The Union contends that Oliver did convey the employees' assent, but that, as the authorized union agent, only Oliver, not the employees, had the authority to enter into binding agreements. 1
"Whether or not an agreement has been reached between two parties is a question of fact for the Board to determine[.]" NLRB v. Truckdrivers, Local 100, 532 F.2d 569, 571 (6th Cir.), cert. denied, 429 U.S. 859, 97 S.Ct. 160, 50 L.Ed.2d 137 (1976). Courts must " 'uphold factual findings of the Board which are supported by substantial evidence on the record as a whole.' " Id. (Citation omitted). Furthermore, it "is well established that technical rules of contract do not control whether a collective bargaining agreement has been reached." Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89 (8th Cir.1981). Rather, the crucial inquiry is whether there "is conduct manifesting an intention to abide and be bound by the terms of an agreement." Capitol-Husting Co., Inc. v. NLRB, 671 F.2d 237, 243 (7th Cir.1982). We find that the Board correctly found that on June 24 Oliver expressed sufficient assent to bind the Union. As noted by the ALJ, Oliver did not express any reservations regarding the terms nor did he attempt to disassociate himself or the Union from the employees' expression of assent. Furthermore, as an alternative holding, the ALJ credited Van Roy's testimony that Oliver stated that "we," (the Union and the Company) had a contract. A fact-finder's credibility determinations should...
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