FW Means & Company v. NLRB
| Decision Date | 08 May 1967 |
| Docket Number | No. 15647.,15647. |
| Citation | 377 F.2d 683 |
| Parties | F. W. MEANS & COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John H. Bishop, Chicago, Ill., Lawrence T. Zimmerman, Washington, D. C., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., National Labor Relations Board, Washington, D. C., for respondent.
Before KNOCH, KILEY and CUMMINGS, Circuit Judges.
F. W. Means & Company petitions this court to review and set aside the Board's order finding that the Company refused to bargain in good faith in violation of sections 8(a) (5) and (1). The Board cross-petitions for enforcement of the order. We deny enforcement.
The Company operated its Sample Street store in South Bend, Indiana, under collective bargaining agreements with the Union1 since 1960. The Union was challenged by a competing union in a representation election, but the Company's employees chose to retain the existing Union, and on May 7, 1964, it was certified as bargaining agent. Thereafter the Union requested negotiation with the Company for a new contract to supplant the agreement due to expire June 13, 1964.
The parties met on June 3, and subsequently on July 8 the Company made an offer containing three alternative wage proposals and all other contract terms previously agreed upon. The next day the members of the Union chose one of the offers and this wage scale was put into effect, retroactive to June 13, 1964. On July 20, with two minor reservations, the parties approved the wording of a written draft prepared by the Union. Attorneys Philbin (for the Union) and Falasz (for the Company) orally agreed upon the wording of the two remaining points on July 22. Philbin then prepared a draft to incorporate these changes. To this draft he also added clauses concerning union security and dues checkoff, neither of which had been discussed previously.2
About July 31, fifteen copies of this draft, signed by Union Representative Klass, were submitted to the Company. Falasz called Philbin to inquire about the changes. He objected to them but offered to substitute the language of the previous informal agreements. When Philbin said no and commented that "we have not finalized these matters," Falasz asked him to contact the Union and call him back. Philbin left for a vacation on August 4 without doing so, and Regional Union Attorney Lampert took his place.
Lampert learned that the Company had entered into a better contract with the Teamsters Union, which represented employees at the Company's Beyer Street store. This prompted Lampert, on August 18, to write requesting return of the fifteen copies of the agreement. The Examiner credited Lampert's version of a telephone conversation on August 20 in which Falasz asked the reason for the Union's request to return the agreements. Lampert testified that he said it was because of the Company's inaction on the contract proposals, that Falasz said the Company had objected to the new clauses which had not been negotiated, and that Falasz then asked what the Union would give in exchange for inclusion of the clauses. When Lampert said the clauses were not bargainable, Falasz said, "if that were the case * * * we would have to start negotiations all over again," and requested a letter from Lampert "in that respect."
On August 21, Lampert wrote Falasz that "in view of the fact that his client refused to sign," Lampert requested return of the agreements and resumption of negotiations on "the unresolved issues." He wrote again, on August 26, "officially withdrawing said agreement." On the same date the Company signed the agreements and sent them to Falasz. On August 27 Falasz sent them to Lampert.
On September 11 the Union rejected the signed contract as representing an agreement "clearly and unequivocally" revoked, and renewed its request for resumption of negotiations of "unresolved issues." This letter stated that the proposed agreement had been induced by an "unequivocal" promise that the terms offered the Teamsters Union at the Company's other South Bend store on Beyer Avenue would not be better than those offered the Union for the Sample Street store, and that the Company had broken the promise. Falasz, relying upon the bargaining agreement as concluded July 8, 1964, answered that the agreement reached was in full force and effect. On October 7 the Union struck the Company. The Company wired the Union that the strike violated the bargaining agreement and that employees who failed to return to work October 8 would be assumed to have quit. The Union wired back that it was engaging in an "unfair labor practice strike because of the Company's bad faith refusal to bargain."
The Union decided to continue the strike until negotiations were resumed. On March 8, 1965, it wired respondent demanding immediate negotiation and threatening the filing of charges with the Board. On March 12 charges were filed. The complaint was filed May 19. On May 26 the Union repeated its demand, but the Company stood upon the agreement. The positions of the Union and the Company remained unchanged when the hearing began July 12, 1965. The Company asserted a defense under section 8(d), claiming that a binding contract was made on July 22.
The Board expressly rejected the Examiner's view that the oral agreement of July 22 was unenforceable because it had not been reduced to writing acceptable to both parties. But the Board found it unnecessary to decide whether the parties made a binding agreement on July 22, 1964, because it thought that events after July 22 indicated that "such agreement as they may have reached" on that date was "mutually rescinded."
The main issue here is whether the record as a whole substantially supports the Board's finding that the parties by their conduct rescinded whatever agreement was made July 22, 1964.
The Board did not decide whether the Union and Company had made an agreement but assumed they had and inferred from their subsequent conduct a mutual intention to rescind. The basis of the Board's finding of rescission is the failure of the Company to demand a written...
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