N.L.R.B. v. Roll & Hold Div. Area Transp. Co., Inc.
| Decision Date | 20 February 1992 |
| Docket Number | No. 90-3760,90-3760 |
| Citation | 957 F.2d 328 |
| Parties | 139 L.R.R.M. (BNA) 2609, 121 Lab.Cas. P 10,007 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROLL & HOLD DIVISION AREA TRANSPORTATION COMPANY, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Magdalena Revuelta (argued), N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Aileen A. Armstrong, Howard E. Perlstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.
Leonard R. Kofkin (argued), Fagel & Haber, Chicago, Ill., for respondent.
Before BAUER, Chief Judge, COFFEY, Circuit Judge, and WISDOM, Senior Circuit Judge. 1
In this case we are asked to enforce an order of the National Labor Relations Board ("the Board") requiring Roll & Hold Division, Area Transportation Co., Inc. ("the company"), among other things, to execute and carry out a written collective bargaining agreement with the United Steel Workers of America, AFL-CIO ("the Union"). The company argues that the Board erroneously held that the company and the Union reached a final agreement that was binding on the parties. Because we find that there is substantial evidence in the record to support the Board's decision, we grant the application for enforcement.
The Union was certified to represent the company's warehouse employees on November 30, 1987. The company and the Union began negotiating a collective bargaining agreement in March 1988. The members of the Union's negotiating team were Luther Jenkins, who is a Union staff member, and various warehouse employees of the company. The members of the company's team were Leonard Kofkin, who is in-house counsel for the company, and various supervisory employees of the company.
By June 1988 the parties had come to a complete accord on what they termed "non-economic issues". Thereafter the parties turned to economic matters. The company steadfastly refused to acquiesce in any wage increases. The company rejected both a plan calling for a one-year wage freeze with a wage reopener in the second year and a plan calling for a two-year freeze with a reopener in the third year.
On October 14, 1988, the Union negotiators decided that they would accept the company's proposal as it stood on that day. The Union negotiators told the company's negotiators that the Union accepted the company's proposals, and the parties shook hands across the table.
On October 15, Mr. Jenkins presented the proposal to the employees. The fourteen employees present 2 voted unanimously to ratify the agreement. On October 16, Mr. Jenkins called Mr. Kofkin to tell him the agreement had been ratified and to ask Mr. Kofkin to draft the document and prepare it to be signed. On October 17, a couple of employees apparently complained to a member of the negotiating team concerning the ratification process. Also on October 17, the company distributed a memorandum to its employees explaining what the Union had bargained away (wage increases, merit increases, profit sharing plan, etc.). On October 20, the company distributed a second memorandum informing the employees that if the agreement had not, in fact, been ratified by a majority, then it was up to the employees to complain to the Union.
In November 1988, Mr. Kofkin sent copies of the agreement to Mr. Jenkins and asked that the copies be returned to him after the International Union had signed it. Mr. Jenkins called Mr. Kofkin in early December concerning the fact that there was no specific mention of the medical plan in the agreement. Mr. Jenkins also told Mr. Kofkin that the parties would sit down together and sign the agreement.
All the while, the company had apparently been receiving information that certain employees were dissatisfied with the agreement. 3 On December 14, 1988, the employees were called to a meeting by the company. The purpose of this meeting was to conduct a poll of the employees' feelings about the Union and the agreement. Sixteen of the twenty employees present voted that "The union does not represent me and I do not want the company to agree to the terms of the three-year contract". 4
In late December 1988 or early January 1989, Mr. Jenkins called Mr. Kofkin about the agreement. Mr. Kofkin responded that the company had decided not to go through with the agreement.
The Union filed a grievance against the company with the Board. The Union alleged that the company had violated provisions of the National Labor Relations Act 5 by failing and refusing to execute the written contract embodying the terms of the agreement reached between the parties on October 14, 1988, by polling its employees to determine whether the employees wanted the Union to represent them and whether they wanted the company to execute the agreement, and by withdrawing recognition from and refusing to bargain with the Union.
Based on the foregoing facts the administrative law judge (the "ALJ") found that the parties had reached a final agreement on October 14, 1988. Both parties appealed this decision to the Board. The Board upheld the decision of the ALJ with only minor modifications. The Board found that the parties had reached a full and final agreement on October 14, 1988, and that there were no conditions precedent to the formation of a contract. Since a union enjoys an irrebuttable presumption of majority status during the term of a collective bargaining agreement, 6 the Board also affirmed the ALJ's decision that the company had violated the NLRA by polling its employees.
This Court must uphold the finding of the Board that a binding agreement existed as long as that finding is supported by substantial evidence on the record considered as a whole. 7 The company has two basic lines of argument in opposition to the Board's order. First, the company argues that Board erred in finding that there were no unfulfilled conditions precedent to the company's execution of the agreement. Second, the company argues that the Board erred in finding that the parties had reached a final and binding agreement.
After the parties shook hands across the table, Mr. Jenkins told the company's negotiation team that he was going to have the agreement ratified by the employees. The company argues that this is proof that ratification by the employees was a condition precedent.
The company provides no evidence that the parties at any time agreed that ratification was necessary to the contract. Some unions do have internal bylaws that require all agreements to be ratified. Occasionally, the union and the company do agree that ratification is a condition precedent. Nevertheless, the Board has consistently held that unless specifically agreed to, ratification is not a condition precedent to the contract coming into being. 8
The only time that ratification was mentioned was after the agreement had been reached. The fact that Mr. Jenkins volunteered to have the agreement ratified by the employees does not show that the parties agreed that ratification was a necessary condition precedent. The Board was fully justified in finding that it was not such a condition. 9
The company also argues that execution by the International Union was a condition precedent to the company's obligation to execute the agreement. The company points to no evidence indicating that the parties agreed to such a requirement. Instead, the company relies on isolated statements that were made after the agreement had been reached.
The company contends that Mr. Jenkins's request that Mr. Kofkin put ten signature lines on the contract created a condition precedent. Mr. Jenkins did ask for ten lines for the International Union's signatures. The company also makes much of the fact that Mr. Kofkin, the company's in-house counsel, sent the contract to Mr. Jenkins "for the Union's signatures". The company states that Mr. Jenkins's failure to object to the procedure suggested by Mr. Kofkin until four or five weeks later indicates that there had been a prior agreement that the International Union's signatures were a condition precedent.
What is most obvious is the lack of evidence regarding this alleged condition precedent. The company never even implies that the parties agreed to any conditions during the course of negotiations. A thorough reading of the record shows that the Board was fully justified in finding that there were no conditions precedent. 10
The company argues that the ALJ and the Board selectively ignored portions of Mr. Jenkins' testimony. The portions the company contends were ignored are the six times that Mr. Jenkins referred to the agreement as "tentative". The company attempts to take this one word and build an entire case around it....
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