Dist. 4, Commc'ns Workers v. Nat'l Labor Relations Bd.
| Docket Number | 21-1188 |
| Decision Date | 14 February 2023 |
| Citation | 59 F.4th 1302 |
| Parties | DISTRICT 4, COMMUNICATIONS WORKERS OF AMERICA (CWA), AFL-CIO, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Thryv, Inc., formerly known as Dex Media, Inc., d/b/a DexYP, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the National Labor Relations Board
Matthew R. Harris was on the briefs for petitioner.
Ruth E. Burdick, Deputy Associate General Counsel, National Labor Relations Board, David Habenstreit, Assistant General Counsel, Julie Broido, Supervisory Attorney, and Gregoire Sauter, Attorney, were on the brief for respondent.
David Zwisler was on the brief for intervenor Thryv, Inc. in support of respondent.
Before: Srinivasan, Chief Judge, Pillard, Circuit Judge, and Sentelle, Senior Circuit Judge.
We are asked to decide which of two different retirement-benefit terms binds the parties to a labor agreement. It is undisputed that, before the parties arrived at the 2016 labor agreement at issue, the Company's benefit plan offered bargaining-unit employees a tax-advantaged defined contribution plan under Internal Revenue Code Section 401(k)—a "401(k)" for short. It is also common ground that the predecessor collective bargaining agreement did not mention any 401(k) benefit, whereas the new agreement guarantees the employer will continue to provide a 401(k) benefit. But the parties dispute which of two documents—with different 401(k) terms—reflects their final and binding agreement.
The Company asserted and the Board determined that the binding agreement is the September 16, 2016, Memorandum of Agreement, as hand signed by Company and Union bargaining representatives. The Union asserts that a different contract document, as typed up and circulated to the parties almost a year later, is the one that binds. At first blush, it might seem that the later document, finalized and circulated for the parties' reference going forward, must be the authoritative agreement. And the Company might appear to be on thin ice in objecting to a more generous 401(k) term it concededly inserted into that finalized document—a term that the Union embraced and now seeks to enforce. But, as the Board recognized, which of the conflicting provisions applies turns on when the parties reached final agreement: The retirement-benefit term they agreed to at that time is the one that binds them.
The hand-signed 2016 Memorandum of Agreement states that "[t]he Union and Employer collectively have reached agreement and the predecessor agreement shall only be revised as specifically set forth herein." J.A. 709. That Agreement's 401(k)-benefit term committed only that the labor agreement would "acknowledge the provision of a 401(k) benefit." J.A. 729. The version posted the following year is a revision of the predecessor labor agreement, meant to incorporate the terms of the 2016 Memorandum of Agreement. In contrast to the hand-signed version, however, the revised contract document states that the employer's 401(k) matching rate will be "no less than 100% for each employee dollar contributed to individual accounts up to 5% maximum contribution." J.A. 371.
When the Company upgraded its retirement-benefit offering in 2018, the Union brought the unfair labor practice charge at issue here. The Union claimed that the Company unilaterally modified the parties' collective bargaining agreement by "implementing a 401(k) contribution matching structure other than that specifically negotiated and memorialized in the CBA [Collective Bargaining Agreement]." Charge Against Employer, Attachment A ( basis of charge), J.A. 3. The new, objected-to 401(k) plan guaranteed up to 4.8 percent overall match—the same overall match the Company had been providing, but structured a bit more favorably to the beneficiaries than the previous plan by front-loading the employer's matching contribution. The Union pointed to the "5% maximum contribution" language in the revised contract document to assert that the new plan fell short. The Company responded that it had inserted that 5 percent term by mistake in the process of revising the predecessor agreement to reflect the terms of the 2016 Memorandum of Agreement.
The Board dismissed the complaint, concluding that the parties reached a final and binding labor contract as of September 16, 2016, and that the difference between the 2016 Memorandum of Agreement and the 2017 contract revision resulted from a drafting error. To identify when the parties reached final agreement—and so which 401(k) term binds them—the Board considered evidence of the parties' bargaining history. The Board found that the parties reached final agreement at the close of negotiations in September 2016, when they signed the 2016 Memorandum of Agreement as the exhaustive list of their agreed revisions to the 2013 predecessor contract. During negotiations, the Board found, the Union had proposed and the Company rejected a 6 percent and then a 5 percent 401(k) match. The decisive compromise leading to agreement on the new contract was to expressly acknowledge a 401(k) benefit, without commitment to any particular match.
The Company's Board of Directors and the bargaining unit members ratified the new contract in late 2016 based on the 2016 Memorandum of Agreement. The follow-up communications between the Company's and Union's representatives in 2017 were aimed at revising the 2013 contract's text to reflect the terms of the Agreement they had reached; the parties never purported to be negotiating substantive terms during that ministerial process. In that context, the Board permissibly determined that the hand-signed 2016 Memorandum of Agreement was final, binding, and exhaustive, such that its retirement-benefit term governs.
The Union seeks review here, arguing that the Board misapplied its precedent, impermissibly considered parol evidence of the parties' bargaining history, and found facts unsupported by substantial evidence. For the reasons that follow, we deny the petition for review.
DexYP (the Company) publishes and sells the Yellow Pages phone directory and other marketing tools. The Company was known as YP Midwest Publishing until June 2017, when it was acquired by Dex Media Holdings, Inc. and became DexYP. DexYP has a collective bargaining relationship with the Communication Workers of America (the Union), which represents a bargaining unit of staff associates, service representatives, customer service specialists, and art technicians. YP Midwest Publishing and the Union had entered into a 2013 Collective Bargaining Agreement and a 2016 successor Collective Bargaining Agreement. When Dex Media Holdings acquired the Company in 2017, the 2016 agreement remained in effect and the new management committed to honoring all existing Collective Bargaining Agreements and bargaining obligations.
The parties to the 2016 collective bargaining negotiations used the terms of the 2013 Collective Bargaining Agreement as the baseline from which they bargained. That predecessor contract consisted of a main agreement with forty-one articles and seven exhibits, plus thirty-seven side letters, a 2013 memorandum of agreement, and three appendices. Although that pile of documents comprising the 2013 contract made no mention of retirement benefits, the employer's benefits plan at the time included a 401(k) benefit for which the bargaining unit employees were eligible. That 401(k) plan provided that, for employees who contributed up to 6 percent of their salary to a 401(k) account, the employer would match the employees' contributions at 80 percent, i.e., contribute to an employee's retirement account an amount equal to 4.8 percent of the employee's salary.
In September 2016, the Company and the Union signed a twenty-page Memorandum of Agreement memorializing the various revisions they agreed to make to the 2013 contract. The cover page of the Memorandum of Agreement stated: "The Union and Employer collectively have reached agreement and the predecessor agreement shall only be revised as specifically set forth herein." J.A. 709. The Memorandum of Agreement reads like a to-do list of items to be written into the text of the predecessor agreement, with twenty-four revisions identified. Some revisions are short and straightforward: "Delete Letter 25 and Letter 30." J.A. 729. Other revisions specify new language for existing articles, increase certain reimbursement rates and weekly wages, or set conditions for new Company roles. The Memorandum addresses 401(k) retirement benefits as follows: "The Company agrees to acknowledge the provision of a 401(k) benefit to bargaining union [sic: unit] employees in the drafting of the collective bargaining agreement." J.A. 729.
The Company and Union did not complete the revised document incorporating their negotiated revisions into the existing contract until almost a year later. The cover page of that contract document as distributed late in 2017 is nearly identical to the cover page of the 2016 Memorandum of Agreement. The only difference is that actual signatures appeared on the cover page of the Memorandum, whereas the signatories' names were typed on the cover of the document as posted and circulated. But the signatories are the same, and both documents show September 16, 2016, as the signing date. Indeed, the Company signatory whose name is typed in is Keith Halpern—who represented DexYP at negotiations during 2016 and hand signed the Memorandum of Agreement—even though he no longer worked for the Company when the revised contract document was produced with his name typed on it in 2017.
Central to the current dispute, the revised contract document as circulated includes specific language about the 401(k) benefit that is absent from the 2016 Memorandum of Agreement. Whereas the Agreement...
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