N.L.R.B. v. Boston Dist. Council of Carpenters

• Decision Date: 09 February 1996
• Docket Number: AFL-CI,No. 33,A,R,No. 95-1762,33,95-1762
• Citation: 80 F.3d 662
• Parties: 151 L.R.R.M. (BNA) 3005, 131 Lab.Cas. P 11,547 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BOSTON DISTRICT COUNCIL OF CARPENTERS, Affiliated with United Brotherhood of Carpenters and Joiners of America and Carpenters Local Unionffiliated with United Brotherhood of Carpenters and Joiners of America,espondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 662

80 F.3d 662

151 L.R.R.M. (BNA) 3005, 131 Lab.Cas. P 11,547

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BOSTON DISTRICT COUNCIL OF CARPENTERS, Affiliated with United Brotherhood of Carpenters and Joiners of America and Carpenters Local Union No. 33, Affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondent.

No. 95-1762.

United States Court of Appeals First Circuit.

Heard Feb. 9, 1996.

Decided April 10, 1996.

On petition for enforcement of an Order of the National Labor Relations Board.

Christopher N. Souris, with whom Feinberg, Charnas & Birmingham, Boston, MA, was on brief for respondent.

Christopher W. Young, Attorney, with whom Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. Havard, Supervisory Attorney, Washington, DC, were on brief for petitioner.

Before CYR, BOUDIN and STAHL, Circuit Judges.

CYR, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order directing the Boston District Council of Carpenters ("Union") to execute a collective bargaining agreement ("CBA") with the charging party Curry Woodworking, Inc. ("Curry"). As we conclude that there is substantial evidentiary support for the Board order, we grant the petition for enforcement.

I BACKGROUND

The Union, a "labor organization" within the meaning of the National Labor Relations Act ("NLRA"), see 29 U.S.C. § 152(5) (1994), is the central governing body for nine local unions affiliated with the United Brotherhood of Carpenters & Joiners of America. The Union exercises the collective bargaining authority of its constituent locals in negotiating a CBA, known as a Master Agreement ("MA"), with several multiemployer associations. Once a MA has been negotiated with these multiemployer associations, the Union customarily offers the same MA to other area employers, including those which neither belong to a multiemployer association nor otherwise participate in negotiations. These nonparticipating employers may bind themselves to the negotiated MA simply by executing what are known as "me too" acceptances, which give rise to prehire agreements authorized under NLRA § 8(f). ¹

Curry was formed in 1990 and, on August 23, 1990, became a "me too" signatory to its first MA with the Union, which covered Curry's four unionized installers but not its thirteen nonunion architectural millworkers. The Union and the multiemployer associations subsequently executed a new MA for the period August 1, 1991 to May 31, 1993, which Curry joined on August 14, 1991. In order to foreclose any continuation of the 1991-93 MA beyond its term, in March 1993 the Union advised Curry that it intended to negotiate changes in the next MA. As the May 31, 1993, expiration date approached, the Union and the multiemployer associations again negotiated a successor MA--for the period June 1, 1993, through September 30, 1997.

On May 28, 1993, the Union offered the new MA to approximately 135 "me too" employers, including Curry, and advised: "Unless this office receives a duly authorized Acceptance of Agreement by June 4, 1993, your company will be considered not to have a collective bargaining agreement with the [Union]." (emphasis added). On June 22, Curry signed, dated, and mailed its Acceptance of Agreement to the Union. On June 23, a Union representative called Curry to inquire whether its acceptance form had been signed. Although the Union representative voiced no concern or objection upon learning that the acceptance had been mailed, the Union never executed a successor MA with Curry.

Curry continued to utilize its unionized installers to perform work throughout June and July 1993, before the wage and benefit increases under the new MA were to take effect. On August 2, however, one day after the wage and benefit increases under the new MA went into effect, the Union refused to sell Curry fringe benefit stamps, which employers include in the pay envelopes of their unionized employees as evidence that the employer has made the appropriate contributions to the Union's collection agency. As a practical matter, without fringe benefit stamps Curry was unable to retain the services of its unionized installers. ² Curry complained to Union officials but was advised that the Union believed it had no legal obligation to execute a new MA with Curry, and would not do so unless Curry's architectural millworkers were unionized.

After Curry filed an unfair labor practice charge against the Union, the Board issued a complaint alleging that the Union had violated NLRA § 8(b)(3) by failing to execute and honor the terms of the new MA. ³ The Union denied the charge. An administrative law judge ("ALJ") concluded that the May 28 letter did not constitute a binding offer by the Union, and, in the alternative, that it had expired by its terms on June 4, before it was accepted by Curry.

The Board rejected the finding that the Union offer expired on June 4, because (1) the Union had expected to receive many acceptances after June 4; (2) the Union did receive post-June 4 acceptances from almost half the "me too" employers with whom it later executed the new MA; (3) the Union made a systematic effort to contact employers, including Curry, from whom it had not received acceptances by June 4; and (4) the May 28 letter did not explicitly state that the offer to execute the new MA would expire on June 4. Carpenters Local 33, 316 N.L.R.B. 367, 369-70 (1995), 1995 WL 72412, at * 3-4. The Board accordingly ruled that the Union had violated NLRA § 8(b)(3) and ordered the Union to execute the new MA with Curry. Id. at 370, 1995 WL 72412, at * 4-5.

II DISCUSSION

As the Board is primarily responsible for developing and applying a coherent national labor policy, NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990), we accord its decisions considerable deference. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987). Thus, we will enforce the order if the Board correctly applied the law and if its findings of fact are supported by substantial evidence based on the record as a whole. NLRB v. Auciello Iron Works, Inc., 980 F.2d 804, 807 (1st Cir.1992), opinion after remand, 60 F.3d 24 (1st Cir.1995), cert. granted, --- U.S. ----, 116 S.Ct. 805, 133 L.Ed.2d 752 (1996); 29 U.S.C. § 160(e) (1994). The evidence relied on by the Board must be adequate to enable a reasonable mind to consider it sufficient to support the Board's conclusion. Auciello, 980 F.2d at 807. Accordingly, we must take into account whatever in the record evidence fairly detracts from the Board's factual findings, and examine it in the light furnished by the entire record, including the ALJ's findings and any other evidence opposed to the Board's view. C.E.K. Indus. Mechanical Contractors v. NLRB, 921 F.2d 350, 355 (1st Cir.1990); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Yet we may not "substitute our judgment for the Board's when the choice is 'between two fairly conflicting views, even though [we] would justifiably have made a different choice had the matter been before [us] de novo.' " Auciello, 980 F.2d at 808 (quoting Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465).

With the analytic framework in place, we turn to the only issue in the case: whether the Board supportably determined that the May 28 Union offer to Curry did not expire on June 4. The Union mounts a plain language argument based on the express terms of the May 28 letter, whereas the Board emphasizes the broader context within which the offer was made.

The argument advanced by the Union--that it had the right to shape the terms of its offer to Curry, see, e.g., 1 Arthur L. Corbin, Corbin On Contracts § 2.14 (Joseph M. Perillo ed., 1993), is not readily dismissed in the face of the language it used in the May 28 letter to Curry: "Unless this office receives a duly authorized Acceptance of Agreement by June 4, 1993, [Curry] will be considered not to have a collective bargaining agreement with the [Union]." Yet for all its literal force the plain language argument must contend with the settled labor law principle that a CBA is not just another contract. John Wiley & Sons v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 914-15, 11 L.Ed.2d 898 (1964).

The prevailing rule, in this and other circuits, provides that technical rules of contract interpretation are not necessarily binding on the Board in the collective bargaining context, Auciello, 980 F.2d at 808, even though it is free to apply general contract principles so as to foster the established federal labor policy favoring collective bargaining. Thus, we have held that " '[i]n the collective bargaining context, an offer will remain on the table unless the offeror explicitly withdraws it or unless circumstances arise that would lead the parties to reasonably believe that the offeror has withdrawn the offer.' " Id. (quoting NLRB v. Burkart Foam, Inc., 848 F.2d 825, 830 (7th Cir.1988)). The Board urges us to apply the same rule in this case.

Although myriad cases involve rejections and counteroffers, there is a notable lack of appellate authority on what constitutes an express withdrawal of an offer in the collective bargaining context. For example, in Auciello, unlike the present case, the company placed no express time limit on its offer to the union, instead contending that the union had rejected the company offer simply by "storming out" of a bargaining session. This court found that the Board sensibly had concluded that "a mere uncommunicated, unilateral judgment by the Company that rejection had occurred would, by itself, be ineffective to remove its proposal from the table." Id. at 809. The nature of the dispute in Auciello, and other cases, see, e.g., Williamhouse-Regency of...