

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                

No. 95-1762

                 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.

                                                                                                

                  ON PETITION FOR ENFORCEMENT OF

                         AN ORDER OF THE

                  NATIONAL LABOR RELATIONS BOARD

                                                                                                

                              Before

                      Cyr, Boudin and Stahl,

                         Circuit Judges.                                                 

                                                                                                

   Christopher N. Souris, with whom Feinberg, Charnas &amp; Birmingham                                                                            
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, were on brief for petitioner.

                                                                                                

                          April 10, 1996
                                                                                                

          CYR, Circuit Judge.  The National Labor Relations Board                    CYR, Circuit Judge.                                      

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                                          I

                            BACKGROUND                                      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 &amp; 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 associa-

tion nor otherwise participate in negotiations.  These nonpartic-

ipating 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 

                                                  

     129 U.S.C.    158(f) (1994).   See C.E.K.  Indus. Mechanical                                                                           
Contractors  v. NLRB, 921 F.2d 350, 356-59 (1st Cir. 1990), for a                              
discussion of prehire agreements.

                                2

          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 multi-

employer  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  multi-

employer 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  Accep-

tance of Agreement by June 4,  1993, your company will be consid-                                                                           

ered 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 representa-

tive voiced no concern or objection upon learning that the accep-

tance  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                                                             

                                3

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 ad-

vised  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
                                                  

     2Although the new MA  had not been executed with  four other
employers  by August  1,  those employers  eventually worked  out
their differences with the Union.  In the end, Curry was the only
former  signatory with  which the  Union did  not enter  into the
1993-97 MA. 

     3"It shall be an unfair labor practice for a labor organiza-
tion or its agents .  . . to refuse to bargain  collectively with
an employer . . . ."  29 U.S.C.    158(b)(3) (1994).  The duty to
engage in  collective bargaining includes  the duty to  execute a
written  contract,  upon  request,  incorporating  any agreement.
NLRB  v. Auciello Iron  Works, Inc., 980 F.2d  804, 808 (1st Cir.                                             
1992) (citing NLRB  v. Strong,  393 U.S. 357,  359, 362  (1969)),                                       
opinion  after remand, 60 F.3d 24 (1st Cir. 1995), cert. granted,                                                                          
116 S. Ct. 805 (1996).  

                                4

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 systemat-

ic 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                                          II

                            DISCUSSION                                      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 (1990), we  accord                                   

its  decisions  considerable  deference.   Fall  River  Dyeing  &amp;                                                                           

Finishing Corp. v.  NLRB, 482 U.S. 27, 42 (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                                                              

                                5

(1st Cir. 1995), cert. granted, 116 S. Ct. 805 (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  (1951).  Yet we  may not "substitute our  judgment

for  the Board's when the choice is `between two fairly conflict-

ing views, even though [we] would justifiably have made a differ-

ent choice had the matter been before [us]  de novo.'"  Auciello,                                                                          

980 F.2d at 808 (quoting Universal Camera, 340 U.S. at 488).                                                     

          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

                                6

receives  a duly  authorized Acceptance of  Agreement by  June 4,

1993,  [Curry] will be considered  not to have  a collective bar-

gaining 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 &amp; Sons v. Livingston, 376 U.S. 543, 550 (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. Burkhart 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 counter-

offers,  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.

                                7

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  Del., Inc. v.  NLRB, 915 F.2d 631,  633-35 (11th Cir.                                         

1990) (company revived terminated offer); Pepsi-Cola Bottling Co.                                                                           

v.  NLRB, 659  F.2d  87, 90  (8th Cir.  1981)  (company offer  at                  

beginning  of a  strike did  not imply  a condition  of immediate                                                

acceptance), is materially  different from  the present  dispute,

which  turns principally on an interpretation of the terms of the

written offer itself.  

          Our  research discloses that the Board consistently has

acknowledged  that an  offeror  may impose  an explicit  temporal

limit on  an offeree's right to  accept an offer to  enter into a

CBA.   For  example,  in J.  Hofert Co.,  269  N.L.R.B. 520,  520                                                 

(1984), 1984 WL 36313, at *1, the Board found  that the following

language unequivocally  limited a contract  offer at the  time it

was  made:   "This  proposal will  be  open through  Wednesday [7

October 1981] after which date it will be withdrawn if it has not

been accepted."  The Board later followed J. Hofert Co. in ruling                                                                 

that "a party . . . may condition [its] offer  upon acceptance by

a specified deadline, thereby precluding the making of a contract

if the  other party fails  to accept prior  to the deadline.   In

such a case, the offer is construed as  being withdrawn if accep-

tance  does  not come  by the  expressed  deadline."   Inner City                                                                           

                                8

Broadcasting  Corp.,  281 N.L.R.B.  1210,  1216  (1986), 1986  WL                             

54460,  at *10.   Although we find  J. Hofert Co.  and Inner City                                                                           

Broadcasting  instructive,  we nonetheless  agree with  the Board                      

that  the language  of the  Union offer in  this case  imposed no

unequivocal temporal limitation on  the offeree's right to accept

the offer,  thus leaving  the offer  open  to the  interpretation

given it by the Board.  

          1. The Language of the Offer                    1. The Language of the Offer                                                

          The May 28 letter stated that unless the Union received

an Acceptance of Agreement by June 4, the offeree would  "not . .

.  have a collective bargaining  agreement" with the  Union.  The

ALJ found  this language  sufficiently definite to  terminate the

right to  accept on  June 4.   The  Board disagreed, because  the

"letter  does not state specifically that execution by June 4 was                                              

a condition of acceptance or that the offer would be withdrawn on

that date."   Carpenters Local 33,  316 N.L.R.B. at 369,  1995 WL                                           

72412, at *4 (emphasis added).  

          As the Board supportably determined, there is a signif-

icant difference    particularly  in the context of this  case   

between stating  that the parties  will not be  cooperating under

any  CBA unless  Curry accepts  the  Union offer  by  June 4  and

stating that  the offer to enter  into a new CBA  expires on June                                                      

4.4   The Board  reasonably construed  the temporal  reference in
                                                  

     4At oral argument,  the Board conceded that  the Union would
have had no obligation to enter into a new MA  with Curry had its
May 28 letter expressly stated that the offer expired on  June 4.
Its concession is consistent  with the Board precedents discussed
above.  See supra p. 8.                           

                                9

the  Union  offer  to  mean that  the  parties'  labor-management

relations would be subject neither to the MA which expired on May

31, nor to the proposed new MA, unless the offer were accepted by

Curry by  June 4.  The  Union, on the other  hand, interprets the

May  28 letter as  foreclosing any  subsequent acceptance  of the

Union offer by Curry after June 4.  Although  the language itself

might accommodate either interpretation, depending on the context

in which used, it  is the Union interpretation, not  the Board's,

which  goes somewhat  beyond the  literal purport  of the  offer.

That is to say, in a nutshell, the literal language  of the offer

was ambiguous as to  the consequences of an offeree's  failure to                                               

accept by June  4.  As to this critical  matter, it was eminently

reasonable for the Board  to look to any relevant prior course of

dealing among the parties.

          2. The Course of Dealing                    2. The Course of Dealing                                            

          Accordingly, the Board examined relevant prior dealings

among the  parties with a  view to informing the  language of the

offer, especially their prior practice regarding "late" acceptan-

ces.   Their prior practice provided strong support for the Board

finding that the May  28 offer is most faithfully  interpreted as

enabling its acceptance for a reasonable time after June 4 unless

withdrawn  by the Union before acceptance.  For example, the 1991

Union offer,  expressed in  virtually identical terms,  stated as

follows:  "Unless this  office receives a duly authorized  Accep-

tance of Agreement by July 31, 1991, your company will be consid-

ered  to be a company which does not have a collective bargaining

                                10

agreement with the [Union]."  Significantly, Curry did not accept

the  1991 offer until August 14, 1991.   Given the parties' prior

practice of submitting and  honoring "late" acceptances, we think

the Board permissibly  concluded that the Union had not unambigu-

ously announced in  its May 28 offer an intention  to depart from

its prior practice regarding "late" acceptances.   

          Other  circumstantial evidence lends similar support to

the Board decision.   First, the Union anticipated that  it would

receive  acceptances  before and  after  June  4, and  ultimately

executed the new  MA with  every employer except  Curry, some  of

whom accepted well after  Curry.  Second, the Union's  efforts to

contact  Curry, and other companies that had not accepted by June

4,  likewise indicates that the Union did  not regard June 4 as a

firm deadline for acceptance.  Although the other evidence is not

entirely inconsistent  with the  Union contention that  the Curry

acceptance was untimely, neither the evidence nor the language of

the  offer clearly indicated  that the Union  offer terminated on

June 4.   In such a case, we  will not disturb the Board's choice

between  permissible conflicting  views, C.E.K.  Contractors, 921                                                                      

F.2d at 355, particularly where the literal language of the offer

and the course of dealing evidence provide strong support for the

Board interpretation.  Finally, the strong public policy favoring

collective  bargaining  agreements  as  the  preferred  means  of

fostering  industrial  peace appears  well  served  by the  Board

ruling in the instant context.  Local 24, Int'l Bhd. of Teamsters                                                                           

v. Oliver, 358 U.S. 283, 295 (1958).                   

                                11

                               III                                         III

                            CONCLUSION                                      CONCLUSION                                                

          In sum, the Board  acted well within the bounds  of its

considerable  discretion.   Viewed  in its  entirety, the  record

contains  substantial evidentiary support  for the interpretation

that the Union offer did  not expire by its own terms on  June 4.

Moreover,  viewed in light of  the prior dealings  among the par-

ties, especially their prior  practice of submitting and honoring

"late" acceptances, as well as  the strong public policy favoring

collective bargaining, we conclude that the June 22 acceptance by

Curry was not time-barred.  

          Accordingly, the petition for enforcement is GRANTED.                    Accordingly, the petition for enforcement is GRANTED.                                                                        

          SO ORDERED.                    SO ORDERED.                              

                                12
