
USCA1 Opinion

	




                            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 & 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 & 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  &                                                     ______________________          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 & 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
