Carpenters Local 33 (Curry Woodworking, Inc.)

National Labor Relations Board - Board Decisions

Feb 21, 1995

316 N.L.R.B. 367 (N.L.R.B. 1995)

367
316 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At all times material here, the Employer’s millwork employees
have remained unorganized.
2 These employer associations were the Associated General Con-
tractors of Massachusetts, Inc.-Labor Relations Division, Boston and
Eastern Massachusetts Building Trades Employers Association and
the Construction Industries of Massachusetts.
3 Under the 1993–1997 agreement, economic terms, including em-
ployer fringe benefit payments, were to remain unchanged until Au-
gust 1, 1993. The record shows that signatory employers pay fringe
benefit contributions through a dated stamp system in which employ-
ers purchase benefit stamps administered by the Massachusetts Car-
penters Central Collection Agency. Employers then distribute the
stamps to employees consistent with the hours the employee has
worked. In order to avoid the administrative burden of printing and
distributing new benefit stamps for the period between June 1, the
effective date of the agreement, and August 1, 1993, the effective
date of the agreement’s economic terms, the Respondents continued
to honor stamps with a stated expiration date of May 31, 1993, dur-
ing June and July 1993.
Boston District Council of Carpenters, affiliated
with United Brotherhood of Carpenters and
Joiners of America, AFL–CIO and Curry
Woodworking, Inc.
Carpenters Local Union No. 33, affiliated with
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO and Curry Woodwork-
ing, Inc. Cases 1–CB–8186 and 1–CB–8187
February 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On February 2, 1994, Administrative Law Judge
James L. Rose issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondents filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
This case poses the question of whether the Re-
spondent Unions and the Employer effectively reached
a meeting of the minds sufficient to mutually bind
themselves to a successor collective-bargaining agree-
ment. Contrary to the judge, who dismissed the com-
plaint, we find that the Respondents made an uncondi-
tional contract offer to the Employer and that the Em-
ployer accepted that offer in a timely manner, thereby
establishing a binding collective-bargaining agreement
that the Respondents failed to honor in violation of
Section 8(b)(3) of the Act.
Facts
The Employer is in the business of manufacturing
and installing architectural millwork. It employs mill-
work employees in its fabrication shop, as well as in-
stallation employees who install the millwork in the
field.
On August 23, 1990, the Employer entered into a
bargaining relationship with the Respondents covering
the Employer’s installation employees by signing and
adopting a master statewide agreement negotiated be-
tween the Respondents and local areawide construction
industry employer associations.1 This agreement was a
construction industry prehire agreement authorized
under Section 8(f) of the Act. On August 14, 1991, the
Employer executed another areawide master agreement
with the Respondents entitled ‘‘Acceptance of Agree-
ment,’’ which, by its terms, was to expire on May 31,
1993.
In late May 1993, the Respondents and the employer
associations2 negotiated and executed a successor mas-
ter agreement effective from June 1, 1993, to Septem-
ber 30, 1997.3 Thereafter on May 28, 1993, the Re-
spondents sent the Employer the following letter:
Enclosed please find a summary of the recently
negotiated changes in the agreement between the
Boston District Council of Carpenters and the
[Employer associations].
As you will note, the contract is effective on
June 1, 1993, but does not require any changes in
any of the economic conditions until August 1,
1993. The contract terminates on September 30,
1997 and provides for an economic and language
reopener on August 1, 1995.
We are also enclosing two Acceptance of
Agreement pages. Would you kindly have a prin-
cipal officer of the corporation execute both cop-
ies of the Acceptance of Agreement and return
them to this office in the pre-addressed stamped
envelope that we have provided for this purpose.
Upon receipt of the two executed copies of the
Acceptance of Agreement, this office will then
execute both copies and return one copy to your
company.
If the Acceptance of Agreement is not signed
by an officer of the corporation, please make cer-
tain that a letter of authorization executed by a
principal officer of the corporation, authorizing
the person to sign the Agreement, accompanies
that Acceptance of Agreement.
If you have any questions, would you call this
office as soon as possible. Unless this office re-
ceives a duly authorized Acceptance of Agree-
ment by June 4, 1993, your company will be con-
sidered not to have a collective bargaining agree-
ment with the Boston District Council of Car-
penters.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent District Council President Andris Silins testified that
during June and July 1993 he instructed his staff to contact contrac-
tors to inquire why ‘‘signature pages’’ had not yet been returned.
As set forth in the May 28, 1993 letter, the Re-
spondents also enclosed, for the Employer’s signature,
acceptance of agreement forms entitled ‘‘STATE-
WIDE AGREEMENT’’ stating in pertinent part, as
follows:
The contractor named below (hereinafter the
‘‘Employer’’) and the labor organizations named
below (hereinafter the ‘‘Union’’) hereby agree to
the following terms and conditions effective with
the date of the signing of this agreement:
1. The Employer accepts and agrees to abide by
the collective bargaining agreements between the
various contractor associations and the unions of
the United Brotherhood of Carpenters and Joiners
of America in the Commonwealth of Massachu-
setts wherever those contracts shall apply . . .
2. The duration of this statewide agreement
shall be co-extensive with the terms set out in the
collective-bargaining agreement referred to in
paragraph 1 unless either party to this statewide
agreement gives notices of termination of this
agreement in accordance with the applicable pro-
visions in the collective bargaining agreement re-
ferred to in paragraph 1.
3. This statewide agreement shall be binding
upon the Employer and its successors and assigns
and this agreement shall not be nullified or ef-
fected [sic] in any manner as a result of any con-
solidation, sale, transfer, assignment, joint venture
or any combination thereof or any other disposi-
tion of the Employer.
On June 22, 1993, the Employer signed and dated
the aforementioned agreement and mailed the signed
copies to the Respondents. On June 23, 1993, Re-
spondent Local 33 Organizer Robert Marshall tele-
phoned Employer President David Curry and asked
Curry if he had signed the agreement.4 Curry then
asked Marshall ‘‘if he had looked at his mailbox today
. . . the contract’s probably in your mail.’’ According
to Curry’s uncontradicted testimony, Marshall replied,
‘‘Well, he didn’t have anything to yell at me about,’’
and the conversation concluded.
The Employer continued to perform installation
work within the Respondents’ jurisdiction throughout
June and July 1993 without incident. However, on Au-
gust 2, 1993, the Employer was not permitted to pur-
chase fringe benefit stamps. Thereafter, Curry com-
plained to the Respondents about the denial of the
stamps. Curry told the Respondents that ‘‘I felt I had
a contract . . . and I felt I should be able to get
stamps.’’ It is undisputed that Respondent Carpenters
District Council President Silins informed Curry that
the Respondents would not affix a signature to the
agreement signed, dated, and returned by the Employer
unless the Employer entered into a bargaining agree-
ment covering the millwork employees in its fabrica-
tion shop. Thus, Silins told Curry ‘‘that he was not
going to sign with anybody that had a non-union
shop.’’ As a result of the Respondents’ refusal to
honor the agreement, the Employer was unable to pur-
chase fringe benefit stamps thereafter or to secure
union-represented employees as needed.
Discussion
The General Counsel contends that the Respondents
and the Employer had a binding collective-bargaining
agreement on June 22, 1993, when the Employer
signed the agreement tendered by the Respondents, and
that the Respondents violated Section 8(b)(3) when
they refused to execute the agreement and honor its
terms thereafter. The General Counsel also contends
that inasmuch as the parties were bound by the master
areawide 1993–1997 agreement, the Respondents also
violated Section 8(b)(3) by conditioning execution of
the agreement on the union status of employees outside
the bargaining unit, a permissive subject of bargaining,
and by failing to comply with the agreement so as to
deny the Employer the ability to purchase fringe bene-
fit stamps and to hire union-represented employees.
We find merit in the General Counsel’s contentions.
The threshold question here is whether the parties
entered into a contractual agreement pursuant to a via-
ble offer and acceptance. Sunol Valley Golf Club, 310
NLRB 357 (1993). More specifically, we must inquire
whether the Respondents’ communication to the Em-
ployer on May 28, 1993, was an unconditional contrac-
tual offer to the Employer or, instead, simply an invita-
tion to the Employer to make an offer, which the Re-
spondents at their discretion could then either accept or
reject. In order to ascertain whether the Respondents
and the Employer entered into, and are bound by, the
terms of the master areawide 1993–1997 agreement,
we must look to the specific language that the parties
used in their communications with one another and the
context in which these interactions occurred. For the
reasons below, we find that the Respondents’ made an
unconditional offer and entered into a binding contract
when the Employer accepted that offer.
As an initial matter, we note that, prior to the 1993–
1997 agreement, the parties maintained a contractual
relationship and had been bound by the predecessor
agreement. Accordingly, when the Respondents noti-
fied the Employer on May 28, 1993, of ‘‘the recently
negotiated changes’’ in the statewide master agree-
ment, enclosed acceptance of agreement forms, and
asked the Employer to ‘‘kindly have a principal officer
of the corporation execute both copies,’’ it was com-
municating with a contracting employer and seeking
369CARPENTERS LOCAL 33 (CURRY WOODWORKING, INC.)
5 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 889 (1988).
the continuation of the contractual relationship. In
short, the Respondents were not dealing with a strang-
er employer or simply expressing a desire to explore
the possibility of entering into a bargaining relation-
ship.
Second, the plain language of the May 28, 1993 let-
ter is consistent with the notion that the Respondents
were making an unconditional offer. Thus, as noted,
the letter specifically asks the Employer to execute and
return the agreement. The letter, on its face, does not
set forth or reasonably contemplate any substantive re-
sponse other than execution of the agreement as sub-
mitted. Indeed, in the letter the Respondents character-
ize the document to be signed and returned as the
‘‘Acceptance of Agreement.’’ Thus, the wording of the
letter is incompatible with an interpretation that the
Respondents were only inviting the Employer to initi-
ate an offer.
Third, the May 28, 1993 letter does not expressly or
implicitly reserve to the Respondents the right to re-
view further the Employer’s signed and dated submis-
sions upon their return, or the right to withhold their
signature once the Employer has done what the Re-
spondents have asked it to do, that is ‘‘execute both
copies of the Acceptance of Agreement and return
them to this office.’’ On the contrary, the May 28 let-
ter, on its face, states: ‘‘Upon receipt of the two exe-
cuted copies of the Acceptance of Agreement, this of-
fice will then execute both copies and return one copy
to your company.’’ (Emphasis added.)
In sum, at the time of the May 28, 1993 letter the
Respondents had concluded negotiations with the em-
ployer associations on substantive terms, offered to
enter into an agreement with the Employer on those
terms, and expressly informed the Employer that once
the Employer agreed to those terms by executing the
agreement submitted to it, the Respondents would then
execute the agreement. Accordingly, the plain meaning
of the May 28, 1993 communication to the Employer
is that a binding agreement would be created upon the
Employer’s signed acceptance of the terms offered by
the Respondents. On June 22, 1993, the Employer ac-
cepted those terms.
In finding that the Respondents and the Employer
did not enter into a binding contract, the judge con-
cluded that acceptance of an ‘‘open-ended’’ proffer in
an 8(f) context is insufficient to create a binding agree-
ment when, as here, there have been no face-to-face
negotiations between the parties, and the Employer is
simply a ‘‘me too’’ signer of an 8(f) agreement nego-
tiated by other parties. We find the judge’s reasoning
unpersuasive.
As noted, the parties here were not strangers to one
another. Indeed, the Respondents took the initiative of
communicating with the Employer for the purpose of
continuing their contractual relationship. It is immate-
rial whether that communication was face-to-face or by
letter, or whether the Respondents sought additional di-
rect negotiations over contract terms rather than pre-
senting already negotiated terms to the Employer for
acceptance or rejection. See Construction Labor Un-
limited, 312 NLRB 364 (1993) (‘‘me-too’’ signatory
bound to successor agreement). There is no policy un-
derlying Section 8(f) that requires ‘‘direct’’ negotia-
tions between contracting parties or application of a
general rule that acceptance of an ‘‘open-ended’’ offer
is insufficient. One of the essential purposes of the
seminal case of John Deklewa & Sons5 was to rectify
the instability created by the ability of a contracting
party to simply walk away from an agreement at its
discretion. When, as here, the factual circumstances
demonstrate the creation of a binding agreement, we
will hold the parties to the bargain they have volun-
tarily struck.
The judge found, alternatively, that even if the May
28, 1993 letter was an offer, the offer expired by its
terms on June 4, 1993. The May 28 letter states that
unless the Respondents receive the acceptance of
agreement by June 4, 1993, ‘‘your company will be
considered not to have a collective bargaining agree-
ment’’ with the Respondents. The record demonstrates,
however, that the letter’s reference to a June 4 return
was not a condition of acceptance or a withdrawal of
the offer on that date. Thus, District Council President
Silins testified that because of the Memorial Day holi-
day between May 28 and June 4, ‘‘I knew that I would
get some back on June 4th, and they would come in
after that, too.’’ And, in fact, of the approximately 135
Acceptance of Agreements executed and returned by
contractors who had received the identical May 28,
1993 letter, approximately 65 were executed and re-
turned after June 4, 1993, many after June 22, 1993.
Further, the systematic effort to contact contractors in
June and July 1993 who had yet to return a signed ac-
ceptance, as directed by Respondent District Council
President Silins, is consistent with a finding that the
Respondents did not consider the offer to be with-
drawn as of June 4, 1993. In addition, we note that the
May 28 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.
Accordingly, we find that the Respondents violated
Section 8(b)(3) by failing to execute the 1993–1997
agreement and to honor its terms. We also agree with
the General Counsel that, in view of the existence of
a binding agreement, the Respondents also violated
Section 8(b)(3) by conditioning execution of the agree-
ment on the unionized status of the millwork employ-
ees outside of the bargaining unit and by failing to
comply with the agreement so as effectively to deny
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The administrative law judge expressed the view that the General
Counsel’s theory made this violation dependent on a preliminary
finding that the Respondents acted unlawfully in declining to execute
the collective-bargaining agreement. Because he was dismissing the
failure-to-execute allegation, he therefore also dismissed the insist-
ence-on-a-permissive-subject allegation. As set forth above, we are
reversing the failure-to-execute dismissal, so there is no impediment
to our finding the additional violation for insistence on a permissive
subject of bargaining.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the Employer the opportunity to purchase fringe bene-
fit stamps and to secure union represented employees.
We emphasize the limits of this holding. We hold
only that the facts in this case establish that the parties
voluntarily entered into a binding 8(f) contract. If the
Respondents had expressly reserved the right to review
the Employer’s returned submission and made clear
that no binding agreement would be established until
it formally affixed its signature to the agreement, we
would be faced with a different case. Further, nothing
in this decision should be construed as limiting a
union’s independence not to enter into an 8(f) contract
with any employer with whom it prefers not to con-
tract. We only hold here that once a union does enter
into an 8(f) contract with an employer it may not walk
away from that agreement with impunity during its
term.
Finally, we agree with the General Counsel’s argu-
ment on exceptions that the Respondents also violated
Section 8(b)(3) by attempting to condition execution of
the contract on a permissive subject of bargaining—the
Employer’s agreement to put certain nonunit employ-
ees under an 8(f) union contract. Silins’ statement to
Curry that the Respondents would ‘‘not sign with any-
body that had a non-union shop’’ made this condition
unmistakably clear. Other record evidence reveals that
this was a reference to the Employer’s millwork em-
ployees, who were not part of the installers unit cov-
ered by either the previous agreements or the agree-
ment signed by the Employer. Such insistence on mat-
ters pertaining to employees outside the unit amounts
to insistence on a nonmandatory subject of bargaining,
which violates Section 8(a)(5) if engaged in by an em-
ployer and Section 8(b)(3) if engaged in by a labor or-
ganization. See, generally, NLRB v. Borg-Warner
Corp., 356 U.S. 342, 349–350 (1958); Utility Workers
Local 111 (Ohio Power Co.), 203 NLRB 230, 240
(1973), enfd. 490 F.2d 1383 (6th Cir. 1974).6
REMEDY
Having found that the Respondents have engaged in
unfair labor practices, we shall order that the Respond-
ents cease and desist therefrom and take certain affirm-
ative action in order to effectuate the purposes of the
Act.
Inasmuch as we have found that the Respondents
and the Employer are bound to the 1993–1997 state-
wide agreement tendered to the Employer on May 28,
1993, we shall order the Respondents to execute that
agreement on request and, on execution, inform the
Massachusetts Carpenters Central Collection Agency
that the Employer is a party to the agreement so that
the Employer may become eligible to purchase fringe
benefit stamps.
ORDER
The Respondents, Boston District Council of Car-
penters, affiliated with United Brotherhood of Car-
penters and Joiners of America, AFL–CIO and Car-
penters Local Union No. 33, affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO, Boston, Massachusetts, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Failing and refusing to execute the 1993–1997
statewide agreement tendered to Curry Woodworking,
Inc. on May 28, 1993.
(b) Conditioning execution of the 1993–1997 state-
wide agreement on the willingness of Curry Wood-
working, Inc. to execute a bargaining agreement cover-
ing its millwork fabrication employees notwithstanding
the Respondent’s obligation to execute the 1993–1997
statewide agreement tendered to Curry Woodworking,
Inc. on May 28, 1993.
(c) Failing and refusing to comply with the 1993–
1997 statewide agreement so as effectively to deny
Curry Woodworking, Inc. the opportunity to purchase
fringe benefit stamps and to secure union-representated
employees.
(d) In any like or related manner engage in conduct
in derogation of its statutory duty to bargain.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by Curry Woodworking, Inc., execute
the 1993–1997 statewide agreement tendered to Curry
Woodworking, Inc. on May 28, 1993.
(b) On execution of the 1993–1997 statewide agree-
ment notify the Massachusetts Carpenters Central Col-
lection Agency that Curry Woodworking, Inc. is a sig-
natory to that agreement.
(c) Post at its business offices and meeting halls
copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondents’ authorized representative, shall be posted
by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
371CARPENTERS LOCAL 33 (CURRY WOODWORKING, INC.)
1 The General Counsel’s posthearing motion to reopen the record
to add stipulations and receive certain exhibits is granted.
2 At the hearing the General Counsel moved to amend the com-
plaint to add inducement of a work stoppage as also violative of Sec.
8(b)(3). Since this allegation is dependent on the existence of a con-
tract, which I conclude was not the case, this proposed amendment
need not be considered.
by the Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Furnish to the Regional Director for Region 1
signed copies of the attached notice for posting by
Curry Woodworking, Inc., if willing, at its office or
places where notices to employees are customarily
posted. Copies of the notice, to be furnished by the
Regional Director for Region 1, shall, after being duly
signed by the Respondents as indicated, be forthwith
returned to the Regional Director for disposition.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to execute the 1993–
1997 statewide agreement tendered to Curry Wood-
working, Inc. on May 28, 1993.
WE WILL NOT condition execution of the 1993–1997
statewide agreement on the willingness of Curry
Woodworking, Inc. to execute a bargaining agreement
covering its millwork fabrication employees notwith-
standing our obligation to execute the 1993–1997
statewide agreement tendered to Curry Woodworking,
Inc. on May 28, 1993.
WE WILL NOT fail and refuse to comply with the
1993–1997 statewide agreement so as effectively to
deny Curry Woodworking, Inc. the opportunity to pur-
chase fringe benefit stamps and to secure union-rep-
resented employees.
WE WILL NOT in any like or related manner engage
in conduct in derogation of our statutory duty to bar-
gain.
WE WILL, on request by Curry Woodworking, Inc.,
execute the 1993–1997 statewide agreement tendered
to Curry Woodworking, Inc. on May 28, 1993.
WE WILL, on execution of the 1993–1997 statewide
agreement, notify the Massachusetts Central Collection
Agency that Curry Woodworking, Inc. is a signatory to
that agreement.
BOSTON DISTRICT COUNCIL OF CAR-
PENTERS, AFFILIATED WITH UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL–CIO
CARPENTERS LOCAL UNION NO. 33, AF-
FILIATED WITH UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMER-
ICA, AFL–CIO
Gene Switzer, Esq., for the General Counsel.
Christopher N. Souris, Esq., of Boston, Massachusetts, for
the Respondents.
Carol Chandler, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Boston, Massachusetts, on November
9 and 10, 1993, on the General Counsel’s consolidated com-
plaint which alleged generally that the Respondents refused
to execute a collective-bargaining agreement and subse-
quently repudiated the agreement, both in violation of Sec-
tion 8(b)(3) of the National Labor Relations Act.
The Respondents generally denied having committed any
unfair labor practices and affirmatively contend that since the
expiration of the 1991–1993 master agreement, they have not
had a contract with the Charging Party.
Following the close of the hearing, counsel submitted
briefs. On the record as a whole,1 including my observation
of the witnesses, briefs, and arguments of counsel, I make
the following2
FINDINGS OF FACT
I. JURISDICTION
The Charging Party, Curry Woodworking, Inc. (Curry),
has its principal place of business in Waymouth, Massachu-
setts, where it is engaged in the manufacture and installation
of architectural millwork. In the course of this business,
Curry annually receives directly from points outside the
Commonwealth of Massachusetts goods, products, and mate-
rials valued in excess of $50,000. The Respondents admit,
and I find, that Curry is an employer engaged in interstate
commerce within the meaning Section 2(2), (6), and (7) of
the Act.
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Boston District Council of Carpenters (District Council) is
the central governing body of nine affiliated local unions, in-
cluding Locals 33 and 51. The Respondents admit, and I
find, that the District Council, Local 33, and Local 51 are
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts in Brief
The District Council has approximately 8000 members, of
whom about 6000 are covered under the master agreement
the District Council negotiates with three employer associa-
tions. Another approximately 6000 employees work for out-
side contractors and are covered under the master agreement
when working within the geographical jurisdiction of the
District Council. There are in the range of 500 contractors
who have signed a ‘‘State-Wide Agreement’’ by which they
became parties to the master agreement, about 200 of whom
employ fewer than five carpenters. This is a construction in-
dustry prehire agreement authorized by Section 8(f) of the
Act.
This document is also signed by two individuals des-
ignated as ‘‘Authorized Agents for the Unions in the Com-
monwealth of Massachusetts.’’ One of the union signatories
is Andris Silins, president of the District Council. By its
terms, the statewide agreement binds an employer to con-
tracts in areas beyond that of the District Council; however,
material here is the District Council master agreement and
stipulations to be bound by it.
Curry has been in existence since 1990 and has been en-
gaged in the business of manufacturing and installing archi-
tectural millwork. Its employees in the fabrication shop are
not union; however, on August 23, 1990, Curry became a
party to the District Council’s master contract by executing
the statewide agreement and thereafter has used union em-
ployees for installation, primarily of millwork which it manu-
factures. On August 14, 1991, Curry became bound to the
1991–1993 master agreement by executing a document enti-
tled ‘‘Acceptance of Agreement’’ with the District Council.
This is a different from the statewide agreement signed by
Curry in 1990 and 1993, but so far as material here it had
the same language.
By its terms, the District Council master agreement ex-
pired on May 31, 1993, prior to which the District Council
gave notice of its desire to negotiate changes. Its representa-
tives and those of the employer associations met to negotiate
a successor, which was consummated in late May. The suc-
cessor agreement is effective from June 1, 1993, through
September 30, 1997; however, the economic changes, includ-
ing fringe benefit payments by employers, were not to be ef-
fective until August 1, 1993.
By letter of May 28, Silins and Executive Secretary/
Treasurer of the District Council David P. Dow informed all
contractors who had been parties to the previous master
agreement of the negotiated changes. They noted that the ef-
fective date of the new contract would be June 1, but there
would be no changes in economic terms until August 1. Two
copies of the statewide agreement were enclosed to be signed
and returned. Then the District Council would execute them
and send one copy back to the contractor.
This letter concludes: ‘‘Unless this office receives a duly
authorized Acceptance of Agreement by June 4, 1993, your
company will be considered not to have a collective bargain-
ing agreement with the Boston District Council of Car-
penters.’’
David Curry, president and treasurer of Curry, testified
that he received this letter and the blank statewide agreement
but, for reasons he was unable to explain, did not sign and
return them until June 22. In evidence are 72 agreements
signed on or before June 4 and another 63 signed subse-
quently. Similarly, in 1991, Curry did not sign and return the
acceptance stipulation until about 2 weeks after the deadline
set by the District Council.
Curry continued to do installation work within the District
Council’s jurisdiction throughout June and July; but in Au-
gust, he was not allowed to buy stamps which would evi-
dence that fringe benefit payments had been made (these in-
cluded pension, health, dues, and contributions to industry
trust funds).
Harry R. Dow, director of the Massachusetts State Car-
penters Central Collection Agency (which administers collec-
tion of fringe benefit payments on behalf of the District
Council and others) wrote Curry on August 13: ‘‘After re-
viewing our contract files, we have come to realize your em-
ployer record reflects that you are not signatory to the Col-
lective Bargaining Agreement with the Union at this time.
Therefore, we are returning check nos. 4726 and 4768 that
you forwarded to our attention for benefit payments.’’
Silins testified that he received the signed agreement from
Curry, but he did not sign it because he ‘‘had been informed
that Curry had a non-union shop.’’
Curry testified that on August 2 he attempted to purchase
stamps and was informed that he could not do so (which
prompted his sending checks to cover the fringe benefits pay-
ments directly to the collection agency). He then went to the
offices of the District Council and there talked to Bob Mar-
shall, an organizer for Local 33 (installation), and Henry
Welsh, business manager for Local 51 (fabrication). They
were joined by Larry Morrisroe, business manager for Local
51, someone from Local 40, and finally David Dow.
According to Curry the conversation focused on the
amount of nonunion millwork coming into the Boston area
(which included the millwork Curry installed). Curry was
told that the unions were attempting to clamp down on the
nonunion goods coming into Boston.
After Dow left, Curry continued talking to Welch. Curry
testified: ‘‘I kept bringing up the bring that [sic], you know,
I felt I had a contract with the Boston District Council and
that, you know, I felt I should be able to get stamps. He
made the statement that I wouldn’t get the stamps until I
signed with 51.’’
Curry testified that the next day he talked to Silins who
said ‘‘he had talked to his lawyer and his lawyer said that
they felt that they didn’t have a contract and that he didn’t
have to sign with anybody for any reason.’’ ‘‘He also went
on to say that, you know, the philosophy has changed there,
that it is going to be union-made, union-installed.’’ Finally,
Silins told Curry ‘‘that he was not going to sign with any-
body that had a non-union shop.’’
373CARPENTERS LOCAL 33 (CURRY WOODWORKING, INC.)
3 The effect, had Curry signed and returned the acceptance agree-
ment prior to June 4, need not be considered.
B. Contentions of the Parties
The General Counsel alleged that the District Council and
Curry have an enforceable collective-bargaining agreement
which the District Council refused to execute and subse-
quently repudiated in various ways. Specifically, it is alleged
that the District Council abrogated the contract when it in-
structed the collection agency (which in turn instructed the
bank) not to sell Curry stamps. This had the effect of causing
Local 33 members not to work for Curry.
Finally, it is alleged that the District Council engaged in
this conduct in order to force Curry to recognize Local 51
as the bargaining representative of its shop employees. Since
such is not a mandatory subject of bargaining, the District
Council’s refusal to execute and abide by the agreement was
unlawful.
Under either theory, the General Counsel alleged that the
Respondents thereby breached their bargaining obligations
under Section 8(d) and therefore violated Section 8(b)(3) of
the Act.
The General Counsel specifically does not contend that ab-
sent an enforceable contract, the Respondents nevertheless
violated the Act by making Curry’s recognition of Local 51
a condition for signing the contract.
The Respondents argue that they no longer had a contract
with Curry following expiration of the 1991–1993 agreement.
The Respondents admit that the new agreement was not exe-
cuted by the District Council because Curry had a nonunion
fabrication shop. The Respondents contend that under the
Act they have the right to accept into a bargaining relation-
ship whomever they choose.
Though admitting that unsigned copies of the acceptance
agreement were sent to Curry, the Respondents contend that
the District Council reserved the right not to execute the stip-
ulation agreement with any given contractor. That is, they
argue, sending the May 28 letter copies of the acceptance
was not a contractual offer. So far as the independent con-
tractors were concerned, the District Council became bound
only when its authorized representatives signed the returned
acceptance, notwithstanding the contractor had signed it and
irrespective of whether the contractor signed before or after
June 4.
C. Analysis and Concluding Findings
The issue here is whether at any time after May 31, 1993,
Curry had a prehire contract with the District Council. The
General Counsel’s principal contention is that the May 28
letter was an offer which Curry accepted by signing the
statewide agreement on June 22, relying on the Board’s
Pepsi-Cola rule. The Respondents argue that even if the May
28 letter is construed as an offer, it expired by its terms on
June 4 after which it was not available for acceptance.
In Pepsi-Cola Bottling Co., 251 NLRB 187 (1980), enfd.
708 F.2d 495 (9th Cir. 1983), the Board held that a contract
offer remains available for acceptance unless expressly with-
drawn, or unless circumstances, such as occurrence of an ex-
press contingency, would reasonably lead the parties to be-
lieve it had been withdrawn. See also Hydrologics, Inc., 293
NLRB 1060 (1989).
With court approval, the Board has concluded that the
rules of contract law with regard to offer and acceptance are
not strictly applicable to collective-bargaining agreements be-
cause of the special statutory obligations requiring bargain-
ing. On the other hand, these rules are not to be rejected
summarily.
Thus, in Worrell Newspapers, 232 NLRB 402 (1977), the
Board held that how long an offer remains open depends on
the surrounding circumstances. And in Crown Cork & Seal
Co., 268 NLRB 1089 (1984), the Board found that a lapse
of 8 to 10 months before acceptance by the union sufficient
to conclude that the offer was no longer open.
In Williamhouse-Regency of Delaware, 297 NLRB 199
(1989), relied on by the General Counsel, the company ar-
gued that its negotiators made their offer contingent on ratifi-
cation by the striking employees, who rejected it. Neverthe-
less, the Board found that the offer remained available for
acceptance when the union did so 5 weeks later. The union
and the company continued to talk and never did the com-
pany suggest the offer was withdrawn. Indeed, the company
implemented the offer and wrote employees urging they con-
sider its fairness. By its conduct, the company indicated that
the offer remained viable, and any condition which may have
been placed on its acceptance was overcome.
The rationale for looking beyond specific rules of offer
and acceptance is based on the underlying policy of the
Act—to protect the employees’ statutory right to bargain col-
lectively. Thus, minor lapses should not operate to deny
them the benefits of an agreement. Further, the overall con-
duct of the employer should be considered in determining
whether there was a meeting of the minds on a total contract.
This policy is not so operative where, as here, there are
no identifiable employees of the employer when the contract
is executed and there is no bargaining relationship estab-
lished under Section 9(a) of the Act. A construction industry
relationship permitted by Section 8(f) would not seem to
bring into play the same policy considerations as a bargain-
ing relationship established after the employees have selected
a representative. Indeed, the Board has held that different
rules concerning the duty to bargain apply in 8(f) situations.
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843
F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
Not only is this an 8(f) situation, there has never been
anything resembling negotiations between Curry and the Dis-
trict Council. The District Council negotiates with employer
associations of which Curry is not a member. At most, Curry
has agreed to be bound by a contact between other parties.
Since, under Deklewa, an 8(f) bargaining relationship does
not survive an expired contract, to renew the relationship
would require mutual assent. And this, at a minimum, would
require demonstration of assent by execution of some docu-
ment by the principals, or their agents. I conclude that ac-
ceptance of an open-ended offer in an 8(f) situation would
not suffice to bind both parties.
Beyond that, if the May 28 letter was an offer, by its
terms it expired on June 4.3 Therefore, any contractor who
signed the statewide agreement subsequently was making an
offer to the District Council, which could be accepted or re-
jected. In the case of Curry, the District Council choose to
reject the offer. The fact that the District Council accepted
a large number of agreements returned after June 4, or that
in 1991 Curry returned the acceptance after the stated date
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which was accepted by the District Council, should not affect
the District Council’s right to reject Curry subsequently.
But, the General Counsel argues, since Curry worked
under the contract during June and July, as evidenced by the
fact that he bought fringe benefit stamps, it must be found
that he and the District Council had an agreement.
Although being able to buy fringe benefit stamps is some
evidence that the parties have a contract, on the facts here
I conclude that fringe benefit payments in June and July
were, and were meant to be, under the old contract.
In brief, the stamp system administered by the collection
agency is a method by which employees covered under the
various collective-bargaining agreements can be assured that
the appropriate fringe benefit payments have been made on
their behalf. An employer, in effect, makes these payments
in advance by buying the stamps from a bank which is au-
thorized to sell them. The stamps are sold in hourly denomi-
nations and cost whatever the hourly fringe benefit rate is
times the number of hours designated. Each payday, stamps
are given an employee consistent with the number of hours
he worked. At the end of the month, the employer then
makes a report to the collection agency naming the employ-
ees and the hours they worked and their respective accounts
are credited if the employer’s payments are sufficient. If the
employer has made insufficient payments (that is the stamp
purchases do not correspond to the report) then there is a
process by which more money is collected by the agency.
Because the fringe benefit payments are constant for a spe-
cific period, usually 1 year, each stamp will reflect inclusive
dates, e.g., ‘‘VALID 8–1–91 TO 5–31–93.’’ Since many
large contractors buy stamps in blocks, if an employer’s
stamp purchases exceed the hours worked by employees,
there is a process by which the employer is credited.
Inasmuch as the economic terms of the new contract were
not to change until August 1, it was determined by the ad-
ministrators that stamps applicable for the old contract would
continue to be sold through June and July. Although the new
contract has an effective date of June 1, in practice it did not
become effective until August 1. Further, according to Silins,
there were other substantive changes, particularly with regard
to certain workmen’s compensation benefits allowed by Mas-
sachusetts law to be negotiated, about which employers had
questions.
The stamp system is complicated, involving hundreds of
contractors, thousands of employees, and millions of dollars.
It is therefore credible, and I find, the administrative dif-
ficulty and cost of changing the stamps for the June–July pe-
riod, where there was no change in the hourly payments,
made doing so unreasonable. It was simply more cost effec-
tive to treat the 1991–1993 contract as continuing until Au-
gust 1. Thus employers were notified by the collection agen-
cy that irrespective of the expiration date of 5–31–93 on the
stamps, they would be good until August 1.
There are about 500 employers under contract with the
District Council covering about 6000 local and an equal
number of traveling employees. It is believable that Curry,
with his two to four employees, was not a high priority with
the District Council. The District Council might have prohib-
ited Curry from buying stamps during June and July, but I
cannot conclude that its failure to do so meant acceptance of
a contract with Curry.
I further reject the General Counsel’s contention that by
mutually applying the contract Curry and the District Council
became bound to it. The Board has expressly held that the
‘‘adoption-by-conduct doctrine’’ is not applicable to 8(f)
cases. Garman Construction Co., 287 NLRB 88, 89 fn. 5
(1987). As noted above, 8(f) bargaining relationships are dif-
ferent, and are to be treated differently, from normal 9(a) re-
lationships.
Finally, the General Counsel contends that in a conversa-
tion initiated by Robert Marshall, an organizer for Local 33,
the Respondents accepted Curry’s late signing of the contract
and thereby became bound by it. Curry testified that Mar-
shall called him on June 23 and asked if Curry had signed.
Curry asked if he had looked in his mailbox that day, that
the contract was probably there. Marshall then said ‘‘he
didn’t have anything to yell at me about.’’
The General Counsel argues that Marshall was an agent of
the District Council and therefore his call was binding on the
District Council. No doubt Marshall made the call because
he was directed to do so. All previous contractors who had
by then not returned a signed acceptance stipulation were
contacted to find out their status.
However, the call clearly could not bear on whether Curry
and the District Council had a contract when Curry signed
the acceptance on June 22, since it occurred the next day.
Curry did not act in reliance on some statement made by
Marshall, whether or not Marshall had actual or apparent au-
thority to bind the District Council. Further, Marshall’s am-
biguous statement could scarcely be considered ratification of
the contract with Curry, nor could it override the fact that
Silins refused to sign it.
The General Counsel’s essential argument, and the cases
cited in support, involve a collective-bargaining relationship
and actual negotiations between the employer and the rep-
resentative of its employees. And the issue is whether as a
result of those negotiations a complete agreement was
reached. Such was not the situation here. The District Coun-
cil negotiated with three employer associations, none of
which counted Curry as a member. Neither Curry nor anyone
acting on Curry’s behalf actually negotiated with the District
Council. The District Council does attempt to persuade non-
association members, such as Curry, to accept the agreement.
But there is never any negotiation over its terms. A nonmem-
ber employer and the District Council simply agree to accept
the master agreement, or they do not. From the testimony of
Silins, which I credit, and the total record, I conclude that
mutual acceptance is complete only when both parties have
in fact signed the acceptance agreement.
I therefore conclude that after expiration of the 1991–1993
master agreement, Curry was not a party to the District
Council’s contract with the employer associations.
Curry testified to conversations he had with representatives
of the District Council and certain locals during August, the
effect of which was he would not be accepted as long as he
operated a nonunion shop. The Respondents did not contest
this testimony. Indeed, Silins admitted that he refused to exe-
cute the agreement with Curry because Curry was a non-
union fabricator.
The General Counsel seems to argue that the District
Council would have signed the contract with Curry if he
agreed to have his shop employees under contract with Local
51, a condition which is not a mandatory subject of bargain-
375CARPENTERS LOCAL 33 (CURRY WOODWORKING, INC.)
ing. However, the General Counsel specifically disclaimed
proceeding on a theory that the District Council made accept-
ance of a contract with Local 51 contingent on its acceptance
of Curry under the master agreement. The General Counsel’s
argument with regard to the shop employees is therefore de-
pendent on finding that Curry and the District Council had
a contract. Because I conclude they did not, this aspect of
the case need not be further considered.
Finally, I conclude that the District Council has the right
not to sign a contract with a nonunion fabricator. The Dis-
trict Council’s members do not have to work for a company
whose principal business is to install millwork made by non-
union employees. Curry has no right to have an 8(f) contract
with the District Council. Any labor contract is a matter of
mutual assent. Here, for lawful reasons, the District Council
choose not to assent to a contract with Curry and did not
violate Section 8(b)(3) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]