Waste Management of Maryland, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 2003

338 N.L.R.B. 1002 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
Waste Management of Maryland, Inc. and William E.
Jupiter and Drivers, Chauffeurs and Helpers,
Local 639, a/w International Brotherhood of
Teamsters, AFL–CIO. Case 5–RD–1309
April 25, 2003
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On October 21, 2002, the Regional Director for Re-
gion 5 issued a Decision and Order in the above-entitled
matter in which he dismissed the decertification petition
filed by William E. Jupiter, finding that it was barred by
a contract between the Employer and Intervenor Local
639 (Union). Pursuant to Section 102.67 of the National
Labor Relations Board’s Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s Decision and Order. On February 12, 2003,
the Board granted the Employer’s request for review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On careful consideration of the entire record, including
the Employer’s brief on review, we find, contrary to the
Regional Director, that as of the filing of the decertifica-
tion petition, the Employer and the Union did not have a
signed collective-bargaining agreement sufficient to bar
the processing of the petition. We therefore remand this
case to the Regional Director to process the decertifica-
tion petition.
Facts
On September 18, 2001, the Union was certified to
represent the Employer’s drivers, helpers, and mechanics
at its White Plains, Maryland site and thereafter the par-
ties began bargaining for a first contract. On July 15,
2002,1 the negotiations culminated in the Employer send-
ing the Union an unsigned “Final Agreement Tentatively
Reached Between the Parties as a Result of Negotiation
Ending July 11, 2002.” The July 15 offer represented a 4-
year contract from the “date of execution.” Attached to
the offer was a signed cover letter.2
On July 18, the employees rejected the July 15 offer.
The parties held further bargaining sessions in August
and September. At some point in early September, the
Employer orally acquiesced in the Union’s proposal that
the proposed contract be extended from 4 to 5 years.

1 Unless otherwise specified, all dates are in 2002.
2 The cover letter was over the name of the Employer’s chief nego-
tiator and signed for him by his assistant. The letter stated: “Enclosed
is a draft of our final agreement. I understand a ratification vote is
scheduled for this week. Please contact me with the results as soon as
possible. Upon notice of ratification, we will immediately implement
its terms the next pay period.”
However, no written changes were ever made to the Em-
ployer’s original July 15 offer, and the parties never ad-
dressed the economic terms for the 5th year.
On September 13, the Union and the Employer had a
telephone conversation in which they discussed out-
standing contract proposals. The Union claims that the
Employer characterized these proposals as its “final of-
fer.” On September 16, the Union took what it believed
was the Employer’s final offer to the employees for an-
other ratification vote. The employees once again re-
jected the proposal. On September 18, on the eve of the
expiration of the certification year, the Union faxed a
letter to the Employer stating: “The Executive Board of
Teamsters, Local #639 has determined to accept the final
offer submitted by Waste Management of White Plains,
MD, on Friday, September 13, 2002.” (Emphasis added.)
The next day, employee William Jupiter filed the instant
decertification petition.
The Regional Director found that the parties had en-
tered into a collective-bargaining agreement on Septem-
ber 18, which barred the decertification petition filed on
September 19. To reach this conclusion, he relied on (1)
the Employer’s July 15 written contract proposal, (2) the
Employer’s signature from the July 15 cover letter, and
(3) the Union’s September 18 acceptance letter. The
Regional Director concluded that these three documents,
taken together, satisfied the Board’s longstanding re-
quirements under Appalachian Shale Products Co., 121
NLRB 1160, 1161 (1958). We disagree.
Analysis
The sole issue before the Board is whether the parties’
exchange of letters is sufficient for contract bar pur-
poses.3 Because a finding of contract bar necessarily
results in the restriction of the employees’ right to freely
choose a bargaining representative, an agreement must
meet certain formal and substantive requirements in or-
der to bar an election. Appalachian Shale, supra at 1161;
Seton Medical Center, 317 NLRB 87 (1995). The Board
has long required, for contract-bar purposes, that the con-
tract: (1) be signed by both parties prior to the filing of
the petition that it would bar; and (2) contain substantial
terms and conditions of employment sufficient to stabi-
lize the parties’ bargaining relationship. See id. How-
ever, the document signed need not be a formal collec-
tive-bargaining agreement, nor must the signatures ap-
pear on the same document. Recognizing that parties do
not always ceremonially sit down to sign a formal, final,
document upon the successful conclusion of negotia-
tions, the Board has held that informal documents laying
3 Whether the parties’ exchange of letters was sufficient to form an
enforceable contract for other purposes is not before us.
338 NLRB No. 155
1003
out substantial terms and conditions of employment can
serve as a bar, so long as those informal documents are
signed. See De Paul Adult Care Communities, Inc., 325
NLRB 681 (1998); Seton Medical Center, supra at 87;
Television Station WVTV, 250 NLRB 198, 199 (1980);
Georgia Purchasing, Inc., 230 NLRB 1174 (1977).
However, this flexibility does not excuse the parties from
the fundamental requirement that they signify their
agreement by attaching their signatures to a document or
documents that tie together their negotiations, by either
spelling out the contract’s specific terms or referencing
other documents which do so. See Seton Medical, supra
at 87–88.
Moreover, in representation cases, the Board has con-
sistently limited its inquiry to the four corners of the
document or documents alleged to bar an election and
has excluded the consideration of extrinsic evidence. See
United Health Care Services, 326 NLRB 1379 (1998)
(limiting inquiry into whether contract required ratifica-
tion for contract-bar purposes to the face of the docu-
ments and excluding parol evidence); Jet-Pak Corp., 231
NLRB 552 (1977) (“The Board has consistently held that
the ‘legality of a contract asserted as a bar is to be deter-
mined in representation proceedings from the face of the
contract itself and that extrinsic evidence will not be ad-
mitted . . . .’”); Union Fish Co., 156 NLRB 187, 191–192
(1965) (“[T]he Board requires that the term, as well as
the adequacy of a contract, must be sufficient on its face,
with no resort to parol evidence necessary, before the
contract can serve as a bar.”)
Branch Cheese, 307 NLRB 239 (1992), provides a
clear example of the Board’s requirement that, for con-
tract bar purposes, the documentary evidence, on its face,
must be sufficient to establish the terms of the agreement
and must leave no doubt that it represents an offer and
acceptance of those terms. In that case, the Board found
no contract bar where it was uncertain from the exchange
of documents what offer the union was accepting, despite
the fact that the parties had implemented the terms of the
alleged contract for almost a year before the petition was
filed. The employer presented a full contract offer on
October 12, 1990, and then made several amendments
later on December 12, 1990. The union sent a letter ac-
cepting the contract stating that the “Labor Agreement
was ratified 33 yes and 10 no.” The Board noted that the
union’s letter failed to specify which agreement the un-
ion was accepting—the original offer or the amended
offer. Accordingly, because the union’s letter failed to
spell out or refer to specific language that purportedly
constituted the contract, the Board concluded that the
evidence was “not sufficient to establish the identity or
the terms of the purported agreement.” Id. at 240.
Here, similar confusion exists. The parties’ exchange
of written materials leaves much doubt as to the terms of
the alleged contract. The Union’s September 18 accep-
tance letter referred only to the Employer’s “final offer”
of “September 13, 2002.” The Union, however, failed to
produce a single document, other than its own acceptance
letter, which refers to or embodies a September 13 offer.
Between the July 15 offer and the Union’s September
18 “acceptance,” the parties continued negotiations. The
record makes clear that the parties reached an oral
agreement to change the term of the July 15 proposal
from 4 to 5 years. However, because the Union’s Sep-
tember 18 letter contains only a reference to a September
13 offer, with no supporting documentation, we cannot
ascertain the exact terms the Union accepted on Septem-
ber 18. Given this ambiguity, the parties’ exchange of
letters cannot serve as a bar to the decertification elec-
tion. Branch Cheese, supra at 240.
Accordingly, we reverse the Regional Director’s con-
clusion that the petition is barred by an existing collec-
tive-bargaining agreement, reinstate the petition, and
remand this case to the Regional Director for further
processing in accordance with this decision.4

4 The Employer also contended that there was no contract bar be-
cause the contract lacked a specific execution date; it was precondi-
tioned on ratification by the employees and the Union failed to obtain
such ratification; the Union’s acceptance amounted to nothing more
than a counteroffer; and the contract did not impart sufficient stability
to the parties’ bargaining relationship. We find it unnecessary to pass
on these contentions.