ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board Nos. 22-CA-6461 and 22-CA-6686).
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
The National Labor Relations Board (Board) has petitioned this court to enforce its order directed against the New York-Keansburg-Long Branch Bus Co., Inc. (Company). Among the unfair labor practices found by the Board was a refusal by the Company to execute a collective bargaining contract after it had allegedly reached agreement with the Union. Finding no substantial evidence in the record that a substantive accord had been reached, we cannot agree that the Company has committed the unfair labor practices charged. We will therefore deny enforcement of the Board's order.
On June 26, 1975, Local 701 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Union) filed a charge with the Board, alleging that the Company had refused to bargain in good faith, in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (Act).*fn1 On October 9, 1975, the Union filed a second charge, complaining that the Company refused to reemploy striking workers, in violation of sections 8(a)(1) and 8(a)(3) of the Act.*fn2 A hearing was held on the consolidated charges. On October 20, 1976 the Administrative Law Judge (ALJ) issued his decision and order,*fn3 finding violations of sections 8(a)(1), (3) and (5) of the Act.*fn4 Specifically, the ALJ found three unfair labor practices:
(1) a refusal by the Company to execute an agreement "embodying the terms and conditions of employment on which the Respondent [Company] and the Union had reached agreement in December 1974";
(2) a refusal by the Company to contribute to the Union's Welfare and Pension Fund; and
(3) a refusal by the Company to reinstate certain striking employees.
To remedy these violations, the ALJ ordered, inter alia, (1) execution of the collective-bargaining agreement; (2) payment of all pension and welfare funds due; and (3) reinstatement of all striking workers, with back pay. (A17-18(a)).
On April 5, 1977, the Board summarily affirmed the ALJ's rulings, findings and conclusions and adopted his recommended order.*fn5 The Board then petitioned this court for enforcement.
The Company is an interstate carrier providing bus service principally between Leonardo, New Jersey and the Port Authority Terminal in New York. The Union represents the Company's full-time bus drivers. Upon the expiration of their collective bargaining agreement in September, 1973, the Company and the Union continued negotiations (which had begun on July 31, 1973) for a new agreement. By late 1973, both parties had agreed to all contract terms but three: (1) minimum work force; (2) the terminal or end points of the normal round-trip bus run; and (3) a proposed waiver by the Union of representation of part-time drivers. It is at this point that the parties' respective versions of the facts sharply diverge.
The Union contends that ultimately the parties reached full and complete agreement on a contract.*fn6 The Union asserts that the parties agreed upon the following terms: (1) the Company would maintain a minimum full-time work force of the greater of thirty-five (35) drivers or a number totalling three above the number of "posted [or line] runs" maintained on the Company work board (work force provision);*fn7 (2) the normal round trip would begin and end at Leonardo, New Jersey, not at Long Branch, New Jersey (a point fifteen miles further south) (Leonardo-to-Leonardo provision);*fn8 and (3) after execution of the contract, the Union would furnish a letter to the Company in which it agreed that it would not represent part-time drivers during the life of the contract (waiver provision). The Union further contends that the Company refused nonetheless to reduce this "agreement" to a final writing or to otherwise execute the contract.
The Company responds that the parties never reached a full and final agreement on the terms of the contract (A3). Referring specifically to the three substantive provisions of the agreement noted above, the Company makes these contentions. First, the Company maintains that the parties could not, and did not, reach agreement on the number of drivers constituting the full-time work force. The Company claims that it agreed to maintain only a force which totaled three above the number of posted runs, with no minimum guarantee of thirty-five drivers. Second, the Company asserts that it consistently and vehemently opposed the inclusion of any Leonardo-to-Leonardo provision in the contract (A7).*fn9 Finally, the Company claims that after the Union rejected the Company's version of the waiver letter pertaining to part-time representation (A7), the parties at no time thereafter agreed to or drafted the relevant provision.*fn10 In this connection the Company points out that the parties also failed to agree on the time that the waiver letter would be executed, as the Company insisted that it be executed contemporaneously with, and incorporated into, the collective bargaining contract.*fn11
The ALJ and the Board credited the Union's testimony and contentions. The ALJ found that the parties reached "full agreement on the terms of a new contract" at "the January 14, 1974 negotiation meeting" (A11).*fn12 The precise contract terms found by the ALJ include the Union's version of the three contested provisions discussed above. Yet, despite this finding, it is undisputed that the contract submitted to the Union contained the Company's and not the Union's version of the work force provision.*fn13 Nor did this "full agreement" which ultimately gave rise to the unfair labor practice charge against the Company contain a waiver of part-time representation or a provision as to the end points of the normal round-trip bus run.
It was not surprising therefore that the ALJ found that a new full and complete agreement had been reached some eleven months later in December, 1974. This later "full agreement" no longer included the Leonardo-to-Leonardo provision (A8). The ALJ determined that this new agreement consisted of all those provisions set forth in a contract drafted and sent by the Company to the Union in December, 1974 (General Counsel's Exhibit 8 (GC8)), as supplemented by two clauses which to this day have yet to be drawn: an ...