Summary Calendar NATIONAL LABOR RELATIONS BOARD v. New Orleans Stevedoring Company

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
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that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-5163
Summary Calendar
_____________________
NATIONAL LABOR RELATIONS BOARD,
Petitioner -
Cross-Respondent,
v.
NEW ORLEANS STEVEDORING COMPANY,
Respondent -
Cross-Petitioner.
_________________________________________________________________
Application for Enforcement and Cross-Petition for Review
of an Order of the National Labor Relations Board
15 CA 11565
_________________________________________________________________
July 2, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
The National Labor Relations Board (the Board) has
petitioned this court to enforce its order of September 30, 1992,
directing New Orleans Stevedoring Company (NOSC) to sign a
collective bargaining agreement with General Longshoremen
Workers, Local No. 3000, International Longshoremen's Association

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1 The New Orleans Steamship Association consists of three
employers, NOSC, Ryan Walsh, Inc., and Transocean Terminal
Operators--all of which operate stevedoring and gear yard service
and maintenance terminals at the port of New Orleans.
2
(the Union). NOSC has filed a cross-petition seeking review of
the Board's decision and order. Because we conclude that
substantial evidence supports the Board's finding that NOSC
reached an agreement with the Union, we affirm the Board's
decision and order and grant its petition for enforcement.
I.
A.
Since 1970, NOSC and the Union have been parties to two
types of collective bargaining agreements: the Deep Sea Agreement
and the Gear Yard Agreement. The Union's practice was to
negotiate the Deep Sea Agreement, which covers longshoremen, on a
multi-employer basis with the New Orleans Steamship Association.1
By contrast, the Union negotiated the Gear Yard Agreement, which
covers gear yard employees, on an individual basis with each
employer.
On October 1, 1980, the Union and NOSC signed a three-year
Gear Yard Agreement. This contract was extended by various
letters and memoranda of agreement to November 30, 1990. On
September 18, 1990, a month before the Gear Yard Agreement was to
expire, the Union notified NOSC, as well as the other individual
employers of gear yard workers, that it would not extend the

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current contract. The Union requested instead that negotiations
begin for a new Gear Yard Agreement.
In November 1990, as negotiations were underway for a new
Deep Sea Agreement, the Union also began negotiating with the
individual employers for a new Gear Yard Agreement. The Union
presented its first proposal to NOSC on November 20, 1990. On
January 3, 1991, after several bargaining sessions over the
provisions that the Union wished to add to the agreement, the
bargaining representative for NOSC, Henry Flanagan, told the
Union that they "had an agreement in principle" and shook hands
with the Union's negotiators.
Thereafter, the Union continued negotiating with the other
employers, among them Transocean Terminal Operators (Transocean).
The Union reduced its agreement with Transocean to writing in
April or May 1991 and, on May 9, 1991, delivered a copy of the
new agreement to Flanagan's office with a note that read:
Enclosed is the final version of the gear yard contract
with Transocean Terminal Operators. All areas of
concern were worked out and agreed to including the
seniority provisions. We will be ratifying this
document tonight. Please review this contract as soon
as possible. I would like to present it to your
employees for ratification on Tuesday, May 14, 1991.
On May 14, 1991, Flanagan telephoned the Union's
representative, Mark Ellis, who in turn asked Flanagan whether he
had reviewed the document and whether he had any questions.
Flanagan stated that he had reviewed the document and asked how
Transocean and the Union had resolved the problems over the work
assignments provision. At the end of their discussion, Flanagan

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told Ellis that the contract "looked okay" to him, but asked
Ellis to delay the ratification vote until May 20, 1991, when the
gear yard supervisor at NOSC would be back from vacation.
On May 30, 1991, NOSC's gear yard employees ratified the
new Gear Yard Agreement. Despite Flanagan's earlier
representations to the contrary, NOSC refused to sign the
agreement.
B.
The Union complained to the National Labor Relations Board.
It asserted that NOSC, by refusing to sign the Gear Yard
Agreement, violated sections 8(a)(5) and (1) of the National
Labor Relations Act. The Board's Regional Director, after
investigating the charge, issued a complaint and notice of
hearing on August 9, 1991.
At the scheduled hearing, the administrative law judge (ALJ)
heard testimony from several witnesses, including Flanagan and
Ellis. Based on this testimony and the other evidence introduced
at the hearing, the ALJ concluded that NOSC had violated sections
8(a)(5) and (1) of the National Labor Relations Act. The ALJ
specifically found that Flanagan, on behalf of NOSC, agreed to
the terms of the new Gear Yard Agreement, which Ellis had mailed
to him, on May 14, 1991. The judge recommended, among other
things, that NOSC be ordered "to execute the collective
bargaining agreement it agreed to on May 14, with effective dates
as set forth at Article XVI of the agreement."

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NOSC filed exceptions to the ALJ's decision. It argued
primarily that the uncontroverted evidence established that there
was no meeting of the minds on all of the terms of the proposed
Gear Yard Agreement. The Board, after considering NOSC's
objections, decided to affirm the ALJ's ruling and to adopt the
recommended order. The Board specifically stated:
We agree with the judge's finding that [NOSC] agreed to
the proposed contract on May 14, 1991, when General
Manager Flanagan, after receiving a copy of the
agreement, told Union Representative Ellis that it
"looked okay to him."
The Board has now filed a petition to enforce its order, and NOSC
has filed a cross-petition seeking review of the Board's decision
and order.
II.
Section 8(a) of the National Labor Relations Act, 29 U.S.C.
§ 151 et seq., provides that it shall be an unfair labor practice
for an employer:
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 159(a) of this title.
29 U.S.C. § 158(a)(5). Section 8(d) of the Act defines the duty
to bargain collectively as "the mutual obligation of the employer
and representative to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and
conditions. . ." 29 U.S.C. § 158(d). Encompassed within the
duty to bargain collectively is the obligation to execute "a

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written contract incorporating any agreement reached if requested
by either party . . . ." Id.
Although an employer may not be compelled to enter into a
collective bargaining agreement with a union, see H.K. Potter Co.
v. National Labor Relations Bd., 397 U.S. 99, 107-08 (1970), once
an agreement has been reached, the employer's refusal to reduce
the agreement to writing constitutes a per se violation of
section 8(a)(5) of the Act. See H.J. Heinz Co. v. National Labor
Relations Bd., 311 U.S. 514, 525-26 (1941); National Labor
Relations Bd. v. Schill Steel Prods., Inc., 480 F.2d 586, 589 n.1
(5th Cir. 1973). Such a refusal, according to the Supreme Court,
reveals a lack of good faith on the part of the employer. See
H.J. Heinz, 311 U.S. at 526. Moreover, an employer who refuses
"to honor, with his signature, the agreement which he has made
with a labor organization, discredits the organization, impairs
the bargaining process, and tends to frustrate the aim of the
statute to secure industrial peace through collective
bargaining." Id.
In determining whether a union and an employer have reached
an agreement under the Act, the Board is not strictly bound by
the technical rules of contract law. San Antonio Machine &
Supply Corp. v. National Labor Relations Bd., 363 F.2d 633, 636-
37 (5th Cir. 1966); Loranzo Enterprises v. National Labor
Relations Bd., 327 F.2d 814, 818 (9th Cir. 1964). Indeed, we
have noted that "[t]he doctrines of traditional contract law are
to a large extent inapplicable in the collective bargaining

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context." National Labor Relations Bd. v. Alterman Transp.
Lines, 587 F.2d 212, 221 (5th Cir. 1979). However, the Board is
free to adapt general contract principles, such as the principle
of "offer and acceptance," to the collective bargaining context.
See National Labor Relations Bd. v. Electra-Food Machinery, Inc.,
621 F.2d 956, 958-59 (9th Cir. 1980).
Ultimately, the Board's finding concerning the existence of
an agreement is a factual determination, which will be reversed
only if it is not supported by substantial evidence. See
Capitol-Husting Co. v. National Labor Relations Bd., 671 F.2d
237, 243 (7th Cir. 1982); 29 U.S.C. § 160(e). That is, where
substantial evidence on the record as a whole supports the
Board's finding that an agreement between an employer and a union
existed, we will not reverse its finding--even if we justifiably
might have made a different finding than the Board. See
Universal Camera Corp. v. National Labor Relations Bd., 340 U.S.
474, 488 (1951).
III.
NOSC argues that the Board's finding of an agreement is not
supported by substantial evidence. NOSC maintains that its
representative never agreed to the terms of the document
delivered to him by the Union on May 9, 1991. NOSC specifically
argues that, when Flanagan spoke with the Union's representative
on May 14, 1991, he stated that the document "looked okay" but
that he could not yet approve the agreement. NOSC also argues

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2 In this regard, we rely on the credibility findings of the
ALJ, which were affirmed by the Board. With respect to the
testimony of Ellis and Flanagan, the ALJ specifically found:
Union Representative Ellis appeared generally candid
and impressed me that he was attempting as best he
could to testify truthfully. I am not unmindful of his
interest in the outcome of this case; however, I found
him to be a believable witness. . . . The overall
circumstances of the case as well as the documentation
presented at trial generally supports Ellis' testimony.
Accordingly, I credit his testimony and specifically do
so where it conflicts with the testimony given by
General Manager Flanagan. General Manager Flanagan was
to a great extent unresponsive to questions generally
and specifically to questions related to limitations or
restrictions placed on his authority by the Company's
Texas headquarters. Flanagan seemed anxious to shift
the responsibility for his actions (or inactions) to
higher officials of the Company in Texas. In light of
all the above, I am unwilling to rely on Flanagan's
testimony where it is contradicted by that of other
witnesses.
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that "[t]here is clear and uncontroverted evidence that there was
never a meeting of the minds on all terms of [the Gear Yard
Agreement]."
Initially, we note that Flanagan, as General Manager, had
the authority to negotiate and execute a collective bargaining
agreement on behalf of NOSC. Indeed, NOSC does not seriously
dispute his authority. Rather, NOSC essentially argues that
Flanagan did not manifest his assent to the Gear Yard Agreement.
Our review of the record uncovers substantial evidence to
the contrary. First, there is the credited testimony of Ellis,
the Union's representative, who stated that Flanagan expressed an
unconditional acceptance of the Gear Yard Agreement on May 14,
1991.2 There is also evidence that, as early as January 3, 1991,
Flanagan shook hands with Ellis and indicated that they had an

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agreement in principle. Finally, there is evidence that Flanagan
was involved in, or at least apprised of, the negotiations
between Transocean and the Union--negotiations culminating in the
agreement that was ultimately forwarded to NOSC for approval.
Accordingly, we reject NOSC's argument that there is no
substantial evidence supporting the Board's finding of an
agreement. We also reject NOSC's related argument that no
substantial evidence supports a finding that it agreed to all of
the terms of the Gear Yard Agreement. When Flanagan stated that
the agreement "looked okay" to him, he was effectively accepting
all the terms of the agreement. See Kelly's Private Car Service,
289 N.L.R.B. 30 (1988) (a party's assent to an unsigned paper can
serve as the formation of an agreement). Moreover, we agree with
the Union that many of the terms about which NOSC now complains
are not material and therefore would not preclude the finding of
an agreement even in the absence of Flanagan's assent to them.
IV.
For the foregoing reasons, we AFFIRM the Board's conclusion
that NOSC violated section 8(a)(5) and (1) of the National Labor
Relations Act, as well as its order directing NOSC to sign the
Gear Yard Agreement. We also GRANT the Board's petition for
enforcement of the order.

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