Opposition Brief — International Union, United Mine Workers v. Big Horn Coal Co.

Supreme Court, U.S.

7S ee ee

q JAN 13. 1992

No. 91-1016 =} geese ge Ed |

eee eee

IN THE

Supreme Court of the United States

OcTOoBER TERM, 1991

INTERNATIONAL UNION, UNITED

MINE WORKERS OF AMERICA,

Petitioner,

BIG HORN COAL COMPANY,

Respondent.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Tenth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JOEL H. KAPLAN

GARY S. KAPLAN

Counsel of Record

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

Suite 4200

55 East Monroe Street

Chicago, Illinois 60693

(312) 346-8000

Attorneys for Respondent

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION RESTATED

Where, after reaching a bargaining impasse with the

union, an employer lawfully and unilaterally implements

terms and conditions of employment contained in its final,

unaccepted offer, and where the union thereafter conducts

a nine-month economic strike, may the union subsequently

maintain an action under Section 301(a) of the Labor-

Management Relations Act of 1947, 29 U.S.C. § 185(a), to

enforce as a ‘“‘contract[ ]’’ the employer’s unilaterally im-

plemented terms and conditions of employment?

ii

STATEMENT REQUIRED BY RULE 29.1

Respondent Big Horn Coal Company, a Wyoming cor-

poration, is a subsidiary of Kiewit Mining Group, Inc.,

which is a subsidiary of Peter Kiewit Sons’, Inc. Peter

Kiewit Sons’, Inc. has no parent company.

ill

TABLE OF CONTENTS

a eg S|

STATEMENT REQUIRED BY RULE 29.1 ..

pe Be Me) sy oS

TABLE OF AUTHORITIES .................

COUNTERSTATEMENT OF THE CASE ....

REASONS FOR DENYING THE WRIT.....

ee Cee carne v nese sued eke eens

11

iv

TABLE OF AUTHORITIES

CASES:

Bi-Rite Foods, Inc., 147 N.L.R.B. 59 (1964) ....

Bobbie Brooks, Inc. v. Int'l Ladies Garment Workers

Union, 835 F.2d 1164 (6th Cir. 1987)......

Boys Market, Inc. v. Retail Clerks Union, Local

770, SEB U.S. Bab CUB) 2... cc cccccccasecsss

Capitol-Husting Co., Inc. v. NLRB, 671 F.2d 237

eee rere ee

Derrico v. Sheehan Emergency Hospital, 844 F.2d

eg rrr rere rrr re

District Two v. Grand Bassa Tankers, Inc., 663

3g & go Es a Pere eee

Genesco, Inc. v. Joint Council 13, 341 F.2d 482 (2d.

CA SN os ona cca eeeencece sed haeeuenevas>

George Banta Co., Inc. Banta Div. v. NLRB, 686

F.2d 10 (D.C. Cir. 1982), cert. denied, 460 U.S.

ED, a cie'se duh Vek adaenercekemiees eens

Globe Seaways, Inc. v. National Marine Eng. Bene-

ficial Ass’n, 451 F.2d 1159 (2d Cir. 1971)....

Hilton-Davis Chemical Co., 185 N.L.R.B. 241

oh ee eek aw ewan sd “ae

International Bhd. of Elec. Workers v. Sign-Craft,

Inc., 864 F.2d 499 (7th Cir. 1988)..........

Laborers Health & Welfare Trust Fund v. Ad-

vanced Light Weight Concrete Co., Inc., 484

iF RR AES i ey ee

Litton Financial Printing Division v. NLRB, 111

Page

8

11

10

i CR, BRe GUE oo vsece ey dccvuccesanes 3, 5, 7, 8-9

Vv

Mastro Plastics Corp. v. NLRB, 350 U.S. 270

GUE, 464.604 d-4d0 bons 0000 aes ree eee

NLRB v. American National Ins. Co., 343 U.S.

See CUD 6.6 ba od eas bab dncteeedesc eee.

NLRB v. IBEW Local No. 22, 748 F.2d 348 (8th

Cah, SRR vin cee cdevavssesspemeene ua

NLRB v. Insurance Agents’ Int’l Union, 361 U.S.

GE GORGE 64 655 k50 0 0 en eesdse aan

NLRB v. Katz, 369 U.S. 736 (1962) ...........

Office & Professional Employees Ins. Trust Fund

v. Laborers Fund Administrative Office of North-

ern California, Inc., 783 F.2d 919 (9th Cir.

ROOD cr sctcewsesnakesees ekGneeee ee

Proctor & Gamble Independent Uizion v. Proctor

& Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962),

cert. denied, 374 U.S. 8380 (1963) ...........

Retail Clerks Int'l Ass’n v. Lion Dry Goods, Inc.,

wer SEE. BE UR aio esseasxaciieeee.

Rozay’s Transfer v. Local Freight Drivers, Local

208, 850 F.2d 1321 (9th Cir. 1988), cert. denied,

GO UB WED Ce anc tvcckccvaksecsacses

Taft Broadcasting Co., 163 N.L.R.B. 475 (1967),

affd sub nom. American Fed’n of Television

& Radio Artists v. NLRB, 395 F.2d 622 (1968) .

Teamsters Local 249 v. Western Pennsylvania

Motor Carriers Ass’n, 660 F.2d 76 (3d Cir.

| PEPPER Te rr ee Cee

United Food & Commercial Workers Int’l Union

v. Gold Star Sausage Co., 897 F.2d 1022 (10th

CO. FR wise csesndenseakioeie ee

10

11

9-10

7-8

vi

United Paperworkers Int’l Union v. Wells Badger

Industries, Inc., 835 F.2d 701 (7th Cir. 1987). 6, 10

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) ........ 8

Warehousemen’s Union Local No. 206 v. Continen-

tal Can Co., Inc., 821 F.2d 1348 (9th Cir. 1987) . 11

Wooddell v. International Bhd. of Electrical

Workers, 60 U.S.L.W. 4024 (U.S. Dec. 4, 1991) . 7

STATUTE:

Section 301(a) of the Labor-Management Relations

Act of 1947 (“LMRA”’), 29 U.S.C. § 185{a) ... passim

OTHER AUTHORITY:

The Developing Labor Law (C. Morris 2d

Oh, TED «pou te sn cesesenecnsxrdcneeeeieen 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

INTERNATIONAL UNION, UNITED

MINE WORKERS OF AMERICA,

Petitioner,

BIG HORN COAL COMPANY,

Respondent.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Tenth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

COUNTERSTATEMENT OF THE CASE

Respondent Big Horn Coal Company (hereinafter re-

ferred to as “Big Horn” or “the Company’’) and Petitioner

were parties to a 1984 collective bargaining agreement

that by its terms expired on March 23, 1987. By mutual

agreement, the parties extended the contract to June 1,

1987 while they continued efforts to negotiate a successor

contract. On June 4, 1987, Big Horn reiterated in writing

what was, by its terms, its “last and final offer’ to Peti-

tioner. R.1 (Complaint), Ex. B at 15 (emphasis in original).

That offer delineated the contract sections that the Com-

alls

pany proposed to change from the prior agreement and

further stated that ‘all other provisions of the 1984 labor

agreement not hereinbefore mentioned remain in effect

under our offer.” Jd. Among the provisions not so men-

tioned were the grievance and arbitration provisions of

the expired agreement. App. 2a & n.1l.

On July 1, one month after the contract extension had

expired and with the parties still unable to agree on the

terms of a new contract, Big Horn “unilaterally imple-

mented working terms and conditions contained in its last

offer.” App. 8a.1 Further negotiations thereafter continued

to prove fruitless, and on October 5, 1987, Petitioner and

the Big Horn employees it represents commenced an “eco-

nomic strike” against Big Horn in an effort to enforce

their bargaining demands. App. 8a.? This strike continued

until June 27, 1988—a total of 267 days, or nearly nine

1 It is undisputed that as of July 1, 1987, “negotiations [had]

reached an impasse.” App. 2a. Hence, there is no question concern-

ing the lawfulness of the Company’s unilateral implementation of

its final offer. See, e.g., Laborers Health & Welfare Trust Fund v.

Advanced Light Weight Concrete Co., Inc., 484 U.S. 539, 544 n.5

(1988) (“{Alfter bargaining to an impasse, that is, after good-faith

negotiations have exhausted the prospects of concluding an agree-

ment, an employer does not violate the [National Labor Relations]

Act by making unilateral changes that are reasonably compre-

hended within his pre-impasse proposals.”’) (quoting Taft Broad-

casting Co., 163 N.L.R.B. 475, 478 (1967), aff'd sub nom. American

Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622

(1968)).

2 “{Ajn ‘economic strike’ is a strike over wages, hours, or terms

and conditions of employment.” George Banta Co., Inc. Banta Div.

v. NLRB, 686 F.2d 10, 14 n.5 (D.C. Cir. 1982), cert. denied, 460

U.S. 1082 (1983). “{E]eonomic strikes generally are used in attempt-

ing to enforce economic demands upon the employer.” 2 The De-

veloping Labor Law 1007 (C. Morris 2d ed. 1983).

a

months. App. 3a.° As of late 1989 when the parties’ briefs

were filed in the Tenth Circuit, Petitioner and the Com-

pany still had not agreed on a new collective bargaining

agreement. App. 5a n.2.

After the strike ended, the Company refused to reinstate

18 of the striking employees because they had engaged in

serious strike-related misconduct. Each of the 18 filed a

grievance protesting his discharge, R.1 (Complaint) { 12,

and “Big Horn agreed to process the grievances.” R.17

(Affidavit of UMWA District 15 President Terry Benson)

46.4 When Petitioner and the Company were unable to

resolve the grievances, Petitioner demanded arbitration.

The Company refused to submit to arbitration on the

grounds that the grievances were not arbitrable. App. 3a.

Petitioner then brought this action pursuant to Section

301(a) of the Labor-Management Relations Act (““LMRA”’),

29 U.S.C. § 185(a), seeking an order to compel the Com-

pany to arbitrate, on the grounds that the Company’s uni-

lateral implementation of its last and final offer extended

the Company’s contractual obligation to arbitrate. App.

3a. The district court granted Petitioner’s motion for sum-

mary judgment and denied the Company’s motion, holding

that “the parties by their acts intended to abide and be

3 The court of appeals mistakenly characterized the strike as last-

ing seven months. App. 5a.

4 Employers and unions have a statutory duty under the National

Labor Relations Act (“NLRA’’) to confer and seek agreement over

employee —— that arise during the hiatus between the ex-

piration of a collective bargaining agreement and the reaching of

a new agreement. Hilton-Davis Chemical Co., 185 N.L.R.B. 241,

242 (1970), cited in Litton Financial Printing Division v. NLRB,

111 S. Ct. 2215, 2222 (1991). That statutory duty does not extend

to arbitrating such grievances. /d., 111 S. Ct. at 2222.

a ae

bound by the unchanged terms of the expired collective

bargaining agreement.” App. 12a.

On appeal, the Tenth Circuit reversed per curiam.

Citing, inter alia, its previous decision in United Food

& Commercial Workers Int’l Union v. Gold Star Sausage

Co., 897 F.2d 1022 (10th Cir. 1990), the court of appeals

stressed titat “jurisdiction under Section 301(a) of the

Labor-Management Relations Act arises when redress is

sought for ‘violations of contracts between an employer

and a labor organization.’”’ App. 4a (quoting 29 U.S.C.

§ 185(a) as set forth in Gold Star, 897 F.2d at 1026). The

court also emphasized that:

The contract between the parties required for juris-

diction need not be a written, signed collective bar-

gaining agreement but may exist as any informal

agreement between the parties significant to the

maintenance of labor peace between them. Retail

Clerks Int’l Ass’n, Local Unions Nos. 128 and 633

v. Lion Dry Goods, Inc., 369 U.S. 17, 28 (1962). It

suffices that the parties’ intent to abide by the

agreed-upon provisions of any such informal agree-

ment is in some manner manifest. [Citing cases.]

App. 4a. -

Based on the undisputed record, the court of appeals

concluded that the district court’s determination that a

contractual relationship arose between Petitioner and the

Company was “unsupported.” App. 5a. Noting that “{e}m-

ployer implementation of a last and final offer is, by itself,

insufficient to invoke jurisdiction [under Section 301] ab-

sent some manifestation of acceptance of the offer suffi-

cient to create a contract,” and that “simply spotlighting

management’s exercise of its statutory right to implement

its last and final offer does not establish the contractual

basis necessary for jurisdiction,” the court held:

_

The facts of the present case . . . suggest implicit

rejection of the employer’s offer. . . . Employee con-

duct after July 1, 1987, did not evince an acceptance

of the Company’s last offer. To the contrary, the com-

mencement of a seven-month strike on October 5,

1987, during which time the alleged misconduct oc-

curred, shows continued dissatisfaction with and re-

jection of the employer’s offer.

App. 5a (citation and footnote omitted, emphasis added).

REASONS FOR DENYING THE WRIT

This case presents neither the question nor the conflict

that the Petition suggests. The Tenth Circuit’s holding

is a garden-variety application of well established Section

301 principles—many of which this Court reaffirmed last

term in Litton Financial Printing Division v. NLRB, 111

S. Ct. 2215 (1991)—to undisputed record evidence. To say

the least, the decision below presents no issues appro-

priate for review by this Court.

1. In an effort to create a reviewable sow’s ear out

of a silk purse, Petitioner states the question presented

in this case as whether “contractual obligations . . . en-

forceable under Section 301(a) . . . [may] aris[e] from the

course of dealings and conduct of the parties in the ab-

sence of a formal collective bargaining agreement.’’ Peti-

tion at i. According to Petitioner: “{I}f the rationale of

the Tenth Circuit prevails, Section 301 will only be avail-

able in those instances where a party can present a formal

contract to the court and prevail on the merits. . . .”’ Jd.

at 5.

Unfortunately, Petitioner seriously mischaracterizes the

decision below, which was expressly premised on the as-

a

sumption that a “formal contract” is not a prerequisite

for jurisdiction under Section 301(a):

The contract between the parties required for juris-

diction need not be a written, claued collective bar-

gaining agreement but may exist as any informal

agreement between the parties significant to the

maintenance of labor peace between them. Retail

Clerks Int’l Ass’n, Local Unions Nos. 128 and 633

v. Lion Dry Goods, Inc., 369 U.S. 17, 28 (1962). It

suffices that the parties’ intent to abide by the

agreed-upon provisions of any such informal agree-

ment is in some manner manifest. Bobbie Brooks, Inc.

v. Int’l Ladies Garment Workers Union, 835 F.2d

1164, 1168 (6th Cir. 1987); see also United Paper-

workers Int’l Union v. Wells Badger Industries, Inc.,

835 F.2d 701, 704 (7th Cir. 1987).

App. 4a. Thus, the entire Petition begs a question that

the Tenth Circuit, consistent with the precedents of this

Court and other courts, answered in Petitioner’s favor.

Petitioner simply takes issue with the Tenth Circuit’s

common sense conclusion, based on the undisputed record,

that “(t]he facts of the present case . . . show{ | [Peti-

tioner’s] continued dissatisfaction with and rejection of the

employer’s offer.” App. 5a. Such a case does not warrant

this Court’s attention.

2. As pertinent here, Section 301(a) states with the

utmost clarity:

Suits for violation of contracts between an employer

and a labor organization . . . may be brought in any

district court of the United States having jurisdic-

tion of the parties, without respect to the amount in

controversy or without regard to the citizenship of

the parties.

29 U.S.C. § 185(a) (emphasis added). Despite this plain lan-

guage, Petitioner cryptically asserts that review by this

_ a

Court is necessary “to establish the inclusive reach of Sec-

tion 301.” Petition at 5-8. Yet the Tenth Circuit’s holding

that a district court lacks jurisdiction under Section 301(a)

in the absence of a “contract’’ faithfully implements Sec-

tion 301(a) as consistently interpreted by this Court and

the courts of appeals.> See, e.g., Wooddell v. International

Bhd. of Electrical Workers, 60 U.S.L.W. 4024, 4025 (U.S.

Dec. 4, 1991) (to vest subject-matter jurisdiction in the

district court, “‘a suit properly brought under § 301 must

be a suit either for violation of a contract between an

employer and a labor organization representing employees

in an industry affecting commerce or for violation of a

contract between such labor organizations’) (emphasis

added); Litton Financial Printing, 111 S. Ct. at 2225

(“Section 301 . . . does not provide a federal court jurisdic-

tion where a bargaining agreement has expired. . . .”’);

strict Two v. Grand Bassa Tankers, Inc., 663 F.2d 392,

398 (2d Cir. 1981) (“Of the hundreds of actions invoking

federal jurisdiction under the employer-labor organization

contract clause of § 301(a) we have not found any case

which did not involve an agreement relating to the em-

ployer’s relationship with its own employees.’’) (emphasis

added).®

5 Petitioner concedes, as it must, that Section 301(a) is jurisdic-

tional. Petition at 5. If Petitioner’s argument is that the federal

district courts should have jurisdiction to decide the merits of

labor-management disputes even after the court determines that

no “contract” (either formal or informal) exists between the par-

ties, Petitioner must address that argument to Congress.

§ See also Retail Clerks Int'l Ass’n v. Lion Dry Goods, Inc., 369

U.S. 17, 23-27 (1962) (discussing at length whether strike settle-

ment agreement was a “contract” sufficient to give rise to jurisdic-

tion under Section 301(a)); Teamsters Local 249 v. Western Penn-

sylvania Motor Carriers Ass’n, 660 F.2d 76, 83 (3d Cir. 1981) (“‘a

(Footnote continued on following page)

oe

Likewise, the Tenth Circuit’s conclusion that, on the un-

disputed record, “‘no contract [existed] between the parties

upon which to base jurisdiction under Section 301,” App.

2a, is completely unremarkable. The Company’s unilateral

implementation of its last and final offer was nothing

more than just that—an exercise of its post-impasse right

unilaterally to put into effect an offer Petitioner never

accepted. See supra note 1.7 On its face and as a long-

established matter of law, it did not constitute a promise

that the Company would abide by the expired arbitration

provisions (or any other provisions of the defunct agree-

ment) in the absence of a mutually binding, mutually agreed-

to new contract. See, e.g., Litton Financial Printing, 111

S. Ct. at 2225 (“An expired [collective bargaining agree-

ment]. . . is no longer a ‘legally enforceable document.’ ’’)

8 continued

prerequisite for section 301 jurisdiction is a contract between the

employer and labor organization’’).

Enforcement of the jurisdictional prerequisite of a “contract”’

under Section 301(a) is particularly appropriate where, as here,

a party invokes the district court’s jurisdiction to enforce an al-

leged contractual obligation to arbitrate. Litton Financial Print-

ing, 111 S. Ct. at (“{Alrbitration is a matter of consent, and

. . . it will not be imposed upon parties beyond the scope of their

agreement. . . . If, as the Union urges, parties who favor labor

arbitration during the term of a contract also desire it to resolve

postexpiration disputes, the parties can consent to that arrange-

ment by explicit agreement.’”); United Steelworkers of America

v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) (‘“‘ar-

bitration is a matter of contract’).

7 This post-impasse right of the employer unilaterally to imple-

ment its final offer is fundamental to the balance of economic

wer that the NLRA strikes between labor and management.

LRB v. Katz, 369 U.S. 736, 745 (1962); NLRB v. Insurance

Agents’ Int’l Union, 361 U.S. 477, 488-90 (1960); NLRB v. Amer-

ican National Ins. Co., 343 U.S. 395, 404 (1952); Bi-Rite Foods,

Inc., 147 N.L.R.B. 59, 65 (1964).

lis

(quoting Office & Professional Employees Ins. Trust

Fund v. Laborers Fund Administrative Office of North-

ern California, Inc., 783 F.2d 919, 922 (9th Cir. 1986));

Derrico v. Sheehan Emergency Hospital, 844 F.2d 22, 26-

27 (2d Cir. 1988) (‘Rights and duties under a collective

bargaining agreement do not . . . survive the contract’s

termination at an agreed expiration date.”’); Proctor &

Gamble Independent Union v. Proctor & Gamble Mfg.

Co., 312 F.2d 181, 184 (2d Cir. 1962) (“Where no [con-

tract] extension is negotiated, or where the period of the

extension has also expired, there is no ground whatever

for considering that the old agreement still governs the

relationship of the parties.’’), cert. denied, 374 U.S. 830

(1963).

Indeed, Petitioner has not cited, either in its Petition

to this Court or in its brief below, a single case suggesting

that the jurisdictional prerequisite of a “‘contract’’ can be

met where, as here, the union goes on strike and the par-

ties remain at impasse following the employer’s unilateral

implementation of its unaccepted final offer. To the con-

8 As with its mischaracterization of the question presented for

review, Petitioner overreaches in mischaracterizing the case law

discussed at pages 8-11 of the Petition as presenting an “unsettled

conflict” between the circuits requiring resolution in the instant

case. Each of the cases cited by Petitioner involved the issue

whether jurisdiction under § 301(a) is limited to suits (such as that

in the instant case) brought “for violation of contracts,’ or

whether such jurisdiction also extends to suits brought to challenge

or confirm the validity of contracts. See, e.g., International Bhd.

of Elec. Workers v. Sign-Craft, Inc., 864 F.2d 499, 501 (7th Cir.

1988) (holding that jurisdiction exists under § 301 over such suits);

Rozay’s Transfer v. Local Freight Drivers, Local 208, 850 F.2d

1321, 1323 (9th Cir. 1988) (suit to rescind contract allegedly pro-

cured through fraudulent inducement), cert. denied, 490 U.S. 1030

(1989). That issue is plainly absent here. Moreover, in each of the

cases cited by Petitioner, the court recognized that the existence

of a “contract” (even if only one that is allegedly voidable) is a

(Footnote continued on following page)

=~

trary, the consistent case law confirms the Tenth Circuit’s

conclusion that Petitioner manifested its ‘‘continued dis-

satisfaction with and rejection of the employer’s offer.”

App. 5a. See, e.g., Boys Market, Inc. v. Retail Clerks

Union, Local 770, 398 U.S. 235, 248 (1970) (“{A] no-strike

obligation, express or implied, is the quid pro quo for an

undertaking by the employer to submit the grievance dis-

putes to the process of arbitration.”); Mastro Plastics

Corp. v. NLRB, 350 U.S. 270, 279 (1956) (“Like other con-

tracts, [a collective bargaining agreement] must be read

as a whole. .. .’””); Bobbie Brooks, Inc. v. International

Ladies’ Garment Workers Union, 835 F.2d 1164, 1168 (6th

Cir. 1987) (‘A meeting of the minds of the parties must

occur before a labor contract is created. . .. As a general

rule, a contract does not arise if the union and manage-

ment have not resolved a dispute over a substantive

term.”’); United Paperworkers Int'l Union v. Wells Badger

Industries, Inc., 835 F.2d 701, 703-04 (7th Cir. 1987) (‘‘the

intention of the parties [to be bound by a collective bar-

gaining agreement] under most circumstances must be

determined on the basis of an objective standard—the

parties’ manifested mutually assent’’); Globe Seaways,

Inc. v. National Marine Eng. Beneficial Ass’n, 451 F.2d

1159, 1163 (2d Cir. 1971) (“It should not be lightly in-

3 continued

jurisdictional prerequisite under § 301(a), regardless of the type

of relief sou ht. See, e.g., Rozay’s Transfer, 850 F.2d at 1326.

Thus, even if the academic exercise at pages 8-11 of the Petition

discusses a bona fide “‘conflict,’”’ the resolution of any such con-

flict must await another case.

oo

ferred that a union, at its own choosing, can strike over

some matters and arbitrate over others.’’).9

CONCLUSION

For the reasons stated, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

JOEL H. KAPLAN

GARY S. KAPLAN

Counsel of Record

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

Suite 4200

55 East Monroe Street

Chicago, Illinois 60603

(312) 346-8000

Attorneys for Respondent

January 13, 1992

9 See aiso Warehousemen’s Union Local No. 206 v. Continental

Can Co., Inc., 821 F.2d 1348, 1350 (9th Cir. 1987) (“Normal rules

of offer and acceptance govern in collective bargaining.’’); NLRB

v. IBEW Local No. 22, 748 F.2d 348, 350 (8th Cir. 1984) (“the

general rules of offer and acceptance” determine the existence of a

labor contract); Capitol-Husting Co., Inc. v. NLRB, 671 F.2d 237,

242 (7th Cir. 1982) (“the normal rules of offer and acceptance are

generally determinative of the existence of a collective bargaining

agreement”); Genesco, Inc. v. Joint Council 13, 341 F.2d 482, 486

(2d Cir. 1965) (concluding that no labor agreement existed ‘“‘by

applying ordinary principles of contract law’’).