### In the 

# United States Court of A p peals For the Seventh Circuit

____________________ No s
. 15

- 3675, 15

- 3859 P OLYCON I NDUSTRIES , I NC

. , Petitioner, Cross

- Respondent ,

v.
N ATIONAL L ABOR R ELATIONS B OARD , Respondent, Cross

- Petitioner

.

____________________
Petition for Review and Cross

- Application for Enforcement of an Order of the National Labor Relations Board

. No. 13

- CA

- 104249

____________________ A RGUED A PRIL 19, 2016

— D ECIDED M AY 9, 2016

____________________ Before B AUER , P OSNER , and F LAUM , Circuit Judges

. P OSN ER , Circuit Judge . Polyco n Industries , of Merrillville Indiana (a town in the northwestern corner of the state), is a manufacturer of plastic bottles and containers. Steven A. Johnson, a lawyer in the town, represented Polycon in colle ctive bargaining with a Teamsters local (Teamsters Local U nion No. 142) and in the ensuing litigation now before us; Polycon’s brief describes Johnson as “Polycon’s represent ative.” In a decis ion reported at 363 N

. L

. R

. B

. No. 31 (Oct. 29,2 Nos. 15

- 3675, 15

- 3859

2015) , the National L a bor Relations Boa rd determined that the company had violated sections 8(a) (1) and (5) of the N ational Labor Relations Act, 29 U.S.C. § 158(a) (1), (5) , which prohib it unfair labor practices in interstate commerce, by r efusing to sign a collective bargaining agreement after agre eing to its terms. In October 2010, shortly after the Board had certified the union as the exclusive representative of Polycon’s produ ction and warehouse employees in collective bargaining with Polycon, the union and the company began protracted neg oti a tions over what terms to include in a collective bargaining agre e ment. By January 2013 the parties had largely agreed on those terms. But in March, the agreement not yet signed, attorney Johnson asked that a clause requiring employees to belong to the uni on (a “union shop” or “union sec u rity” clause) be revised to reflect the fact that a year earlier Ind iana had passed a right

- to

- work law, Ind. Code 22

- 6

- 6

- 8, pr ohibiting such clauses. After further negotiation s the union suggested adding to the union

- shop clause a stat e ment that the clause “will not be impl e mented so long as the Indiana Right

- To

- Work statute remains in effect.” On May 3 attorney Johnson replied that the pr o posed new language was “fine” and asked the union to send him a complete final versio n of the agre e ment, which he would “review and, assuming that it is consistent with our agreement, forward to the client for sig n ing.” Four days later (May 7) the union emailed Johnson a copy of the collective bargaining agreement with the new language

— and two days after that Johnson replied that Polycon would not sign the agreement . The refusal was not because of any i n consistency between the copy and what he’dNos. 15

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- 3859 3

agreed upon with the union but because employees of Polycon were ci r culating a petition to decer tify the union as their collective bargaining representative. Johnson’s reply, or more precisely the conduct by Polycon that the reply r e ported (refusal to sign the agreement mailed by the union), violated the National Labor Relations Act. For once the pa r ties agreed on the terms of the collective bargaining agre e ment, as they had done on May 3 when Johnson notified the u n ion that the union’s addition to the collective bargaining agre ement was “fine,” they were obligated to execute, which is to say sign, “a written contract incorporating any agre e ment reached if requested by e i ther party.” 29 U.S.C. § 158(d); see H.J. Heinz Co. v. NLRB , 311 U.S. 514, 523

– 26 (1941); Capitol

Hustling Co. v. NLRB , 671 F.2d 237, 240

– 45 (7th Cir. 1982); Windward Teachers Assoc iat ion , 346 N

. L

. R

. B

. 1148, 1150

– 51 (2006). The union had requested the company’s si g nature on May 7 when it sent Johnson the text of the colle c tive bargaining agre e ment containing the new language to which he ’d agreed as Polycon’s representative. In refusing to sign the agreement Polycon thus failed to comply with a r e quest that the law o b ligated it to grant. Desperately Polycon argues that under Ind i ana law there was no meeting of the minds on May 3. But Pol y con had failed to cite Indiana law to the Labor Boa rd

— a fatal d e fect, 29 U.S.C. § 160(e)

— and anyway state contract law is inappl icable to the interpretation and enforcement of collective ba rgaining agreements within the Board’s jurisdiction. E.g., A llis

- Chalmers Corp. v. Lueck , 471 U.S. 202, 211

– 12 (1985); Cap itol

- Hustling Co. v. NLRB , supra , 671 F.2d at 242. O nce a collective bargaining agreement takes effect , moreover, the union enjoys a conclusive presumption of m a-4 Nos. 15

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jority support until either the agreement’s end date or three years from the agre e ment’s ef fective date, whichever is ea r lier, even if a decertification pet i tion is filed, as it was in this
case

. See Auciello Iron Works, Inc

. v. NLRB , 517 U.S. 781, 786 (1996) , and cases and text cited there

. The decertification p etition may have been signed by a m a jority of the employees as early as May 9, and by May 22 clearly commanded a m ajority , but either date was too late for Polycon to repudiate a collective bargaining agreement to which the company had agreed on May 3. Fl y ing Dutchman Park, Inc ., 329 N

. L

. R

. B

. 414, 414

– 17 (1999). E ven if Polycon had simply proposed an agreement and no final agreement had been reached, its conduct would have been problematic, because t he “withdrawal of a pr oposal by an employer without good cause is ev i dence of a lack of goo d faith bargaining by the employer in violation of Section 8(a) of the Act where the proposal has been tent atively agreed upon or acceptance by the Union appears to be i m minent.” Mead Corp. v. NLRB , 697 F.2d 1013, 1022 (11th Cir. 1983); see 29 U.S.C. § 158 (a)(5). Mead was an “appears to be imminent” case, and the court upheld the L a bor Board’s finding of bad faith . The present case is an even stronger case for the union, since it had a c cepted Johnson’s proposed change regarding right to work , and with that acceptance
u n ion and management had an agreement. And so the Board , in the order before us that Polycon cha l lenges, has directed Polycon to sign the agreement and
co m ply with its terms until it expires. The order is so clearly correct that Polycon’s challe nge borders on the friv o lous. As the Supreme Court said in H.J. Heinz Co. v. NLRB , s u pra , 311 U.S. at 526, an employer’s “refusal to honor, with his sign a-Nos. 15

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ture, the agreement which he has made with a labor organ ization, discredits the organization, impairs the ba r gaining process and tends to frustrate the aim of the sta t ute to secure industrial peace through collective ba r gaining.” Attorney Johnson insists that not his but Polycon’s a pproval of the new language was required before the pa r ties could be deemed to have approved it. But he provides no evidence, his own or Polycon’s, that he hadn’t been autho rized to speak for the company when he told the union that the suggested addition was fine. Polycon could have asked for correction of any material mistakes b efore signing the
con tract but could not r e fuse to review and sign it because of the mere possibility that it contained a mi s take. The Board’s order is

E NFORCED

.