Consumer's Cooperative

National Labor Relations Board - Administrative Judge Opinions

Nov 7, 2003

18-CA-016902 (N.L.R.B. Nov. 7, 2003)

JD–119–03

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

CONSUMER’S COOPERATIVE ASSOCIATION
OF EAU CLAIRE

and Case 18–CA–16902

UNITED FOOD AND COMMERCIAL
WORKERS #12A, a/w UNITED FOOD
AND COMMERCIAL WORKERS
INTERNATIONAL UNION

Sandra Francis, Esq.,
for the General Counsel.
Stephen L. Weld & Pamela Macal, Esqs.,
for the Respondent.

BENCH DECISION

Jane Vandeventer, Administrative Law Judge. This case was tried on September 30,
2003, in Eau Claire, Wisconsin. On the same date, after hearing oral arguments by counsel, I
issued a Bench Decision pursuant to Section 102.35(a)(10) of the National Labor Relations
Board’s Rules and Regulations, setting forth findings of fact and conclusions of law.

I certify the accuracy of the portion of the transcript, as corrected,1 pages 124 to 139,
containing my Bench Decision, and I attach a copy of that portion of the transcript, as corrected,
as “Appendix A.”

Attached as “Appendix C” is the Notice referred to in the Order portion of the Bench
Decision.

Case citations in the Bench Decision are set forth in their entirety here: Apache Powder
Company, 223 NLRB 191 (1976); E-Systems, 318 NLRB 1009 (1995); and Alexandria Manor,
317 NLRB 2 (1995).

I hereby substitute the following Conclusions of Law and Order for those set forth in the
Bench Decision:

1 I have corrected the transcript containing my Bench Decision, and the corrections are
reflected in the attached Appendix B.

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CONCLUSIONS OF LAW

1. By failing and refusing since June 2, 2003, to sign the collective-bargaining agreement
reached with the Union on May 1, 2003, Respondent has violated Section 8(a)(1) and (5) of the
Act.

2. The violation set forth above is an unfair labor practice affecting commerce within the
meaning of the Act.

THE REMEDY

Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be required to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act. Respondent, by its designated official or
agent, must sign the agreement reached between the parties on May 1, 2003, and give effect to
its terms retroactive to April 1, 2003. Respondent shall make whole its employees for losses, if
any, which they may have suffered as a result of Respondent’s failure to sign and honor the
agreement in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with
interest thereon as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987) and, if
applicable, benefit funds in the manner prescribed in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981) and Our Lady of Lourdes Health
Center, 306 NLRB 337 fn 2 (1992), with additional amounts determined in accordance with
Merryweather Optical Co., 240 NLRB 1213 (1979).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2

ORDER

The Respondent, Consumer’s Cooperative Association of Eau Claire, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain with the Union (United Food and Commercial Workers #12a, a/w
United Food and Commercial Workers International Union) by refusing to sign and give effect to
the agreement reached by the parties on May 1, 2003, for a collective-bargaining agreement
effective April 1, 2003 through March 31, 2006.

(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Sign and give effect to the collective-bargaining agreement reached by the parties on
May 1, 2003.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(b) Make whole bargaining unit employees for all losses incurred, if any, by reason of its
conduct found herein to be unlawful, with interest computed in the manner set forth above in the
remedy section of this decision.

(c) Make all payments, with interest, to the benefit funds required by the collective-
bargaining agreement reached with the Union on May 1, 2003, in the manner set forth in the
remedy section.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its Eau Claire County and
Chippewa County location copies of the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for Region 18, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since .

(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated at Washington, D.C., November 7, 2003.

_______________________
Jane Vandeventer
Administrative Law Judge

3 If this Order is enforced by a judgment of the United States Court of Appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read ‘Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order the National
Labor Relations Board.”

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APPENDIX C

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain with United Food and Commercial Workers #12A, a/w United
Food and Commercial Workers International Union (the Union), as the exclusive bargaining
representative of the employees in the appropriate unit by refusing to sign the collective-
bargaining agreement we reached with the Union on May 1, 2003.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL sign and give effect to the collective-bargaining agreement we reached with the Union
on May 1, 2003.

JD–119–03

WE WILL make you whole, with interest, for any losses, including any benefits, which you may
have sustained by reason of our failure to sign and give effect tot the agreement which we
reached with the Union on May 1, 2003.

CONSUMER’S COOPERATIVE ASSOCIATION
OF EAU CLAIRE
(Employer)

Dated By
(Representative) (Title)

This is an official notice and must not be defaced by anyone.

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (313) 226-3244.

JD–119–03

APPENDIX B

PAGE AND
LINE(S)
CORRECT TO

124:24 8(5) 8(a)(5)
126:5 parties parties’
126:22 5 ½ booklet 5 ½ inch booklet
127:12 as a 2001 as the 2001
127:19 11, that it 11 ½ inches. It
127:20 agreement. agreement, except for the 2001
letter of understanding.
127:23-24 It’s undisputed that the sessions were
held on – there
There
128:2 Neither proposal included—and those Those
128:3 evidence—neither evidence. Neither
128:10 referred to 2001 referred to the 2001
129:10 anymore any more
129:24 was a chief was the chief
130:5 agreement that agreement, that
130:5 conversation along with conversation with
131:16 agreement, there both agreement, both
132:1 another mistake that another mistake, that
132:11-12 the versions of either of the 1st two
drafts,
the written versions of the contract,
132:15 2006, and 2006, the new contract term, and
132:18 And this This
134:22-23 specifying what it means or what specifying
134:24 expires expired
134:25 Delete “If Respondent had”
135:1 Delete “wanted to make paragraph 5 only
of that—now,

135:1 obviously Obviously
135:7 Delete “included the 2001—“
135:8 its letter of proposals. its proposals.
135:13 thereafter during thereafter, raised it during
135:19 believe that the believe
135:25 it, there it. There
136:2 union-- union,
136:12 Delete “actually more”
137:5 somewhat opposite apposite
137:6-7 I believe there—in In
137:8 implications that the—that implications that
137:16 this case and heavily this case, heavily
137:17 documents, I believe, it supports documents, support
139:3 68 60

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WALLS & WALLS
12124 Hampshire Avenue North
Champlin, Minnesota 55316
(763) 422-8938
BEFORE THE
NATIONAL LABOR RELATIONS BOARD

In the Matter of: )
)
CONSUMER’S COOPERATIVE ASSOCIATION )
OF EAU CLAIRE, )
)
Respondent, )
)
and ) Case 18-CA-16902
)
UNITED FOOD AND COMMERCIAL )
WORKERS #12A, A/W UNITED FOOD AND )
COMMERCIAL WORKERS INTERNATIONAL )
UNION, )
)
Charging Party. )

The above entitled matter came on for hearing pursuant to notice, before THE
HONORABLE JANE VANDEVENTER, Administrative Law Judge, at Room 20, Federal
Building and U.S. Courthouse, 500 South Barstow, Eau Claire, Wisconsin, on Tuesday,
September 30, 2003, at 9:00 a.m.

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WALLS & WALLS
12124 Hampshire Avenue North
Champlin, Minnesota 55316
(763) 422-8938

A P P E A R A N C E S 1
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On Behalf of the General Counsel:
SANDRA FRANCIS, ESQ.
Region 18
National Labor Relations Board
Suite 790
330 Second Avenue South
Minneapolis, Minnesota 55401

On Behalf of the Charging Party:
(None except as a witness.)

On Behalf of the Respondent:
STEPHEN L. WELD, ESQ.
PAMELA MACAL, ESQ.
Weld, Riley, Prenn & Ricci
3624 Oakwood Hills Parkway
Eau Claire, Wisconsin 54702

Also Appearing:

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12124 Hampshire Avenue North
Champlin, Minnesota 55316
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I N D E X1
2 VOIR
WITNESSES DIRECT CROSS REDIRECT RECROSS DIRE3
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Daniel Hudyma 12 48 56

Brick Hopkins 58 66 68 70

Kelly Clarke 72 86 95

Bill Ripley 96 102

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12124 Hampshire Avenue North
Champlin, Minnesota 55316
(763) 422-8938
E X H I B I T S1
EXHIBIT IDENTIFIED IN EVIDENCE 2
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General Counsel’s

1(a) through 1(f) 7

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3 17

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7 30

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10 40

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14 44 and 47

15 47

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17 91

Respondent’s

1 86

2 102

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WALLS & WALLS
12124 Hampshire Avenue North
Champlin, Minnesota 55316
(763) 422-8938
P R O C E E D I N G S1
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JUDGE VANDEVENTER: Good morning.
The hearing will be in order.
This is a formal trial before the National Labor Relations Board in Consumer’s
Cooperative Association of Eau Claire, case 18-CA-16902.
The administrative law judge presiding is Jane Vandeventer. I am located in the
Washington office of the Division of Judges.
Any communications post-trial or necessary during trial should be addressed to that
office and any requests for extensions of time or other matters should be addressed to the
chief judge or the deputy chief judge in Washington.
Will counsel and other representatives of the parties please state their appearances for
the record?
For the General Counsel?
MS. FRANCIS: For the General Counsel Sandra C. Francis, NLRB Region 18,
Minneapolis, Minnesota.
JUDGE VANDEVENTER: And is there a representative – is the Charging Party going
to make an appearance?
MS. FRANCIS: No.
JUDGE VANDEVENTER: Okay, and for the employer – the Respondent?
MR. WELD: Weld, Riley, Prenn & Ricci by Stephen L. Weld and Pamela Macal.
JUDGE VANDEVENTER: I’m sorry, Ms. Macal’s name is not listed on here. Could I
get a spelling on that?
MS. MACAL: M-A-C-A-L.
JUDGE VANDEVENTER: Pamela?
MS. MACAL: Correct.
JUDGE VANDEVENTER: Thank you.
As I stated a few minutes ago off the record I would like the parties to bear in mind that

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(763) 422-8938
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as the trial proceeds and in light of the fact that – I also mentioned before opening the record
that my intention in this case is to issue a bench decision and proud developments sometimes
may affect a party’s perception of the likelihood of settlement or the ability to arrive at a new
resolution, a resolution that wasn’t put up previously. Anyway that means that the parties
should ask, if they see such a possibility, me for time off the record and I will grant that time if
there are settlement negotiations that can be pursued productively. And I may remind you
again about settlement but please bear in mind that I will be attentive to the needs of the
parties for settlement discussion time if that possibility arises.
In this courtroom which we are borrowing there will be no smoking, eating or drinking
other than water and please turn off all cell phones and pagers if you have such with you.
Now, Ms. Francis, do you have formal papers for us?
MS. FRANCIS: Yes, I offer into evidence the formal papers. They are marked as
General Counsel Exhibit 1(a) through 1(f), 1(f) is an index and description of the formal papers
and they have previously been shown to all parties.
JUDGE VANDEVENTER: Any objection, Mr. Weld?
MR. WELD: No objection, Judge.
JUDGE VANDEVENTER: The formal papers are received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NOS. 1(a) THROUGH 1(f) INCLUSIVE.)
JUDGE VANDEVENTER: Are there any preliminary matters that either party wishes to
raise, for example, documents that might be stipulated or any other preliminary matters that
we can deal with at this time?
MS. FRANCIS: None for the General Counsel.
MR. WELD: No, Judge.
JUDGE VANDEVENTER: Okay. Then, Ms. Francis, I do like a short opening
statement from each party to just set out what you are intending to prove. Ms. Francis?
MS. FRANCIS: Your Honor, the complaint alleges Respondent violated the Act by
refusing to execute a collective bargaining agreement by conditioning the execution on the

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inclusion of a letter of agreement not agreed to by the parties during negotiations. Most of the
relevant facts are not disputed. It is undisputed that the Union and the Respondent have a
long standing bargaining relationship spanning approximately 35 years and the parties most
recent collective bargaining agreement expired on March 31st. It is further undisputed that the
parties began negotiating a successor collective bargaining agreement in March and came to
an agreement on May 1st.
The instant dispute centers around the inclusion of a letter of agreement which
modifies the language of the recognition clause of the contract found in Section 1.1(b). Again
there is no dispute that the parties entered into the letter of agreement in 2001. There is also
no dispute that the letter of agreement was not discussed at any of the first three bargaining
sessions. It is further undisputed that the letter of agreement was not attached to any of the
drafts of the contract Respondent sent to the Union but appeared for the first time in the final
contract signed by Respondent and received by the Union in June.
The only facts disputed evolve a very brief sidebar conversation between Mr. Hudyma
of the Union and Ms. Clarke of Respondent on May 1st at the close of the negotiation session.
It is during this conversation that Respondent contends parties specifically agreed to include
the letter of agreement and the Union denies any such agreement or that it was even
discussed. The facts will support a finding that Mr. Hudyma’s recollection of the brief sidebar
conversation is accurate and the letter of agreement was not discussed and is not part of the
current collective bargaining agreement that the parties agreed to on May 1st.
JUDGE VANDEVENTER: Thank you, Ms. Francis.
Mr. Weld?
MR. WELD: Yes, Judge. The Respondent has been charged with bad faith
bargaining, failure to execute an agreement in this case, despite what we believe is a clear
understanding and agreement in a sidebar conversation between our chief spokesperson,
Kelly Clarke, and Mr. Hudyma, the union representative. The agreement occurred during a
mediation session conducted under the auspices of the Federal Mediation and Conciliation

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Service. The Union’s position in the negotiations was that there would be no new addendums
attached to the contract – to the new contract which would cover the period 2003 forward. The
parties had a sidebar conversation for the express purpose of determining what the existing
addenda were and the existing addenda included a letter of agreement which had been
executed in January of 2001.
As a bit of background for the Judge’s benefit the parties are coming off of a five year
agreement covering the period 1998 through 2003. In mid-contract term the parties agreed to
renegotiate the wages. As a result of that renegotiations the employer increased the wages
which had been set out as part of the five year agreement and in exchange for that the Union
agreed to paragraph five which called for a modification of a recognition clause which
indicated that the Union was automatically to be recognized as the representative of any new
facilities owned by the store in Eau Claire or Chippewa Counties in Wisconsin.
The sidebar agreement specifically addressed that paragraph five. It was specifically
addressed in that conversation because the Respondent had purchased a store in Chippewa
Falls in Wisconsin in the period after the letter of agreement had been entered into. The
parties engaged in litigation regarding the significance of that letter of agreement. In the
period between 2001 and 2003 the letter of agreement was an essential aspect of the
negotiated settlement just as the wage grid which was attached to the letter of agreement was
the base for the negotiated wage increase for the period 2003 forward.
The letter of agreement was specific. Ms. Clarke specifically circled the paragraph.
Mr. Hudyma indicated he was not concerned or advised that he was not concerned about that
paragraph but rather was concerned about another paragraph in a different memorandum of
understanding which had been attached to the five year agreement. There was a specific and
clear agreement that the – in that sidebar conversation that the letter agreement should be
attached to the new contract. The employer did fail to attach the letter of agreement to its
initial drafts of the document that was attributable to a failure to have a file copy on our
computer which referenced the sidebar which was engaged or negotiated during the term of

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the five year agreement. And indeed the letter that was attached – or the contract which was
sent to Mr. Hudyma initially was actually the 1992 draft of the collective bargaining agreement.
The employer did acknowledge its error in sending the wrong draft but it’s clear that Mr.
Hudyma and the Union are using a clerical error – a scrivener’s error as an attempt to modify
the terms of the negotiated agreement. It is not the employer who has failed to execute the
agreement. It’s the Union. And therefore we don’t believe that charges are appropriate here.
JUDGE VANDEVENTER: Thank you. I may have other questions. I think I have got
the general idea but if I have other questions, I will address them to counsel as the trial
progresses.
Anything else preliminary before we proceed with evidence?
MS. FRANCIS: Nothing for the General Counsel.
JUDGE VANDEVENTER: Then let’s proceed. Ms. Francis?
MS. FRANCIS: General Counsel calls Daniel Hudyma.
(WITNESS SWORN: DANIEL HUDYMA.)
JUDGE VANDEVENTER: State your name and spell it so the reporter can get it
correctly.
THE WITNESS: My name is Dan Hudyma. The last name is spelled H-U-D-Y-M-A.
JUDGE VANDEVENTER: And Mr. Hudyma bearing in mind that this is an old
courtroom and although improved it’s still not perfect if you could keep you voice up as much
as possible it would aid all parties, including myself, in hearing your testimony. Thank you.
DIRECT EXAMINATION
Q BY MS. FRANCIS: Mr. Hudyma, where are you employed?
A I work for United Food and Commercial Workers Local 12A. Our office is in Duluth,
Minnesota
Q And what is your position with the United Food and Commercial –
A I am the president of the labor union.
Q President?

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And can you tell me what that job entails briefly?
A Just about everything involved in the union from negotiating contracts, grievance filing,
arbitration, organizing.
Q And how long have you held that position?
A Four years in July.
Q And what is the union’s relationship with Respondent?
A We have had a contract with the Eau Claire Consumer Co-op from sometime in the
1960’s until present and in the Eau Claire area we have – represent some of the employees in
two of the grocery stores. I think there is nine convenience stores – two lubes –
Q That’s all with Respondent?
A Yes.
Q Okay. And how long have you personally worked on that account?
A Four years.
Q When did the most recent contract expire?
A That contract expired March 31st of 2003.
MS. FRANCIS: I have handed you what has been marked as General Counsel Exhibit
2.
(Witness proffered document.)
Q Is this the most recent collective bargaining agreement?
A Yes, it is.
MS. FRANCIS: I offer General Counsel Exhibit 2.
JUDGE VANDEVENTER: Any objection?
MR. WELD: No objection.
JUDGE VANDEVENTER: General Counsel 2 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 2.)
Q BY MS. FRANCIS: Now when did negotiations start for the successor contract to this
one?

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A I believe the first negotiation meeting was on the 14th of March.
Q And were you involved in the negotiation session?
A Yes. Yes, I do all the negotiations for all the contracts.
Q Who else represented the Union at these sessions?
A Besides some of our union stewards I left the – I left it open to whoever wanted to be at
the contract negotiations. So the size of the negotiating committee varied anywhere from five
to I think at our largest meeting we had close to 50 employees of Eau Claire Consumer Co-op
that were there.
Q And do you know who represented Respondent in negotiations?
A Yes.
Q And who was that?
A We have Kelly Clarke, Bill –
Q And what is her title?
A Human Resource Director. Bill Ripley – he is the store manager at Mega East. Brick
Hopkins. I think – I don’t know Brick’s title. I think at the first meeting Sue Mueller was there
and I am not sure of Sue’s title either. She works at Mega West. And Jeff Julson. I believe he
is the manager of the convenient stores and lubes.
Q Okay. Do you know how many sessions did you have?
A Four.
Q Do you know the dates of those sessions?
A I think it was March 14th, March 19th, April – I forgot the date in April.
MR. WELD: The employer would stipulate that there was a bargaining session on April
10th and on May 1st.
MS. FRANCIS: is that correct?
THE WITNESS: That’s correct.
JUDGE VANDEVENTER: So stipulated Ms. Francis?
MS. FRANCIS: Yes.

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JUDGE VANDEVENTER: Stipulation is received.
Q BY MS. FRANCIS: And did you exchange proposals in these – any of these
meetings?
A The very first meeting we were exchanged our – we exchanged proposals.
(Pause.)
Q I have handed you three packets of documents. They have been marked as General
Counsel’s Exhibit 3, General Counsel’s Exhibit 4, and General Counsel’s Exhibit 5. Do you
see where the markings are?
(Witness proffered documents.)
A Yes.
Q If you could first look at General Counsel’s Exhibit 3. Can you tell me what is that?
A This is the contract proposal for contract language that the Union, myself, including
employees of Consumer Co-op, worked on over a year’s time and that’s our draft.
Q Okay, and did you give this to Respondent?
A This is the draft that we gave to the Company at the first negotiation meeting.
Q Okay, and in your proposal did you propose any changes to the recognition clause or
specifically Section 1.1(b)?
A Yes, actually in this contract we went through and clarified and changed it rather
drastically.
Q And can you point out any particular change to the recognition or the clauses at issue?
A Well, the recognition clause in this – in our proposal we used some of the same
language although we changed the – our proposal for recognition was that the employer – this
agreement does apply to the employer’s operations as performed under this agreement and
this contract and the union representation hereunder shall also extend to any extension,
expansion, or relocation of such present operation now represented by the union local in the
geographic area of the jurisdiction that is covered under the charter of the union local. So,
basically our proposal was to expand the recognition clause.

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Q Did your proposal include or indicate or reference any of the memorandums of
understanding that were attached to the agreement in 1998?
A One of the letters of understanding we incorporated that into the recognition clause.
Q And which one was that?
A And that was the letter of understanding concerning the -- how hours are scheduled.
Q And does that have to do with seniority?
A Yes. It’s –
Q Did you want to explain?
A Well, that carries us onto further. We have it here but actually that’s – we did go back
and put it in the seniority section. This –
Q At a later date?
A Yes.
Q Okay.
MS. FRANCIS: General Counsel offers General Counsel’s Exhibit 3.
MR. WELD: No objection.
JUDGE VANDEVENTER: No objection?
MR. WELD: No objection.
JUDGE VANDEVENTER: 3 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 3.)
Q BY MS. FRANCIS: And do you – look at the packet marked General Counsel Exhibit 4
and can you explain what this is?
A This is the contract proposal presented to the union by the employer.
Q And the handwriting on that document, what is that?
A That’s my handwriting -- my question marks – because that is not the language that’s
in our current contract.
Q When you say “that is not”, are you referring to 1.1(b)?
A 1.1(b) – that is correct. That language is language that was in the pre ’98 contract.

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Q And does this proposal reference any of the memorandums of understanding or the
letter of agreement from 2001?
A No.
Q And you said that the language in 1.1(b) is from the contract prior to the 1998 contract?
A Prior to the 1998 contract. That’s correct.
Q Any other changes that you recognized on that section – 1.1(b)?
A Well, the dates are wrong and in that language – the language in the 1998 contract
included Chippewa County as well as the Eau Claire County.
MS. FRANCIS: General Counsel offers General Counsel Exhibit 4.
MR. WELD: No objection.
JUDGE VANDEVENTER: 4 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 4.)
Q BY MS. FRANCIS: During the meetings in which you exchanged proposals did the
parties discuss Section 1.1(b)?
A No.
Q Did the parties discuss the 2001 letter of agreement?
A No.
Q And if you could just turn then to General Counsel Exhibit 5 – that smaller packet – and
what – can you explain what this is?
A This is the union’s response to the company’s proposal.
Q And did you give this proposal to Respondent?
A Yes.
MS. FRANCIS: General Counsel offers General Counsel Exhibit 5.
MR. WELD: No objection, Judge.
JUDGE VANDEVENTER: Exhibit 5 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 5.)
Q BY MS. FRANCIS: And does the General Counsel’s Exhibit 5, the union’s response,

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reference any of the memorandums of understanding?
A No, it does not.
Q Does it reference the letter of agreements from 2001?
A No.
Q And does it reference Section 1.1(b)?
A No.
Q I have handed you what has been marked as General Counsel’s Exhibit 6. Would you
please explain what this document is?
(Witness proffered document.)
A This was a letter from the -- or an e-mail from the company. I can’t remember which
one it was – because we did lots of e-mails. This is our response – company’s proposal and
the union’s response to – and things that we had – could agree on from our first two meetings.
Q So this is not a document you put together?
A No, it’s not.
Q But you received it from Respondent?
A Yes.
MS. FRANCIS: General Counsel offers General Counsel Exhibit 6.
MR. WELD: No objection, Judge.
JUDGE VANDEVENTER: Six is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 6.)
JUDGE VANDEVENTER: Let me ask you one thing now. I didn’t hear a date. Do we
have a date? Or is there a date on the document?
Q BY MS. FRANCIS: Do you recall the date that you received this?
JUDGE VANDEVENTER: There is a date on the second page. I don’t know if it’s the
– it’s a little obscured, but there is a date in the upper left-hand corner.
Q BY MS. FRANCIS: On the fax?
A The fax of March 30th.

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Q And is that the date you received it?
A Yes.
Q This document, which is General Counsel's Exhibit 6, it's titled "Company Proposal",
but I see it has also your response on that.
Anywhere in this document is there any reference to Section 1.1(b)?
A No, no.
Q Is there any reference to any of the memorandums of understanding?
A No.
Q Any reference to the 2001 letter of agreement?
A No.
Q During the March meeting -- there were two meetings in March, is that right?
A That is correct.
Q During either of those meetings did the parties discuss any changes to Section 1.1(b)
A No.
Q Did the parties discuss the 2001 letter of agreement?
A No.
Q Did the parties discuss the memorandums of understanding that were attached to the
1998 contract?
A No.
Q I believe that we stipulated that there was also a meeting on April 10th. Do you recall
what was discussed at that meeting?
A At that meeting we -- we tried to negotiate from our two previous proposals, but at that
point the mediator, Jose Rosario, it was his thought that we should narrow our negotiation
down to five more manageable items because of the differences we had within our tow --
because of our two proposals.
Q And did you do that?
A Yes, we did.

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Q And what five items did you narrowed it to?
A We narrowed it down to the length of the contract, the wages, pension, health
insurance, and
MR. WELD: The employer would stipulate that the fifth issue was seniority.
THE WITNESS: Seniority, that's correct.
MS. FRANCIS: The stipulation would be acceptable.
JUDGE VANDEVENTER: That is received.
Q BY MS. FRANCIS: Did you come to an agreement on those five topics at the April
10th meeting?
A No, no, we did not. We just set those -- we set those five topics as the topics that we
would discuss at our next meeting.
Q And your next meeting was on May 1st?
A May 1st.
Q Okay, and did you -- why don't you just bring me through May 1st, that day. First of all,
what time did the session start do you recall?
A May 1st I believe we started at 9:00 o'clock in the morning.
Q How long did it last?
A I think we were there until abut 5:00.
Q And during that time were you meeting as a group with Respondent -- union and
Respondent or --
A No, the – we were in one room and the company was in another room and the
mediator would work back and forth between the two rooms bringing the company’s response
to us and the union’s response back to them.
Q And did you come to an agreement on the health insurance issue?
A Yes, we did.
Q And did you come to an agreement on wages?
A Yes, we did.

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Q And was that – do you recall if the wages were increased?
A Yes, there was a wage increase. It was three percent the first year and two for the –
two percent for each of the years after that.
Q Was there an agreement on the length of the contract?
A The contract length was agreed to at three years.
Q And regarding pension, was there agreements on that?
A No, we withdrew our proposal on the pension.
Q And what about seniority? Was there an agreement on seniority?
A Yes, there was.
Q And what was that agreement?
A That’s a long agreement but part of that agreement – we didn’t have very good
seniority language in the contract and we agreed to language in the contract that would define
how people – how seniority was defined. And in the process of that during – the process of
doing that I had proposed a bumping provision in that. The company’s proposal was that they
didn’t want the bumping provision and at that point I said that we would – through the mediator
– accept their proposal if they would take the language from one of the letters of
understanding from the prior contract that would say how hours were scheduled -- group one
employees the most hours; group two the employees the next more hours; and non-bargaining
unit employees the least number of hours.
Q And was that accepted?
A Yes, it was.
Q And would you just turn briefly to General Counsel’s Exhibit 2 and just point out which
memorandum of understanding you are talking about when you said wanted it – taking that
language?
A Let’s see, it would be on page 24.
Q And that’s the memorandum of understanding concerning employee’s scheduled
hours?

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A Yes.
Q Were any of the other memorandums of understanding discussed in this back and forth
exchange of proposals?
A No except the memorandum of understanding – when the employer accepted – I don’t
know if – I’m getting ahead of myself.
Q I think you might be.
A Okay.
Q So let me ask you another question first.
A Okay.
Q During this back and forth exchange of proposals when the mediator was coming to
you with their responses and you were going -- the mediator was going to the Respondent with
your responses, during that time was the 2001 letter of agreement talked about or brought up
at all?
A No.
Q Okay. Now was there a time on May 1st when any of these attachments to the 1998
contract – the memorandums of understanding – when any of those were discussed?
A None of them were discussed. The only time we had any discussion was when the
company accepted our final offer or we accepted their offer.
Q And what happened at that time?
A At that time I told the federal mediator – he was in our room telling us that the last offer
that we had between us was acceptable to the company. And at that point in time I told him
he had to go back to the company and tell them that we would accept – this offer would be
acceptable to the union on the condition that the company not add any more interpretive notes
to the labor agreement. Prior to my coming on to doing the negotiating the contract had gone
back to the Board and the Board had added memorandum of understanding and interpretive
notes that would – their determination of what language we had negotiated.
Q Okay, so I just want to make it clear, what you are referencing is there is some

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interpretive notes attached to the 1998 contract?
A Yes.
Q And would you just point that out?
A That would be on page 25 of the 1998 --
Q And so you indicated that you wanted – there was to be none of those added to the
new contract?
A That’s correct. No interpretive – I actually didn’t say this one. I was referring to this
one but my implication was that there would be no more interpretive notes. Nothing added to
the contract after we made our final agreement. We had just reached a final agreement and
nothing more was going to be added to it.
Q And did there come a time when you had a conversation with anyone from Respondent
about that?
A Yes. The mediator said, “Well let’s go out into the hall.” He would – we were in one
room and they were in another. Jose Rosario went and spoke to Kelly Clarke and she came
out and we met in the hallway.
Q Okay, and what happened – was there anyone else in the hallway?
A Jose Rosario was there.
Q The mediator?
A Yes.
Q And what – can you just bring me through blow by blow what happened in that
hallway?
A We went on into the hallway and I explained that I didn’t want anymore interpretive
notes, but we also agreed at that point in time that anything that was on this memorandum of
understanding – interpretive notes – that anything that was in conflict with the seniority
language that we had just agreed on that they would supersede anything that was on this
memorandum. And that was the extent of our conversation.
Q Okay, how long –

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JUDGE VANDEVENTER: I didn’t hear that last sentence.
Q BY MS. FRANCIS: Would you repeat that?
A That was the extent of our conversation.
JUDGE VANDEVENTER: Before that.
THE WITNESS: Our conversation was over when –
JUDGE VANDEVENTER: The sentence before that. I’m sorry, Mr. Hudyma.
MS. FRANCIS: Maybe why don’t you just – if you don’t mind repeating yourself.
JUDGE VANDEVENTER: He started out anything in conflict and then the voice went
down. I didn’t hear.
THE WITNESS: Anything that was in this memorandum of understanding – it’s on
page 25 – that was in conflict with the seniority language that we had just negotiated – that
anything that was in conflict that the new language would supersede this language.
Q BY MS. FRANCIS: So, your understanding during this conversation was that the
memorandum of understanding contains –
MR. WELD: I am going to object to counsel’s leading the witness at this stage.
JUDGE VANDEVENTER: Well, she is summarizing. She is permitted to it for
summarizing. Continue.
MS. FRANCIS: I’m just going to repeat myself again. I’m sorry.
Q BY MS. FRANCIS: Your understanding is the memorandum of understanding that has
the interpretive notes that’s attached to the 1998 contract was agreed to during this hallway
conversation?
A Yes.
Q But if there was something conflicting your current contract that you just talked about
would take precedence?
A Yes.
Q How long did this conversation last in the hallway with Ms. Clarke?
A About a minute.

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Q During this time did the 2001 letter of agreement – was that discussed?
A No.
Q Were any of the other memorandums of understanding discussed?
A No.
Q During this conversation did Ms. Clarke have anything with her?
A She had a – I believe it was a three ring binder and it was opened to this page.
Q Which page are you looking at?
A The memorandum of understanding interpretive notes. It would be page 25 I think –
25.
Q Is that the only page that her binder was open to during your conversation?
A That was the only page that it was open to and that was the only page that we
discussed.
Q During this conversation did you see Ms. Clarke circle anything?
A No.
Q What happened at the end of the conversation?
A At the end of the conversation Ms. Clarke and myself and Mediator Rosario went back
into the room that the union was in and we – she had a contract extension – as our contract
had expired on March 31st and we were signing contract extensions. The previous extension
had expired on that day. So we just signed another contract extension.
Q What was your understanding then of the status of the contract when you left on May
1st?
A I believed that we had a completed contract.
Q And what was your understanding with regards to a 2001 letter of agreement in that
contract?
A It was my thought at that point in time that we had not brought up that letter of
understanding and therefore that letter of understanding died.
Q When did you first see a copy of the contract after the May 1st meeting?

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A It was probably around May 12th or –
Q How did you receive it?
A May 12th or 9th. I received it by e-mail.
Q Mr. Hudyma, I have handed you two packets of documents. One is that marked
General Counsel Exhibit 7. One that is marked General Counsel Exhibit 8.
(Witness proffered documents.)
Q If you first turn to General Counsel Exhibit 7, do you know what this document is?
A Yes, that’s the final draft of our labor contract that we had negotiated and that Ms.
Clarke had prepared and sent to us on May 9th.
Q There is some handwriting at the top. Can you explain that?
A Well, we received more than one final draft. This first draft we received I just wanted to
make sure I knew when I received it.
Q So that’s your handwriting?
A That’s my handwriting.
MS. FRANCIS: I offer General Counsel Exhibit 7.
MR. WELD: No objection.
JUDGE VANDEVENTER: It’s received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 7.)
Q BY MS. FRANCIS: When you received this contract, the copy of the contract, did you
review it?
A Yes, I did.
Q And did you notice any issues with it?
A Yes, there are four – there were four incorrect entries in the contract.
Q Okay, and specifically is there any issue with Section 1.1(b)?
A Section 1.1(b) was – is incorrect?
Q How so?
A It’s the language that was in our pre-1998 contract and the dates are wrong. The Eau

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Claire County – or Chippewa County is excluded from that provision.
Q Now if you look on the first page of General Counsel Exhibit 7 between the lines of
stars it indicates that there is a memorandum of understanding concerning employees’
scheduled hours and a memorandum of understanding concerning non-bargaining unit
employees in the Meat Department. Were these two memorandums attached to this contract
when you received it?
A Yes.
Q And were either of these memorandums of understanding discussed during
negotiations?
A The memorandum of understanding concerning scheduling of hours was. The
memorandum concerning non-bargaining unit employees in the Meat Department was not.
Q First the one – the memorandum of understanding concerning employees’ scheduled
hours, how was that discussed?
A That was the memorandum we moved – we agreed to move into the seniority clause.
Q But you said the second one – the second memorandum of understanding was not
discussed?
A No, it wasn’t.
Q Did you bring that up to Respondent?
A No, I did not.
Q Why not?
A This is basically a safety issue and I guess I viewed it as that. There’s law that says
that people under 18 cannot operate the equipment in the meat departments and so I ignored
it.
Q So you ignored it?
A Yes. It was of no – it runs in our favor but it runs to the employee’s favor and the
employer’s favor because, you know, injuries to these people would affect work comp rates
and I just ignored it.

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Q Now you said you did notice at least the one issue with the 1.1(b) was the wrong
language. Did you bring that up to Respondent at all?
A Yes, I did. In my e-mail of March 10th I told her that I found errors in the contract.
Q Are you looking now at General Counsel Exhibit 8?
A Yes.
Q And before then we talk about that would you just tell me what this packet of
documents what it is?
A These are the e-mails that Kelly Clarke and I exchanged about the contract, errors in
the contract, and so forth.
Q And there is some numbers – handwritten numbers – on that, could you – are those
your – is that your handwriting?
A That’s my handwriting. I did that to keep the sequence correct.
Q Chronologically?
A Right.
MS. FRANCIS: General Counsel offers General Counsel Exhibit 8.
MR. WELD: No objection.
JUDGE VANDEVENTER: General Counsel’s 8 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 8.)
Q BY MS. FRANCIS: So during the e-mail correspondence did you discuss 1.1(b)?
A Yes.
Q And I think the document speaks for itself but just to be accurate that’s number 2 that’s
from you?
A That’s correct.
Q The May 10th e-mail.
Were there any other issues with the contract – the draft of the contract?
A Yes, at that point in time I saw where we had in our health insurance issue that we had
agreed on we had changed the timeframe where someone – a part-time employee becomes

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eligible for health insurance. And that – the language in the contract was incorrect. We had
agreed to six weeks and that’s in 11.1 of this final draft. It was wrongly worded to put six
months.
Q And you pointed that out in your e-mail?
A Yes, I did.
Q And if you page through, it appears that your e-mails numbered 4, 5, 6, 7, 8 – I don’t
see a 9 – oh, 9, 10, and 11 are all concerning that health insurance issue?
A That’s correct.
Q Through the course of these e-mails and any other conversations were you able to
work out the agreement on that?
A Yes, our conversation was – I went back to the federal mediator and he looked through
his notes and he – from his notes we determined that my assertion that it was a six week
waiting period instead of six months was correct.
Q And did Respondent acknowledge that at some point?
A Yes. It isn’t in our e-mails but we did have a telephone conversation where that was
corrected.
Q All right, and if you turn to page 11 of the packet, number 14, I see that there is two
attachments to that.
A Yes, that’s the – that would be the second final draft and the new wage scale that was
sent to me by –
JUDGE VANDEVENTER: I’m sorry. What did you refer to?
MS. FRANCIS: Pardon me?
JUDGE VANDEVENTER: What was it that you asked him about?
MS. FRANCIS: The attachments that are on page 11.
JUDGE VANDEVENTER: Okay, reference on page 11?
MS. FRANCIS: Okay, thank you.
(Pause.)

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Q BY MS. FRANCIS: I have handed you what has been marked as General Counsel
Exhibit 9. Is that what was attached to your e-mail?
(Witness proffered document.)
A Yes.
Q And again there is some handwriting at the top. Is that your handwriting?
A That’s my handwriting at the top.
MS. FRANCIS: I offer General Counsel Exhibit 9.
MR. WELD: No objection.
JUDGE VANDEVENTER: 9 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 9.)
Q BY MS. FRANCIS: Did you review General Counsel Exhibit 9 when you received it?
A Yes, I did.
Q And were there any errors in it?
A Yes.
Q And what specifically did you note?
A The 1.1(b) part of the recognition clause is still incorrect. And I sent that back to – I
sent that as an e-mail to Kelly on May 14th.
Q And again turning to General Counsel Exhibit 8, page 12, the e-mail that’s numbered
15, is that the e-mail you are referring to?
A Yes.
Q And there again is a couple of attachments that are listed on the front page, the
memorandum of understanding concerning employees’ scheduled hours and the same one,
memorandum of understanding concerning non-bargaining unit employees. Were those
attached to your contract when you received it?
A Yes, they were.
Q Were there any other attachments to the contract?
A No.

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Q Was the letter of agreement from 2001 attached to this draft?
A No.
Q And I am not sure if I asked you but I will at this time. Was there a letter of agreement
attached to General Counsel Exhibit 7, the one you received on May 9th?
A No.
Q Did you come to an agreement with Respondent regarding these errors that you e-
mailed to Ms. Clarke?
A Yes, I did. Actually I typed out exactly how the 1.1(b) was supposed to read in that –
this e-mail.
Q That would have been your May 14th e-mail?
A That’s correct.
Q And did you hear from Ms. Clarke about this e-mail or about those errors after you sent
the e-mail?
A Yes, because I had scheduled a ratification meeting and I needed those things to be
corrected so that I could actually go back to the membership and she told me it was corrected
– it would be corrected and I would get a copy. She assured me that it was – when it was
corrected. I did not get a copy of anything from that --
Q But it was your understanding that they agreed that those were errors?
A Yes.
Q Did you hold a ratification meeting?
A Yes, I did.
Q And what was the date of that meeting? Do you recall?
A The actual ratification meeting – I had to cancel the first one because we didn’t have
this language. The second meeting was on May 22nd and we had a ratification meeting that
day.
Q What, if anything, did you pass out to the employees for the ratification meeting?
A I passed out to the employees the new wage scale, the new language for funeral leave,

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the new language for seniority, the changes in the health insurance, so I gave them changes --
the contract changes that we had negotiated at our last -- at our last negotiation session.
Q Was there any discussion or any reference by you to the employees at the ratification
meeting about the 2001 letter of agreement?
A No.
Q What was the outcome of that ratification meeting?
A The contract was ratified.
Q And did you notify Respondent about that?
A Yes, I did.
Q How did you do that?
A I can't remember whether I did it by e-mail or by letter.
Q After the ratification vote, did you receive any other copies of the contract from
Respondent?
A After that contract was ratified, we received a draft for a -- for the contract that would
that which -- had gone to the Consumer Cooperative's board of directors for signatures.
Q How did you receive that copy?
A That was by mail.
(Pause.)
Q Mr. Hudyma, I am giving you two packets of documents. The first is marked General
Counsel Exhibit 10. The second is marked General Counsel Exhibit 11. Referring first to
General Counsel Exhibit 10 could you identify this please?
(The witness was proffered the document.)
A Yes, this is the contract with the signatures -- the company signatures on it.
Q Is that what you received in the mail?
A This is the one I received in the mail.
MS. FRANCIS: I offer General Counsel Exhibit 10.
MR. WELD: No objection.

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JUDGE VANDEVENTER: Received about when, do we know? How many days after
the ratification vote or some way to date it.
THE WITNESS: I -- I received this on -- it might have come to my office before that,
but I opened this on June 2nd.
Q BY MS. FRANCIS: And did you review the document when you received it?
A Yes, I did.
Q What, if anything, did you notice about it.
A Well, on the first cover page there is now listed a letter of agreement. That is the first
time that appeared.
Q And was that attached to the document?
A Yes, and that letter is attached to the last page of the contract.
Q Had you seen this document prior to receiving it in the mail? The letter of agreement.
A No.
Q Did you contact Respondent about the appearance of the letter of agreement?
A Yes, I did. On June 2nd I believe my first e-mail is at 2:37 in the afternoon.
Q Okay, I’m just going to stop you. So you are now referring to General Counsel Exhibit
11?
A Yes.
Q Again these are a packet of e-mails between you and Ms. Clarke?
A That’s correct.
MS. FRANCIS: And I’ll offer General Counsel Exhibit 11.
MR. WELD: No objection.
JUDGE VANDEVENTER: 11 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 11.)
JUDGE VANDEVENTER: I’m sorry, did you offer 10?
MS. FRANCIS: Pardon me?
JUDGE VANDEVENTER: Did you offer 10?

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MS. FRANCIS: I will at this time if I have not already.
MR. WELD: No objection.
JUDGE VANDEVENTER: 10 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 10.)
Q BY MS. FRANCIS: So you were explaining June 2nd was the first e-mail about the
letter of agreement, is that right?
A That’s correct. I sent her a letter saying that this letter of agreement had been added
to the contract. It was not brought up in negotiations or any subsequent e-mails or
conversations that we had and therefore not part of the agreement reached. I told her we
would be willing to sign a contract that we agreed to.
Q Were there any conversations over the phone between you and Ms. Clarke about the
letter of agreement?
A About this time --
Q “About this time”, what are you referring to?
A June 2nd – June 3rd that I talked to Ms. Clarke about this. She told me at that time
that the – she did not have the letter of agreement as part of the contract that she was working
from and that it was in a separate computer file and that she actually didn’t know about it until
they found it in their computer file.
Q Did you have any further communications with Ms. Clarke regarding the contract?
A Yes, we again went back to the federal mediator to try to resolve this issue because I
was certain that he was there at the time that we made this – that we looked through the
contract in the – at our sidebar and –
Q And was that – did that help resolve the issue?
A No, it did not. He told me that he was not – he didn’t hear our conversations. He didn’t
– he said he walked away so he didn’t – he could not say one way or another what we had
discussed.
Q Did Ms. Clarke dispute that at all?

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A Yeah, she did. She told me that we had went through all those agreements in our
sidebar.
Q Did Ms. Clarke ever indicate if she had spoken to the mediator about it?
A I believe she did. I am just trying to check my e-mails but I believe that she did talk to
the federal mediator and he couldn’t validate her position either.
Q I handed you two more documents marked General Counsel Exhibits 12 and 13.
Could you tell me what General Counsel Exhibit 12 is?
(Witness proffered documents.)
A General Counsel 12 is a letter to me from Kelly Clarke discussing this issue –
Q And I see --
A -- the issue of the letter of understanding.
Q I see that it’s dated July 1, 2003. Did you receive it on or about that day?
A Yes.
MS. FRANCIS: I offer General Counsel Exhibit 12.
MR. WELD: No objection.
JUDGE VANDEVENTER: 12 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 12.)
Q BY MS. FRANCIS: Can you explain what General Counsel Exhibit 13 is?
A General Counsel Exhibit 13 is my response to Ms. Clarke’s letter to me.
Q And it’s dated July 8th. Did you send it on or about that date?
A Yes.
MS. FRANCIS: I offer General Counsel 13.
JUDGE VANDEVENTER: Any objection?
MR. WELD: No objection, Judge.
JUDGE VANDEVENTER: 13 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 13.)
(Pause.)

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Q BY MS. FRANCIS: I want to turn now to the letter of agreement that is in issue. I have
handed you three documents, General Counsel Exhibits 14, 15, and 16. First, why don’t you
just first explain to me how did the 2001 letter of agreement come into play? How did it – why
was it created?
(Witness proffered documents.)
A From the very beginning when I started in 1999 I had meetings with – a few meetings
with our – the prior HR Director and Rick Lambract and I believe Rick was there at the
meetings too discussing the wage situation at the stores and the marts. Through the process
of that the company – we talked back and forth a number of times about the wages were low
and they needed to be changed. The company made this offer to the employees and it was a
substantial wage increase for the employees.
Q It looks like you’re holding a document. Is that General Counsel 14?
A Yes.
Q Dated November 14, 2000?
A Yes.
Q What is that again?
A That’s – the wages were – payment of the wages was conditioned on signing this
letter.
MS. FRANCIS: I offer General Counsel 14.
MR. WELD: No objection.
JUDGE VANDEVENTER: 14 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 14.)
Q BY MS. FRANCIS: Would you explain what General Counsel 15 is?
A Mine don’t have numbers on them.
Q Oh, I’m sorry. It is the one titled “Letter of Agreement”.
A Okay.
Q Is that your signature at the bottom?

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A Yes, it is.
MS. FRANCIS: At this point would Respondent stipulate that this is actually the copy I
received from Respondent?
MR. WELD: That is correct.
Q BY MS. FRANCIS: I just wanted to point out that there appears to be a marking on the
page around number 5, do you see that?
A Yes.
Q And have you seen that – did you see that document with that marking previously?
A No.
Q And if you – does the letter of agreement reference Section 1.1(b)?
A Yes, it does.
Q And I believe clarifies it is how it’s termed, is that right?
A That’s correct.
Q And you signed that document in 2001 with that language in it?
A Yes.
Q And why did you do that?
MR. WELD: I’m going to object. The answer is irrelevant in why he signed a
document in 2001.
JUDGE VANDEVENTER: It was part of your opening statement as I recall. I’m going
to hear it.
THE WITNESS: This document was signed – it was a condition to receive the wages
listed on the wage page that’s attached to this document.
Q BY MS. FRANCIS: And if you can just take a moment and keep the letter of
agreement in front of you and also take the General Counsel Exhibit 10, the final signed
agreement, and if you would flip to the last page. In your review of the two documents – the
letter of agreement that you signed in 2001 and the letter of agreement attached in 2003 – are
they the same document?

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A No, the dates are changed on the document. They reference the same – they
reference different contract period dates. This to me, if this letter was supposed to be part of
the contract, it appears to me that because of all the changes in it that quite honestly this
would have had to have been thrown on the table as part of negotiations and it was not.
Q And just to be clear, the letter of agreement that has a signature of Margaret Melrose,
is this a document that you had seen anytime prior to receiving it in the mail?
A No.
Q And the letter of agreement that you signed can you just tell me what number
references Section 1.1(b)?
A No. 5.
Q And on the letter of agreement that you received in the mail attached to the final
contract what number references 1.1(b)?
A No. 4.
Q Prior to entering into the letter of agreement in 2001 which by its terms clarifies Section
1.1(b) are you aware of any changes made to Section 1.1(b)?
A We made changes in the 1998 contract into 1.1(b) and that was to include Chippewa
County within our jurisdiction.
Q If you would turn to General Counsel 16 – it should be in front of you also. Would you
explain what that document is?
A This is the declaration page for the contract period from 1992 to 1998.
Q And the second page?
A The second page is the recognition clause and union shop clause.
Q So Section 1.1(b) of this document of this document is different than Section 1.1(b) in
General Counsel Exhibit 2, which is the 1998 contract?
A Yes.
MS. FRANCIS: I offer General Counsel Exhibits 15 and 16.
MR. WELD: The employer has no objection to General Counsel’s 14, 15, and 16.

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JUDGE VANDEVENTER: Did you mean to offer 14 as well?
MS. FRANCIS: Yes. I thought I’d offered it but I will offer that as well.
JUDGE VANDEVENTER: I don’t have it checked off.
MS. FRANCIS: Okay.
JUDGE VANDEVENTER: There is no objection to 14, 15, or 16 and they are received.
(EXHIBITS RECEIVED: GENERAL COUNSEL’S 14, 15, AND 16.)
Q BY MS. FRANCIS: When you were explaining how the letter of agreement from 2001
came into existence you mentioned that it was – there was a wage offer – it was tied to wages,
is that right?
A That’s correct.
Q Were wages negotiated in the current contract – the negotiation sessions in March,
April and May?
A Yes.
Q Were wages increased?
A Yes.
Q Why are you unwilling to sign the new letter of agreements?
A The new letter of agreement would change the recognition clause and it’s something
that we did not negotiate.
Q Up until the time you received that letter of agreement in – attached to the June – the
contract you received in June what was your understanding of the 2001 letter of agreement as
it relates to the new contract?
A My understanding even from this negotiation and other negotiations that we do is that
we put that – all letters of understanding on the table and this letter of understanding was
never placed on the table and therefore I believe that by the provisions in our contract that it
actually dies with the contract. In fact the letter actually has the expiration dates of the
contract on it; therefore, I believe if it’s not part of the negotiations, then that letter of
agreement dies.

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MS. FRANCIS: I have no further questions.
JUDGE VANDEVENTER: Okay, thanks.
MR. WELD: Yes, Judge.
CROSS EXAMINATION
Q BY MR. WELD: Mr. Hudyma, let’s pick up on the response to that last question.
JUDGE VANDEVENTER: Are you going to ask for an affidavit first?
MR. WELD: Yes, I was, Judge. I’m sorry.
JUDGE VANDEVENTER: So why don’t we do that and then we’ll take a break and
give you an opportunity to look over that affidavit.
MR. WELD: That would be great. I would make a request under 102.118 for –
JUDGE VANDEVENTER: About how many pages do we got?
MS. FRANCIS: I have two documents. One is an affidavit that is five pages in length.
And the other is a document presented to the Region and signed by Mr. Hudyma that is
approximately 11 pages in length. I’ll also note for Respondent that the second document has
an index of exhibits that were attached to it. I believe they have all been introduced but I did
not make copies of them. I do have the originals if there is one that you want to see.
JUDGE VANDEVENTER: About how long do you think Mr. Weld?
MR. WELD: 10 minutes, Judge.
JUDGE VANDEVENTER: Okay, let’s take 20 minutes because we’ll want a little break
and Mr. Weld even gets a break also. So we’ll be back on the record in 20 minutes.
Off the record.
(Brief recess taken.)
JUDGE VANDEVENTER: We are on the record.
We begin with Mr. Weld’s cross examination.
MR. WELD: Okay, thank you, Judge.
Q BY MR. WELD: Dan, do you have General Counsel No. 2, the pre-existing contract in
front of you?

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A Yes.
Q And do you also have General Counsel No. 10, which was the draft of the collective
bargaining agreement that was sent to you in June of this year?
A Yes.
Q Now following up on your response to Attorney Francis’ questions regarding the
memorandums of agreement you indicated that the memorandums of agreement, as I
understood your testimony, would evaporate at the end of the contract term unless the parties
specifically agreed to include them, is that correct?
A Yes.
Q Comparing General Counsel 2 with General Counsel No. 10 there appear to be three
memorandums of understanding attached to General Counsel No. 2, is that fair?
A That’s correct.
Q They would be at pages 24, 25, and 26 of General Counsel No. 2?
A That’s correct.
Q Now as I understood your direct testimony to the memorandum of understanding
concerning employee scheduled hours was incorporated in the collective bargaining
agreement, was it not?
A That’s correct.
Q So that would be not included then in General Counsel No. 10?
A No.
Q As a memorandum of understanding?
A As a memorandum of understanding.
Q Okay, then on your direct testimony you also made reference to the memorandum of
understanding located on page 26 – the meat department reference. And as I understood
your testimony, you simply ignored the fact that the company included that in the draft of the
2003-2006 contract?
A More correct, if you want to put it that way, the attention – my attention was drawn to

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the letter of understanding. That proved to distract my attention from reading that other
understanding until later when I did talk to our legal counsel. At that point in time he asked me
about that and, you know, my response at that time was it doesn’t benefit either – there’s no
benefit to – through the Union Local – to the Local employees and there’s no direct benefit to
the employer or detriment to the employer; therefore, it’s an issue of safety. So I chose to
ignore it.
Q So you chose to ignore it?
A Yes.
Q And indeed agreed that the memorandum of understanding regarding the meat
department should be continued as part of the 2003-2006 contract?
A It’s of no consequence to me whether it does or not.
Q So is your response then -- despite your legal understanding that it evaporated -- you
agree that it should be included in the 2003-2006 contract?
A There again it does not – I don’t care one way or another whether it comes out of the
contract because it was not negotiated or whether it stays in the contract. It has no
consequence at all.
Q So you are prepared to sign a contract for 2003-2006 with that memorandum of
understanding attached?
A If it’s attached, it’s fine. If it’s not attached, that’s fine too.
Q Now there is a third memorandum of understanding which is located on page 25 of
General Counsel No. 2 and that appears to be an interpretive note addressing four different
provisions of the collective bargaining agreement.
A That’s correct.
Q Now that document was also attached to the contract’s drafts for the 2003-2006
contract, was it not?
A Yes, it was.
Q And you again chose not to exercise what you asserted was your legal right to have

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that memorandum of understanding evaporate, is that not correct?
A No, that’s not correct. That specific item there we talked about that in our sidebar. In
fact, that’s the only thing we talked about in our sidebar was that the effect of that language on
the just newly negotiated seniority language – and our conversation in the hall was something
to these words that anything that is in this memorandum of understanding which is in
contradiction to the new language that we had on seniority – the new language on seniority
would overrule this memorandum of understanding. Therefore, because we discussed it and
because we agreed that they could stay as it was then that letter of understanding would stay
within the contract.
Q How about was there any discussion dealing with the memorandum of understanding
located on page 24 of General Counsel No. 2 dealing with the employee’s scheduled hours?
A Yes.
Q When did that conversation occur?
A That conversation took – actually it started on our – on my very first proposal to the
company. That is I took that language and put it into the body of the contract and I explained
that at the time.
Q Was there any discussion regarding the memorandum of understanding specifically
being excluded from the new draft of the contract?
A The language that we used to – on – when we changed our seniority proposal on the
very last day on May 1st the language was that we would take that language from that letter
and put it into the new seniority language that we had just agreed on. That was my answer –
my proposal or response to the company’s wanting to remove the bumping language that I put
into the contract.
Q Let’s take a look at the next page of General Counsel No. 2, which is the wage grid for
the years '98 and beyond. You indicated that the parties agreed to a three percent wage
adjustment effective in 2003?
A That is correct.

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Q And then subsequently percentage adjustments for the separate years?
A Two percent per year.
Q Did the parties use page 27 of General Counsel No. 2 as the base point from which
they made the adjustment of three percent and two percent and two percent?
A No, they did not.
Q We used, in fact, the letter of agreement -- the wage schedule that was attached to the
letter of agreement, General Counsel No. 15, is that not correct?
A We used the wage schedule, yes.
Q That the parties negotiated in 2000/2001?
A That is correct.
Q And part of the 2000/2001 negotiations included paragraph number 5 of General
Counsel 15 which is the clarification of 1.1(b), isn't that correct?
A That is correct.
Q Subsequent to the execution of that letter of agreement did the employer purchase a
store in Chippewa County?
A Yes, they did.
Q And, in fact, did you attempt to organize that store?
A Yes, I did.
Q And did the company rely on the letter of agreement in that window between 2001 and
today in resisting, if you will, your attempts to seek automatic representation of the employees
in that store?
A Yes, they did.
Q So you were aware of that provision and the significance of that letter of agreement
when you approached the bargaining table this time around, were you not?
A Completely.
Q And, in fact, if you look at General Counsel No. 3, those are your initial proposals are
they not for this round of bargaining?

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A Yes, they are.
Q And the turning to page 3 of that document specifically Section 2.4 would it be fair to
say that that was an attempt to adjust 1.1(b) as interpreted by that letter of agreement?
A Yes, it was.
Q And, in fact, you made that proposal in a March bargaining session?
A Yes, I did.
Q In making that proposal didn't you say to the employer you have made two mistakes in
your life and one of them was agreeing to that letter of agreement?
A That is absolutely correct.
Q So you were aware that that letter of agreement was again significant?
A Yes, it was.
Q Now did Section 2.4 become part of the collective bargaining agreement?
A No.
MR. WELD: No other questions, Judge.
JUDGE VANDEVENTER: Any redirect?
REDIRECT EXAMINATION
Q BY MS. FRANCIS: If you just want to turn back to General Counsel’s 2, the last page
is memorandums of understanding. Respondent’s attorney questioned you kind of extensively
regarding whether these should evaporate as you thought would happen with the letter of
agreement from 2001. Looking first to the memorandum of understanding concerning
employee’s scheduled hours on the face of that document is there anything that references
dates?
A No.
Q How about on memorandum of understanding – the interpretive notes – this next one?
Anything that references dates?
A No.
Q Finally the memorandum of understanding concerning employees in the meat

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department is there anything that references dates?
A No.
Q When you made your proposal, your initial proposal, that Respondent’s attorney was
just referencing from General Counsel 3 Section 2.4, did Respondent respond in any way that
we reject it – we are relying on the letter of agreement?
A No. They rejected it but no other conversation was – no one mentioned any letter of
agreement.
Q And you discussed that the memorandum of understanding on page 26 concerning the
meat department employees – you testified that that was not discussed during bargaining but
it was attached to the copies of the contract?
A Yes.
Q Are you willing to sign the contract without that memorandum of understanding
attached since it was not discussed?
A Yes.
Q But you are also willing to sign it even if they want to include it?
A That’s correct.
MS. FRANCIS: I have no further questions.
JUDGE VANDEVENTER: Any recross, Mr. Weld?
MR. WELD: None of this witness, Judge.
JUDGE VANDEVENTER: Thank you, Mr. Hudyma, for your testimony. You may step
down.
(Witness excused from the stand.)
MR. WELD: Brick Hopkins please.
JUDGE VANDEVENTER: General Counsel hasn’t rested yet.
MR. WELD: Oh, I’m sorry.
JUDGE VANDEVENTER: Are you going to rest, Ms. Francis?
MS. FRANCIS: I’m sorry. I do rest.

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JUDGE VANDEVENTER: You may proceed, Mr. Weld.
(WITNESS SWORN: BRICK HOPKINS)
JUDGE VANDEVENTER: Counsel – Ms. Francis, could you remove those exhibits
because this witness may or may not be using those. He can be directed – his attention can
be directed to them as needed.
Mr. Weld?
DIRECT EXAMINATION
Q BY MR. WELD: Brick, can you spell your last name for the record please?
A Name is Brick Hopkins, H-O-P-K-I-N-S.
JUDGE VANDEVENTER: And your first name is Greg?
THE WITNESS: Brick, B-R-I-C-K.
JUDGE VANDEVENTER: Okay. No wonder I didn’t get it. And if you could – this
might help – if the parties don’t mind, if you could turn your chair just slightly so you are
actually facing that way that may help us all to hear. Bear in mind that this room is difficult to
hear in and it will help us all if you will keep your voice up maybe even a little louder than you
usually talk. Thank you.
Q BY MR. WELD: Brick, who is your employer?
A Mega Management, Inc.
Q And could you explain what Mega Management does?
A Mega Management is the managing arm of the Consumers Cooperative. It owns the
real estate of the convenience stores and manages all the facilities of the Consumers
Cooperative and the employees.
Q In what position are you employed?
A I am Vice President of Operations.
Q As Vice President of Operations do you have a role in the collective bargaining
process?
A Yes, I do. I was part of the negotiating committee.

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Q That would be for the 2003 collective bargaining agreement?
A And the prior contract.
Q The ’98 contract?
A ’98, correct.
Q Were you also involved in the discussions which lead to the letter of agreement in
2001?
A Yes, I was.
Q I’ll have you turn to General Counsel No. 15. Do you have General Counsel 15 in front
of you?
(Witness proffered document.)
A Yes, I do.
Q Could you explain the genesis of that letter of agreement?
A The company’s position when this agreement was written was that the employees
should have a right to choose whether their facility is a union facility or a non-union facility and
the language of 5 was added for clarification purposes.
MS. FRANCIS: Your Honor, could I interject for a moment? Could we go off the
record for just one moment?
JUDGE VANDEVENTER: Yes. Off the record.
(Brief recess taken.)
JUDGE VANDEVENTER: On the record.
To the extent possible, Mr. Weld, just ask the witness questions. He doesn’t have to
repeat anything that’s already in evidence. If it’s on the document, we know it.
MR. WELD: Just for background purposes, Judge, seeing you are talking about a
potentially bench decision here.
Q BY MR. WELD: The clarification would be a clarification of Section 1.1(b) of the pre-
existing collective bargaining agreement?
A That’s correct.

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Q What was the employer’s concern about 1.1(b)?
A Prior to the clarification statement any new facilities we would automatically – the
employees became automatically part of the bargaining agreement and this was clarifying that
statement and not – they would not be part of the agreement unless they chose to do so.
Q And was a substantial wage adjustment part of the trade in 2001?
A Yes, it was.
Q Now subsequent to the enactment of that letter agreement or the agreement to that
letter of agreement did Mega Management or Consumer Cooperative purchase a store a
Chippewa Falls?
A Yes, we did.
Q And did the union attempt to organize that store?
A Yes.
Q And what happened?
A We told the union that it was not automatically recognized – that it would require the
union or the employees vote to determine if that’s what – if it’s what was going to be
recognized.
Q And, in fact, did the employees organize?
A No. There was an agreement reached that the union could come up into the store and
meet with the employees in a room and we would meet with the employees after that and it
never took place.
Q Now did the union attempt to address that issue in the negotiations for the 2003
contract?
A Address the issue of adding existing facilities?
Q Yes.
A They did.
Q That would be Section 2.4?
A Yes.

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Q Did Mr. Hudyma explain the purpose of his proposed 2.4?
A Yes, he stated as it was previously stated that he’s made two mistakes and adding that
letter of agreement was one of them and the purpose was to change the language.
Q Did the company agree to change the language?
A Absolutely not.
Q That was a high priority from the company’s perspective?
A Absolutely.
Q Now, Mr. Hudyma has testified that Federal Mediator Rosario assisted the parties in
the negotiations at their April and May bargaining sessions, is that correct?
A Yes, it is.
Q And at the May session did – I’m sorry – at the April session did Mr. Rosario ask the
parties to focus on five issues in the subsequent or May 1st session?
A Yes, he did.
Q And, in fact, did the parties do that?
A Yes.
Q Was an agreement reached or a tentative agreement reached at the May 1st
bargaining session?
A The May 1st one? I guess, bring me up to speed. Is that the one at the Heartland Inn?
Q That would the fourth session.
A Correct.
Q The second session with Mr. Rosario.
A Yes, it was.
Q Okay. Now, could you explain to the judge how the company became aware that its
offer on the five issues was acceptable to the union? What happened?
A Repeat the question.
Q How did the company become aware that the union was accepting the company’s offer
on the five remaining issues?

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A The federal mediator came into our hotel room and stated that all of the items had
been agreed upon but that Dan had issues with the stuff at the end – the items at the end.
And we asked for a clarification of what did he mean by issues. And Jose said he either
doesn’t want them or he doesn’t want any new ones. And we stated we need to know what
the difference is. If he doesn’t want new ones, that’s fine but the existing ones have to stay
and we specifically talked about the letter of agreement that was added in the 2001
negotiations and it was extremely important to the company.
Q The letter of agreement we are referencing now is General Counsel’s No. 15?
A That’s correct.
Q Now you say it was a part of the agreement. It was negotiated mid-contract term, was
it not?
A Yes.
Q But it was physically made a part of the contract by the company?
A Yes, it was.
Q And indeed we used that wage schedule?
A Yes, we did.
Q And you also used paragraph 5, the clarification?
A Yes, we did.
Q Now when you explained the company’s concern about continuation of the
memorandums of understanding and the letter of agreement, what did Mr. Rosario do?
A He wasn’t sure whether Dan had issues with new or existing and he recommended that
there be a sidebar between Kelly and Dan in the hallway and Jose.
Q And, in fact, did that sidebar occur?
A Yes, it did.
Q How long were the parties out of the caucus room?
A Three minutes.
Q When Ms. Clarke returned, what did she say about the union’s position regarding the

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addendums to the contract?
A Both returned – the mediator and Kelly – and we were told that it was only new
additions. It was not old additions. It was not eliminating anything that was in the contract – in
the addendums and we celebrated.
Q And when we talk about the additions, we’re talking about the three memorandums of
understanding which were located in General Counsel No. 2 as well as the letter of
understanding – or said letter of agreement?
A Yes.
Q And specifically that was discussed? The letter of agreement?
A Many times prior to her going out and coming back in.
Q And Mr. Rosario was with you in both situations?
A Yes.
Q At the May 1st meeting did you have an understanding as to whether or not the letter of
agreement, which is General Counsel 15, would be attached to the new collective bargaining
agreement?
A We felt we did. Yes. There was no question in our mind.
Q And Ms. Clarke was under that impression when she went into the sidebar meeting
and also when she returned from the sidebar meeting?
A That it would be included?
Q Yes.
A That was the question of the sidebar meeting is that was Dan looking for new or was
he okay with the existing and he wanted to change those. When she came back, she stated
that he didn’t have a problem with the existing. He didn’t want any new addendums.
Q And specifically was the letter of agreement, which is General Counsel No. 15,
considered new or existing?
A Existing.
Q And Ms. Clarke reported it that way?

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A Yes.
MR. WELD: No other questions of this witness, Judge.
JUDGE VANDEVENTER: Cross examination, Ms. Francis?
MS. FRANCIS: Yes.
CROSS EXAMINATION
Q BY MS. FRANCIS: You testified that even though the letter of agreement was made
mid-contract it was you said physically made part of the contract?
A That’s correct.
Q How?
A We have a union contract that we issue to new employees. We show them. I say we
show them. I should step back on that. As management we have a copy of the contract that
is in a binder. It’s not like that. It’s a binder with three hole punches that we operate off of. So
any changes of our contract it’s changed in every manager’s contract file.
Q You said that the letter of agreement from 2001 is something that was extensively
talked about many times before Ms. Clarke went out to that sidebar.
A Many times in the discussion with Jose about the in -- "in agreements."
Q Was it ever discussed with the union?
A The only time it was discussed with the union was when Dan made mention that that
was the one mistake – two mistakes that he’s ever made in his life.
Q But you had many discussions with Ms. Clarke about it before she went into –
A Many relative to the timeframe of her going out to discuss it with Dan.
Q This was something you were obviously concerned about?
A Very.
Q And so when she came back and she said no new addendums – is what I think you
said – nothing new, did you specifically talk about the letter of agreement?
A I stated are we talking about the letter agreement and yes – she said yes.
Q She said yes?

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A Yes. She said that Dan had an issue with one of the memorandums but he didn’t really
know what it was. He had a migraine and he wasn’t sure what it was. But it wasn’t an issue.
Q And she told you this when she came back from the sidebar?
A With Jose.
Q Mr. Hopkins, do you recall giving an affidavit in connection with this investigation?
A Yes.
Q And do you recall discussing the topic of Ms. Clarke going to the sidebar meeting and
coming back from the sidebar meeting?
A I believe so, yes.
MS. FRANCIS: May I approach the witness?
JUDGE VANDEVENTER: You may.
Q BY MS. FRANCIS: Mr. Hopkins, is this the affidavit that you gave?
A Yes, it is.
Q And it’s two pages in length and on page 2 is that your signature?
A Yes, it is.
Q I am going to step by you here. If you will read along with me, on page 1 I am going to
read from line 14. It says, “3 to 5 minutes later Clarke came back with Rosario and said he’s
fine with the existing agreements. It’s only with anything new that he had a problem and that
we weren’t going to add anything new.”
A That’s correct.
Q “There was nothing else said.” Do you see that as well?
A Yes, I do.
Q And you told the truth when you gave that affidavit?
A Yes, I did. That was a –
Q I think you answered my question. Thank you.
A Okay.
Q When Ms. Clarke came back – strike that.

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MS. FRANCIS: I have no further questions.
JUDGE VANDEVENTER: Any redirect?
MR. WELD: Yes.
REDIRECT EXAMINATION
Q BY MR. WELD: Brick, counsel has shown you your affidavit from the investigation in
this matter and there is a reference to a sentence, “There was nothing else said.” What were
you referring to when you made that comment?
A Any other issues that were addressed out in the hall.
Q Did Ms. Clarke come back and talk about what Mr. Hudyma had concerns were
regarding the memorandums of understanding and letter of agreement?
A Yes, but he was unable to recite what those were.
Q Meaning Mr. Hudyma?
A Not the letter of understanding. The memorandum. He was unable to recite what
problem he had.
Q Did Ms. Clarke identify that Mr. Hudyma had no problems with the letter of agreement?
A That’s correct.
Q And that the letter of agreement would be attached to the new contract?
A That’s correct.
Q What did she say?
A She actually showed us where she had circled it and addressed it.
Q She had circled paragraph 5 of that letter of agreement?
A That’s correct.
Q And by “us” was Mr. Rosario one of the people that she showed that to?
A I’m not sure on that.
Q But the rest of the people on your bargaining table?
A Yes.
MR. WELD: No other questions of this witness, Judge.

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JUDGE VANDEVENTER: Anything?
MS. FRANCIS: Just briefly.
RECROSS EXAMINATION
Q BY MS. FRANCIS: Again I am going to ask you about when you gave your affidavit.
Do you recall your meeting with me?
A Yes.
Q And you recall at that time it was clear that the letter of agreement was what was in
issue, correct?
A Correct.
Q And did you at any time indicate to me that Ms. Clarke came back and showed you
where you circled it?
A No.
Q And it’s not in your affidavit, is it?
A No. The question wasn’t asked. I was reciting to you – I wasn’t being asked pointed
questions.
Q So you did not tell me that she came back and showed you where she circled it?
A No.
Q You didn’t think it was important?
A No, I didn’t. I actually –
MS. FRANCIS: No other questions.
MR. WELD: Nothing further, Judge.
JUDGE VANDEVENTER: Thank you, Mr. Hopkins, for your testimony.
(Witness excused from the stand.)
MR. WELD: Kelly Clarke please.
(Pause.)
(WITNESS SWORN: KELLY CLARKE.)
MS. FRANCIS: Your Honor, before we get started I notice that she has a binder with

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her up at the table.
JUDGE VANDEVENTER: You note correctly. Will counsel tell us about that?
MR. WELD: We asked the question of Mr. Hopkins about the binder that was used
and we don’t intend to offer it as evidence other than to just to show it to the judge in terms of
that was the vehicle that she used –
JUDGE VANDEVENTER: Show it to counsel first before you show it to me.
MR. WELD: I’m sorry.
(Pause.)
MS. FRANCIS: Is this an item that you are not going to offer this?
MR. WELD: I am not offering it, no.
MS. FRANCIS: Is it an item that she will be referring to?
MR. WELD: Just in terms of the discussions regarding the sidebar in terms of what
she took along with her to the discussions at the sidebar.
(Pause.)
MS FRANCIS: Can I have just one moment?
JUDGE VANDEVENTER: Sure, let's be off the record for five minutes, and if you need
more time, Ms. Francis, at the end of that time you ask for it.
(Whereupon, a brief recess was taken.)
JUDGE VANDEVENTER: We will be back on the record.
Go ahead please, Mr. Weld.
MR. WELD: Okay.
DIRECT EXAMINATION
Q BY MR. WELD: Kelly, could you spell your last name for the record please?
A C-L-A-R-K-E.
Q Okay, and your first name?
A Kelly.
Q Spell it please for the record.

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A K-E-L-L-Y.
Q Are you employed by Mega Management as well?
A That is correct.
Q In what capacity?
A I'm the human resource director.
Q How long have you been the human resources director?
A I just hit a year.
Q Prior to that, what did you do?
A Prior to that I was the employee services director for Mega East -- the east location.
Q The Mega East would be one of the grocery stores that is --
A Yes, correct.
Q -- run by Mega Management?
A Yes, one of the food markets, yes.
JUDGE VANDEVENTER: Wait a minute, Ms. Clark, don talk over counsel. Wait until
he is finished with the question. The reporter can't possibly get two voices at once.
Okay, wait until he is totally finished and then give your answer.
THE WITNESS: Okay.
Q BY MR. WELD: Let's try that again, Kelly.
Mega East is the grocery store located on the east side of Eau Claire?
A Correct.
Q How long have you held that position?
A Two years.
Q You indicated you have been the human resources director for a year?
A Correct.
Q Do your job duties include a role in the collective bargaining process?
A Yes, they do.
Q In fact, are you the chief spokesperson for the company?

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A That is correct.
Q And were you the chief spokesperson in the negotiations which lead to the 2003
contract?
A Yes, I was.
Q There has been testimony today that there were four bargaining session two of which
were with Mediator Rosario. Is that accurate?
A That is.
Q And were you in attendance at all four sessions?
A Yes, I was.
Q The last session was on May 1st of this year?
A That is correct.
Q Can you describe for the judge the circumstances which lead to the ultimate settlement
of the negotiations? Did the company make an offer? Did the union accept it? How did the
company find out that the union was comfortable with the employer’s last offer?
A Jose came in and let us know that the union was comfortable with the last offer that we
had.
Q Had made?
A What’s that?
Q That we had made?
A Yes.
Q And did he make any comments at that time regarding the memorandums of
understanding or letters of agreement or attachments to the contract or anything along those
lines?
A He did. He –
MS. FRANCIS: I object. It’s hearsay.
JUDGE VANDEVENTER: I’m sorry.
MS. FRANCIS: It’s hearsay.

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JUDGE VANDEVENTER: Well, I am not going to receive it for the truth. I’m going to –
I’ll let her testify about it because it’s part of her conversation back about which she can testify.
Go ahead.
THE WITNESS: All the additional addendums and everything at the end was brought
up.
JUDGE VANDEVENTER: I’m sorry. Please, Ms. Clarke, I couldn’t hear that last word.
Your voice dropped way down. I have no idea what the last word was.
THE WITNESS: It was brought up.
Q BY MR. WELD: Okay, how was it brought up by Mr. Rosario?
A He said that the addendums at the end that the union had brought up that they had
some issues with them and we asked them did they have issues with the existing ones or new
ones? He said he wasn’t quite sure. We should take the sidebar and discuss it.
Q By issues at the end, you are talking about the memorandums of understanding and
letters of agreement?
A Correct.
Q Now was the letter of agreement attached to the contract that you were using?
A It was.
Q And that’s because it was in play since 2001?
A That’s true.
Q To determine what wage rates were offered to the employees in both 2001 and 2002?
A Yep.
Q And, in fact, paragraph no. 5 was the clarification paragraph of 101(b) that was also
utilized in your tenure as human resources director, was it not?
A Yes, it was.
Q Now did the management bargaining team discuss the addendums to the contract prior
to you going into the sidebar?
A Yes, we did.

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Q Could you describe for the Judge what you talked about?
A We had basically talked about how we wanted them to be included specifically the
letter of agreement.
Q The letter of agreement would be General Counsel No. 15?
(Witness proffered document.)
A Correct. That’s correct.
Q And the management committee specifically discussed the need for that letter of
agreement to be incorporated in the new contract –
A Yes.
Q -- prior to your going into the sidebar?
A Yes.
Q Now, did you go into a sidebar with Mr. Rosario and Mr. Hudyma?
A Yes, we did.
Q And where did that sidebar conversation occur?
A It was in the hallway of the hotel.
Q Did you take anything with you for that meeting?
A Yes, this is the binder that I took with me out in the hall.
Q You are pointing to the blue binder that you brought to the desk that counsel just
looked at?
A Correct.
Q And did that binder include your collective bargaining agreement for the period 1998-
2003?
A Yes, it did.
Q Can you describe for the judge what was discussed in the sidebar? Who said what to
who? First off, how long did that meeting occur?
A Probably a couple minutes.
Q And could you describe who said what first?

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A I do believe I initiated the conversation.
Q And what did you say?
A I said that we wanted clarification on whether or not the issue that the union had was
with the current memorandums and additions that were in there or if it was with any new
memorandums or additions.
Q Okay.
A And then I proceeded to say because this memorandum – the letter of understanding
we need that in there and I circled number five and I said we need that in there because of this
reason.
Q Okay. I am showing you a document which will be identified as Respondent’s No. 1, I
believe.
(Witness proffered document.)
Q In response to my last question you indicated that you showed a document to Mr.
Hudyma?
A Yes, I showed the letter of agreement.
Q The letter of agreement, which is identified as Respondent’s No. 1, which is also
General Counsel No. 15?
A Correct.
Q And you indicated that – what did you say to him about paragraph no. 5?
A I said the reason why we needed to keep every – all the additional memorandums and
additions in there is because of letter – no. 5 in the letter of agreement and I circled it. I said,
“This is something that we need to keep in the contract.”
Q And you circled it in front of Mr. Hudyma?
A Yes, I did.
Q He saw you circle it?
A Yes.
Q He’s testified today that he didn’t see you circle it. Did you circle it?

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A Yes, you did.
Q And you talked about that specifically in your sidebar conversation?
A Yes, we did.
Q Okay, what was Mr. Hudyma’s response when you said paragraph 5 of letter
agreement needed to be incorporated in the new contract?
A He said that’s not the addition or memorandum that I have a problem with.
Q Did you lead to believe that he was comfortable with the inclusion of paragraph 5 of the
letter of agreement as an addendum to the new contract?
A Correct.
Q And you relied on that subsequently?
A Yes.
Q What did Mr. Hudyma say was of concern to him?
A It was the memorandum that talks about 4.8 – some other issues in the contract. And
he said that there’s something in there that disagreed with what we just agreed to right in the
contract in regards to seniority.
Q Let’s take a look at General Counsel No. 2. Do you have General Counsel No. 2 in
front of you?
(Witness proffered document.)
A Yes, I do.
Q And you turned to page 25, is that correct?
A Yes.
Q And that makes reference to a series of articles in the contract including Section 4.2?
A Correct.
Q Is that the provision that Mr. Hudyma indicated he had concern about?
A Yes.
Q What did he say specifically? Which of the four paragraphs was he concerned about?
A I asked him that question. I said, “What in here is what you have a problem with as far

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as disagreeing with seniority?” And he said, “I have a migraine. I can’t see right now. I have
had it for two hours. So I can’t show you in there what I’m talking about.”
Q So, what did you say?
A So then I said, “Well, we will agree then that if there is something in there that does not
agree with what we said to put into the contract in regards to seniority that it would be removed
from t hat memorandum.”
Q Okay, and that’s the memorandum which is found on page 25 of General Counsel
Exhibit No. 2?
A Correct.
Q Did you discuss any of the other memorandum of understandings which are located in
General Counsel No. 2?
A No. Just those two in the sidebar.
Q The letter of agreement and page 25 of General Counsel No. 2?
A Correct.
Q What was your understanding regarding the letter of agreement when you returned to
the management caucus?
A That it was to be included in the contract.
Q And did you return to the caucus directly after your sidebar conversation?
A I don’t recall if it was directly after. I might have gone into the big room that the union
was in but it was shortly thereafter.
Q And did you talk about what you had discussed in the sidebar conversation?
A Yes, I did.
Q And what did you tell the management team?
A I told the management team that the union was fine with keeping all of the
memorandums in place. I did explain to them that there might be something in that
memorandum that’s on page 25 that conflicts with the seniority agreement that we just talked
about and if it does, then we will strike it from that memorandum.

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Q Did you also talk about the letter of agreement and whether it would be included or
excluded from the new contract?
A Yes. We discussed that the letter of agreement would be included in the contract.
Q Specifically we are talking about Respondent’s No. 1 of paragraph 5?
A Correct.
Q Following the May 1st bargaining session did you draft the collective bargaining
agreement?
A Yes, I did.
Q You sent Mr. Hudyma a draft on or about May 9th, did you not?
A Yes, I did.
Q Did you use the correct template in drafting the new contract?
A We were using the ’92 template. We didn’t have the ’99 on file as far as in the
computer.
Q Did you ultimately correct that error?
A Yes.
Q Because you used the ’92 – maybe you could explain to the judge how you transmitted
the draft contract to the union? Did you do it by e-mail?
A Yes, I did.
Q And did you attempt to get a file out of your predecessor’s records?
MS. FRANCIS: I’m going to object. He’s leading.
Q BY MR. WELD: How did you – where did you find the contract that you forwarded to
Mr. Hudyma?
A I found that in previous files from actually two predecessors before me.
Q And did you as a result of – did you correct that subsequently?
A Yes. Well, we made the changes to that one to reflect the changes that we had
discussed in negotiations and the changes in the ’98 contract.
Q When did you discover that the letter of understanding had not been e-mailed to – the

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letter of agreement had not been e-mailed as part of your contract draft to Mr. Hudyma?
A I don’t remember the exact date but it was – we were going to – there were so many
issues because I was using the ’92 contract initially to make the ’98 changes and then to make
the changes that we discussed in negotiations. There were so many changes that Dan was
bringing up that had changed from the ’92 to the ’98 that my assistant, Lynette, and I started
reading it back and forth to each other so that we made sure that we – which was actually
Dan’s suggestion – made sure that all the changes were in there correctly between the ’98
contracts and this new one that I had drafted up. In the course of doing that got to the end and
realized that the letter of agreement was not in what I was sending Dan. I thought that the
whole time that it was just attached in there because it was part of the contract.
Q In fact it was the 2001 letter of agreement that was not attached to either the ’92 or the
’98 draft of the contract?
A Correct.
Q Did you identify that the fact that the letter of agreement needed to be attached to
Dan?
A I do believe I did.
Q What was his response?
A That he did not believe that that was part of what we negotiated.
Q Did you remind him about the sidebar conversation?
A Yes, I did.
Q What was his response?
A The sidebar – I’m not sure what his response was exactly. He definitely indicated he
did not think that was part of negotiations.
Q Do you think it was part of the negotiations?
A Yes, I do.
Q And why is that?
A Because we talked about it.

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Q Where?
A In that sidebar.
Q Was it your understanding that paragraph no. 5 of the letter of agreement would be
incorporated in the new contract?
A Yes.
Q And Mr. Hudyma agreed to that on behalf of the union?
A Yes. He said he didn’t have an issue with paragraph 5 when I circled it.
MR. WELD: I have no other questions of this witness, Judge.
JUDGE VANDEVENTER: Okay, Ms. Francis, you may –
MR. WELD: I would like to move Respondent’s No. 1, Judge. I don’t think I did that.
JUDGE VANDEVENTER: You did not. Any objection to Respondent’s 1?
MS. FRANCIS: The only objection is that it’s redundant. It actually is already in
evidence.
JUDGE VANDEVENTER: I realize that but it’s one piece of paper. For one piece of
paper I’ll allow redundancy. It gets a lot more I don’t.
MS. FRANCIS: Okay. And I also just again want to clarify the one General Counsel
has offered is in fact the same – I mean, with the circle it’s the one that he stipulated that he
gave to me.
JUDGE VANDEVENTER: Can you stipulate that it’s the same as one of the pages on
General Counsel 15?
MS. FRANCIS: Actually the stipulation is that it’s one provided to General Counsel by
Respondent.
JUDGE VANDEVENTER: Oh, all right.
MR. WELD: We did provide General Counsel with 15. That’s correct.
JUDGE VANDEVENTER: 15. And page 1 of 15 is identical to Respondent’s 1?
MR. WELD: I don’t know if it’s identical, Judge. Both of them have a circle around
paragraph 5.

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JUDGE VANDEVENTER: Okay. In that regard it’s identical. Okay. That stipulation is
received and so is Respondent’s 1.
(EXHIBIT RECEIVED: RESPONDENT’S NO. 1.)
JUDGE VANDEVENTER: Go ahead.
CROSS EXAMINATION
Q BY MS. FRANCIS: Ms. Clarke, you have been human resources director for just about
a year now?
A Correct.
Q So you had been only in your position for about six months when you started
negotiations, is that right?
A That’s correct.
Q And you testified that when you had your binder with you in a sidebar conversation you
actually circled no. 5?
A Correct.
Q And that’s why General Counsel’s 15 and Respondent’s 1 shows a circle on no. 5?
A Correct.
Q Are there any other circles or markings on any of the documents you had during
negotiations?
A Yes.
Q You testified that this letter of agreement was important to Respondent in – it’s
something that you guys – your group had talked about before going into the sidebar, is that
right?
A Correct.
Q And you testified that you told Hudyma that it had to stay, is that right?
A Correct.
Q Because this was something quite important to Respondent?
A Correct.

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Q Yet when you fixed the – when you made the changes to the draft of the contract or the
new contract that you negotiated and e-mailed those to Mr. Hudyma, it was not attached?
A That’s correct.
Q Did you not read through it all?
A I didn’t scroll down that far, no. I didn’t look at any of the memorandums that were in
there actually.
JUDGE VANDEVENTER: I didn’t hear that at all. Please speak up, Ms. Clarke.
THE WITNESS: I didn’t scroll down that far. I didn’t look at any of the memorandums
that were in there. There was no changes to be made so I didn’t look at those. No.
Q BY MS. FRANCIS: There were no changes to be made to any of the memorandums?
A Correct.
Q But, in fact, you did change the letter of agreement?
A Correct.
Q When did you do that?
A I don’t remember the exact date. It was when I noticed it was missing.
Q So when you noticed it was missing after you e-mailed the two other drafts -- the May
9th and May 14th draft, right?
A Correct.
Q And is that the first time that you printed it out to actually read through it?
A Yes, that was the first time – the whole contract?
Q Yes.
A Yes to read it in its entirety. Otherwise I was working mostly off the computer.
Q So when you realized this when you were going through your – the contract – reading
through it with your assistant, Lynette, how did you notify Mr. Hudyma that I made a mistake. I
should have included this in all those other drafts?
A I actually think he may have notified me first. It was a matter of days. Like one or two
days that we were going back and forth on – the ’92 language did not match with the ’98

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contract and did not match and so we were going back and forth over a course of two days. It
was pretty close there.
Q Isn’t it true that the only way you notified him is by including it on the final draft you sent
him in the mail?
A Yeah, that might be correct. I don’t think we discussed it before he got that in the mail.
Q And when you had this final draft you sent him in the mail that had the signatures on it
and had the new letter of agreement attached signed, that’s a letter of agreement that you
actually made changes to on the computer then?
A Correct. The dates and the irrelevant things were taken out.
Q Is that the only change you made is to dates?
A No.
Q So you made other changes to the letter of agreement as well?
A Yes. The irrelevant things were taken out.
Q And who determined whether they were relevant or not?
A I did.
Q And you didn’t bother to notify Mr. Hudyma of any of this?
A No.
Q Where did you physically locate the copy of the letter of agreement?
A It was in the computer file on a different drive than the contract was on.
Q And how did you make the changes?
A You are talking how did I –
Q Physically.
A By typing them.
Q Did you take – did you find the draft of the letter of agreement in a different computer
file and update that one as you had been doing with the computers? Or did you type a new
one?
A I do believe I updated the one I found. I am not a hundred percent sure of that.

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(Pause.)
Q I apologize for not recalling if you testified to this but I do – I know that you were in the
room when Mr. Hopkins testified, is that right?
A That’s correct.
Q And he mentioned that during negotiations Mr. Hudyma said, “I’ve only made two
mistakes” and he referenced the letter of agreement. Is that your recollection as well?
A That’s correct. Yes.
Q So you recall him saying that he thought that was a mistake yet you contend that in
your sidebar conversation when you pointed out to no. 5 in particular then he said that’s fine
with him?
A Yeah.
Q And it wasn’t a mistake any longer?
A Correct.
(Pause.)
Q Excuse me, Ms. Clarke, I’ve handed you a piece of paper which I’ll have marked as
General Counsel Exhibit 17. And I apologize it’s a poor quality copy. But do you recognize it?
(Witness proffered the document.)
A Yes, I do.
Q And what is it?
A It’s a memo that I wrote to the union employees explaining where we were at with the
negotiations.
Q And do you reference the letter of agreement in that?
A Yes, I do.
Q And you admit that you had forgotten to attach it, is that right?
A Correct.
MS. FRANCIS: I offer General Counsel Exhibit 17.
MR. WELD: No objection.

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JUDGE VANDEVENTER: 17 is received.
(EXHIBIT RECEIVED: GENERAL COUNSEL’S NO. 17.)
Q BY MS. FRANCIS: When you were reading through this draft of the contract that you
finally printed out and finally realized that letter of agreement wasn’t attached, did you tell
anyone else that you had made this mistake?
A Yeah, I do believe I told Brick and Rick also.
Q And at this time --
JUDGE VANDEVENTER: Brick and whom?
THE WITNESS: Rick.
JUDGE VANDEVENTER: Rick? Brick and Rick? What’s Rick’s last name?
THE WITNESS: Lambract.
JUDGE VANDEVENTER: Thank you.
Q BY MS. FRANCIS: So this was the end of May – beginning of June I would assume is
the correct point in time when you finally realized this error?
A I believe so. I’m not sure of the exact date.
Q How long had you been employed in your position at that point?
A I do believe right around six months like you stated.
Q You had only been in your position for six months and realized that you made a pretty
big error. That must have been embarrassing for you, wasn’t it?
A I didn’t view it as embarrassing because it was part of the contract before. So –
Q So it didn’t embarrass you that you hadn’t bothered to attach it to any of the other
copies you sent to the union?
A I wouldn’t say it embarrassed me. I definitely made – I mean I didn’t attach it. I made
a mistake. I will definitely say that.
Q And it didn’t embarrass you to have to tell Brick and Rick about this mistake you made?
A No.
Q It wasn’t an issue at all?

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A Not really. I make mistakes.
Q But it’s turned out to be quite a big mistake in fact hasn’t it?
A It has.
(Pause.)
MS. FRANCIS: May I just have one minute?
JUDGE VANDEVENTER: Sure you may. We will be off the record.
(Brief recess taken.)
JUDGE VANDEVENTER: On the record.
Go ahead please.
Q BY MS. FRANCIS: When you learned there was a dispute as to what happened in the
sidebar conversation with yourself, Mr. Hudyma, and where Mr. Rosario was present, did you
contact Mr. Rosario about that?
A Yes, I did.
Q And was he able to substantiate your version of events?
A No, he was not.
MS. FRANCIS: I have no further questions.
JUDGE VANDEVENTER: Redirect?
MR. WELD: Nothing further with this witness, Judge.
Bill Ripley please.
JUDGE VANDEVENTER: Hang on a minute. Let me see – I may have something I
want to ask her.
I think there were a couple of questions on this but let me see if you can remember.
Did you know when the ratification vote was going to be taking place? Were you aware of the
day of the ratification vote of the contract taking place in May of this past year?
THE WITNESS: Yeah, I do believe I knew.
JUDGE VANDEVENTER: See if you can remember when you discovered this error of
leaving out the letter of understanding?

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THE WITNESS: It was after that – the ratification.
JUDGE VANDEVENTER: It was after the ratification?
THE WITNESS: Yes.
JUDGE VANDEVENTER: And I’m also looking at the – let’s call it the June 2nd draft
of – it doesn’t have a date on it other than on the final page which is the letter of agreement.
It’s General Counsel Exhibit 10 I should say. It has a date. It says by Margaret Melrose
5/28/03 on the back page. Who is Margaret Melrose?
THE WITNESS: Margaret is the Board President – the Board of Directors for
Consumers Co-op.
JUDGE VANDEVENTER: And so do you have any independent knowledge of whether
she signed it on the 28th or not? The 28th of May. This document.
THE WITNESS: I do believe so.
JUDGE VANDEVENTER: Do you know how it got to Ms. Melrose? Did you give it to
her? How did a draft get to the Board?
THE WITNESS: It was brought to the meeting.
JUDGE VANDEVENTER: I’m sorry?
THE WITNESS: It was brought to the meeting that they had.
JUDGE VANDEVENTER: Okay, do you know when that was? In other words, do you
know when you gave this to the Board of Directors? This document that is GC-10.
THE WITNESS: If the 28th is on a Wednesday, then it was the 28th.
JUDGE VANDEVENTER: It was that very day as far as you recall?
THE WITNESS: Yeah.
JUDGE VANDEVENTER: And so some time – your best recollection is some time
between the 22nd and the 28th is when you realized you did not put the letter of understanding
on? Can you get it anymore detailed between the ratification vote and the day you gave it to
the Board of Director? Do you know in that six days when it might have been?
THE WITNESS: It was either that day of the Board meeting or the day before I do

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believe.
JUDGE VANDEVENTER: Okay. Thanks. That’s all.
MR. WELD: Just maybe to clarify –
JUDGE VANDEVENTER: You may. You may have questions on anything I asked.
REDIRECT EXAMINATION
Q BY MR. WELD: The Board of Directors meets on a monthly basis, does it not?
A Correct.
Q And on the fourth Wednesday of each month?
A I do believe so.
Q And Ms. Melrose signed the contract on May 28th which would have been the fourth
Wednesday of May?
A Correct.
Q Was that subsequent to a Board vote on ratification of the collective bargaining
agreement?
A They voted that day.
Q And Ms. Melrose, as president of the Board of Directors, signed the document for your
forwarding it to the union?
A Yes.
Q So picking up on the Judge’s question somewhere between the union ratification vote
and the Board of Director’s ratification vote is when you discovered the scrivener’s error?
A Correct.
MR. WELD: No other questions, Judge.
JUDGE VANDEVENTER: Okay. Anything from you Ms. Francis?
MS. FRANCIS: I have nothing further.
JUDGE VANDEVENTER: Thank you. You may step down, Ms. Clarke.
(Witness excused from the stand.)
(WITNESS SWORN: BILL RIPLEY.)

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DIRECT EXAMINATION
Q BY MR. WELD: Mr. Ripley, could you spell your last name for the record please?
A R-I-P-L-E-Y.
Q Are you also employed by Mega Management?
A Yes.
Q In what capacity?
A I am store director of Mega Pick and Save East.
Q And in your role as store manager did you participate in negotiations which lead to the
2003 collective bargaining agreement?
A Yes, I did.
Q Were you at all the sessions?
A Yes.
Q In fact, did you serve as the scrivener for the employer?
A Yes, I did.
Q Were you in attendance at the March 13th bargaining session in which Mr. Hudyma
discussed Section 2.4 of his proposals?
A Yes.
Q And can you describe for the arbitrator – judge what was said?
A He said that it was one of two mistakes he’s made in his life was regarding signing the
letter of agreement.
Q And that was referencing the 2001 letter of agreement?
A Correct.
Q And his proposal, Section 2.4 was designed to correct that situation?
A Yes.
Q You were at the April 10th session with Mediator Rosario?
A Yes.
Q Now it has been testified that at the end of that session Mr. Rosario asked the parties

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to focus on five issues?
A That is correct.
Q And did the parties focus on those five issues at the May 1st mediation session?
A Yes, we did.
Q During the course of that session did the employer make a counterproposal to the
union which ultimately was acceptable to the union?
A Yes, it was acceptable to the union. Jose came back into the room and said, “It’s
accepted but there is a question on the addendums at the end of the contract.”
Q And what was the question on the addendums that Mr. Rosario identified?
A There was a question on one of the addendums regarding seniority because of the
new contract some of the wording was going to supersede what was in the addendums. Our
question was is Dan had a concern about any additional new addendums because since the
last contracts we would always somehow come up with additional addendums after. Dan did
not want that to happen anymore. So our understanding in the group was we wanted to make
sure that all the new – the existing addendums that were still in place – our question that we
wanted to ask back was what about the existing. We understood it to be only new addendums
not added.
Q Now did you consider the letter of agreement which had been negotiated in 2001 as an
existing letter of agreement?
A Yes.
Q Existing addendum – I’m sorry.
A Yes. That was very important because of the addition of the Chippewa Falls store.
Q There has been testimony that Mr. Rosario called for a sidebar conference with Ms.
Clarke and Mr. Hudyma, is that accurate?
A That is accurate.
Q Can you describe for the judge the discussions which preceded Ms. Clarke going into
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A Brick had been one of the authors of the letter agreement or signers of the letter
agreement and also being very actively involved in the purchase of the Chippewa facility knew
that that letter agreement was very important to his contract that it still remained. So that was
specifically brought up that we wanted to make sure that all the things were okay including that
letter of agreement which –
Q The letter of agreement has been referenced here today as General Counsel No. 15, is
that correct?
A Correct.
Q Maybe you should take a look at that.
(Witness proffered the document.)
A Yes, that is correct.
Q And that discussion was had in the employer’s caucus just prior to Ms. Clarke going
into the sidebar?
A Yes, it was.
Q Did Ms. Clarke return – first off, did Ms. Clarke go to the sidebar conversation?
A Yes, she did.
Q And did she return?
A Yes, she did.
Q How long after did she return?
A Three minutes – four minutes.
Q It was a short caucus?
A Short caucus – sidebar.
Q And what did she report regarding the discussion she had had with Mr. Hudyma?
A She reported that all existing addendums were okay. There would be no new
additional addendums. There was a question on seniority.
Q Okay.
A She also specifically said that she made reference to the letter of agreement and I

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guess she said I signed – even circled and said we’re talking about this and he said no I’m
talking about there is an issue on – over here regarding seniority. She asked – she said she
had asked Dan to – which paragraph specifically. And I remember it because it was kind of –
Dan had a migraine and couldn’t really point out which line it was on.
Q I’m going to show you a document which I’m going to have identified as Respondent’s
No. 2. Can you identify that three page document, Bill?
(Witness proffered document.)
A Yes, I do. Those are the notes that I took from the very first bargaining –
Q Did you keep those contemporaneously through the course of the bargaining session?
A Yes, I did.
Q And you are the author of the document?
A Yes, I am.
Q There is a reference on page 3 to below a squiggly line – a reference to no more new
addendums.
A Yes, there is.
Q Is that something you wrote?
A I did write that.
Q Why did you write that?
A I wrote that because after Kelly came back and said that all existing addendums were
Okayed except for the clarification purposes on seniority that we had agreed to no more new
addendums.
MR. WELD: I move the admission of Respondent’s 2, Judge.
JUDGE VANDEVENTER: General Counsel?
MS. FRANCIS: No objection.
JUDGE VANDEVENTER: 2 is received.
(EXHIBIT RECEIVED: RESPONDENT’S NO. 2.)
MR. WELD: No other questions of this witness, Judge.

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JUDGE VANDEVENTER: Cross, Ms. Francis?
CROSS EXAMINATION
Q BY MS. FRANCIS: You also felt that the letter of agreement was something that was
very important to the contract, is that right?
A Yes.
Q And it’s your testimony that it’s something that was specifically talked about in the
employer’s room before the sidebar?
A Correct.
Q And something specifically talked about in the employer’s room after the sidebar?
A Yes.
Q So it was very clear to Ms. Clarke at least that this was an important document to
Respondent – to yourselves, is that right?
A Could you repeat the question?
Q So it was very clear to Ms. Clarke that this letter of agreement was very important to
you?
A Yeah.
Q When did you first learn that it hadn’t been attached to any of the – to the May 9th or
May 14th drafts of the contract?
A I learned quite sometime after as I was asking about why the wages – new wages had
not gone into effect yet because as we – the contract had been ratified. We were having
employees coming to my door asking why the wages had not gone into effect yet and I say I
don’t know. That’s when I found out that Dan had refused to sign based on that point of the –
Q And is that when you found out that Ms. Clarke had not included it on the prior drafts?
A Yes.
Q And you had – you testified you just had employees coming up and questioning about
issues with the contract?
A That is correct.

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Q Since that time have the wage increases gone through?
A Yes, they have.
Q Have other portions of the contract been implemented?
A No, not that I’m aware of.
MS. FRANCIS: No further questions.
JUDGE VANDEVENTER: Any redirect?
MR. WELD: None, Judge.
JUDGE VANDEVENTER: Let me ask this witness – unless the parties want to
stipulate it – about how many stores are there in the two county area we are talking about, Eau
Claire and Chippewa?
THE WITNESS: That we –
JUDGE VANDEVENTER: That are under this contract.
THE WITNESS: That are under this contract. Two food stores and nine convenience
stores and two lube and oils.
JUDGE VANDEVENTER: Approximately 11 or 13 when you – were the last two –
THE WITNESS: 13 facilities.
JUDGE VANDEVENTER: Facilities. And, if you know, can you give me an
approximate number of employees that are employed at those 13 facilities?
THE WITNESS: 600.
JUDGE VANDEVENTER: That’s all I wanted to know.
Any questions on mine?
MR. WELD: Not for the employer, Judge.
MS. FRANCIS: No.
MR. WELD: The employer rests, Judge.
JUDGE VANDEVENTER: Okay, thank you.
It’s five – it’s just about the noon hour. First of all, let me ask is there anything further
from General Counsel?

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MS. FRANCIS: I’m sorry. Could you speak up a bit?
JUDGE VANDEVENTER: I do apologize once again. I’m not usually this soft-spoken.
Is there anything else from General Counsel on rebuttal or any other trial matter?
MS. FRANCIS: Could I just have one minute?
JUDGE VANDEVENTER: You may have a minute to think about it, yes. We will be off
the record.
(Brief recess taken.)
JUDGE VANDEVENTER: On the record.
I have asked the parties to present oral arguments on both the facts and the law to me.
We will give them some time to organize that as well as some lunch time which even if they
don’t need, I do. It would be helpful to me if the parties would address of course the credibility
issue that we have and argue that. I know that you are going to do that.
The parties – it would be helpful if the parties – each party would also address both
sides of that credibility issue for the witness that you presented or the witness that the other
side presented. What does that – what effect, if any, does that have on your argument?
Otherwise I am going to leave the arguments to you.
And we will resume at 1:30 for those arguments. Thank you.
(Whereupon, at 12:00 p.m., the hearing was recessed for lunch to resume this same day,
September 30, 2003, at 1:30 p.m.)
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1:30 p.m.
JUDGE VANDEVENTER: On the record.
Good afternoon.
After lunch we are here to hear arguments from each party.
Is there anything any party wants to add before we go to argument?
(No response.)
JUDGE VANDEVENTER: No?

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Okay, Ms. Francis, would you tell us what the General Counsel’s argument is please?
MS. FRANCIS: By its express terms Section 8(d) requires the execution of a written
agreement if requested by either party. The law is quite clear. Mr. Hudyma has indicated he
is willing to sign the contract as negotiated. Respondent however has conditioned its
execution on the inclusion of a letter of agreement.
The facts are largely undisputed. An outcome of the case comes down to an issue of
credibility between Mr. Hudyma of the Union and Ms. Clarke of the Respondent and what was
discussed between the very brief sidebar conversation on May 1st. Ms. Clarke contends that
during the conversation the letter of agreement was specifically discussed and that she even
circled No. 5 on the letter of agreement and Mr. Hudyma responded, “I don’t have a problem
with that.” Contrary to Ms. Clarke’s testimony Mr. Hudyma testified that the sidebar
conversation related to only one memorandum of understanding, the one on interpretive notes
on which they agreed that the one attached to the 1998 collective bargaining agreement could
remain but no new ones would be accepted. They also agreed that anything in the interpretive
notes in conflict with the contract as just negotiated the contract would take precedence.
Hudyma credibly testified that the letter of agreement was not discussed during the sidebar.
Hudyma also specifically denied seeing Ms. Clarke circle anything in her binder. The facts as
presented warrant crediting Hudyma over Clark.
Specifically, Hudyma’s account is supported by the following facts. First, it is
undisputed that the letter of agreement was not attached to the May 9th or May 14th drafts of
the contract. Had this document – which all of Respondent’s witnesses testified was very
important to them – had it been agreed to it should have been included in those drafts of the
contract.
Next, the record evidence clearly establishes that the letter of agreement that was
actually attached to the June contract, the final contract with signatures, is not even the same
as the 2001 letter of agreement the parties entered into. Clarke testified that she changed it
and did so without bothering to contact or consult with the Union.

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Regarding other memorandums of understanding that were attached to the 1998
contract the parties specifically discussed the one concerning employee’s scheduled hours
and agreed to incorporate that language to the seniority provision. The memorandum of
understanding regarding interpretive notes was also specifically agreed to by the parties
during negotiations and they agreed that it would remain in the new contract. Therefore, it’s
clear that the parties – that when the parties intended to carry forward a memorandum of
understanding or other addendum they discussed it and reached agreement. That did not
happen with the letter of understanding – the letter of agreement.
Although the memorandum of understanding concerning the employees in the meat
department was not discussed and was included in those first two drafts Hudyma testified that
it was of no consequence either way whether or not that was included in the contract and that
it only runs in the favor of the Union. So he did not raise it as an issue.
The evidence does not support Ms. Clarke’s and Respondent’s version of events. In
support of Respondent’s assertion that the letter of agreement was discussed between Clarke
and Hudyma in the sidebar Respondent relies on the circled mark on the letter of agreement.
It contends that Clarke circled this while discussing the letter of agreement in that brief sidebar
conversation with Hudyma. Hudyma specifically denied that this happened.
Respondent further relies on – this witness has further testified that the letter of
agreement was referenced by Hudyma in the beginning of negotiations when he told him that
it was one of two mistakes he’s made. Hudyma identified it as something he regretted. Yet
Respondent and Clarke expect that – expect us to believe that during the sidebar conversation
when Clarke showed him the letter of agreement now he had no problem with it and said,
“That’s fine.” That’s just – it’s simply not creditworthy that an issue that he already admitted
was a mistake is now not going to be a problem. He is not going to put up any protest and just
say that’s fine. That’s the only evidence that the parties have that the parties discussed this
letter of agreement.
Respondent further relies on the conversation among the employer’s representatives

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before and after the sidebar. Clarke, Hopkins, and Ripley testified that the letter of agreement
was an important issue they discussed prior to Clarke going to the sidebar and something she
specifically referenced when she returned. Hopkins even testified that she pointed to where
that – Clarke pointed to where she circled it in her notes. Yet he did not mention this important
fact supportive of their version when providing an affidavit to the Board. In fact at the time of
this affidavit Mr. Hopkins stated, “Clarke came back after the sidebar and reported he’s fine
with the existing agreements. It’s only with anything new that he had a problem with and that
we weren’t going to add anything new. There was nothing else said.” Now, however, he
remembers a letter of agreement being specifically discussed. Mr. Hopkins’ testimony is
demonstrated as not being credible.
Significantly, despite Ms. Clarke’s and Respondent’s other witness’ testimony of the
extreme importance of including the 2001 letter of agreement in the contract, Ms. Clarke did
not attach letter of agreement to the May 9th or May 14th contract and never even bothered to
review the documents she sent to Hudyma to ensure it contained this very important
document.
During this time when Ms. Clarke was making the changes to the contract and
updating the language and dates, she was sending drafts to Mr. Hudyma and during that time
the e-mails between Hudyma and Clarke indicate that Section 1.1(b) which is modified by the
letter of agreement was actually an issue. She was making mistakes in her contract on that
section. Clarke admittedly had been using the pre 1998 language and Mr. Hudyma repeatedly
pointed it out. The errors were not insignificant as it added an entire county as was negotiated
in 1998. So, this section was clearly at the forefront of Ms. Clarke’s mind, yet she never
bothered to look to see that the agreement that modifies that section was attached to the
contract and was provided to Respondent. General Counsel submits that it is because Clarke
was unaware of the letter of agreement at the time, that she had only been in her position for 6
months during this time.
As for the outcome of the case -- as the outcome of the case turns on credibility and

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each person’s memory of the sidebar, General Counsel would just note that the e-mails in
evidence indicate that this is not the first time Ms. Clarke’s memory was not correct regarding
negotiations. The parties also had a dispute as to what was agreed upon during negotiations
regarding health insurance. Ms. Clarke believed that it was a 6 month waiting period and Mr.
Hudyma insisted that was not the case. It was not what was agreed to. They e-mailed back
and forth about it. Ms. Clarke even provided her notes which she thought surely showed she
was right. She was not. After conferring with the mediator, Hudyma’s recollection was
correct, Ms. Clarke’s was mistaken.
So, on the heals of this mistake on health insurance -- a mistake which Clarke states in
her May 13th e-mail, “I talked to Rick in passing and I know he does not want to budge on the
six month thing,” so an issue important to Respondent. On the heals of that mistake, Ms.
Clarke realized that they had made another mistake by not discussing and not including the
letter of agreement in the contract. Therefore, when she realized it was -- that there was a
letter of agreement, she changed it and submitted it to the board without notifying the union.
For the first time since negotiations started in March, she gave the union a copy of the contract
which now included a letter of agreement which the union saw for the very first time in June.
Respondent makes much of the fact that the letter of agreement in 2001 was bought.
That is, that paragraph 5 which modifies Section 1.1(b) was agreed to by the union in
exchange for increased wages, yet during negotiations wages were renegotiated and they
came to an agreement. At no time did they bring up the letter of agreement that included the
wages and a modification of 1.1(b). As I had already discussed, they had no problem
modifying the contract to include and incorporate other memorandums of understanding as
they did with the seniority provision, but to not attempt to make this occur with 1.1(b) in a letter
of agreement. The union even offered to -- in one of its proposal proposed changing 1.1(b).
Respondent rejected it, but again did not bring up its modification as clarified in the letter of
agreement for 2001. Respondent is sophisticated and has a great deal of experience in
negotiations. It had every opportunity to bring up the letter of agreement during negotiations,

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but neglected to do so. When it realized its error, rather than bringing it to the attention of the
union and requesting to continue to bargain, it simply tracked it up to a scrivener's error and
hoped that the union would not notice. Of course the union did notice and rightly is refusing to
sign the agreement with the letter of agreement attached to it.
In conclusion, General Counsel submits that Hudyma should be credited and therefore
there should be a finding made that the letter of agreement was not discussed during
negotiation and is not part of the contract. Respondent should be ordered to sign and execute
the contract as negotiated without the letter of agreement. That concludes my closing
statement.
JUDGE VANDEVENTER: Thank you, Ms. Francis.
Mr. Weld?
MR. WELD: Thank you, Judge.
The Respondent starts off by indicating to the Judge that we believe there was an
agreement which was reached at the May 1 bargaining session. There was a meeting of the
minds at that session. A meeting of the minds included the addition of the letter of agreement
or the incorporation of the letter of agreement which had been negotiated in 2001, and the
continued attachment of that document into the collective bargaining agreement. What we
have here we believe is a situation where we have an experienced negotiator exploiting the
inexperience of our chief negotiator using a scrivener's error as an attempt to gain something
that he viewed -- to correct something that he viewed as one of the two mistakes he has made
in his life.
Kelly Clarke has testified that she makes mistakes. She admits she makes mistakes.
The employer made a mistake in this case, Judge, in that its initial proposals -- General
Counsel No. 4 all the way through the 2nd draft of the collective bargaining agreement,
General Counsel No. 9, used the wrong computer file -- the 2002 contract as the base point for
its proposals and the contract draft. In doing so, we fail to incorporate the 1998 contract
changes and also the 2001 contract changes.

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Now, in doing so, we don’t think that it effected the union vote because Mr. Hudyma
testified he didn’t really give the employees the full contract. He gave them just the new
language. So, the reference to the letter of understanding -- letter of agreement was not
incorporated in the information provided to the employees for their May ratification vote.
Yes, we made a mistake with the computer file by using our -- Ms. Clarke’s
predecessor’s file, but that doesn’t effect or change what happened at the May 1st bargaining
session. And what happened at that May 1st bargaining session was clear and reinforced not
only by the circle -- circling of paragraph 5 in the discussions between Ms. Clarke and Mr.
Hudyma, but also reinforced by the testimony of -- of both Mr. Hopkins and -- and Bill in terms
of the -- what was discussed prior to the sidebar and the discussion following the sidebar in
which the employer’s bargaining team discussed prior to the meeting the need for the letter of
agreement in light of what had happened at the Chippewa Falls store, and Ms. Clarke’s
reporting following the 3 to 5 minute meeting of the fact that three things happened in the
discussion.
One, she had even circled paragraph number 5 in the discussions with Dan and he
indicated there wasn’t a problem with them. He was only concerned about new addendums.
He was concerned about a provision which arguably was contrary to a contract provision
dealing with seniority, but because he had a migraine headache, wasn’t able to deal with it and
the parties agreed that that would be addressed in the future. All three employer’s
representatives testified to those conversations.
This is not a classic “he said/she said” case. This is a case in which Ms. Clarke’s
version of the discussion is reinforced by the document with the circle and by the discussions
both before and after the discussion. Mr. Hudyma’s version of the conversation is not credible.
He testified himself that it is his legal conclusion that memorandums of agreement or
understandings which are attached to the contract die or evaporate at the end of the contract
term. Despite that, he testified that relating to the three memorandums of understanding that
were attached, one was incorporated in a union contract proposal and therefore didn’t need to

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be added. The second, he simply ignored and the third he testified that there was an
agreement that the memorandum -- at least in one of the four provisions in that memorandum,
may have a -- conflicted with the seniority provision. But if his testimony is correct, the very
existence of that memorandum conflicts with his -- his interpretation which is that the
memorandums drop out or evaporate at the end of the contract term.
So in other words, what he is saying with the memorandum he ignored and with three
of the four issues on the interpretive memorandum that he was willing to agree to continue
those memorandums just as he was willing to agree to continue the memorandum -- or the
letter of agreement which was negotiated in 2001, and for which there was a considerable
trade. Significant compensation in terms of wages which became effective in late 2000 and
again another increase in 2002. Those wages became the base point for the negotiations for
the 2003 contract.
In other words, if Mr. Hudyma’s interpretation is correct, the status quo ante -- the letter
of agreement would be the wages which were incorporated in the ‘98, 2002 contract and which
were not part of -- of the side letter or the agreement which was negotiated in 2001. Basically,
he wants the part of the deal that favored the union and does not want to honor the part of the
deal that favored the employer -- and which part of the deal he specifically agreed to in the
conversation on May 1.
In some ways, this is an interesting legal exercise because in the employer’s view we
are dealing with an illegal contract provision. As Mr. Hudyma has testified, he views 1.1(b) as
an automatic situation in which we buy the store, and if it’s in the geographic locality, they -- it
becomes a unionized store. That is not the law, but it is the law as interpreted -- or as the
current contract provides and indeed the employer fears that a grievance arbitrator is going to
interpret 1.1(b) as Mr. Hudyma has testified he interprets it. Hence the reason for the 2001
trade, we will give you additional wages in exchange for clarification that NLRA rules and law
apply to any organization of a store no matter what the geographic area is.
I started off by saying there was a meeting of the minds. We believe that that meeting

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of the minds included the letter of agreement. However, there certainly was not an agreement
or a meeting of the minds as far as a contract without the letter of agreement. In other words,
we believe that the letter of agreement was properly brought to the table, it was discussed and
it was agreed to in the sidebar conversation, but certainly there was never an agreement that
there would be a contract without paragraph 5 of that letter of agreement continuing into the
future.
Now, Counsel takes significance in the fact that in the June 2 draft of the contract we
updated the letter of agreement by changing the dates. That’s all we changed were the dates.
There was a reference to a 2000 wage rate. There was a reference to a 2002 wage rate.
Those obviously had to be removed from the contract -- or the letter of agreement and -- and
tied to the agreement for the 2003/2006 period. There was no substantive change made to
that letter of agreement. It was simply updated to reflect that change.
Counsel also seems to take significance in the fact that the memorandums of
understanding are not date specific. Well, neither was the letter of agreement except for the
reference to the wages. It is our belief that paragraph 5 of the letter of agreement must
continue into the future. That was what the parties discussed and Ms. Clarke admits to
making an error in terms of the computer file, but she also has been very clear and very
distinct and very credible in terms of what happened in the conversation between herself and
Hudyma, and her version is reinforced by the circled document as well as discussions both
immediately prior and immediately following the sidebar conversation.
This is a credibility case and the Judge is being asked to say that the employer violated
the law as a result of a -- of a credibility determination. We don’t believe the Counsel for the
Region has met its burden of proof here in making that type of a declaration regarding the
Respondent and we ask the Judge to dismiss the complaint.
MS. FRANCIS: Your Honor, I move to strike the portion of Respondent’s closing
argument in which he attributes to Mr. Hudyma testimony to the effect -- to the effect that
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testimony not in evidence by Hudyma, it was in evidence by Respondent’s witnesses.
JUDGE VANDEVENTER: Don’t worry about it. That is not real essential to this case
that particular remark, so I am not going to.
I don’t have the transcript in front of me right now, so I don’t know if it’s exact or not but
that’s not going to be a material fact in this -- in this resolution of these issues. You know, this
is a very interesting case -- short though it is, and I have appreciated the arguments of both
counsel. Is there -- does anybody have -- you may argue in reply if you wish and so may
counsel for the Respondent. Is there anything either party wants to add?
MS. FRANCIS: Can I have just one second?
JUDGE VANDEVENTER: You may. You have 2 minutes.
Off the record.
(Brief recess taken.)
JUDGE VANDEVENTER: On the record.
MS. FRANCIS: Just for the record -- or not just for the record actually. The Union and
General Counsel -- the Union has indicated that it is still willing to withdraw the charge and
complaints if Respondent were to sign the contract without the letter of agreement. And as we
discussed in negotiations, is even willing to allow 1.1(b) to be amended to include language at
the end saying, “In accordance with the NLRA,” therefore making clear that NLRA does not
allow automatic recognition -- you still need the majority, which is something that we had
discussed extensively. So, just to be clear, that is something that the Union is still willing to
accept.
JUDGE VANDEVENTER: Anything from you, Mr. Weld?
MR. WELD: Nothing on that, Judge. I guess we do cite for the Judge a series of
cases in which where the contract draft does not reflect the agreement. The Board has
consistently chosen to say there was no meeting of the minds. I guess we can deal with that if
the court goes in that direction, but --
JUDGE VANDEVENTER: I prefer to deal with it now --

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MR. WELD: Okay. The --
JUDGE VANDEVENTER: -- actually, Mr. Weld.
MR. WELD: Okay. The cite is Teamsters Local 287, Judge, 272 NLRB 348, the union
prepared a contract, attached an addendum, submitted it to the employer, the employer
detached the addendum, returned it to the union, the union refused to sign the contract, the
employer filed a charge, Board held no meeting of the minds had occurred and secondly
commented that if an agreement was reached, it was appropriate to rescind the agreement
because a mistake had occurred. There clearly had been --
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JUDGE VANDEVENTER: And what did they call that? A unilateral mistake or mutual?
MR. WELD: I believe it was a mutual mistake arguing that enforcement against the
mistaken party would be oppressive and result in a hardship or an unequal exchange.
Similarly, in Walden, 282 NLRB 583, Board found that in a situation where a verbal wage
proposal was made then put into a draft, the draft was revised by the employer, and an error
was discovered in the schedule. When it was called to the employer’s attention by the -- by
the comptroller, the Board found that the employer did not violate the Act by reputing a new
contract because there were no meeting of the mind concerning the contract’s wage schedule.
The membership ratified a different contract proposal from that which had been offered by the
employer resulting in a mutual mistake over an essential element.
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In Mary Bridge Children’s Hospital, 305 NLRB 270 -- I’m sorry, 570, there was a
formula calculating second shift bonuses. The employer discovered a mistake in the formula,
advised the union and made it a correction to the contract. The union took the position that
the employer was bound by the original formula. The Board said, “No, not enforceable.”
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And finally, in Carpenter’s Local 1473 -- it’s 270 NLRB 1432, the union unknowingly
deleted a clause from a draft of the contract which the parties reviewed and signed, and then
they discovered the omission and they requested that the employer bargain over the omitted
clause. The Board concluded that it was proper to rescind the agreement based on a -- on the
mistake made. The employer knew or should have known of the mistake as a result in it
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receiving a significant new benefit. As such, there was no agreement on the issue and the --
and the employer did not violate the Act by not bargaining over the omitted change.
JUDGE VANDEVENTER: How does that apply to this case, Mr. Weld? Is this a
mutual mistake? Unilateral mistake? What?
MR. WELD: Well, Judge, as we said -- or said in our statement. We believe there was
an agreement, but certainly the employer did not agree to a contract without that letter of
agreement in it and we believe that -- as we said in the -- in the statement, that this is a -- an
experienced union negotiator using our scrivener's error as a way of negotiating or putting into
the contract something which had not been agreed to.
JUDGE VANDEVENTER: All right, tell me what category it falls into? I mean, there is
a different -- a different outcome for a mutual mistake and unilateral mistake as you are well
aware in contract law. What category does this case belong in if -- under your theory?
MR. WELD: Under my theory --
JUDGE VANDEVENTER: I mean, whose -- was there a mutual mistake or was there a
unilateral mistake? It was unilateral, whose was it? That’s what I want you to apply that law to
the facts.
MR. WELD: Okay. Our view, Judge, is that -- as I said, there was an agreement that
was reached and it included the letter of understanding -- or letter of agreement as part of that
-- that agreement, so to that extent we do not believe there was a mistake. However, there
certainly was no meeting of the minds if the -- to the union’s position that the employer agreed
to the letter of agreement being excluded from the contract.
JUDGE VANDEVENTER: All right. All right. Let me get your argument structured
then -- and you are saying assuming that Mr. Hudyma is credited, there is no meeting of the
minds?
MR. WELD: Correct.
JUDGE VANDEVENTER: Is that what you’re saying?
MR. WELD: Correct.

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JUDGE VANDEVENTER: I will give you a crack at that, Ms. Francis, because this is a
new argument and we’re going somewhere else, so you can -- you can respond to that theory.
MS. FRANCIS: I would say that there -- the General Counsel submits that there was a
meeting of the minds and that there was a contract. It was the contract that does not include
the letter of agreement. It was not discussed during negotiations. If there was a mistake, it
was a unilateral mistake. A unilateral mistake on the part of the employer. And under Board
law in Apache Powder Company, 223 NLRB 191, a unilateral mistake must be so patent and
obvious that the other party is put on notice of it to rescind the contract.
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Here, if there was a mistake, it was a unilateral mistake and does not rise to that level
and therefore they cannot rescind the contract based on that. They must sign the contract as
agreed whether they made a mistake or not.
JUDGE VANDEVENTER: Is that Apache Powder you quoted to me? 12
MS. FRANCIS: Yes, Apache Powder Company, 223 NLRB 191. 13
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JUDGE VANDEVENTER: I remember it well.
I give you another shot, Mr. Weld?
MR. WELD: No, ma’am.
JUDGE VANDEVENTER: Thank you, parties. I especially appreciate your elucidation
of the case law and its applicability to these facts, and I am going to take time to work through
your arguments and apply them to the facts and there are extensive documents, so it’s going
to take me an hour and half I’m going to say.
So, we will resume at 3: 45 that makes it, and I think with any luck we’ll be then
concluded by the end of today. Thank you.
(Brief recess taken.)
JUDGE VANDEVENTER: On the record.
Okay. After considering the parties’ arguments, I am ready to deliver a decision. As
you all know, bench decisions are issued pursuant to the Board’s rules and regulations
102.35(a)(10) and under that regulation, the time for filing exceptions does not begin to run

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until the written version of this bench decision is issued which does usually take two or three
weeks after the close today because of the necessity of getting the transcript and making sure
that it’s correct.
So, that is in the Rule, but I just thought I would mention it on the record or for the
benefit for the parties.
Is there anything else from anybody before I begin?
(No response.)
JUDGE VANDEVENTER: No? All right.

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BENCH DECISION
STATEMENT OF THE CASE
Jane Vandeventer, Administrative Law Judge. This case was tried on September 30,
2003, in Eau Claire, Wisconsin. The complaint alleges Respondent violated Section 8(a)(5) of
the Act and refused to bargain by conditioning its execution of an agreed upon collective
bargaining agreement on the inclusion of a letter of agreement not negotiated with the union.
The Respondent has filed an answer denying the essential allegations in the complaint. After
the conclusion of the hearing, the parties made oral arguments which I have considered.

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Based on the testimony of the witnesses, including particularly my observation of their
demeanor while testifying, the documentary evidence, and the entire record, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a cooperative association with an office and place of business in Eau
Claire, Wisconsin, where it is engaged in the operation of retail convenience and grocery
stores. During a representative one-year period, Respondent has derived gross revenues in
excess of 1 million dollars, and has purchased and received goods and services valued in
excess of $50,000 directly from points outside of Wisconsin. Accordingly, I find, as
Respondent admits, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Charging Party, who I will also call the Union, is a labor organization within the
meaning of Section (2)5 of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
The Union represents Respondent’s employees and has done so for more than 35
years. The Respondent has approximately 600

employees in the bargaining unit who work at 13 different facilities in Eau Claire County and
adjoining Chippewa County. The parties’ most recent collective bargaining agreement was
effective from April 1, 1998 to March 31, 2003. I will refer to it throughout as the ‘98
agreement.
On the title page of the ‘98 agreement it reads, “Working and Wage Agreement,
Supplement A - Hourly Rates, Memorandum of Understanding concerning employee
scheduled hours. Memorandum of Understanding concerning non-bargaining unit employees

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in meat department.” In addition to that heading, the parties, that is the Respondent and
Union, are named, and also the dates of the effectiveness are set forth.
The three addenda named on the title page are included in the printed agreement as is
a third memorandum of understanding. Instead of saying memorandum I am going to say
MOU which signifies a memorandum or understanding. In addition, unless I state otherwise,
all dates that I refer to will be in 2003. The third MOU which is not mentioned on the title page
but is included in the printed booklet -- and by booklet, I mean an 8 ½ by 5 ½ inch booklet in
which the contract is printed. Now, the third MOU concerns “Interpretive Notes.” None of the
three MOUs concern operative dates and although each one is signed separately, there are no
dates of execution opposite the signatures. And that refers to the three MOUs that I have

described as being in the ‘98 agreement.
In approximately mid contract of the last contract term, Respondent and the Union
made a mid-term agreement. The Union secured a wage rate increase in return for agreeing
that any new facilities opened in the two county area would not automatically be covered by
the collective bargaining agreement, as had been the past practice. The dates of the ‘98
agreement were recited in the preamble of this mid- contract agreement. The mid contract
agreement has been referred to in the record as the 2001 letter of understanding, as it was
executed on January 9th, 2001. I will refer to it as the 2001 letter of agreement.
The new wage rates were to be effective for the final 2 1/4 years of the collective
bargaining agreement. The signers for the Respondent and the Union both dated their
signatures January 9th, 2001. Respondent witnesses testified that they added a copy of the
2001 letter of agreement to their bargaining notebooks in which they maintained the collective
bargaining agreement. Apparently their notebook was 8 ½ by 11½ inches. It was identical to
the booklet containing the ‘98 agreement, except for the 2001 letter of understanding.
In March of 2003, the parties began to negotiate for a new agreement as the ‘98
agreement was due to expire soon. There were four sessions and they were held on March

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14, March 19, April 10 and May 1. The latter two bargaining sessions included the
participation of a Federal mediator. At the first session,

each party made a proposal. Those are in writing and they are in evidence. Neither of these
proposals included the 2001 letter of agreement, nor any of the three MOUs which had been
appended to the ‘98 agreement. The Union’s proposal included a clause in the recognition
article which automatically extended recognition to new or relocated operations. This
provision was later dropped by the Union.
At the first sessions it is undisputed that Daniel Hudyma, president and chief negotiator
for the union, referred to the 2001 letter of agreement as a mistake he had made. According
to Hudyma, that was the only specific reference to the 2001 letter of agreement during the
entire four negotiating sessions. Respondent’s witness and chief negotiator Kelly Clarke’s
testimony differed. I will reach that incident and that testimony later on. There is no dispute
that no specific reference was made to the 2001 letter of agreement on either the March 19th
session or the April 10th session. On April 10th, the mediator advised the parties that they
should narrow their issues to five major ones and the parties did so. Therefore, on May 1st
each party was by itself in separate caucus rooms and the mediator shuttled between the two
caucus rooms carrying proposals between the parties. After the exchange of the proposals
through the mediator in this manner, the parties arrived at agreement on the five major issues
that they had set forth.

It is undisputed that at the time the Union accepted the employer’s last proposal, the
mediator informed the Respondent that the Union had a problem with the addenda to the
collective bargaining agreement. The mediator told the Respondent’s caucus that he was
unable to say what the Union’s problem was. Clarke and Hudyma had a short conversation
outside the caucus room. No other persons were present. I will canvas the testimony of each
witness. Hudyma testified that he told Clarke the Union didn’t want any more “interpretive

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notes” such as the MOU on page 25 of the ‘98 agreement, and he had a concern that part of
that MOU conflicted with the seniority language the parties had just worked out. Clarke
agreed that the new seniority language would govern and supersede anything inconsistent
which existed in the MOU that appears on page 25 of the ‘98 agreement. Hudyma further
testified that no other MOUs were specifically discussed at all. He noticed that Clarke had her
three-ring binder opened to the MOU that appears on page 25 of the ‘98 agreement. That is
the one that refers to interpretive notes. Hudyma also testified that Clarke did not write or
circle anything in the notebook while they were talking.
I will turn now to Clarke’s testimony. She had been the human resources director for
only about six months of the time of the negotiation. She was the chief negotiator. Clarke
testified that when the mediator informed the Respondent’s team that the Union wanted to
discuss the addenda, she and her team

wanted to know what it was about but the mediator did not know. It is undisputed that they
discussed among themselves the importance to the Respondent of one paragraph of the 2001
letter of agreement, that is paragraph 5. Clarke testified she then had a brief conversation with
Hudyma outside the caucus rooms. Clarke asked Hudyma if he had a problem with the
current MOUs or new MOUs and opened her notebook and pointed to paragraph 5 of the 2001
letter of agreement. She testified that Hudyma said that that wasn’t the MOU he had a
problem with, but certain language in the interpretive notes MOU on page 25 conflicted with
the new seniority language. Clarke testified that she agreed with Hudyma that if there was
inconsistent language, the new seniority language would govern. Clarke returned to the
Respondent’s caucus where according to team member Bill Ripley, she reported that the
Union had no problem with the existing addenda but didn’t want new ones added. Ripley’s
notes corroborate that Clarke reported the union wanted “no more new addendums.” Hopkins
testified Clarke also told him she circled paragraph 5 on the 2001 letter of agreement as she
spoke with Hudyma, but as Hopkins contradicted himself to a certain extent on that point in his

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prior affidavit, I do not credit him on that point.
After May 1st, Clarke began to incorporate the negotiated changes into a draft. She
admits she erred by using an outdated computer file and the draft she forwarded to Hudyma
on May 9th contained several errors which Hudyma pointed out. A second draft authored by
Clarke on May 14 corrected some errors, but still contained other errors. Between May 9th
and May 19th, Clarke and Hudyma exchanged approximately 17 e-mail messages concerning
the corrections to the draft. One disagreement concerned whether 6 weeks or 6 months had
been the time agreed as the new employee waiting period for insurance eligibility. After
several exchange of e-mails on the issue, the mediator was appealed to and his recollection
was accepted. Both Clarke’s recollection and her bargaining notes were in error on this point
according to what the parties then agreed to.
It is undisputed that the two drafts, May 9 and May 14, both contain the same language
on the title page, and that is identical to the wording on the title page of the ‘98 agreement that
I read earlier, and again as in the ‘98 agreement, both the parties are named and the duration
of the contract is noted. Both the May 9 and May 14 drafts also contain the same MOUs
which had existed in the prior contract but neither contains the 2001 letter of agreement.
Subsequent to May 14, Hudyma reminded Clarke that the MOU on seniority was now
included in the contract language itself and therefore should be deleted from the addenda.
Clarke agreed to make that change and did so. At some point between May 22nd and May
28th, according to Clarke, she realized that she had made another mistake that of not
including the 2001 letter of agreement in the addenda. Her memory of this was vague. At first
she stated that she didn’t remember when she had realized this and later her recollection was
narrowed to some time between May 22nd and May 28th.
On May 22, Hudyma presented the new agreement to the membership for ratification.
He did not present any particular document, as none had been finalized, but instead described
the changes and the membership ratified the collective bargaining agreement as described to
the membership by Mr. Hudyma.

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After discovering that she had neglected to include the 2001 letter of agreement in any
of the written versions of of the contract, Ms. Clarke found a copy of the letter of agreement,
deleted one paragraph which she believed was irrelevant, changed all the dates in the 2001
letter of agreement to reflect the appropriate and the corresponding time periods between
2003 and 2006, and new contract term, and added this revised letter of agreement to the
collective bargaining agreement which she submitted as the 3rd draft of the agreement. This
3rd draft was submitted to Respondent’s board of directors on May 28th. Sometime after May
28th, Ms. Clarke did not remember when, she mailed it to Hudyma and he first saw it on June
2nd.
Clarke first testified that she called Hudyma and told him about neglecting to put the
letter of agreement on the draft, but didn’t remember what he said in response. Then Clarke
changed her testimony and said she thought Hudyma had called her about it first. And finally,
she stated that she had simply mailed him a copy of the 3rd draft after May 28th and that
thereafter he had called her and sent her e-mails protesting her addition of the new letter of
agreement to the 3rd draft.
Both parties believed on May 1st that they had a contract. Both parties contend that
there was a meeting of the minds on that date. However, the General Counsel and the
Charging Party contend that the agreement reached did not include the 2001 letter of
agreement, either as it existed or with its modified dates. The Respondent contends that the
agreement reached did include the 2001 letter of agreement with altered dates being the
logical corollary. This is the only point of difference between the parties as to what was
agreed on May 1st.
CREDIBILITY
It is first necessary to determine what was said between Hudyma and Clarke on May
1st. There is no dispute as to certain of those remarks. There is no dispute that Hudyma
stated there might be inconsistent language in MOU on page 25 of the ‘98 agreement, and
that both parties agreed that the seniority language they had just negotiated would govern if

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there was any inconsistency. There was also agreement that Hudyma said the Union didn’t
want any new addenda to this collective bargaining agreement.
I credit Clarke as indirectly corroborated by Ripley to the effect that Hudyma said he
had no problem with existing addenda, but I credit Hudyma’s testimony that no specific MOUs
or addenda were discussed other than the MOU on page 25 of the ‘98

agreement. I specifically discredit Clarke’s assertion that she mentioned the 2001 letter of
agreement and pointed out paragraph 5 to Hudyma during this conversation.
My reasons for crediting Hudyma over Clarke on this point are partly based on her
testimony demonstrating poor memory. Her testimony was vague at times. There were
frequent changes in her testimony and an inability to recall the sequence or dates of important
matters in this case, and her confession of frequent errors, both of memory and of recordation.
One particular example of an error of memory concerned the 6 week versus 6 month
controversy which was resolved by the parties during May during the correcting the draft
process.
It appears from the testimony of all the Respondent’s witnesses, to the extent they
thought it through, that the term "existing MOUs" included the 2001 letter of agreement. It is
also clear that Hudyma equally sincerely thought that existing MOUs or existing addenda did
not include the 2001 letter of agreement. One of the problems appears to have been that the
parties used the term “existing” without specifying exactly and precisely what it meant.
By its terms, the 2001 letter of agreement expired when the old collective bargaining
agreement expired.

Obviously the rest of the 2001 letter of agreement totally changed because all the wage rates
were renegotiated. Paragraph 5 alone was still left hanging. If Respondent had wanted to

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make paragraph 5 a permanent part of the new agreement, it could have brought it up in any
of the four meetings, it could have drafted language to be included in the new collective
bargaining agreement itself, or at a minimum, included the 2001 letter of agreement among its
proposals.
If there was an error in not including this agreement, the 2001 letter of agreement or
comparable language, Respondent could or should have raised it to the union during the
bargaining sessions and if they discovered the error thereafter, raised it during any of the
frequent communication that occurred for 4 weeks following May 1st concerning the correct
contract draft which was in progress. It doesn’t really matter if it was a matter of oversight or
ignorance, it was not raised, it was not part of the negotiations and it was not part of the
agreement.
If Respondent actually did believe -- which it may have -- that the 2001 letter of
agreement continued to be included even though it had never been included in any of the
written material exchanged, it was a unilateral mistake on Respondent’s part and not a mutual
mistake. Respondent did not take its many opportunities to raise the issue specifically, and
even in 4 weeks of preparing drafts did not include it. There is an old contract rule that would
resolve doubts against the drafter and that would favor the union, the government’s position in
this case that in fact the letter of agreement should not be a term and was not a term of the
agreement reached on May 1st.
Because of the fact that if there was a mistake, it was a unilateral one, this case then is
governed by Apache Powder. In fact, I find that agreement did exist on May 1st and that it did
not include the 2001 letter of agreement. While I base this finding partly on the testimony
concerning the May 1st one on one conversation between Mr. Hudyma and Ms. Clarke, I rely
even more heavily on Respondent’s own documents, both those from before May 1st as well
as the drafts and e-mails from the ensuing month and all the documents after May 1st. They
really included at least 6 weeks worth of documents.
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1 and sign an agreement if they reach one. They can’t back out or change once a deal has
been struck. That is Apache Powder. The citation is 223 NLRB 191, and recent cases which
follow
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some language was altered by the employer after the agreement was made. That has
similarity to one aspect of this case. Another recent case is
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Alexandria Manor, 317 NLRB 2.
In that case the employer refused to sign a collective bargaining agreement contending that
three side letters were not attached. The Board found that the employer had agreed to sign
the agreement as it existed and it was an unfair labor practice for it to refuse to do so after the
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agreement had been made. Both of these cases are apposite to the case before us.
I do not believe there has been bad faith in this case. In the arguments there have
been some implications that the other party may have been trying to back door something. I
sincerely don’t believe that was the case. Ill motives may be responsible for some disputes,
but also mistakes, unwarranted assumptions, and misunderstandings can generate problems.
So, I really find the ill motives are quite irrelevant to my finding and I believe to the issues in
this case. And I also recognize that it is not always easy to tell the mutual mistake from
unilateral mistake, but I believe that the facts in this case, heavily relying on the documents
support the findings of fact I have made and the conclusions I have drawn.
CONCLUSIONS OF LAW
1. By refusing to sign an agreed upon collective bargaining agreement without the
addition of an additional letter of agreement, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
2. The violation set forth above is an unfair labor practice affecting commerce
within the meaning of the Act.

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REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be required to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended order.
ORDER
The Respondent, Consumer’s Cooperative Association of Eau Claire, its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain by refusing to execute an agreed upon collective
bargaining agreement without attaching an additional letter of agreement to the agreement;
(b) In any like or related manner interfering with restraining or coercing employees
in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Sign the agreement previously agreed to in collective bargaining with the Union;
(b) Within 14 days after service by the Region, post at its Eau Claire and Chippewa
County locations copies of a notice which will be attached to the written version of this
decision. Copies of the notice on forms provided by the Regional Director over Region 18
after being signed by the Respondent’s authorized representative shall be posted by the
Respondent and maintained

for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the

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event that during the pendency of these proceedings the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since June 2nd, 2003.
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent had taken to comply.
That ends the decision.
Does any party have anything further?
(No response.)
JUDGE VANDEVENTER: No?
Thank you for your participation in this proceeding.
The hearing will be closed.
(Whereupon, at 4:20 p.m., the hearing was concluded.)

108
WALLS & WALLS
12124 Hampshire Avenue North
Champlin, Minnesota 55316
(763) 422-8938
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This is to certify that the attached proceedings

before the NATIONAL LABOR RELATIONS BOARD, REGION EIGHTEEN

Case No. 18-CA-16902

In the Matter of: )
)
CONSUMER’S COOPERATIVE ASSOCIATION )
OF EAU CLAIRE, )
)
Respondent, )
)
and )
)
UNITED FOOD AND COMMERCIAL )
WORKERS #12A, A/W UNITED FOOD AND )
COMMERCIAL WORKERS INTERNATIONAL )
UNION, )
)
Charging Party. )

Date: September 30, 2003

Place: Eau Claire, Wisconsin

were held according to the record, and that this is the

original, complete, true and accurate transcript which has

been compared to the reporting or recording accomplished at

the hearing, that the exhibit files have been checked for

completeness and no exhibits received in evidence or in the

rejected exhibit file are missing.

______________________________
Ronald W. Walls
Official Reporter