Ebon Services, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1990

298 N.L.R.B. 219 (N.L.R.B. 1990)

EBON SERVICES 219
Ebon Services , Inc.' and Production, Service' and
Allied Workers Union, Local 143 Ind. Case 22-
CA-15768
April 12, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 29, 1989, Administrative Law
Judge Steven Fish issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-'
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,2 and
conclusions and to adopt the recommended Order3
as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ebon Services , Inc.,5 Newark, New
Jersey, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
Insert the following as paragraph 2(d) and relet-
ter the subsequent paragraphs.
"(d) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
i The Respondent is named in the charge and in the complaint as
"Ebon Services , Inc." In its answer to the complaint, the Respondent as-
serted that its correct name is "Ebon Service International , Inc." The dis-
crepancy was not resolved at the hearing , and the Respondent has not
pursued the matter before the Board Accordingly, we shall continue to
use the name that appears in the caption when referring to the Respond-
ent.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
We correct certain inconsequential errors in the judge's decision. Thus,
the date on which the Respondent informed Continental Airlines of its
intention to,terminate their contract was December 10 (not November 10
or December 11), 1987. The letter Respondent sent to the Umon, contain-
ing a copy of a notice to employees , was dated January 29 (not 28), 1988.
Contrary to the judge, the Respondent did submit -a copy of the con-
tract, to which it had agreed on February 24, 1988, to its attorney, but it
did so apparently only after the Union filed its charge on June 9 of that
year. Also, contrary to the j udge, at the August 8, 1988 meeting with the
Union, the Respondent did base its refusal to sign the contract in part on
certain real or alleged discrepancies between the terms that had been dis-
cussed on December 31, 1987, and the terms contained in the contract
presented by the Union on February 24, 1988. Those errors do not affect
our decision , however, because they do not alter the fact that, as the
judge found , the Respondent's vice president, James Felton, reviewed all
the terms of the contract on February 24 and agreed to sign it.
2 One of the Respondent's reasons for refusing to sign the contract, as
Felton had agreed to do, was that it assertedly had not agreed to a clause
requiring the Respondent to recognize the Union and apply the terms, of
the contract at all of its facilities, including those that might be acquired
in the future, not merely at the facility at which the Umon had been cer-
tified as the bargaining representative for the employees. In this regard,
we note that, under established Board precedent , the presence of such a
provision does not absolve the Respondent from its statutory duty to sign
a contract containing it, if the Respondent has agreed to do so. Frazier's
Market, 197 NLRB 1156, 1157 (1972). The Board, however, will not
compel employees at the Respondent 's other facilities to be subject to the
provisions of this contract , if those employees would constitute a separate
appropriate unit, without affording them an opportunity to express their
preference for representation by the Union. Id.
Member Devaney notes that the Respondent argued that there was no
final agreement because, inter alia, the above-described clause had never
been discussed by the parties. He rejects this argument on the basis that
Felton subsequently reviewed all the terms of the written contract, which
included the above clause, and agreed to sign it. As this was the sole ar-
gument made by the Respondent in its exceptions regarding the clause,
Member Devaney finds it unnecessary in this proceeding to reach the ap-
plication of the clause to other facilities of the Respondent.
4 We have modified the judge 's recommended Order by adding the re-
quirement that the Respondent preserve and , on request , produce records
necessary to the computation of backpay.
S See fn. 1.
Marguerite R. Greenfield , for the General Counsel.
Edward N. Schwartz- Esq. (Schwartz & Weilous), of Flor-
ham Park, New Jersey , for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge . Pursuant to
charges filed on June 9, 1988 , by Production Service and
Allied Workers Union, Local 143, Ind. (the Union), the
Acting Regional Director for Region 22 for the National
Labor Relations Board issued a complaint and notice of
hearing on August 26, 1988 . The complaint alleges that
Ebon Services, Inc. (Respondent) violated Section
8(a)(1) and (5) of the Act by, in substance, refusing to
execute a written contract agreed on with the Union.
The hearing with respect to the issues raised by the com-
plaint was heard before me in Newark , New Jersey, on
February 8, 1989. A brief has been received from Gener-
al Counsel and has been considered.
On the entire record and from my observation of the
witnesses and their demeanor on the witness stand, and
on substantive reliable evidence considered along with
the consistency and inherent probability of testimony, I
make the following
298 NLRB No. 25
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Respondent, a corporation, with an office and place of
business in Newark, New Jersey, has been engaged in
the business of furnishing housekeeping services and re-
lated services. During the past year Respondent has pro-
vided services valued in excess of $50,000 for other en-
terprises within the State of New Jersey, including Delta
Airlines, an enterprise which is directly engaged in inter-
state commerce.
It is admitted, and I find, that Respondent is and has
been at all times material an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
It is also admitted and I so find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. FACTS
Respondent performed cleaning services for various
airlines in the exclusive and public areas at terminal B at
Newark Airport, including Continental Airlines. During
November and December 1987, the relationship between
Respondent and Continental became strained.
Respondent claimed that Continental had not paid it
retroactive increases that had been agreed to, and Conti-
nental had made certain requests of Respondent, which
Respondent did not carry out. Both sides had threatened
on various occasions to cancel their agreement with each
other.
Finally, by mailgram dated November 10, 1987, Re-
spondent canceled its agreement to perform janitorial
services for Continental at terminal B, at Newark Air-
port, effective January 11, 1988, and demanded payment
of all outstanding moneys within 10 days.
Meanwhile, following a petition filed in November
1987, the Union was certified on December 29, 1987, as
the exclusive bargaining representative of all full-time
and regular part-time janitorial service employees em-
ployed by Respondent in the common and exclusive
areas of its terminal B Newark International Airport fa-
cility.
A negotiation session was held on December 31, 1987.
James Felton, Respondent's senior vice president, repre-
sented Respondent. Joseph Armetta and Dominic Parisi,
business representatives, were present on behalf of the
Union. Armetta had with him a list of items to be dis-
cussed, such as wage increases , vacations, medical bene-
fits, and an annuity.
Felton gave the union representatives a document enti-
tled, "Airport Benefit Package," representing the benefits
currently being provided by Respondent to its employ-
ees. The items include workdays, overtime, shift differen-
tial, nine holidays, sick leave, absence, hospitalization
and life insurance, uniforms, vacations, and termination
notice. The current hospitalization plan by Respondent
called for payments by Respondent of $69 per month for
its employees. Armetta, after ascertaining this informa-
tion, indicated that for that same amount of money, the
Union's plan could provide better benefits for the em-
ployees than Respondent's present plan. Felton agreed to
that proposal of the Union. After reviewing the remain-
der of the items in Respondent's benefits package, Ar-
metta indicated that these items would be agreeable to
the Union and would be incorporated into a proposed
contract.
The subject of wages was also discussed at the meet-
ing, with considerable differences between the recollec-
tions of the witnesses, as to what precisely was said
and/or agreed to about this subject. All parties agree
that the Union proposed a raise of 25 cents per hour, per
year, for each employee. The disagreements come as to
what else was said about the matter. Both Armetta and
Parisi essentially agree that the Union proposed that the
first raise was to be paid upon signing of the contract in
1988, and then on the next 2 succeeding years on the an-
niversary dates of the agreement. They both assert that
Felton readily agreed to the 25-cent-per-hour raise, with-
out any discussion or negotiation, without attaching any
conditions, and without any mention of any problems
Respondent was having with Continental Airlines.
Felton, on the other hand, testified that at the meeting
he explained to the Union his current situation, wherein
he was paying his employees $5 per hour to start, with a
raise to $5.29 per hour after 30 days.' However, he as-
serts that he further told them that the amount of reim-
bursement he was receiving from Continental Airlines,
attributable to wages, was only $4.17 per hour, but he
needed to pay the $5.29 per hour to keep good workers.
Felton additionally claims that he was still negotiating
with Continental for additional reimbursement at the
time of the bargaining session . Therefore, he testified
that he agreed to the Union's request for a 25-cent-an-
hour increase, only on condition that he receive the extra
money from Continental, and that he expressly so in-
formed the Union at that time. Although Felton had al-
ready sent Continental a notice of cancellation on De-
cember 11, Felton asserts that he was hoping,that this
action would prompt Continental to come back to him
and grant the extra money that he needed. However,
Continental did not do so, and, in fact, Felton admittedly
had no further contacts or communications with Conti-
nental subsequent to December 11.
Both Armetta and Parisi also testified to specific dis-
cussions about agreement by Felton on the Union's annu-
ity fund. They concur that Armetta proposed that Re-
spondent pay $1 per employee for each day worked in-
cluding sick days and holidays, into the Union's annuity
fund. Parisi and Armetta further agree that Felton had
no questions about this demand, and agreed to have an
annuity in the contract. Felton then said according to
Armetta and Parisi that he could live with the contract,
that the Union could "put anything else that you want in
the contract and I'll sign it."
Felton denies that there was any discussion of or
agreement on an annuity on December 31, and in fact
' Both Annetta and Pansi deny that Felton told them how much he
was paying his employees
EBON SERVICES 221
claims that he had not heard anything about an annuity
until the instant hearing. Felton further denied telling the
Union to put anything else they want in the contract.
At the close of the meeting, Armetta and Parisi testi-
fied, undenied by Felton, that another meeting was
scheduled for January 8, 1988 , at which time Respondent
would sign the contract that the Union prepared.
In early January 1988, Respondent posted a notice to
employees dated December 28, 1987. The notice stated
that effective January 11, 1988, Ebon will no longer be
the housekeeping contracted at terminal "B," and if the
"employees have questions or wish to seek further em-
ployment with this Company, please call to inquire about
positions available."
The meeting scheduled for January 8, 1988, was can-
celed due to a snowstorm, and was rescheduled to Janu-
ary 12. This meeting was canceled by Felton because of
his allegedly being out of town. A few days later, Ar-
metta learned that a large number of Respondent's em-
ployees had been laid off. Armetta filed an unfair labor
practice charge on January 21, 1988 concerning the
layoff. In late January, Armetta reached Felton on the
telephone. Armetta asked about the layoffs, and Felton
informed him that he had a problem with Continental
Airlines, and that he had to lay off 75 percent of his
staff. According to Armetta, Felton told Armetta that
Respondent still employed 25 employees. Armetta claims
that he responded that since Respondent was saving a lot
of money by only employing, 25 employees, the Union
would withdraw its charge if Respondent agreed to sign
a contract for the remaining 25 employees. Felton alleg-
edly agreed to this request, and Armetta offered to draw
up the agreement, consistent with the terms agreed to on
December 31.
Felton did not specifically deny this conversation with
Armetta, nor did he deny telling Armetta in January that
he would sign the contract pursuant to the terms agreed
to on December 31 for Respondent's remaining 25 em-
ployees. However, Felton did testify that he had either a
meeting or a phone call with Armetta or Tony Parisi
(the union's president) in either December or January,
during which he told the union officials that because Re-
spondent had not worked out its problems with Conti-
nental he could not give the Union the raises agreed to
on December, 31. Felton further claims that the union of-
ficials responded "OK."
By letter dated January 28, Felton sent a copy of Re-
spondent's notice to employees, which referred to a
union request for such document during a conversation
on January 27, 1988.
In February 1988, Armetta drew up the contract to be
presented to Respondent. On February 24, Armetta
brought the purported agreement to Felton and present-
ed it to him at Respondent's office. According to Ar-
metta, Felton read over the document, page by page, and
made no objections or corrections. Armetta further testi-
fied that Felton said that he agreed to sign the contract,
but he would have to show it to his lawyer first.
According to Armetta, Felton did mention at the time
his problems with Continental Airlines, but made no con-
nection between these problems and his ability to sign
the contract, or to afford the previously agreed to wage
increases.
The proposed contract that Armetta gave to Felton,
and that he allegedly agreed to sign, was an eight-page
document, with an effective date of January 8, 1988, and
a termination date of January 7, 1991. The document in-
corporated Respondent's benefits package as had been
agreed on, with certain additions. Thus, as to vacations,
the proposed agreement included Respondent's policy of
2 weeks paid vacation after 1 year of employment. How-
ever, it also included four other clauses with regard to
vacation, which had not been discussed on December 31
and did not appear in Respondent's package. These
clauses dealt with matters such as scheduling of vaca-
tions, effect of layoffs of employees on vacation rights,
and when vacation money should be paid. As for hospi-
talization, the proposed contract incorporated Respond-
ent's agreement to pay $69 per month for each employee
into the Union's fund. However, it also added a clause
which had not been discussed on December 31, that in
the event that during the life of the agreement, the
Union's fund receives increases from its insurance carri-
ers such increases shall then be passed on to the Employ-
er. Additionally, the Union's proposed contract con-
tained a number of other clauses, such as union shop, dis-
charge, checkoff, grievance procedure, seniority, work
stoppage, and a clause binding Respondent to the terms
of the agreement as to other locations that it has or may
have thereafter, which had not been discussed at the De-
cember 31 session.
Although Felton admitting that he met with union rep-
resentatives on February 24, had no recollection of what
went on at that meeting. Felton, however, did make a
general denial that he had ever read over the contract-or
agreed to sign it. Felton did recall that at "an earlier
time," he had told the Union ' that he would submit the
contract to his attorney, but he did not detail the specif-
ics of when and in what context he made this remark.
Felton did not sign the contract as presented to him by
the Union, nor did he contact the Union to tell it why he
was not going to do so. On March 1, the Union sent Re-
spondent another copy of the proposed agreement.
Thereafter, Armetta made numerous phone calls to
Felton, but was unable to contact him. Felton did not
return any of Armetta's calls.
On June 8, the Union -filed the instant charge and in
July, delivered another copy of the proposed contract to
the Respondent.
Meanwhile, according to Felton, he first saw a copy of
the Union's proposed contract in January, but does not
recall the circumstances of his receiving it. However, he
insists that even at that time he did not read the docu-
ment , but gave it to his "people," (subordinates): Scarlett
Bradley, vice president of operations, and Matthew
Thomas, controller. He asserts that he told Thomas and
Bradley that he had given Respondent's package to the
Union, and this contract had been given to him to sign.
He asked them to read it and discuss with him any prob-
lems they might find. Felton, recalled a discussion about
the matter, but not when the meeting took place . He' as-
serts that Bradley and Thomas presented some problems
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to him, and he suggested that they call Respondent's
lawyer to see what these items meant. Felton specifically
recalled that they' had a problem about the vacation
clause, and the time included in Respondent's package al-
legedly did not coincide with what was in the Union's
proposal. Felton also recalled that they discussed the
holiday and hospitalization clauses, but had no problems
with these clauses . Felton further testified that Bradley
and Thomas did not mention the annuity clause, or the
subject of wage increase or when wage increases would
be given. There is no evidence that during this period of
time Respondent sent the contract to its lawyer, as
Felton had allegedly agreed to do on February 24.
Bradley also testified on behalf of Respondent, and her
testimony differed significantly from Felton's in this area.
Bradley recalls receiving a copy of the proposed con-
tract in February or March from Felton, being told to
look over the agreement and discuss it with Thomas.
Bradley asserts that she knew that Felton had met with
the Union, but did not know what happened at the De-
cember meeting. Bradley recalls discussing the matter
with Thomas, and finally getting around to talking with
Felton about it in July, after the Union filed its charge.
According to Bradley the major thing that she men-
tioned to Felton was the annuity clause. She asserts that
she asked Felton about it, and he replied that he was not
aware of any agreement on an annuity. Bradley testified
further that she did discuss the subject of wage increases
and her concern about being able to afford a 25-cent-an-
hour increase, as well as the fact that the last increase
was scheduled to be given after the expiration date of
the contract. Finally, Bradley claims that she mentioned
the clause that bound the Company to locations other
than at terminal B. She did not testify as to Felton's re-
sponse to her on these items.2 In any event, it is clear
that Respondent did not contact the Union to express
any of these concerns about the proposed agreement that
had been submitted.
At some point after the instant charge was filed,
Edward Schwartz Respondent's labor attorney, became
involved in the matter. He arranged with Anthony
Parisi, the Union's president, to have a meeting on
August 8. Present were Anthony Parisi and Armetta for
the Union and Schwartz, Bradley, and Thomas for Re-
spondent.
While the Union continued to insist that Respondent
was obligated to sign the proposed contract that it had
allegedly agreed to, Schwartz responded that due to the
loss of Continental's business, Respondent could not
afford to pay the 25-cent wage increase called for in the
contract, and in fact could not afford to pay any wage
increases whatsoever.3 The parties also discussed some
other objections that Schwartz had to the contract, par-
ticularly the clause binding other of Respondent's loca-
2 Bradley did not corroborate Felton's testimony that he instructed
them to send certain portions of the agreement to their lawyer to see
what these items meant.
8 According to Armetta, this assertion by Schwartz was the first time
that Respondent had informed it that Respondent could not afford to pay
the wage increases agreed to because of problems with Continental Air-
lines.
tions to the agreement. The Union agreed to withdraw
that clause.
Schwartz then proposed to sign a contract without
that clause, without any contributions to the annuity or
to the welfare fund and with a reduction in wages of $1
per hour (testimony of Armetta), or a freeze on wages
(testimony of Schwartz).
The parties discussed the possibility of Respondent ob-
taining additional reimbursements from its other airline
clients, so that it could in the future afford an increase.
The Union proposed that an independent arbitrator be
appointed to determine whether future increases might
be warranted. The subject of how the arbitrator would
be able to verify Respondent's financial ability to pay
produced considerable discussion, and caused the session
to end without an agreement. No further meetings were
scheduled or held.
IV. CREDIBILITY RESOLUTIONS AND ANALYSIS
The resolution of this case hinges on the credibility
dispute between the Union's witnesses, Armetta and
Parisi, and Felton concerning the events of the meetings
on December 31, 1987, and February 24, 1988, as well as
some events in between. I am persuaded that the mutual-
ly corroborative, consistent, straightforward, and candid
testimony of the Union's witnesses should be credited.
On the other hand, Felton's answers were evasive, unre-
sponsive, inconsistent, and marked frequently by 'failures
to recall events that he would be expected to remember.
Moreover, his testimony was contradicted by the testi-
mony of Bradley, Respondent's witness and vice presi-
dent, as to their discussion about the contract submitted
by the Union. Indeed, in that connection, Felton testified
that the only item that Bradley "had a problem" with
about the contract was the vacation clause, which he
characterized as differing from Respondent's present ben-
efits as to vacation time allowed. However, not only did
Bradley contradict Felton as to whether this issue was
discussed, but in fact on examination of the proposed
contract and Respondent's package reveals that both
were identical with respect to the amount of vacation'
time to be given to employees.4
Accordingly for the above reasons , I credit the
Union's witnesses and conclude that on December 31
Felton tentatively agreed with the Union on the terms of
a contract, including a 25-cent-an-hour increase, each
year of a 3-year contract, in annuity, Respondent's bene-
fits package (except for hospitalization) plus "anything
else" the Union wished to put in. I also find that Felton
attached no conditions to this agreement, and made no
reference to any problems that he might be having with
Continental Airlines at the time. I note in this connection
that I find it improbable that the Union would have be-
lieved that it had reached agreement or pressed for the
execution of a contract had Felton informed it, as he
claimed, that Respondent could only agree to raise sala-
ries if Respondent were successful in negotiating with
Continental for an increase.
4 Thus, both documents provide for 2 weeks' vacation for each em-
ployee after 1 year of employment
EBON SERVICES 223
I further find, as testified to by Armetta, and not
denied by Felton, that on January 27, by phone, Felton
orally agreed to sign a contract as had been agreed to on
December 31 for the remaining 25 employees employed
by Respondent. Further, I do not credit Felton' s testimo-
ny that he informed any union officials in January, or at
any other time, that Respondent could not agree to raise
salaries because it had not worked out its problems with
Continental. In fact, I credit Armetta that the first time
that the Union was made aware of Respondent's position
in this regard was in August when its attorney made
such an assertion. Indeed, I find it doubtful that the
Union would set up a meeting and present a contract for
approval, containing a 25-cent-an-hour raise, had it been
informed as Felton claimed that no raise was possible be-
cause of the Continental situation.
I further credit Armetta's testimony that on February
24, 1988, he presented the proposed contract to Felton;
Felton read it over, page by page, agreed to sign the
document, and added that he would have to show it to
his lawyer first. I note particularly that although admit-
ting that he met with Armetta on February 24 Felton
had no recollection of anything that went on at that
meeting. I therefore give little weight to Felton's incredi-
ble denial, that he never read over the proposed contract,
not even when he gave it to "his people" to review. I
also note that Felton admitted telling the Union at some
point that he would show the contract to his lawyer,
which is consistent with the testimony of Armetta.
While,the record also discloses some differences in tes-
timony between Schwartz and Armetta as to what was
said at the August 1988 meeting about whether Respond-
ent proposed a wage cut or a wage freeze, and concern-
ing the issue of the selection of an arbitrator to decide
whether Respondent could afford a raise , I shall not re-
solve these matters, as I do not deem it necessary to
decide the instant case.
What is necessary to decide is whether the parties
reached a meeting of the minds on all material (substan-'
five) terms of a collective-bargaining agreement. Long-
shoremen ILA Local,3033 (Smith Stevedoring), 286 NLRB
798, 807 (1987). If so, Respondent has violated Section
8(a)(5) of the Act by refusing to execute an agreement
incorporating the terms agreed to by the parties. H. J.
Heinz Co. v., NLRB, 311 U.S. 514, 523-526 (1941).
In that connection, it is "clear that the Board is not
strictly bound by the technical rules of contract law
when it, decides whether,'in the circumstances, the em-
ployer and the union have arrived at an agreement
which must be 'reduced to writing and executed by the
parties." Penasauitos Gardens, Inc., 236 NLRB 994, 995
(1978); Kelly's Private Car Service, 289 NLRB 30, 44
(1988). Additionally, the expression "meeting of the
minds," does not require that both parties must have an
identical subjective understanding of the effect of the
material terms of the contract. Diplomat Envelope Corp.,
263 NLRB 525, 536 (1982), Longshoremen ILA Local
3033, supra at 807. Rather, the subjective understandings
or misunderstandings as to the meaning of terms which
have been agreed to are irrelevant, provided that the
terms are unambiguous judged by a reasonable standard.
Diplomat Envelope, supra; Vallejo Retail Trade Bureau,
243 NLRB 762, 767 (1979).
Finally, once an agreement is reached, each party is
obligated to assist in reducing the agreement to writing.
Kennebec Beverages Co., 248 NLRB 1298 (1980), Georgia
Kraft Co., 258 NLRB 908, 912, (1981), enfd. 696 F.2d 931
(11th Cir. 1983).
In applying these principles to the facts here, I'm con-
vinced, as contended by General Counsel that the parties
reached a complete meeting of the minds on all substan-
tive terms of a collective-bargaining on February 24,
1988, when Felton read over 'page by page the Union's
proposed contract and agreed to sign it. NLRB v. Mid-
valley Steel Fabricators, 621 F.2d 49, 52 (2d Cir. 1980),
enfg. 243 NLRB 516 (1979).
The evidence establishes that the parties met on De-
cember 31, 1987, agreed to the terms of a wage increase,
an annuity, Respondent's benefits package, the Union's
hospitalization plan, and "whatever else" the Union
wanted to put in. The parties then agreed that the Union
would prepare a written contract, and the Respondent
would sign it on January 8, 1988. The fact that Respond-
ent readily agreed easily to the terms, and that there was
little or no give-and-take bargaining, does not mandate
the conclusion that there was no agreement reached.
Tasman Sea, Inc., 247 NLRB 18, 22 (1980).
While the January 8 meeting was canceled, and Re-
spondent laid off most of its employees in the interim,
Felton orally agreed in a phone conversation with Ar-
metta on January 27 to sign the agreed-upon contract for
the remaining employees of Respondent. The meeting of
February 24 was set up for that purpose, at which time,
as noted, Felton read over the Union's proposed contract
and agreed to sign it after his attorney reviewed the doc-
ument. In these circumstances, it is presumed that the
contract was to be submitted to Respondent's attorney
for the purpose of checking language or form, and not
for the modification- or approval of substantative terms.
International Credit Service, 240 NLRB 715, 718 (1979);
NLRB v. Midvalley, supra, 621,F.2d at 52; see also Ken-
nebec, supra at 1300.
Subsequently, Respondent never submitted the con-
tract to its attorney, as Felton had promised, and never
got back to the Union to notify it of any discrepancies or
problems that Respondent may have had with the con-
tract as submitted.
Respondent vigorously argues that the parties did not
reach a full and final agreement, since certain items were
never discussed at any of the sessions. Thus, Respondent
points out that a, number of provisions, such as the, clause
binding other locations to the agreement, grievance pro-
cedure, checkoff, death in family, seniority, and other
clauses, were neither discussed at the meetings nor in-
cluded in Respondent's benefits package, which was ad-
mittedly agreed to be incorporated in the agreement. Re-
spondent argues that the Union's proposal enlarged upon
some of the items in Respondent's package, such as
adding sections to the vacation clause, which were not
included nor discussed at either meeting . Finally, Re-
spondent points to the differences in the effective dates
of the wage increases, noting particularly that the final
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wage increase was to be given on February 1, 1991, 3
weeks after the contract's expiration date of January 7,
1991. I find Respondent's arguments to be without merit.
Firstly, Respondent conveniently ignores the simple
fact that on February 24, 1988, Felton read over the pro-
posed contract, page by page, and agreed to all the terms
included and did not point out any of the discrepancies
that Respondent now relies on. See Midvalley, supra, 243
NLRB at 516.
The contract proposed by the Union, essentially con-
formed to the agreement reached on December 31, of
the wage increases, annuity, plus Respondent's benefits
package with the Union's hospitalization plan, and "any-
thing else" the Union wanted to include. It is true that
the proposed agreement included a wage increase to be
granted on February 1, 1991, which was past the expira-
tion date of contract, and which had not been discussed.
Indeed, the agreement reached on December 31 called
for three 25-cent-an-hour increases to be granted each
year of the contract, starting on the anniversary date of
the agreement. It is not clear from the record why the
proposed contract did not include a raise in 1988, but
called for the first raise to be given in 1989, with the
next two raises to be given on the next two anniversary
dates.
It may have been a typographical error or a conscious
decision by the Union to provide Respondent some relief
by postponing the first increase . However, the Union
submitted the contract on February 24 in that manner,
and General Counsel presumably contends that this is the
contract that must be signed, since this is the date that a
meeting of the minds occurred. Felton read over and
agreed to the contract as presented by the Union on Feb-
ruary 24, and cannot now refuse to execute the agree-
ment based on this alleged mistake.
The evidence is clear that the Respondent's refusal to
execute the contract did not hinge on dates of the wage
increases,5 or any of the other alleged discrepancies be-
tween what was discussed on December 31 and what
was included in the contract submitted by the Union.
Fashion Furniture Mfg., 279 NLRB 705, 706 (1986).
Princeton Holiday Inn, 282 NLRB 30, 34 (1986); Machin-
ists Local 701 (Avis Rent a Car), 280 NLRB 1312, 1315
(1986); Operating Engineers Local 525 (Clark Oil), 185
NLRB 609, 611 (1970).
As detailed above, Respondent did not assert any of
these discrepancies as a reason for not signing the con-
tract. When the parties finally met in August 1988, it did
not even dispute the Union's assertion that agreement
had previously been reached, but claimed merely that it
could not afford the wage increases because of the loss
of its Continental contract.
Moreover, it is well settled that part of the duty under
Section 8(d) of the Act to execute a written contract in-
corporating an agreement reached by the parties includes
the obligation to assist in reaching the agreement reached
reduced to writing. Kennebec, supra; Georgia Kraft, supra
258 NLRB at 912; Princeton Holiday Inn, supra at 35;
Longshoremen ILA Local 3033 (Smith Stevedoring), 286
NLRB at 807. Here, Felton agreed to execute the con-
tract that he had reviewed on February 24, but stated
that he wished to submit it to Respondent's attorney for
approval. However, Felton did not transmit the pro-
posed agreement to the attorney as promised, but instead
gave it to his subordinates for their review. Felton did
not receive their input until months later, and even then
did not contact the Union to inform it of the alleged
problems that had been discovered.6 Additionally,
Felton ignored the Union's phone calls and further at-
tempts to persuade Respondent to sign the contract. Fi-
nally, only after the instant charges were filed did Re-
spondent's attorney become involved, and a negotiation
session was held in August, nearly 6 months after the
date the contract was agreed on. In these circumstances,
I conclude that Respondent has not complied with its
obligation to assist in reducing the collective-bargaining
agreement to writing. Kennebec, supra; Princeton Holiday
Inn, supra; Georgia Kraft, supra; See also Tasman Sea,
Inc., supra at 22.
I further fmd that Respondent's entire course of bar-
gaining with the Union is filled with examples of failures
to comply with its obligation to bargain in good faith.
Thus, Felton's action in withholding from the Union at
the December 31 bargaining session the significant infor-
mation that Respondent had already canceled its contract
with Continental, and that 75 percent of the unit would
be eliminated, is a "most glaring" example of bad-faith
bargaining . Walter Pape, Inc., 205 NLRB 719, 720, 728
(1973). Respondent then proceeded, as described above,
to fail to submit the proposed and agreed-upon contract
to its attorney for review as he had promised, and there-
after avoided answering the Union's phone calls, or oth-
erwise responding to the Union's efforts to obtain execu-
tion of the agreement . This 'conduct is further evidence
of Respondent's bad faith.
In my view, Respondent's conduct throughout the ne-
gotiations is best revealed by Bradley's statement at the
August meeting, when she expressed surprise that the
Union was bothering with a unit that had been reduced
to six people. I believe that Felton initially agreed so
readily on December 31 to a contract, with the rather
unusual feature of permitting the Union to put in "any-
thing else" it wanted in such agreement, because he did
not anticipate that the Union would continue to pursue
bargaining when the unit became reduced by 75 percent.
However, when the Union not only continued to push
for execution of the contract for the remaining, employ-
ees, but filed charges about the layoffs, Felton was
forced to reevaluate his strategy. He then, on February
24, 1988, met with the Union, reviewed and agreed to
sign the contract, but attempted to stall the Union by' ex-
pressing his desire to have his lawyer look it over. His
failure to submit the proposed agreement to his lawyer,
plus his actions in avoiding the Union's subsequent at-
tempts to contact him, convinces me that Felton had
little or no intent to actually sign the contract. In my
5 Indeed, as noted, the contract proposed by the Union was more fa-
vorable to Respondent as to the dates of the increases than what was
agreed to in December.
6 I also note in this connection the substantially different testimony of
Felton and Bradley as to what problems in the Union's proposed contract
were discussed between them.
EBON SERVICES 225
view, he tentatively agreed to the terms on February 24
merely to get the Union "off his back," hoping that it
would abandon its efforts to continue representation of
his employees when the unit was reduced further. Indeed
the unit apparently did become further diminished to six
employees, and Bradley's remarks at the August meeting
expressing surprise that the Union was bothering with
such a small unit reinforces my conclusions. While I
have concluded that in all probability Felton had no
actual intent in his own mind to sign the agreement, this
is not determinative. What is significant is that he mani-
fested his intent to the Union to execute the contract,
made no reservations or conditions, and there was no
mutual mistake or misunderstanding about any of the
terms. Thus, as in Longshoremen ILA Local 3033, supra
at 808 "any mistake that was made was one of strategy,
or tactics, based upon facts known to both parties. A
strategy which misfires does not nullify a meeting of the
minds. I find there was a meeting of the minds in our
case."
While I have spent some time discussing the bad faith,
which I have concluded that Respondent has exhibited
throughout its dealings with the Union, such findings
are, of course, not essential in making any ultimate con-
clusion that a meeting of the minds has been established.
However, as the Board has noted, "although refusal to
execute an agreed-upon contract is more in the nature of
a per se violation in that proof of bad faith is not neces-
sarily required, we nonetheless observe that Respond-
ent's abovedescribed actions are demonstrative of the va-
cuity of its arguments that no agreement was reached."
Georgia Kraft, supra, 258 NLRB at 911. I make a similar
observation and conclusion here.
Accordingly, based on the foregoing analysis and au-
thorities, I conclude that Respondent and the Union
reached full agreement on the terms of a collective-bar-
gaining agreement on February 24, 1988, and that Re-
spondent violated Section 8(a)(1) and (5) of the Act by
thereafter failing and refusing to execute the agreed-upon
contract.
CONCLUSIONS OF LAW
1. The Respondent, Ebon Services, Inc., is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Production, Service and Allied Workers Union,
Local 143 Ind. is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of -Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All full-time and regular part-time janitorial service
employees employed by the Respondent in the
common and exclusive areas of its terminal "B,"
Newark International Airport, Newark, New Jersey
facility, excluding temporary employees, office cler-
ical employees, managerial employees, professional
employees, guards and supervisors as defined in the
Act.
4. At all times since December 29, 1987, the Union has
been the exclusive representative of all the employees in
the unit described above for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to execute and sign the collective-bar-
gaining agreement agreed on between it and the Union
on February 24, 1988, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, I shall recommend that Respondent cease
and desist therefrom and to take appropriate remedial
action to effectuate the policies of the Act. Respondent
shall be ordered to execute the collective-bargaining
agreement agreed on with the Union and to comply with
its terms retroactively. In addition, I shall recommend
that Respondent shall make whole any employees in the
bargaining unit and the Union for losses, if any, which
they may have suffered by the Respondent's refusal to
sign the agreement, in the manner set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970) with interest there-
on as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).'t
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Ebon Services, Inc., Newark, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Production, Service and
Allied Workers Union, Local 143 Ind., as the exclusive
bargaining representative of all employees in the follow-
ing unit concerning hours, and other terms and condi-
tions of employment.
All full-time and regular part-time janitorial service
employees employed by the Respondent in the
common and exclusive areas of its terminal of "B,"
7 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld payments to the Union's funds . I shall recommend leaving to
the compliance stage the question of whether the Respondent must pay
any additional amounts into the benefit fund in order to satisfy the "make
whole-remedy ." These additional amounts may be determined, depending
on the circumstances of each case, by reference to provisions in the doc-
uments governing the funds at issue and, when there are no governing
provisions , to evidence of any loss directly attributable to the unlawful
withholding action , which might include the loss of return on investment
of the portion of funds withheld, additional administrative costs, etc., but
not collateral losses. Merryweather Optical Co., 240 NLRB 1213 (1979).
8If 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 pur-
poses.
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newark International Airport, Newark, New Jersey
facility, excluding temporary employees, office cler-
ical employees , managerial employees, professional
employees, guards and supervisors as defined in the
Act.
(b) Refusing to execute the collective-bargaining
agreement agreed on with the Union on February 24,
1988, and refusing to give effect to the terms and condi-
tions of that agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the ,policies of the Act.
(a) On request of the Union, bargain collectively with
the Union in good faith regarding rates of pay, hours of
employment, and other terms and conditions of employ-
ment for all employees in the appropriate unit.
(b) Execute forthwith the collective-bargaining agree-
ment with the Union that was agreed on on February 24,
1988, and which Respondent refused to sign at that time.
(c) Give retroactive effect to the terms and conditions
of employment of the contract, and make whole its em-
ployees and the Union for any losses they may have suf-
fered by reason of Respondent's failure to execute the
agreement in the manner set forth in this decision.
(d) Post at its principal office and place of business in
Newark, New Jersey, copies of the attached notice
marked "Appendix."9 Copies of the notice, on forms
provided by the Regional Director for Region 22, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt 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 materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with respect to wages,
hours, and other terms and conditions of employment
with Production, Service and Allied Workers Union,
Local 143 Ind., as the exclusive bargaining representative
of all employees in the following described unit:
All full-time and regular part-time janitorial service
employees employed by us in the common and ex-
clusive areas of our terminal "B," Newark Interna-
tional Airport, Newark, New Jersey facility, exclud-
ing temporary employees, office clerical employees,
managerial employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to execute the collective-bargain-
ing agreement that we agreed on with the Union on Feb-
ruary 24, 1988.
WE WILL NOT refuse to give effect to the terms and
conditions of that agreement.
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, on request, bargain collectively with the
Union in good faith regarding rates of pay, hours of em-
ployment, and other terms and conditions of employment
for all employees in the appropriate unit.
WE WILL execute forthwith the collective-bargaining
agreement with the Union which was agreed upon on
February 24, 1988, and which we refused to sign at that
time.
WE WILL give retroactive effect to the terms and con-
ditions of employment 'of the contract, and make whole
our employees and the Union for any losses they may
have suffered by reason of our failure to execute the
agreement, with interest.
EBON SERVICES, INC.