Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO

National Labor Relations Board - Administrative Judge Opinions

Apr 28, 2015

29-CB-125701 (N.L.R.B. Apr. 28, 2015)

JD(NY)–19–15
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
LOCAL UNION NO. 3, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO
and 29-CB-125701
TIME WARNER CABLE NEW YORK CITY LLC
Genaira Tyce, Esq (Region 29) and Moor I.
Alam, Esq (Region 29) Brooklyn, NY
for the General Counsel.
Daniel Silverman, Esq. (Daniel Silverman, LLP),
Brooklyn, NY for the Respondent.
Robert T. McGovern, Esq. (Archer, Byington,
Glennon & Levine, LLP) Melville, NY
for the Charging Party.
DECISION
Steven Fish, Administrative Law Judge. Pursuant to charges filed on March 31,
2014, by Time Warner Cable New York City, LLC (Charging Party or TWC) the Director
for Region 29 issued a complaint and Notice of Hearing, alleging that Local Union No.
3, International Brotherhood of Electrical Workers, AFL-CIO (Respondent) violated
Section 8(b) (3) of the Act by refusing to execute a collective bargaining agreement
agreed upon by the parties.
The trial with respect to the allegations in the complaint was held before me on
July 29, 2014 and October 6, 2014 in Brooklyn, New York.
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2
Briefs have been filed by the General Counsel, Respondent and by Charging
Party, and have been carefully considered. Based upon the entire record, including my
observation of the demeanor of the witnesses I issue the following:1

1On October 14, 2014 Burke Reporting Service notified the parties and ALJ’s Division, that portions of
witness Derek Jordan’s testimony on October 1, 2014 was not recorded and not transcribed in the
transcript. Subsequently the parties have entered into a stipulation relating to the portions Jordan’s
testimony that was not transcribed. This stipulation is received into the record as (ALJ’s Exh. 1)
Additionally the Charging Party filed a motion to correct the transcript. No objection has been filed to
this motion. I hereby grant the motion, and the transcript is hereby corrected as follows:
From To
Page line
1 - 10 4 “Moor” “Noor”
2- 20 22-23 “a new file” “for review
3- 22 6-8
“I have an assistant chief counsel, associate
vice president, Greg Drake (ph) who reports
to me as senior counsel, Jamal Dokins (ph)
and another senior counsel, Heather Ryan.”
“I have an Assistant Chief
counsel and Vice President,
Greg Drake, who reports to me.
A Senior Counsel, Jamal Dawkins
who reports to me and a Senior
Counsel Heather Ryan who reports
to me.”
4- 29 6 “IB” ‘’RD’
5- 30 10 “2103” “2013”
6- 76 22 ‘Ride” “Rider”
7- 87 24 “Quits” “QUICS”
8- 88 2 “CUITS” “QUICS”
9 98 3 “2013” “2014”
10 108 1 “successor” “predecessor”
11-112 9 “SEPE” “SCTE”
12-113 2 {same}
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FINDINGS OF FACT
I. Jurisdiction and Labor Organization
Time Warner Cable is a domestic limited liability company with its corporate 5
office located at 60 Columbus Circle, New York, NY, and places of business located in
Bergen County, New Jersey (the Bergen facility), Southern Manhattan, New York (the
Southern Manhattan facility), Brooklyn, New York (the Brooklyn facility), Queens, New
York (the Queens facility), and Staten Island, New York (the Staten Island facility)
collectively as the Tri-State facilities (Charging Party facilities), where it is engaged in 10
providing cable television, telephone, and high speed internet services.
During the preceding 12 months, the Charging Party, received revenue in excess
of $100,000 and purchased and received at each of the Charging Party’s facilities
goods, supplies and utilities valued in excess of $5,000 directly from suppliers outside 15
the State of New York.
It is admitted and I so find, that Charging Party has been an employer engaged
in commerce within the meaning of Section 2(2) and (6) and (7) of the Act.
20
It is also admitted and I so find that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. Collective Bargaining History
25
Respondent has represented the employees at its TWC’s Tri-State facilities for a
number of years, and have been parties to a series of collective bargaining agreements.
The most recent collective bargaining agreements between TWC and the Union,
consisted of separate different bargaining agreements for each facility, which consisted
of a Master Agreement and a Rider which set forth some different terms and conditions 30
of employment as it related to specific locations.2
All six of these collective bargaining agreements were effective from April 1, 2009
to March 31, 2013.
35

13-122 20 and 25 {same}
14-129 22 {same}
15-130 10 {same}
16-151 15 “Employer” “union”
17-151 16 “Hines” “Heinz”
2 The six locations covered were Southern Manhattan, Northern Manhattan, Brooklyn, Queens, Staten
Island in New York State and Bergen County, New Jersey, located in New Jersey.
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On January 3, 2013, a bargaining unit employee at TWC’s Bergen facility filed a
decertification petition with Region 22 of the Board, in Case No. 22-RD-95758, seeking
to decertify Respondent as the collective bargaining representative of the Bergen
employees employed at TWC.
5
Thereafter a hearing was conducted at Region 22 with respect to this petition.
TWC agreed at the hearing that the petition should proceed and be processed and an
election ordered in a unit confined to TWC’s Bergen employees. Respondent took the
position at the hearing that the most appropriate unit in the decertification context
should be a multi-location unit consisting of TWC’s six facilities.10
The Director on February 13, 2014 issued a Decision agreeing with
Respondent’s position and finding that a multi-location unit of TWC’s facilities most
appropriate, and dismissed the petition. TWC did not seek review of the Director’s
Decision. Subsequently Respondent and TWC agreed that the Bergen location and all 15
the other locations would be treated as one single bargaining unit.
The Director’s Decision reflected that TWC had voluntarily agreed to recognize
a unit of technicians at its Bergen facility. The recognition agreement signed in 2004,
specified that the existing CBA’s for TWC’s New York City Division, would not apply to 20
the Bergen facility, save for the party’s collective bargaining grievance procedure and
no strike clause, and that the parties would begin negotiations for a new contract in
October of 2005. A January 2006 memorandum of agreement between TWC and
Respondent resulted in the adoption of contract language nearly identical to the
collective bargaining agreements that Respondent and TWC had reached in 2005. 25
“The terms of Agreement” clause in the memorandum stated “January 2006 -March 31,
2009,” which was timed to expire on the same date the CBAs were negotiated between
Respondent and TWC covering the New York City Divisions expired. During the term of
the Agreement the employees at Bergen were subjected to the terms and conditions of
employment equal to those set forth in the collective bargaining agreement entered into 30
between TWC and Respondent as of March 1, 2005, except as set forth in the MOA.
The items agreed in the MOA included preservation of more generous vacations,
personal days, floating holidays, and sick time accrual for Bergen employees, different
annual wage increases, commencement of TWC contributions to an industry
educational and cultural fund, joint industry board and dental plan, delayed employer 35
payment of the employees’ share of FICA, amendments for applying course work
completion towards journeymen status, exclusive of local origination and security
employees from the bargaining unit; addition of certain shift schedules, and definition of
stand by procedures.
40
The Director’s Decision also reflected that in 2004 bargaining commenced on
new contracts for all New York City Division and Bergen. The same negotiator for
Respondent and TWC bargained for these successor contracts at the same time.
Respondent’s bargaining committee consisted of representatives from Bergen, and the
York City divisions of TWC; and the same representatives of TWC bargained on behalf 45
of all its TWC’s divisions.
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5
The bargaining yielded a MOA titled, “Time Warner Cable of New York City,”
consisting of the six locations and signed by TWC, and the Respondent. The MOA was
signed by TWC’s executive vice president on behalf of each division. There was one
space for Respondent. The MOA reads, “The parties indicated above do hereby agree
that the changes which are summarized below were agreed upon relative to the 5
Collective Bargaining Agreement . . . which will expire on March 31, 20013 and that the
full text of the applicable changes will be incorporated in a new Collective Bargaining
Agreement for each Division which shall become effective upon ratification by the Union
membership on April 4 2013.” The Director’s Decision further reflects that the first 6
pages of the MOA contain terms applicable to all divisions, and on pages 7 and 8, the 10
parties addressed modifications for the Bergen rider. Employees of TWC then ratified
the contracts in a single vote covering all 6 divisions. There was no separate ratification
vote held on any of the localized terms and conditions of work contained in the location
specific riders.
15
Subsequently, the parties executed six separate agreements, with each
agreement containing a “Master Agreement,” applicable to all six locations with
essentially identical terms and a rider delineating terms and conditions applicable only
to that specific facility.
20
The Decision reflected some examples of the riders and their different terms.
Thus both the Bergen and Staten Island riders contained more generous vacation
benefits than the master contract and the other divisions’ riders; Southern Manhattan ‘s
rider allowed for different dispatch provisions; Staten Island’s rider contains provisions
for the hiring of temporary (summer) help. Bergen’s rider conditions differing provisions 25
on sick leave, shifts and journeymen’s pay. Additionally, each division’s rider addressed
standby procedures and standby wage rates.
The Decision also detailed evidence concerning community of interest factors,
such as common skills, transfers and qualifications among all locations and honoring 30
seniority when employees are transferred; and that some supervisors share oversight
over multiple divisions including Bergen.
However, the Director concluded that these communities of interest factors are
not determinative in appropriate unit analysis in decertification settings, and that the35
parties bargaining history, as detailed above, of multi location bargaining, controlled and
led to his Decision that the parties had “effectively folded the Employer’s Bergen
division into a multi-facility unit with the employer’s New York City division.” Thus the
Director found in the decertification context, that a multi-location unit consisting of the
six locations of TWC, including Bergen was the appropriate unit for purposes of the 40
petition. Therefore, the Director3 concluded that the multi-location unit and not the
petitioned for Bergen location unit, was the unit in existence at the time the petition was
filed. Therefore he dismissed the petition.

3 As noted above, TWC did not request review of this decision of the Director.
JD(NY)–19–15
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III. Negotiations For A Successor Agreement
The parties began negotiations for a successor collective bargaining agreement on
February 26, 2013, and continued to bargain over the course of 12 sessions culminating on
March 28, 2013. During these sessions, the negotiating team was led by Kevin Smith, TWC’s 5
Chief Labor Counsel and Michael Haught, TWC’s V.P. of Human Resources for New York City
and Northeast, and Connie Ciliberti, TWC’s V.P. of Human Resources. Respondent’s
negotiating team was headed by Assistant Business Manager and lead negotiator Lance Van
Arsdale and included Business Agent Derick Jordan, as well a committee of employees from
the various locations of TWC.10
Smith stated at the first TWC session that TWC was not seeking review of the Director’s
decision on the appropriate unit, and that these negotiations would be negotiated as one
contract with common conditions of employment for all the employees in the unit, at all
locations. Both Van Arsdale and Jordan agreed with Smith’s comments that the parties would 15
be negotiating for one bargaining unit.
On February 26, Respondent submitted its written contract proposals for a contract
covering all the locations of TMC. The proposal was as follows:
20
February 26, 2013
THE FOLLOWING ARE CONTRACT PROPOSALS TO BE INCORPORATED INTO
THE AGREEMENT BETWEEN LOCAL UNION NO. 3, IBEW AND TIME WARNER
CABLE NEW YORK CITY LLC.25
1. Three year agreement.
2. 5% increase in wages each year of the agreement.
3. Increase sick days by 3 days.
4. Add 1 week vacation for 15 years or more of employment30
5. Increase amount allowed for accumulation of personal days.
Unused personal days shall be accumulated for 6 years
(total of 18 days).
6. Journey persons and above certified as passing the network
plus certification course shall receive an additional $1.00 per35
hour. Journey persons and above certified as passing the CISCO
certification course shall receive an additional $1.0 per hour.
7. The day after Thanksgiving shall be a holiday.
8. Double up technicians working in high risk crime areas.
9. Section 7 B 1; change date to March 31, 201340
Section 7 B 2; change date to April 1, 2013
Section 28 E; change date to March 31, 2013
Section 28 F; change date to April 1, 2013
10 Increase annuity by $4.00 per day.
11. Bergen county employees in the bargaining unit shall’45
have the same shifts, shift differential, stand by pay,
weekend overtime pay and night differential as the rest
JD(NY)–19–15
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of the bargaining unit.
12. Increase night differential by 6%.
13. Add 1 foreman and 2 crew chiefs in Bergen County.
14. Add Veterans Day as a regular holiday.
15. Wages / starting salaries5
Eliminate level 4
RS 1 $11.00 per hour
RS 2 $12.00 per hour
RS 3 $14.00 per hour
RS 4 $18.00 per hour10
Local Union No. 3, IBEW retains the right to add to, delete from, or modify these
proposals.
TWC submitted its proposals for a new agreement on February 28, 2013. The 15
cover page lists the sections that TWC sought to be deleted and changed from the
prior agreements with Respondent.
The document reads as follows:
20
Company Proposals – TWC/LOCAL 3
February 28, 2013
1. Section 3- Term of Agreement- 5 years·25
2. Section 7 - Subcontracting-no subcontracting if it leads to layoff of bargaining
unit personnel
3. Section 8 - Work by bargaining unit personnel- no work if It leads to layoff of
bargaining unit personnel
4. Section 9 - Telephony-delete - captured In Section 6-Type of Work30
5. Section 10-Work Week -Flexibility needed.
6. Section 11-Overtime - Eliminate premium for Sat. & Sun. Work
7. Section 12- Holidays -Eliminate Birthday. Employees must provide 30 day
notice to take floating holidays.
8. Jib, annuity, dental- no change35
9. Cultural Fund, FICA- eliminate
10. Section 26- Education - Change out NCTI for SCTE.
11. Section 32- Payroll- bi-weekly, same as non-represented personnel
12. Section 36- Wages, Wage Rates, Rate Increases, and Premiums- See attached
career progression. 1% wage increases annually for Tech 5, Forman and 40
General Forman
13. Section 37- Rights of Journeyman-incorporate A & B into Section 36
14. Section 38 - Work Performed by Employees Below Level 5 delete
15. Section 40 – Payroll Savings Plan - delete
16. Section X – Scope of Bargaining - add45
JD(NY)–19–15
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TWC also included an entirely new proposal which had not been included in any of the
same agreements entitled “Scope of Bargaining.” It reads:
ARTICLE __
5
SCOPE OF BARGAINING
The Employer and the Union acknowledge that during the negotiations
which resulted in this Agreement, each party had and exercised the
unlimited right and opportunity to make demands and proposals with10
respect to any and all lawful and proper subjects of collective bargaining.
This Agreement fully and completely incorporates all such understandings
and agreements between the parties and supersedes all prior agreements,
understandings and past practices, oral or written, express or implied.
Accordingly, this Agreement alone shall govern the entire relationship15
between the parties and shall be the sole source of any and all rights
which may be asserted in arbitration hereunder or otherwise. No past
practices existing prior to the ratification of this Agreement shall have any
precedential effect.
20
In the event the parties mutually agree to modify, change or supplement
this Agreement during its terms, such modifications, changes and/or
alternations shall be binding only if reduced to writing and duly executed
by authorized officers, representatives or agents of the parties hereto.
25
The parties bargained over the course of the next month, until the parties reached
agreement on March 28, 2013 on the terms of a new successor contract. This agreement was
memorialized in an MOA, signed and dated March 28, 2013 reading as follows:
JD(NY)–19-15
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15
The above findings concerning the negotiating sessions in February and March detailed
above, are not in dispute, and are based on undisputed testimony and documents.
There is a dispute among the witnesses, concerning two issues, as to what was or wasn’t
said at the negotiating sessions. Smith, Haught and Ciliberti testified that during these sessions, 5
there was no discussion about inclusion of the Riders from the prior agreements in the successor
contract.
Jordan, on the other hand testified that Respondent’s lead negotiator Van Arsdale stated at
the beginning of the negotiations that Respondent wanted the Riders to be included in the 10
successors contract. Jordan did not recall whether Smith or anyone from TWC made any
response to Van Arsdale’s statement concerning the inclusion of the Riders.
I do not credit Jordan’s testimony in this regard. Rather I credit the mutually corroborative
and consistent testimony of Smith, Haught and Ciliberti that there was no discussion or mention 15
by anyone about the inclusion of Riders during the parties negotiations. I also note that Jordan’s
bargaining notes make no mention that Van Arsdale or anyone from the Union made such a
statement, nor do they reflect any mention of discussion of the subject of the Riders. Similarly
Smith’s bargaining notes do not reflect discussion of the Riders by anyone. Furthermore, Van
Arsdale who according to Jordan made the comment concerning the Respondent’s desire to 20
include the Riders, did not testify. Under these circumstances, it is appropriate to draw an adverse
inference from the failure of Van Arsdale to corroborate Jordan’s version of what Van Arsdale
stated during the negotiations. International Automated Machines, 285 NLRB 1122, 1123
(1987). Hialeah Hospital, 343 NLRB 371, 398 fn. 20, 402 (2004).
25
The Riders from TWC’s 2009-2013 agreements covered the following issues:
TWC Queens–Standby Procedures.
TWC Brooklyn–Standby Procedures.30
TWC Staten Island–Vacation; Temporary Employees, Work Performed by
Classification; and Standby Procedures.
TWC Bergen–Vacation; Bargaining Unit Work; Sick Days; Work 35
Schedules; Standby Procedures; and Journeyman and Other Designations.
TWC Northern Manhattan–Amendment to Compensation §11(a)(2) to allow
for double pay for employees who work outside shift hours on Saturday and
Sunday; Standby Procedures.40
TWC Southern Manhattan–Amended §6(a) removing work regarding
service and maintenance relative to local origination and related
programming from the ees’ jurisdiction; Dispatch Department Function;
Standby Procedures.45
JD(NY)–19–15
16
The other area of disagreement between the witnesses concerns the issue of whether there
was any discussion of the electrical engineering provision in the Master Agreements. In that
regard, all of the six “Master Agreements” contained the identical provisions. (Section 36(A) Cir)
in each of the other agreements.
5
“[a]ny existing employee who completes a Bachelor of Electrical
Engineering degree at an accredited institution will not be required to take
Digital Installer, Installer Technician, Service Technician and System
Service Technician Course and will immediately receive a wage increase of 10
$2.50 per hour in lieu of the applicable increases for such “Courses.”
As noted this clause appeared in all the prior Master Agreements, not in the Riders. The
clause is Section 36(A)(iv). Section 36 is entitled Wages, Wage Rates, Rate Increases and
Premiums. Section A(i) lists minimum straight rates for existing employees.15
Sections (ii) (iii) and (iv) of that Section reads as follows:
(ii) Any Existing Employee below Journeyman who becomes A+ certified will
move to the RS 4 salary or, if such employee is at that time earning $16.60 or more per hour, 20
he/she will move to a salary equal to his current hourly wage plus an additional $1.00 per hour.
Additionally, any Existing Employee below RS 4 who is certified as passing the NCTI courses on
Digital Installer and Installer Technician or such other comparable courses as may be required by
the Company, in consultation with the Union (the “Digital Installer” and “Installer Technician”
courses), shall receive an additional $0.50 per hour. Any Existing Employee below RS 4 who has 25
been certified as passing the Digital Installer and Installer Technician courses and who is then
certified as passing.
(iii) Any Existing Journeyman (Employee who was a Journeyman as of
March 31, 2001) who is certified as passing the NCTI course on Fiber Optic 30
Technician or Advanced Technician or such other comparable courses as may be
required by the Company, in consultation with the Union (the “Fiber Optic
Technician” and “Advanced Technician” Courses), will receive an additional $0.50
per hour for the first course which they are certified as passing and an additional
$1.00 per hour for the second course which they are certified as passing. If, after 35
being certified as passing the Fiber Optic and Advanced Technician Courses, such
Existing Journeyman becomes A+ certified, he or she will receive an additional
$0.50 per hour. The hourly increases for the Fiber Optic Technician and Advanced
Technician Courses and the A+ certification will remain with such Journeyman.
40
(iv) Any Existing Employee who completes a Bachelor of Electrical
Engineering degree at an accredited institution will not be required to take the
Digital Installer, Installer Technician, Service Technician and System Technician
Course and will immediately receive a wage increase of $2.50 per hour in lieu of
the applicable increases for such Courses.45
JD(NY)–19–15
17
According to Jordan, Section 36(A)(iv), (the electrical engineering increase) was not
discussed during negotiations, but that the Union assumed that it would be included in the
successor agreement, since it had been included in all the prior agreements with TWC, covering
each of the facilities and that this clause was in the main agreements and not in the Riders.
5
However Smith testified that the electrical engineering increase clause (in lieu of taking
courses) was discussed during negotiations and that Jordan on behalf of Respondent raised the
issue. Both Smith and Jordan’s bargaining notes support Smith’s testimony that Respondent did
raise the issue during negotiations. Smith asserts and Jordan agrees that the parties spent a
considerable amount of time in negotiations discussing training issues and TWC’s proposals to 10
transition training vendor NCTI to training vendor SCTE. These discussions about career
progression and alternative career progression were previously included in Sections 36(A)(ii), (iii)
and (iv) as reflected above.
During these discussions, Smith testified that Respondent through Jordan proposed that 15
alternative career progression for employees with an electrical engineering degree (in the previous
agreements) be included in the new agreement. Smith replied on behalf of TWC that TWC did not
want to discourage an electrical engineering degree, but that such a degree was not a substitute for
training in cable television, as reflected in TWC’s training proposals, and transfer from NCTI to
SCTE training to an alternative progression. Thus TWC stated that it would not agree to the 20
electrical engineering provisions that had been included in the prior agreements. I credit Smith’s
testimony in this regard, since it is supported by the bargaining notes of both Smith and Jordan.
Smith did not testify that Respondent explicitly agreed during negotiations that this
provision would not be included in any new agreement. However, Smith testified that in his view, 25
Respondent by agreeing to the MOA, without the inclusion of this alternative form of progression
as a substitute for the training, would have been reflected in the prior agreement, Respondent
implicitly agreed with TWC’s view that this clause was not agreed upon and not part of the
contract to be executed.
30
A further area of conflict in the testimony, involves Jordan’s testimony that Respondent did
bring up during the subject of the Bergen Rider during negotiations, and had requested that TWC
bring up the employees at Bergen to the same level as employees at other facilities with respect to
standby pay, which were part of the Riders to these agreements. According to Jordan TWC agreed
to that proposal of Respondent. Smith testified that he didn’t recall any discussions about Bergen 35
standby pay during negotiations. However, Jordan’s bargaining notes of 3/26/13, reflects the
following “Equalization of Bergen, shift differentiation standby pay, weekend, overtime,
vacation.” A check mark is included next to these comments. I conclude that these notes support
Jordan’s testimony that TWC did agree during negotiations to equalize the various portions of the
Bergen sites with the Rider in the other agreements. I also note that Smith did not unequivocally 40
deny that the parties had discussed or agreed to the Bergen Rider Equalization as Jordan testified.
Additionally while Haught and Ciliberti both testified that there were no discussions about
including Riders to a successor collective bargaining agreement, neither Haught nor Ciliberti
denied or disputed Jordan’s testimony that the Union did bring up at negotiations, that Respondent 45
wanted equalization of the employees at Bergen with employees at other locations concerning
JD(NY)–19–15
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various issues, such as standby pay. Notably, standby pay was not mentioned in the Master
Agreements, and only appeared in the prior master agreement.
Finally, Jordan’s testimony is also supported by Respondent’s written proposals submitted
on 2/26/13 which stated in Section 71: “Bergen employees in the bargaining unit shall have the 5
same shifts, shift differential, standby pay, weekend, overtime pay and night differential as the rest
of the bargaining unit.”
IV. Ratification of Agreement
10
After the parties executed the MOA, as reflected above, on March 28, 2013, Respondent
conducted a ratification vote sometime in April of 2013. The vote was conducted amongst
members of the employees at all locations in one vote. Respondent’s officials read off the terms of
the MOA, with no mention of any Riders from the prior agreements that had been in effect. The
agreement was ratified by the employees.15
V. TWC Sends Draft Successor Agreement To Respondent For Execution
TWC implemented all the terms reflected in the MOA, as of April 1, 2013. This included
increases in wages and increases in payments to the Union’s annuity fund.20
Subsequent to the Respondent’s ratification of the parties’ agreement, on May 13, 2013
Jordan sent an email to Smith requesting a copy of a draft successor agreement for the Union’s
review.
25
On May 14, 2013 Smith provided TWC’s first draft successor agreement to Jordan.
Subsequently; Jordan asked Smith for a “redline” version of the successor agreement. Smith sent
that document to the Respondent as well. Both of the drafts submitted contained no references to
any of the Riders from the prior agreements, nor did they include the provision concerning the
electrical engineering degree, and increases for that degree, which had been included in all of the 30
prior Master Agreements.
That section was not included in the Draft Agreement, submitted by TWC, because
according to Smith, Respondent by signing the MOA, without any mention of that provision, had
agreed to the eliminations of that provision from the new agreement. Smith noted that Respondent 35
had raised the issue during negotiations, that it wanted to include the electrical engineering bonus
in the new agreement, but that TWC had rejected that request and indicated that the electrical
engineering degree is not a substitute for the training that is required for the alternative progression
increases that the parties bargained about and had reached agreement on.
40
The draft agreement that TWC submitted to Respondent incorporated a large number of
provisions identical to the prior agreements executed between TWC and Respondent for each
location. Smith admitted that none of these provisions were discussed during the current
negotiations. These provisions include Section 1 (Jurisdiction), Section 4 (Union Security),
Section 5 (Dues Deduction), Section 13 (Vacations), Section 14 (Personal leave, death, family and 45
sick days), Section 15 (Uniforms), Section 16 (Jury Duty), Section 19 (401K), Section 23
(Discharge and Suspension), Section 24 (Grievance and Arbitration), Section 25 (Sanitary
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19
Facilities), Section 27 (Travel Time), Section 28 (Layoffs), Section 29 (Severance Pay), Section 30
(Shop Steward), Section 31 (Cessation stoppage of Work), Section 33 (Probationary Period),
Section 35 (Workers Compensation), Section 39 (Favored Nations Clause), Sections 41 (Driver’s
License), Section 42 (Discrimination Prohibited) Section 43 (Franchise Agreement) Section 45
(Posting Jobs), Section 46 (Assignability) Section 47 (Drug Testing), Section 48C (Termination), 5
Section 49 (Savings Clause).
Section 2 of the prior agreements was entitled Recognition. These Agreements all
contained identical language stating that the Union is the representative for all employees of the
company covered by this agreement in the bargaining unit as hereinafter described and defined. 10
The bargaining unit was not described any more specifically in the agreements, except that the
preamble to each prior agreement reflected that the agreement was between the Union and TWC
on behalf of its individual division, i.e. Bergen, Staten Island, Brooklyn, Queens, etc.
Consequently, the Preamble Clause in the proposed agreement reflected that the contract15
was between TWC on behalf of its six locations and the Union, and the recognition clause
reflected that the Respondent shall be the exclusive bargaining agent for all employees of TWC at
the six locations covered by the Agreement.
The proposed agreement by TWC also included a number of provisions that were discussed20
during the negotiations, and proposals were made by one side or the other for changes, but no
agreements were reached on the changes or modifications proposed. Thus TWC incorporated in
its proposed agreement, the provisions that had been included in the prior agreements, but that the
parties had not agreed to change or modify. These provisions included Section 8 (Work by non
bargaining unit personnel), Section 20 (Education and Cultural Trust Funds), Section 32 (Pay Roll 25
Week), and Section 34 (Management Rights).
Section 44 of the prior agreements was entitled Bargaining Unit Assignments. These
agreements provided that employees hired after March 1, 2005 will be assigned to one of the
bargaining units. TWC may in it’s discretion upon two week’s notice assign any such employee to30
work in another bargaining unit for a minimum of two weeks. The parties further agreed that for
employees hired prior to March 1, 2005, TWC retained the right to temporarily transfer in
consultation with the Union, such employees to other bargaining units, in the event of an
emergency.
35
Since the parties had during the negotiations agreed on one bargaining unit, TWC’s
proposed agreement reflected this agreement, as the Union’s proposal, entitled Bargaining Unit
Assignments. This states that employees hired prior to the March 1, 2005 will be assigned to one
of the locations in Section 2. Recognition and that TWC may upon two weeks notice assign such
employee to work at another location for a minimum of two weeks. The proposed agreement also40
provided consistent with the prior separate agreements, that for employees hired prior to March 1,
2005, TWC can temporarily transfer such employees to other locations in the event of an
emergency.
I note that the MOA signed by the parties which purported to reflect all the changes, 45
modifications and deletions from the prior agreements make no reference to the Section on
Bargaining Unit Assignments.
JD(NY)–19–15
20
VI. RESPONDENT RESPONDS AND THE PARTIES BARGAIN FURTHER
On July 8, 2013 Jordan responded to Smith by e-mail asserting that the draft copy of the
Agreement sent to Respondent did not contain the riders, or the language pertaining to the
Electrical Engineering Degree. 5
The e-mail reads “The draft copy of the Agreement does not contain the side letters from
the previous Agreements. Also, the new progression in the Agreement does not include language
pertaining to employees who complete a Bachelor Degree in Electrical Engineering and what
courses will be excluded from the progression process who completes a Bachelor in Electrical 10
Engineering in place of this. During negotiations it was agreed that this would remain in place.
Please respond.
Smith responded to Jordan by e-mail later on in the day of July 8, 2013, attaching a
redlined agreement. Smith also made the following comments, in response to Jordan’s problems 15
with TWC’s draft agreement. “Let me check back on my notes about the Electrical Engineering
degree language. On the side letter issue, the negotiations were very clear on this issue, we have
one bargaining unit. Therefore, there are no side letters. That said, we agreed with respect to
Bergen and with other locations that we are not changing the various shrifts that employees were
working in the particular locations. When do you expect to get a signed copy back to us? It is 20
more than 3 months since we reached agreement.”
Subsequently, Smith and Jordan had a telephone conversation about the matters in dispute.
Smith told Jordan that the riders and the electrical engineering degree provision had not been
agreed upon during the negotiations. Smith also explained to Jordan, that the electrical 25
engineering degree was not relevant to SCTE Training because it didn’t have anything to do with
Cable TV Training.
On September 9, 2013, TWC and Respondent met at TWC’s office on 23rd Street. Present
were Smith and Quigley, from TWC and Jordan and Van Arsdale from Respondent. 30
The parties discussed several issues at this meeting including Respondent’s concerns about
metric scoring that TWC was using to evaluate technicians in the field and TWC’s intention to put
the General Foreman in foreman positions, which Respondent vigorously opposed.
35
Jordan brought up the issues regarding the collective bargaining agreement and the failure
of TWC to include Riders in the proposed agreement. Jordan specifically emphasized the
Northern Manhattan Rider, which contained premium, pay for employees’ salary working
overtime on weekends pay, and the Southern Manhattan Rider, which covered general journeyman
positions in dispatch. Jordan also raised the issue of the electrical engineering degree and 40
continuing the alternative progression for electrical engineers that had been included in the expired
agreements.
Smith responded that the riders were not agreed to during negotiations, but that TWC
would look into it and see if there were any aspects of the riders that TWC would be willing to 45
carry over into the collective bargaining agreement. Smith emphasized that the MOA had been
JD(NY)–19–15
21
signed which did not contained any reference to the riders, and that the parties had reached
agreement on terms for a new contract.
The Union replied that it wanted TWC to look into what aspects of the riders TWC could
agree to, but continued to demand that all the riders be included in the collective bargaining 5
agreement to be signed.
Although Smith had promised Respondent on September 9 that it would look into whether
there were any Riders that TWC would be willing to carry over into the new agreement, there is no
record evidence as to whether or not it did so at that time. The next communication to Respondent 10
was an e-mail from Smith to Jordan on December 10, 2013. The e-mail reads, “Happy Holidays.
Although the parties reached agreement in March of this year, the Company still has not received
an executed collective bargaining agreement from Local 3. Please forward me an executed
agreement at your earliest convenience.” Smith forwarded another copy of the draft collective
agreement; that TWC had previously sent to Respondent for their execution. 15
Jordan replied by e-mail on January 6, 2014. It reads:
“Happy New Year Kevin. It is clear that we have reached agreement. However, in
our meeting that took place on September 9, 2013, we discussed the flawed metric 20
of the repeat call policy, the EE degree, and most important the “RIDERS” to the
CBA which must remain in place. Your response was that you the Company would
review it and get back to us. We are still awaiting your response.”
On January 13, 2014, Jordan sent another e-mail to Haught entitled Executed CBA.4 On 25
February 19, 2014, the parties met again to discuss various labor relations issues. Smith Haught,
Jordan and Van Arsdale attended this session. During this meeting, Van Arsdale brought up the
recent announcement that TWC and Comcast were going to merge. Van Arsdale asked several
questions about the merger, including whether TWC could get Comcast to assume the collective
bargaining agreement with Respondent. Smith responded that they would need a signed and 30
executed collective bargaining agreement, and the Union had not signed the contract. Van Arsdale
replied, “You know we have a collective bargaining agreement.”
At some later point during the meeting, Van Arsdale raised the issue again stating, that the
Union wanted the riders included in the collective bargaining agreement. 35
After this meeting, Haught and Jordan had several telephone conversations about various
labor relation issues. In a conversation in early March of 2014, Jordan told Haught that
Respondent would not sign a successor contract without inclusion of the riders. Haught replied
that he would talk to Smith about it and get back to Jordan. 40
Subsequently, Smith, Haught, Cilberti and Quigley met and discussed the matter. They
decided that although TWC had not discussed the riders during negotiations, they would try to

4 In this e-mail Jordan referred Smith to Jordan’s January 20, 2014 e-mail, described above and
said that he was not sure if Smith had received it. Thus Jordan attached the January 6 e-mail again.
JD(NY)–19–15
22
come up with an offer to try to settle and move, “this on.” Therefore, the TWC representatives
discussed and came up with a proposal which included the riders from the prior agreements that it
would be included in a new-agreement.
As a result, Respondent submitted to Respondent a new proposed successor contract, which 5
included some but not all the riders from the prior agreements. This proposed agreement was
similar to the prior proposed agreement that it had submitted for Respondent, but it added a new
Section 36, entitled stand-by. This provision incorporated the stand-by provisions that had been
incorporated in all of the prior agreements. Additionally, the proposal included modified Riders
from the Staten Island and Bergen Agreements, which had provided for different benefits and 10
conditions for these employees.
The prior Bergen rider provided that employees at Bergen who were employed
continuously with the Company for 10 years or more as of January 1, 2006 will continue to qualify
for 5 weeks vacation upon reaching their 15 year anniversary. 15
TWC modified this section of the prior Riders, in their proposed rider for the new
agreement, by providing under vacation, that “the employees listed below are eligible for 5 weeks
of vacation per contract year during the term of the parties Agreement. All other employees are
subsequent to the Vacation provisions listed in the Agreement.” The proposal then listed the 20
names of seven employees eligible for the 5 weeks of vacation.
The prior Rider covering the Bergen employees, included sections entitled Bargaining Unit
Work, Sick Days and Work Schedules for the employees. All of these Sections were included
without change in TWC’s revised Rider for Bergen employees submitted to Respondent in March 25
of 2014.
The rider to the prior Agreement with respect to Bergen employees contained almost
identical stand-by provision to the riders at the other facilities. However, there was one slight
difference. The allowance provided for stand-by Technician employees to be paid in addition to 30
wages for hours worked and call outs, was $21.00 per day Monday to Friday, and $31.00 per day
on Saturdays, Sundays and Holidays. In contrast the rates provided for similar employees at the
other locations, in the other riders, called for $26.00 per day and $39.00 respectively, for the days
involved.
35
In the proposed agreement sent to Respondent in March of 2004, TWC as noted included
the riders from all agreements in a new provision5 in the Agreement, with the same provisions for
all employees at all locations. Thus, all employees would receive $26.00 per day Monday through
Friday, and $39.00 on Saturday, Sunday and Holidays as a call in pay allowance. This includes
the Bergen employees whose previous riders had provided less of an allowance for them for this 40
activity.6

5 Section 36
6 It is noted that TWC first agreed to bring the Bergen employees up to the level of other
employees during negotiations.
JD(NY)–19–15
23
The prior agreement which has been in effect for the Staten Island
employees also provided for different vacation benefits for Staten
Island employees, grandfathering their vacation schedules, as described therein.
TWC’s proposed rider in March 2014 modified that rider, similar to its proposed modification of 5
the Bergen rider. Thus it provided that the “employees listed below are eligible for 5 weeks of
vacation per contract year during the term of the Agreement. All other employees are subject to
Vacation Provision outlined in the Agreement.” The proposed Rider then listed the names of the
employees eligible for this enhanced vacation, which in this case, included 26 employees.
10
The Southern Manhattan Rider to the 2009-13 CBA contains a dispatch provision unique to
Southern Manhattan, which states:
(a) Outbound dispatch of bargaining unit employees and technical
Support functions will be performed by bargaining unit employees 15
at the Journeyman level (Level 5).
(b) Clerical dispatch functions at the Company, including, but not
Limited to telephone activities, computer activities, reports and log
preparation, will be performed by members of the bargaining unit
Whose hourly wage rate shall not exceed that established for 20
employees at Level 4. These Level 4 Dispatch employees shall, on
their anniversary date receive the percentage wage increase
granted to Journeyman in that year of the Agreement.
The proposed Agreement sent by TWC to Respondent in March of 2014, did not contain 25
any reference to or include the provisions of this Southern Manhattan Rider.
The Northern Manhattan Rider to the 2009-13 CBA contains a provision unique to
Northern Manhattan that states:
30
Section 11(A)(2) (Overtime) of the Agreement is amended to read as
follows: 7
Any time worked on a Saturday or Sunday shall be paid at the applicable
rate, either straight time or time and one half. Work beyond the assigned 35
shift hours shall be paid at a rate of double time.
However, the Northern Manhattan Rider that Mr. Smith sent Mr. Jordan on March 6, 2014,
modifies the prior Rider as indicated in bold:
For any employee hired prior to April 1, 2013, performing work in 40
the Northern Manhattan location, Section 11(A)(2) of the Agreement is
amended to read as follows:

7 Section 11(A)(2) of the 2009-13 CBA states “(a)ny time worked on a Saturday or a Sunday shall
be paid at the rate of one and one-half times the employee’s regular straight time hourly rate.”
JD(NY)–19–15
24
Any time worked on a Saturday or Sunday shall be paid at the applicable
rate, either straight time or time and one half. Work beyond the assigned shift
hours shall be paid at a rate of double time.
Additionally, as noted each of the prior Agreements, contained a provision for extra pay for 5
employees who had electrical engineering degrees, who would not be required to take the courses
specified in the other sections of the Section, which would entitle employees to increases in pay.
TWC did not include this provision in the proposals sent to Respondent in March of 2014,
as it did not in the previous proposed agreement sent to Respondent in 2013. As Smith explained 10
TWC did not include it, because in TWC’s view, Respondent by signing the MOA on March 28,
2013 without any references to this provision had agreed that it would not be included in the
Agreement, although it had been included in all the prior agreements. Smith noted that this
electrical engineering provision had been brought up by Respondent during negotiations and that
TWC had rejected Respondents request that it be included in the new Agreement. Thus since this 15
provision was part of the bargaining for the alternative progression provisions that were agreed to
and bargained about and included in the MOA, TWC believed that Respondent had agreed, that
this provision would not be included in the new contract, by signing the MOA, which contained no
reference to this provision.
20
On March 6, 2014, Smith submitted TWC’s revised proposal to the Respondent, with an e-
mail to Jordan, in which Smith explained TWC’s proposal. The e-mail explained that TWC had
“simplified and clarified the riders and gotten rid of dated language. For example on Staten Island
and Bergen Riders we have just listed those employees with grandfathered vacation entitlements.
As for the CBA, we have added the stand-by procedures under Section 35, which are consistent 25
throughout the bargaining unit, for the CBA. Please let me know if you have any questions about
the documents.”
By e-mail dated March 7, 2014, Mr. Jordan responded to Smith “it seems that you have
mistakenly left out the Southern Manhattan Rider. I will be back in the office Monday afternoon 30
to continue reviewing the rest of the Riders and the Agreement to see if anything else was
mistakenly left out.”
By e-mail dated March 7, 2014 Mr. Smith responded:
35
Happy to review it with you after you have looked at them, but there is no
mistake. There is no reason for a Southern Manhattan Rider because
the standby language is the same everywhere and the other language
(concerning dispatch) is outdated and now irrelevant.
40
By e-mail dated March 10, 2014, Mr. Jordan responded “the language in the Southern
Manhattan Rider concerning dispatch is not outdated, is very relevant and must remain part of the
CBA.”
To date Respondent has failed to sign any of the proposed collective bargaining agreements 45
sent to it by TWC. Jordan made it clear during his testimony that Respondent would not sign the
JD(NY)–19–15
25
proposed agreements because of the failure of TWC to include the Electrical Engineers provision,
and TWC’s failure to include the Northern Manhattan Rider.
TWC filed the instant charge with the Region on April 2, 2014. Respondent also filed
charges with the Region alleging that TWC violated Section 8(a)(1) and (5) of the Act, by failing 5
to sign an agreed upon contract. (Containing all the riders) The Region dismissed this charge,
Respondent appealed the dismissal, and the dismissal was sustained by General Counsel.
TWC filed a lawsuit against Respondent in April of 2014 alleging that Respondent violated
the no-strike clause in the contract between the parties in September of 2013, March of 2014 and 10
on April 2, 2014. TWC sought an injunction in Eastern District Court to enjoin Respondent’s
allegedly unlawful conduct.
A hearing was held before Judge Jack Weinstein on various dates in April and May of
2014. Judge Weinstein granted Respondent’s Motion to dismiss the petition for injunction, and 15
issued an opinion dated May 5, 2014 (Time Warner v. IBEW Local 3, Nov. 14 (CV – 2437 (JBW
2014 U.S. Dist. V Lexis 6222 72(E.D.N.Y. May 5, 2014).
In his Decision, the Judge dismissed the injunction petition, based on the Norris-La
Guardia Act and Boys Market principles, inasmuch as the disputes involved were subject to 20
arbitration, and were in the process of being arbitrated, and there was no evidence or likelihood of
further violations of the no-strike clauses. The Judge found that two of the incidents described in
the complaint did constitute a strike in violation of the no-strike clause but since these incidents
were being arbitrated there was little likelihood of future work stoppages or strikes in violation of
the no-strike clause. He noted that the underlying claims for damages by TWC in the action are 25
still pending and the pending arbitration adequately protects TWC, and do not justify an
injunction.
In this action, it does not appear that either party took the position that no contract was in
effect. Indeed the parties, as noted are arbitrating the claims of TWC pertaining to the events 30
complained of, under the arbitration clause of the contract.
In that action, TWC attached its verified complaint, as Exhibit A, identified by TWC’s
Vice President John Quigley, as the “current collective bargaining agreement in effect from April,
2013 through March 31, 2014”. The CBA that TWC filed with the court included the Southern 35
Manhattan Rider, and in fact is the only rider attached to the alleged contract. The contract that
TWC submitted included the MOA signed by the parties on 03/28/13, the prior contract between
TWC Southern Manhattan Division and Respondent effective from 2004 through 2013, and the
Southern Manhattan Division Rider, which included standby provisions, as well as the provisions
relating to Dispatch and Department functions, that TWC had not included in any of the drafts of 40
proposed agreements that it submitted to Respondent. TWC adduced no testimony so to why it
included this Southern Manhattan Rider, in the action that it filed, as being part of the contract
allegedly in effect between the parties.
45
JD(NY)–19–15
26
VII. Analysis and Conclusions
Section 8(d) of the Act requires either party, upon the request of the other party, to execute
a written contract incorporating an agreement reached during negotiations. H.J. Heinz Co. v.
NLRB 311 U.S. 514 (1941) Windward Teachers Association 346 NLRB 1148, 1150 (2006)5
Section 8(b)(3) implements that obligation by making it an unfair labor practice for a union
to refuse an employer’s request to sign a negotiated agreement. Windward Teachers Assn. supra;
Graphic Communications Union District 2 (Riverwood International USA), 318 NLRB 983,
990(1995). However, this obligation arises only after a “meeting of the minds on all substantive 10
issues and material terms, Crittenton Hospital 343 NLRB 717, 718 (2004).
The General Counsel bears the burden of proving not only that the parties had the requisite
“meeting of the minds” on the agreement reached, but also that the document which the
Respondent refused to sign accurately reflected that agreement. Windward Teachers Assn. supra; 15
Kelly’s Private Car Service 289 NLRB 30, 34 (1988).
The expression “meeting of the minds” is based on the objective terms of the contract, not
on the parties subjective understanding of those terms. Thus, subjective understanding or
misunderstanding of the meaning of terms that have been agreed upon are irrelevant, provided that 20
the terms are unambiguous “judge by a reasonable standard.” Hempstead Park Nursing Home 341
NLRB 321, 322 (2004); Vallejo Retail Trade Bureau 243 NLRB 762, 767 (1979) enfd. 626 F.2d
119 (9th Cir. 1990).
However, when the terms of a contract are ambiguous and the parties attach differing 25
meanings to the ambiguous terms, “a meeting of the minds” is not established.” Chicago Parking
Assn. 360 NLRB 132 slip op at 1, fn 4 ALJD, slip op. at 15 (2014); Hempstead Park Nursing
supra.
In applying the principles of the above precedent, I conclude that General Counsel has 30
fallen short of meeting its burden of proof that the parties had reached a “meeting of the minds” on
all substantive issues, or that any of the documents submitted by TWC to Respondent for
execution accurately incorporates any such agreement.
There is no dispute that the parties executed a MOA on March 28, 2013, which both parties 35
believed represented an agreement to execute a successor contract, by both parties incorporating
the terms agreed upon. Indeed the record established that the parties shook hands, Respondent
implemented the improvements set forth in the MOA, and the Respondent’s employees ratified the
agreement reached by the parties, based upon the terms of the MOA.
40
However, the Respondent refused to execute the documents presented to it by TWC in July
and December of 2013, allegedly incorporating the parties’ agreement, because those documents
did not include the Riders that had been included to all the prior collective bargaining agreements
between the parties, and because they didn’t include a clause which had appeared in the prior
collective bargaining agreements, relating to electrical engineering degree’s for employees and the 45
entitlement of employees for enhanced pay based on possession of such degree.
JD(NY)–19–15
27
Essentially the issue as to whether there was a “meeting of the minds”, between the parties,
that is a result of executing the MOA, the parties had agreed that the riders which had been
attached to all the prior contracts and the electrical engineering degree clause which had been
included in all the prior contracts, would not be part of the successor contract that the parties
would execute and be bound by.5
I conclude that while TWC believed that the parties had agreed by signing the MOA, that
the riders and the electrical engineering clause, would no longer be part of the employees terms
and conditions of employment, and would not be included in the successor contract, I also find
that Respondent believed the opposite, and thought that these terms would continue; and be 10
included in the new contract.
I also find that the terms of the MOA are ambiguous as to these two issues, and that
therefore General Counsel has failed to establish the requisite “meeting of the minds,” between the
parties, that these items would not be part of a new contract.15
The language of the MOA states, “the changes which are summarized below were agreed
upon relative to the CBA which will expire on march 31, 2013, and the full text of the applicable
changes will be incorporated in a new CBA.” The first two pages of the MOA lists fourteen items
that the parties agreed to change in the 2009-13 CBA; i.e. add, modify, consolidate or delete. The 20
MOA does not state that either the Riders or the electrical engineering provisions were being
deleted. Thus while the MOA detailed modifications, deletions or consolidations of various
provisions from the prior agreements, it made no mention of the riders whatsoever, nor of the
electrical engineering provision in the prior agreements. Further the MOA is silent concerning the
removal of standby procedures, which were included in Riders for all locations, and inserting them 25
or not in the CBA.
I agree with Respondent that the above evidence demonstrates that the parties know how to
memorialize their agreement to delete items from the labor contract. Yet while the MOA made
specific references to sections of the prior contracts that were to be deleted or modified, the MOA 30
made no reference to the Riders on the electrical engineering provisions, which had always been
considered by the parties to be part of the CBA. Indeed, Riders are commonly considered by the
parties as part of the collective bargaining agreements, and constitute terms and conditions of
employment of employees, which cannot be changed absent agreement of the Union bargaining, or
bargaining to impasse with the Union. 35
It is therefore difficult to conclude, as the General Counsel and Charging Party contend,
that by signing the MOA, Respondent was agreeing that the Riders and the electrical engineering
change would be deleted from a successor contract agreement.
General Counsel and Charging Party argue, that by signing the MOA, without any 40
reference to either the Riders of the electrical engineering clause, Respondent was agreeing that
these items, although previously included, as part of the terms and conditions of employment at all
prior locations, (the riders and the electrical engineering provision which had been included in the
body of all the prior contracts) would be deleted from the successor agreement.
45
JD(NY)–19–15
28
Their arguments are somewhat different with respect to these two issues. With respect to
the inclusion of the riders, General Counsel and Charging Party contend that the bargaining for this
contract was different from past bargaining, inasmuch as the parties were now bargaining for one
contract, covering a collective agreement unit of all six locations, as per the Director’s Decision in
Region 22, concerning the RD petition involving the Bergen unit. Thus, since the Director had 5
dismissed that petition, finding that the parties had by their bargaining history, had made the multi
location appropriate rather than the single unit in the prior contract between TWC and Respondent
in covering the Bergen employees. TWC agreed not to appeal that decision, and informed
Respondent that the parties would now be bargaining one contract for all locations, in one
bargaining unit, and Respondent agreed.10
Therefore, it is argued that this agreement by Respondent, and their bargaining on that
basis demonstrates that Respondent was in agreement with TWC, that the riders which had not
been part of any of the prior master agreements, would no longer be part of the employees terms
and conditions of employment. I do not agree.15
While I do agree that the parties had agreed to bargain for a successor contract as one
bargaining unit, as opposed to six separate contracts and six different units, in view of Director’s
Decision, that fact does not necessarily preclude the inclusion of riders on different terms and
conditions of employment for different locations or different classifications. It is not uncommon 20
or unusual to have some differences in terms of employment for employees in different
classifications in one contract, in a single unit. Indeed, within the prior contracts for each separate
contract, there were numerous provisions, which set forth different benefits for employees in
different classifications with respect to wages, vacations, annuity’s and other benefits.
25
Most significantly, during the bargaining, the parties had discussed and agreed to
Respondent’s proposal to bring up the Bergen employees standby pay up to the standby pay that
was being received by employees at the other locations. Since standby pay appeared only in the
rider’s to each of the prior agreements, and did not appear in the body of any of the prior master
contracts, this finding demonstrates that the parties were contemplating carrying over the riders 30
into the successor agreements.
Additionally, I note that in the complaint filed by TWC in its action against Respondent is
Federal Court TWC alleged that the contract in existence between the parties, involved the
Southern Riders, which it attached to its complaint in that action. I agree with Respondent that this 35
action can be construed as an admission against TWC, that this rider was and is part of the contract
between the parties, and that they did not agree to exclude the riders from the successor contract
agreed upon, by signing the MOA.
I further agree with Respondent that TWC’s bargaining subsequent to the Respondent’s 40
rejection of TWC’s initial draft contract, wherein it agreed to include the standby riders, and the
Northern Manhattan Rider, (albeit with one modification, which TWC unilaterally made),
undermines TWC’s position that the riders should not be included, and that the parties had agreed
to exclude the riders from the new agreement. In that regard TWC in its revised agreement,
proposed that the standby provisions which had been previously included in the Riders to the prior 45
contracts be incorporated in the master agreement, entitled Section 36 Standby. This provision
provided for the same standby benefits for employees at all locations, in contrast to the prior riders
JD(NY)–19–15
29
which had provided for lower wages for Journeyman Standby Technicians, employed at Bergen,
than what had been paid to employees at the other TWC locations.
Furthermore, the contentions of General Counsel and TWC, that the signing of the MOA
by Respondent, without any mention of inclusion of the riders, establishes a meeting of the minds 5
that they were not be included in the successor agreement, is further undermined by the evidence,
that a large number of provisions, that were included in the prior master agreements at each
location, were not discussed during the negotiations at all, but yet still found their way into the
proposed agreement submitted by TWC allegedly incorporating the contract agreed to by the
parties.10
Finally, I note that TWC, in its revised proposals submitted to Respondent in March of
2014, also included a rider to the new collective bargaining agreement, entitled Staten Island
Rider, Bergen Facility Rider and Northern Manhattan Rider, which were to be executed separately
from the Master Agreement. These riders delineated separate provisions for these locations. For 15
Bergen it reflected different vacation, holiday entitlements and work schedules for employees at
Bergen, as well as a different description of bargaining unit work, from the description of
bargaining unit work in the Master Agreement. These provisions were consistent with the prior
Bergen rider, in that it grandfathered enhanced benefits for these employees, that they had received
when they were employed by a different employer, prior to TWC taking over that facility. The 20
only difference between the proposed rider and the rider in the last agreement, was a minor
modification. The prior rider stated that employees employed continuously with the company for
10 years or more as of January 1, 2006, “will continue to qualify for five weeks of vacation upon
reaching their 15 year anniversary.” The Rider proposed in 2014, listed seven named employees
from Bergen, who were eligible for five weeks of vacation who are presumably the same 25
employees who were covered by the prior riders, some had been employed for 10 years or more as
of January 1, 2006.and some still employed by TWC.
TWC also included a Staten Island rider, covering the Staten Island employees. This Rider
pertained only to vacations, and similar to the Bergen Rider, reflected the enhanced grandfathered 30
vacation benefits to Staten Island employees which had been incorporated in the prior Staten
Island Rider, except that it specifically named the employees entitled to this enhanced vacation
benefit.
TWC also included a Northern Manhattan Rider, also to be executed separately, from the 35
Master Agreement, but which TWC modified and changed from the prior Northern Manhattan
Rider.
These bargaining proposals by TWC are demonstrative that there was no meeting of the
minds in March of 2013 when the parties signed the MOA, that Riders would be excluded from the 40
successor agreement as contended by General Counsel and Charging Party.
Accordingly, I conclude that General Counsel has fallen short of meeting its burden of
proof that the parties reached a meeting of the minds on all terms of a successor agreement in
March 2013, even though they signed an MOA, and that the proposed agreement submitted by 45
TWC to Respondent in January and December of 2013, incorporated the full agreement of the
parties.
JD(NY)–19–15
30
Rather I conclude that the terms of the MOA were ambiguous as to whether the riders from
the previous agreements were to be included in the successors’ agreements. I find that the parties
had plausible but different understandings and beliefs as to this issue, and therefore there was no
meeting of the minds and no contract. Chicago Parking Assn supra, 360 NLRB slip at 132
(Ambiguous agreement but different plausible interpretations, created no contract); Crittenton 5
Hospital, supra 343 NLRB 718 , 719 (No meeting of the minds found, since General Counsel had
not established whether or not parties had agreed to delete disputed provisions from agreement.);
Hempstead Parks Nursing Home, supra 341 NLRB at 323-324 (parties attached reasonable but
incompatible meanings to certain terms set forth in parties MOA); Cherry Valley Apartments 292
NLRB 38-40 1988. (Parties operating under illusion that they were agreeing or had agreed t to 10
terms of agreement, with a separate different understanding of the terms of agreement); Teamsters
Local 289, Reed & Graham 272 NLRB 348, 350-351 (1984). (General Counsel has not met the
burden of proof that parties reached binding agreement on a contract which did not contain the
rider agreement, which had been attached to prior agreements); Vallejo Trade Bureau, 243 NLRB
762, 767 (1979) Letter of understanding ambiguous, and General Counsel failed to show meeting 15
of the minds and that parties reached full agreement on terms for a new contract.
With respect to the issue of the electrical engineering degree provision, General Counsel
and Charging Party argue, that a meeting of the minds that this provision would not be included in
the new contract has been established inasmuch as the parties bargained about that subject, 20
Respondent had requested that it be retained, and TWC declined to do so. Further, the parties
bargained about changing the alternative provision system of the prior agreement, which had
included the disputed provision, and reached agreement on a new section 36 of the Agreement,
which was set forth in the MOA, without this alternative provision.
25
I find this argument to be somewhat persuasive, but other evidence tends to point in the
other direction. Thus the record discloses that the parties also bargained about a number of other
provisions which had been included in the prior Master Agreement, during which the parties had
proposed and discussed modifications of changes. However, since there had been no agreements
reached on the modifications or changes proposed by the parties, TWC included in its proposed 30
agreements sent to Respondent in July and December of 2013, the identical provisions that were in
the prior agreements, without change, even though there had been discussions about changes to
them during bargaining. Thus in these cases TWC included the prior clauses in its proposed
agreement which is inconsistent with its position not to include the electrical engineering
provisions, which had also been discussed during bargaining, but with no explicit agreement 35
reached by the Respondent to delete this provision.
Indeed, the fact that this provision had been included as one section dealing with
alternative progressions, albeit with a separate lettering, does not mean that there was an
agreement to delete it from this contract. Thus, in past years, this provision, which provided for an 40
extra payment for employees, in lieu of the changes set forth in other provisions of the section, was
included as an alternative to the changes specified. This practice could have been continued in the
current contract, notwithstanding the changes in the types of courses required for the alternative,
also, specified in the MOA for the new agreement. Significant in this regard is the fact that the
parties as related above, knew how to specify in the MOA, portions from the prior agreements that 45
they wanted to delete, and they did so by specifically detailing sections that would be deleted, that
had appeared in the prior agreements. In such circumstances, I again conclude that an ambiguity
JD(NY)–19–15
31
was again created as to whether or not the parties had agreed to delete the electrical engineering
clause from the successor agreement, and that for this reason as well, that no meeting of the minds
has been established.
I wish to emphasize that I make no findings that Respondent is correct in its assertion that a 5
meeting of the minds has been established that the successors’ agreement would include all the
riders and the electrical engineering degree. Indeed this was the position espoused by Respondent
in its charge to the Region, which was dismissed. Appeal denied alleging that TWC violated
Section 8(A)(1) and (5) of the Act, by failing to sign a contract including all of these provisions. I
do not and cannot revisit that decision as that issue is not before me. Indeed even if it was, much 10
of my analysis detailed above would equally apply, and I would find no meeting of the minds has
been established, due to ambiguities in the MOA, as to whether these provisions should or should
not be included in the successor contract. Vallejo Trade Bureau, supra at 769.
Accordingly, based on the above analysis and precedent, I find that General Counsel has 15
not met its burden of proof, and that the complaint should be dismissed.
Based on these findings of fact and the entire record I make the following:
Conclusions of Law20
1. The Employer is an employer engaged in commerce within the meaning of Section 2(2)(6)
and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.25
3. Respondent did not commit unfair labor practices as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
30
following recommended8
ORDER
The complaint is dismissed in its entirety.35
Dated, Washington, D.C. April 28, 2015
40
____________________
Steven Fish
Administrative Law Judge

8 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.