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

National Labor Relations Board - Board Decisions

Oct 29, 2015

363 NLRB No. 30 (N.L.R.B. 2015)

363 NLRB No. 30
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL–CIO and Time Warn-
er Cable New York City, LLC. Case 29–CB–
125701
October 29, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On April 28, 2015, Administrative Law Judge Steven
Fish issued the attached decision. The Charging Party
filed exceptions, a supporting brief, and a motion to reo-
pen the record. The Respondent filed an answering brief
and an opposition to the Charging Party’s motion.1
The National Labor Relations Board has delegated 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 Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. October 29, 2015
Mark Gaston Pearce, Chairman

1 The Charging Party moves to reopen the record to admit evidence
that, after the hearing, the Respondent filed notices of its intention to
arbitrate grievances and “admitted” the existence of a collective-
bargaining agreement in arbitral and judicial filings. The Charging
Party contends that this evidence demonstrates that the Respondent
unlawfully refused to execute an agreed-upon contract. Contrary to the
Charging Party’s contention, the Respondent’s posthearing conduct
shows only that the Respondent mistakenly believed that the parties had
reached agreement on March 28, 2013. It does not bear on the relevant
question of whether the parties reached a meeting of the minds regard-
ing all material terms of their successor contract. Accordingly, we
deny the Charging Party’s motion, as the evidence sought to be ad-
duced would not require a different result in this case. See Sec.
102.48(d)(1) of the Board’s Rules and Regulations.
2 In adopting the judge’s finding that the Respondent did not violate
Sec. 8(b)(3) by refusing to execute the successor collective-bargaining
agreement, we find it unnecessary to pass on the judge’s finding that
the Charging Party’s inclusion of the Southern Manhattan Rider in the
copy of the contract it attached to its Federal district court complaint
alleging a violation of the contractual no-strike clause constituted an
admission that the Rider was part of the parties’ agreement.
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Genaira Tyce, Esq. (Region 29) and Noor I. Alam, Esq (Region
29), for the General Counsel.
Robert T. McGovern, Esq. (Archer, Byington, Glennon & Lev-
ine, LLP), of Melville, New York, for the Respondent.
Daniel Silverman, Esq. (Daniel Silverman, LLP), of Brooklyn,
New York, for the Charging Party.
DECISION
STEVEN FISH, Administrative Law Judge. Pursuant to charg-
es 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.
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

1 On 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 tran-
script. Subsequently the parties have entered into a stipulation relating
to the portions Jordan’s testimony that was not transcribed. This stipu-
lation is received into the record as (ALJ’s Exh. 1)
Additionally the Charging Party filed a motion to correct the tran-
script. 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
FROM
“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.”
TO
“I have an Assistant Chief counsel and Vice President,
Greg Drake, who reports to me. A Senior Counsel, Jamal Dawkins
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Time Warner Cable is a domestic limited liability company
with its corporate office located at 60 Columbus Circle, New
York, New York, 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 facili-
ty) collectively as the Tri-State facilities (Charging Party facili-
ties), where it is engaged in providing cable television, tele-
phone, and high speed internet services.
During the preceding 12 months, the Charging Party re-
ceived revenue in excess of $100,000 and purchased and re-
ceived at each of the Charging Party’s facilities goods, supplies,
and utilities valued in excess of $5000 directly from suppliers
outside 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.
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
Respondent has represented the employees at TWC’s Tri-
State facilities for a number of years, and has been party 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 of em-

who reports to me and a Senior Counsel Heather Ryan who reports to
me.”
From To
Page line
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}
From To
Page line
13- 122 20 and 25 {same}
14- 129 22 {same}
15- 130 10 {same}
16- 151 15 “Employer” “union”
17- 151 16 “Hines” “Heinz”
ployment as it related to specific locations.2
All six of these collective-bargaining agreements were effec-
tive from April 1, 2009, to March 31, 2013.
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 22–RD–095758, seeking to decertify Re-
spondent as the collective-bargaining representative of the Ber-
gen employees employed at TWC.
Thereafter a hearing was conducted at Region 22 with re-
spect to this petition. TWC agreed at the hearing that the peti-
tion 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 multilocation unit consisting
of TWC’s six facilities.
The Director on February 13, 2013, issued a Decision agree-
ing with Respondent’s position and finding a multilocation unit
of TWC’s facilities most appropriate, and dismissed the peti-
tion. TWC did not seek review of the Director’s Decision.
Subsequently Respondent and TWC agreed that the Bergen
location and all 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 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 Oc-
tober of 2005. A January 2006 memorandum of agreement
between TWC and Respondent resulted in the adoption of con-
tract language nearly identical to the collective-bargaining
agreements that Respondent and TWC had reached in 2005.
“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. Dur-
ing 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 between TWC and Respondent as of March 1, 2005, ex-
cept 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 em-
ployees, different annual wage increases, commencement of
TWC contributions to an industry educational and cultural
fund, joint industry board and dental plan, delayed employer
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 defini-
tion of stand by procedures.
The Director’s Decision also reflected that in 2009 bargain-
ing commenced on new contracts for all New York City Divi-

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.
ELECTRICAL WORKERS, LOCAL 3 3
sion and Bergen. The same negotiator for Respondent and
TWC bargained for these successor contracts at the same time.
Respondent’s bargaining committee consisted of representa-
tives from Bergen and the New York City divisions of TWC;
and the same representatives of TWC bargained on behalf of all
its divisions.
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 indi-
cated above do hereby agree that the changes which are sum-
marized below were agreed upon relative to the Collective Bar-
gaining Agreement . . . which will expire on March 31, 20013
and that the full text of the applicable changes will be incorpo-
rated in a new Collective Bargaining Agreement for each Divi-
sion which shall become effective upon ratification by the Un-
ion 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 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.
Subsequently, the parties executed six separate agreements,
with each agreement containing a “Master Agreement,” appli-
cable to all six locations with essentially identical terms and a
rider delineating terms and conditions applicable only to that
specific facility.
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 on sick
leave, shifts, and journeymen’s pay. Additionally, each divi-
sion’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 qualifi-
cations among all locations and honoring seniority when em-
ployees are transferred; and that some supervisors share over-
sight over multiple divisions including Bergen.
However, the Director concluded that these communities of
interest factors are not determinative in appropriate unit analy-
sis in decertification settings, and that the parties bargaining
history, as detailed above, of multilocation bargaining, con-
trolled 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 Direc-
tor found in the decertification context, that a multilocation unit
consisting of the six locations of TWC, including Bergen, was
the appropriate unit for purposes of the petition. Therefore, the
Director3 concluded that the multilocation 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.
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 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 As-
sistant Business Manager and Lead Negotiator Lance Van
Arsdale and included Business Agent Derek Jordan, as well a
committee of employees from the various locations of TWC.
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 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:
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.
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 employment
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 net-
work plus certification course shall receive an additional $1.00
per 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, 2013
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’have the same shifts, shift differential, stand by pay,

3 As noted above, TWC did not request review of this decision of the
Director.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
weekend overtime pay and night differential as the rest 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 salaries
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 hour
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 Febru-
ary 28, 2013. The cover page lists the sections that TWC
sought to be deleted and changed from the prior agreements
with Respondent.
The document reads as follows:
Company Proposals – TWC/LOCAL 3
February 28, 2013
1. Section 3- Term of Agreement- 5 years·
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 Work
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 change
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 General Forman
13. Section 37- Rights of Journeyman-incorporate A & B in-
to Section 36
14. Section 38 - Work Performed by Employees Below Lev-
el 5 delete
15. Section 40 – Payroll Savings Plan - delete
16. Section X – Scope of Bargaining - add
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 __
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 with respect to any and all lawful and
proper subjects of collective bargaining. This Agreement ful-
ly 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 relationship 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 prec-
edential effect.
In the event the parties mutually agree to modify, change or
supplement this Agreement during its terms, such modifica-
tions, changes and/or alternations shall be binding only if re-
duced to writing and duly executed by authorized officers,
representatives or agents of the parties hereto.
The parties bargained over the course of the next month, un-
til the parties reached agreement on March 28, 2013, on the
terms of a new successor contract. This agreement was memo-
rialized in an MOA, signed and dated March 28, 2013, reading
as follows:
ELECTRICAL WORKERS, LOCAL 3 5
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ELECTRICAL WORKERS, LOCAL 3 7
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ELECTRICAL WORKERS, LOCAL 3 9
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ELECTRICAL WORKERS, LOCAL 3 11
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 is-
sues, as to what was or wasn’t said at the negotiating sessions.
Smith, Haught, and Ciliberti testified that during these sessions,
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 negotia-
tions that Respondent wanted the riders to be included in the
successor contract. Jordan did not recall whether Smith or
anyone from TWC made any response to Van Arsdale’s state-
ment 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 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 bar-
gaining 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 include the
riders, did not testify. Under these circumstances, it is appro-
priate 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 Ma-
chines, 285 NLRB 1122, 1123 (1987). Hialeah Hospital, 343
NLRB 371, 398 fn. 20, 402 (2004).
The Riders from TWC’s 2009–2013 agreements covered the
following issues:
TWC Queens–Standby Procedures.
TWC Brooklyn–Standby Procedures.
TWC Staten Island–Vacation; Temporary Employees, Work
Performed by Classification; and Standby Procedures.
TWC Bergen–Vacation; Bargaining Unit Work; Sick Days; Work
Schedules; Standby Procedures; and Journeyman and Other Desig-
nations.
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.
TWC Southern Manhattan–Amended §6(a) removing work regard-
ing service and maintenance relative to local origination and related
programming from the ees’ jurisdiction; Dispatch Department
Function; Standby Procedures.
The other area of disagreement between the witnesses con-
cerns 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.
“[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 $2.50 per hour in lieu of the applicable
increases for such “Courses.”
As noted this clause appeared in all the prior Master Agree-
ments, 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 exist-
ing employees.
Sections (ii) (iii) and (iv) of that Section reads as follows:
(ii) Any Existing Employee below Journeyman who be-
comes A+ certified will move to the RS 4 salary or, if such
employee is at that time earning $16.60 or more per hour,
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
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 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 being
certified as passing the Fiber Optic and Advanced Tech-
nician 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 Techni-
cian and Advanced Technician Courses and the A+ certi-
fication will remain with such Journeyman.
(iv) Any Existing Employee who completes a Bache-
lor of Electrical Engineering degree at an accredited in-
stitution 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 in-
creases for such Courses.
According to Jordan, Section 36(A)(iv) (the electrical engi-
neering increase) was not discussed during negotiations, but
the Union assumed that it would be included in the successor
agreement, since it had been included in all the prior agree-
ments with TWC, covering each of the facilities and that this
clause was in the main agreements and not in the Riders.
However Smith testified that the electrical engineering in-
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crease 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 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 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 electrical engineer-
ing 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 dur-
ing negotiations that this provision would not be included in
any new agreement. However, Smith testified that in his
view, Respondent by agreeing to the MOA, without the inclu-
sion 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.
A further area of conflict in the testimony, involves Jor-
dan’s testimony that Respondent did bring up during the sub-
ject of the Bergen Rider during negotiations, and had request-
ed 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. Ac-
cording to Jordan TWC agreed to that proposal of Respond-
ent. Smith testified that he didn’t recall any discussions about
Bergen standby pay during negotiations. However, Jordan’s
bargaining notes of 3/26/13, reflects the following “Equaliza-
tion 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 testi-
mony 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 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 succes-
sor collective-bargaining agreement, neither Haught nor
Ciliberti denied or disputed Jordan’s testimony that the Union
did bring up at negotiations, that Respondent wanted equaliza-
tion of the employees at Bergen with employees at other loca-
tions concerning various issues, such as standby pay. Nota-
bly, standby pay was not mentioned in the Master Agree-
ments, and only appeared in the prior Master Agreement.
Finally, Jordan’s testimony is also supported by Respond-
ent’s written proposals submitted on 2/26/13 which stated in
Section 71: “Bergen employees in the bargaining unit shall
have the same shifts, shift differential, standby pay, weekend,
overtime pay and night differential as the rest of the bargain-
ing unit.”
IV. RATIFICATION OF AGREEMENT
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. Re-
spondent’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.
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 in-
creases in payments to the Union’s annuity fund.
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 Un-
ion’s review.
On May 14, 2013, Smith provided TWC’s first draft suc-
cessor 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
prior Master Agreements.
That section was not included in the draft agreement, sub-
mitted 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 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 engineer-
ing degree is not a substitute for the training that is required
for the alternative progression increases that the parties bar-
gained about and had reached agreement on.
The draft agreement that TWC submitted to Respondent in-
corporated 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 sick days), Section 15
(Uniforms), Section 16 (Jury Duty), Section 19 (401K), Sec-
tion 23 (Discharge and Suspension), Section 24 (Grievance
and Arbitration), Section 25 (Sanitary Facilities), Section 27
ELECTRICAL WORKERS, LOCAL 3 13
(Travel Time), Section 28 (Layoffs), Section 29 (Severance
Pay), Section 30 (Shop Steward), Section 31 (Cessation stop-
page of Work), Section 33 (Probationary Period), Section 35
(Workers Compensation), Section 39 (Favored Nations
Clause), Sections 41 (Driver’s License), Section 42 (Discrimi-
nation Prohibited) Section 43 (Franchise Agreement) Section
45 (Posting Jobs), Section 46 (Assignability) Section 47 (Drug
Testing), Section 48C (Termination), 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 com-
pany covered by this agreement in the bargaining unit as here-
inafter described and defined. The bargaining unit was not
described any more specifically in the agreements, except that
the preamble to each prior agreement reflected that the agree-
ment was between the Union and TWC on behalf of its indi-
vidual division, i.e. Bergen, Staten Island, Brooklyn, Queens,
etc.
Consequently, the Preamble Clause in the proposed agree-
ment reflected that the contract 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 discussed 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 nonbargaining unit
personnel), Section 20 (Education and Cultural Trust Funds),
Section 32 (Pay Roll Week), and Section 34 (Management
Rights).
Section 44 of the prior agreements was entitled Bargaining
Unit Assignments. These agreements provided that employ-
ees hired after March 1, 2005, will be assigned to one of the
bargaining units. TWC may in its discretion upon two week’s
notice assign any such employee to work in another bargain-
ing unit for a minimum of 2 weeks. The parties further agreed
that for employees hired prior to March 1, 2005, TWC re-
tained the right to temporarily transfer, in consultation with
the Union, such employees to other bargaining units, in the
event of an emergency.
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 2 weeks
notice assign such employee to work at another location for a
minimum of 2 weeks. The proposed agreement also provided
consistent with the prior separate agreements, that for employ-
ees hired prior to March 1, 2005, TWC can temporarily trans-
fer such employees to other locations in the event of an emer-
gency.
I note that the MOA signed by the parties which purported
to reflect all the changes, modifications, and deletions from
the prior agreements makes no reference to the Section on
Bargaining Unit Assignments.
VI. RESPONDENT RESPONDS AND THE PARTIES BARGAIN
FURTHER
On July 8, 2013, Jordan responded to Smith by email as-
serting that the draft copy of the Agreement sent to Respond-
ent did not contain the Riders, or the language pertaining to
the electrical engineering degree.
The email 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 lan-
guage pertaining to employees who complete a Bachelor De-
gree in Electrical Engineering and what courses will be ex-
cluded from the progression process who completes a Bache-
lor in Electrical Engineering in place of this. During negotia-
tions it was agreed that this would remain in place. Please
respond.”
Smith responded to Jordan by email 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
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 shifts
that employees were working in the particular locations.
When do you expect to get a signed copy back to us? It is
more than 3 months since we reached agreement.”
Subsequently, Smith and Jordan had a telephone conversa-
tion 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 ex-
plained to Jordan, that the electrical 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 Re-
spondent.
The parties discussed several issues at this meeting includ-
ing Respondent’s concerns about metric scoring that TWC
was using to evaluate technicians in the field and TWC’s in-
tention to put the General Foreman in foreman positions,
which Respondent vigorously opposed.
Jordan brought up the issues regarding the collective-
bargaining agreement and the failure of TWC to include Rid-
ers in the proposed agreement. Jordan specifically empha-
sized the Northern Manhattan Rider, which contained premi-
um, pay for employees’ salary working overtime on weekends
pay, and the Southern Manhattan Rider, which covered gen-
eral journeyman positions in dispatch. Jordan also raised the
issue of the electrical engineering degree and continuing the
alternative progression for electrical engineers that had been
included in the expired agreements.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
carry over into the collective bargaining agreement. Smith
emphasized that the MOA had been signed which did not
contain 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 bar-
gaining 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 was an
email from Smith to Jordan on December 10, 2013. The email
reads, “Happy Holidays. Although the parties reached agree-
ment 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 Re-
spondent for their execution.
Jordan replied by email 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 Sep-
tember 9, 2013, we discussed the flawed metric 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 email to Haught
entitled Executed CBA.4 On February 19, 2014, the parties
met again to discuss various labor relations issues. Smith
Haught, Jordan, and Van Arsdale attended this session. Dur-
ing this meeting, Van Arsdale brought up the recent an-
nouncement that TWC and Comcast were going to merge.
Van Arsdale asked several questions about the merger, includ-
ing whether TWC could get Comcast to assume the collective
bargaining agreement with Respondent. Smith responded that
they would need a signed and 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 in-
cluded in the collective-bargaining agreement.
After this meeting, Haught and Jordan had several tele-
phone conversations about various labor relations issues. In a
conversation in early March of 2014, Jordan told Haught that
Respondent would not sign a successor contract without inclu-

4 In this email Jordan referred Smith to Jordan’s January 6, 2014
email, described above and said that he was not sure if Smith had
received it. Thus Jordan attached the January 6 email again.
sion of the Riders. Haught replied that he would talk to Smith
about it and get back to Jordan.
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 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 would be included in a new-agreement.
As a result, TWC submitted to Respondent a new proposed
successor contract, which 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
standby. This provision incorporated the standby 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 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.
TWC modified this section of the prior Riders, in their pro-
posed Rider for the new agreement, by providing under vaca-
tion, 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 Vaca-
tion provisions listed in the Agreement.” The proposal then
listed the 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 in-
cluded without change in TWC’s revised Rider for Bergen
employees submitted to Respondent in March of 2014.
The Rider to the prior agreement with respect to Bergen
employees contained almost identical standby 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 wages for hours worked
and call outs, was $21 per day Monday to Friday, and $31 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 per day and $39 respectively,
for the days involved.
In the proposed agreement sent to Respondent in March of
2014, TWC as noted included the Riders from all agreements
in a new provision5 in the Agreement, with the same provi-
sions for all employees at all locations. Thus, all employees
would receive $26 per day Monday through Friday, and $39
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 activity.6

5 Sec. 36
6 It is noted that TWC first agreed to bring the Bergen employees
up to the level of other employees during negotiations.
ELECTRICAL WORKERS, LOCAL 3 15
The prior agreement which has been in effect for the Staten
Island employees also provided for different vacation bene-
fits for Staten Island employees, grandfathering their vaca-
tion schedules, as described therein.
TWC’s proposed Rider in March 2014 modified that Rider,
similar to its proposed modification of 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 en-
hanced vacation, which in this case, included 26 employees.
The Southern Manhattan Rider to the 2009–2013 CBA con-
tains 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 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 ex-
ceed that established for employees at Level 4. These Level
4 Dispatch employees shall, on their anniversary date re-
ceive 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 any reference to or include the
provisions of this Southern Manhattan Rider.
The Northern Manhattan Rider to the 2009–2013 CBA con-
tains a provision unique to Northern Manhattan that states:
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 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 the Northern Manhattan location, Section 11(A)(2)
of the Agreement is amended to read as follows:
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 con-
tained a provision for extra pay for employees who had elec-
trical engineering degrees, who would not be required to take
the courses specified in the other sections of the section,

7 Sec. 11(A)(2) of the 2009–2013 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.”
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 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 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 Respond-
ent had agreed, that this provision would not be included in
the new contract by signing the MOA, which contained no
reference to this provision.
On March 6, 2014, Smith submitted TWC’s revised pro-
posal to the Respondent, with an email to Jordan, in which
Smith explained TWC’s proposal. The email 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
standby procedures under Section 35, which are consistent
throughout the bargaining unit, for the CBA. Please let me
know if you have any questions about the documents.”
By email 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 after-
noon to continue reviewing the rest of the Riders and the
Agreement to see if anything else was mistakenly left out.”
By email dated March 7, 2014, Mr. Smith responded:
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.
By email dated March 10, 2014, Mr. Jordan responded “the
language in the Southern Manhattan Rider concerning dis-
patch 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 sent to it by TWC. Jordan
made it clear during his testimony that Respondent would not
sign the proposed agreements because of the failure of TWC
to include the Electrical Engineers provision, and TWC’s
failure to include the Southern 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 fail-
ing to sign an agreed-upon contract. (Containing all the Rid-
ers) 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
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
alleging that Respondent violated the no-strike clause in the
contract between the parties in September of 2013, March of
2014 and on April 2, 2014. TWC sought an injunction in
Eastern District Court to enjoin Respondent’s allegedly un-
lawful 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 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 princi-
ples, inasmuch as the disputes involved were subject to arbi-
tration, 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 de-
scribed in the complaint did constitute a strike in violation of
the no-strike clause but since these incidents were being arbi-
trated 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 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 complained of, under the arbitration clause of the con-
tract.
In that action, TWC attached its verified complaint, as Ex-
hibit 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 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 pro-
visions relating to Dispatch and Department functions, that
TWC had not included in any of the drafts of proposed agree-
ments that it submitted to Respondent. TWC adduced no
testimony so to why it included this Southern Manhattan Rid-
er, in the action that it filed, as being part of the contract alleg-
edly in effect between the parties.
VII. ANALYSIS AND CONCLUSIONS
Section 8(d) of the Act requires either party, upon the re-
quest of the other party, to execute a written contract incorpo-
rating an agreement reached during negotiations. H.J. Heinz
Co. v. NLRB 311 U.S. 514 (1941), Windward Teachers Assn.,
346 NLRB 1148, 1150 (2006).
Section 8(b)(3) implements that obligation by making it an
unfair labor practice for a union to refuse an employer’s re-
quest 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 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 Re-
spondent refused to sign accurately reflected that agreement.
Windward Teachers Assn. supra; Kelly’s Private Car Service,
289 NLRB 30, 34 (1988).
The expression “meeting of the minds” is based on the ob-
jective 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 the terms are unam-
biguous “judged 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 meanings to the ambiguous terms,
“meeting of the minds” is not established.” Chicago Parking
Assn., 360 NLRB No. 132, slip op. at 1, fn. 4 & 15 (2014);
Hempstead Park Nursing, supra.
In applying the principles of the above precedent, I con-
clude that General Counsel has 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 believed represented an
agreement to execute a successor contract, by both parties
incorporating the terms agreed upon. Indeed the record estab-
lished 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.
However, the Respondent refused to execute the documents
presented to it by TWC in July and December of 2013, alleg-
edly incorporating the parties’ agreement, because those doc-
uments did not include the Riders that had been included to all
the prior collective-bargaining agreements between the par-
ties, and because they didn’t include a clause which had ap-
peared in the prior collective-bargaining agreements, relating
to electrical engineering degrees for employees and the enti-
tlement of employees for enhanced pay based on possession of
such degree.
Essentially the issue as to whether there was a “meeting of
the minds” between the parties, that as 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 engi-
neering 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.
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 in-
ELECTRICAL WORKERS, LOCAL 3 17
cluded in the successor contract, I also find that Respondent
believed the opposite, and thought that these terms would
continue and be 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.
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 list 14 items that the parties
agreed to change in the 2009–2013 CBA; i.e. add, modify,
consolidate or delete. The MOA does not state that either the
Riders or the electrical engineering provisions were being
deleted. Thus while the MOA detailed modifications, dele-
tions 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 or not in the CBA.
I agree with Respondent that the above evidence demon-
strates that the parties know how to memorialize their agree-
ment to delete items from the labor contract. Yet while the
MOA made specific references to sections of the prior con-
tracts that were to be deleted or modified, the MOA made no
reference to the Riders of the electrical engineering provi-
sions, 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 bar-
gaining, or bargaining to impasse with the Union.
It is therefore difficult to conclude, as the General Counsel
and Charging Party contend, that by signing the MOA, Re-
spondent was agreeing that the Riders and the electrical engi-
neering change would be deleted from a successor contract
agreement.
General Counsel and Charging Party argue, that by signing
the MOA, without any 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 in-
cluded in the body of all the prior contracts) would be deleted
from the successor agreement.
Their arguments are somewhat different with respect to the-
se two issues. With respect to the inclusion of the Riders,
General Counsel and Charging Party contend that the bargain-
ing for this contract was different from past bargaining, inas-
much as the parties were now bargaining for one contract,
covering a collective-bargaining 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 dismissed that petition, finding that the parties had by
their bargaining history made the multilocation appropriate
unit 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 Re-
spondent that the parties would now be bargaining one con-
tract for all locations, in one bargaining unit, and Respondent
agreed.
Therefore, it is argued that this agreement by Respondent,
and their bargaining on that basis demonstrates that Respond-
ent 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 em-
ployment. I do not agree.
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 un-
common or unusual to have some differences in terms of em-
ployment 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 classifi-
cations with respect to wages, vacations, annuities and other
benefits.
Most significantly, during the bargaining, the parties had
discussed and agreed to Respondent’s proposal to bring 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 riders 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 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 Manhattan Rider, which it attached to its complaint
in that action. I agree with Respondent that this 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 rejection of TWC’s initial
draft contract, wherein it agreed to include the standby riders,
and the Northern Manhattan Rider (albeit with one modifica-
tion, which TWC unilaterally made), undermines TWC’s posi-
tion 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 contracts be incorporated in the master
agreement, entitled Section 36 Standby. This provision pro-
vided for the same standby benefits for employees at all loca-
tions, in contrast to the prior riders 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.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Furthermore, the contentions of General Counsel and TWC,
that the signing of the MOA by Respondent, without any men-
tion of inclusion of the riders, establishes a meeting of the
minds that they were not to 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 pro-
posed agreement submitted by TWC allegedly incorporating
the contract agreed to by the parties.
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 Agree-
ment. These riders delineated separate provisions for these
locations. For 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 Agree-
ment. These provisions were consistent with the prior Bergen
rider, in that it grandfathered enhanced benefits for these em-
ployees that they had received when they were employed by a
different employer, prior to TWC taking over that facility.
The 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 5
weeks of vacation who are presumably the same employees
who were covered by the prior riders, some had been em-
ployed 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 Stat-
en Island employees. This Rider pertained only to vacations,
and similar to the Bergen Rider, reflected the enhanced grand-
fathered 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 en-
hanced vacation benefit.
TWC also included a Northern Manhattan Rider, also to be
executed separately, from the Master Agreement, but which
TWC modified and changed from the prior Northern Manhat-
tan 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 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 TWC to Respondent in
January and December of 2013, incorporated the full agree-
ment of the parties.
Rather I conclude that the terms of the MOA were ambigu-
ous as to whether the riders from the previous agreements
were to be included in the successor agreement. 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 No. 132 (Ambiguous agreement but different plausible
interpretations, created no contract); Crittenton Hospital, su-
pra, 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 agree-
ment); Hempstead Park Nursing Home, supra, 341 NLRB at
323–324 (parties attached reasonable but incompatible mean-
ings to certain terms set forth in parties’ MOA); Cherry Valley
Apartments, 292 NLRB at 38–40 (1988) (parties operating
under illusion that they were agreeing or had agreed to 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 agree-
ment on a contract which did not contain the rider agreement,
which had been attached to prior agreements); Vallejo Trade
Bureau, supra at 767 (letter of understanding ambiguous, and
General Counsel failed to show meeting of the minds and that
parties reached full agreement on terms for a new contract).
With respect to the issue of the electrical engineering de-
gree 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, Respondent had re-
quested that it be retained, and TWC declined to do so. Fur-
ther, the parties bargained about changing the alternative pro-
vision 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, with-
out this alternative provision.
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 dis-
cussed 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 agree-
ments 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 incon-
sistent with its position not to include the electrical engineer-
ing provisions, which had also been discussed during bargain-
ing, but with no explicit agreement 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 provi-
sion, which provided for an extra payment for employees, in
ELECTRICAL WORKERS, LOCAL 3 19
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 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 circum-
stances, I again conclude that an ambiguity was 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 Respond-
ent is correct in its assertion that a meeting of the minds has
been established that the successor 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 and the appeal denied, alleging
that TWC violated Section 8(a)(1) and (5) of the Act, by fail-
ing 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 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 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 LAW
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.
3. Respondent did not commit unfair labor practices as al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. April 28, 2015

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.