Transit Service Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1993

312 N.L.R.B. 477 (N.L.R.B. 1993)

477
312 NLRB No. 81
TRANSIT SERVICE CORP.
1 On April 26, 1993, Administrative Law Judge Steven B. Fish
issued the attached decision. The General Counsel and the Respond-
ent each filed exceptions and a supporting brief. The General Coun-
sel filed an answering brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 All dates herein unless otherwise indicated are in 1991.
Transit Service Corporation and Truck Drivers,
Chauffeurs, Warehousemen and Helpers
Union, Local 707, an affiliate of the National
Production Workers Union. Case 13–CA–30576
September 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues addressed here are whether the judge cor-
rectly found that: the Respondent did not violate Sec-
tion 8(a)(5) of the Act by refusing to execute a collec-
tive-bargaining agreement because the parties had not
determined the agreement’s effective date; and whether
the judge correctly found that the Respondent violated
Section 8(a)(5) of the Act by withdrawing proposals
and by refusing to meet with the Union.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tran-
sit Service Corporation, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(c).
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain in good
faith with Truck Drivers, Chauffeurs, Warehousemen
and Helpers Union, Local 707, an affiliate of the Na-
tional Production Workers Union.
WE WILL NOT withdraw or retract bargaining pro-
posals that we have made to or agreements we have
reached with the Union, without good cause, or in
order to frustrate bargaining or to prevent the reaching
of a full agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL on request meet and bargain with the
Union in good faith for at least 6 months thereafter as
if the initial year of Board certification has not expired
and if an understanding is reached, embody the under-
standing in a signed agreement.
WE WILL reinstate in its entirety for a reasonable
time, our proposal for a 3-year contract incorporating
the terms reflected in our draft contract sent to the
Union on August 28, 1991, and bargain in good faith
over the effective dates of the agreement.
TRANSIT SERVICE CORPORATION
Scott Gore, Esq., for the General Counsel.
Julius M. Steiner, Esq. and Marjorie H. Gordon, Esq.
(Obermayer, Rebmann, Maxwell and Hippel), of Philadel-
phia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed on October 11, 19911 by Truck Drivers, Chauf-
feurs, Warehousemen and Helpers Union, Local 707, an af-
filiate of the National Production Workers Union (the
Union), the Acting Director for Region 13 issued a complaint
and notice of hearing on December 24, alleging that Transit
Service Corp. (the Respondent) has violated Section 8(a)(1)
and (5) of the Act.
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved herein, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Accordingly, any testimony which is in-
consistent with or contrary to my findings is discredited.
The trial with respect to the above complaint was con-
ducted on July 20, 1992, in Chicago, Illinois, during which
the complaint was amended by General Counsel.
Briefs have been filed by Respondent and General Counsel
and have been carefully considered. Based on my review of
the entire record,2 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with an office and place of
business in Chicago, Illinois, where it is engaged in the busi-
ness of providing transportation services to elderly and dis-
abled persons. During the calendar year, Respondent in the
course and conduct of its business, derived gross revenues in
excess of $250,000, and received at its facility products,
goods, and materials valued in excess of $5000 directly from
suppliers who have received these items directly from points
located outside the State of Illinois.
Respondent admits, and I so find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is also admitted, and I so find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. FACTS
On October 9, 1990, the Union was certified as exclusive
collective-bargaining representative of Respondent’s employ-
ees in an appropriate unit consisting of all drivers employed
at its North Clark Street facility.
On January 2, 1991, the Union by letter from its business
representative, Sam Cozzo, requested collective-bargaining
meetings with Respondent. Subsequently, a meeting was ar-
ranged for January 16, 1991, in a phone conversation be-
tween Cozzo and Julius Steiner, an attorney representing Re-
spondent. Steiner sent a letter dated January 7, confirming
his conversation with Cozzo and the date of the first meet-
ing.
At that meeting, which was attended by Cozzo, Steiner,
and Ed Mikalunas, Respondent’s director of human re-
sources, Cozzo presented a proposed contract, entitled,
‘‘Labor contract and working agreement.’’ The proposed
agreement contained no effective dates, nor any termination
date. These portions of the proposed contract were left blank.
The proposal contains various clauses including recognition,
union shop, subcontracting, seniority, arbitration, vacation,
holidays, wages, health and welfare, and severance fund pay-
ments. The proposal for wages provided for various rates for
for various classifications, plus two wage increases of 5 cents
per hour, but with effective dates of the increases left blank.
The health and welfare proposal called for contributions to
be made on behalf of employees on and after June 1, 1990,
and with increases effective January 1, 1991, and January 1,
1992. The severance fund proposal provided for payments of
50 cents per hour per employee, with subsequent increases
of $1 and $1.50 per hour. However, the effective dates of all
the severance payments was left blank.
The parties met again on May 20, but with Frank Stroud
replacing Cozzo as the representative for the Union. At that
time, Respondent submitted a document entitled, ‘‘Company
Contract Proposal.’’ This document contained no starting,
termination, or effective dates. No wage increase was in-
cluded, although reference was made to minimum rates for
each job. Agreement was reached on some noneconomic
items such as union security, recognition, checkoff, grievance
procedure, hours of work, and just cause for discharge.
Steiner provided the Union on May 21, with a conformed
copy of Respondent’s proposal, which included the agree-
ments reached by the parties.
On May 31, the Union provided Respondent with another
written proposal. This document, rather than an entire con-
tract proposal as previously submitted, was a three-page doc-
ument, referred to as a ‘‘list of demands.’’ They include pro-
posals for vacation, paid holidays, personal and sick days,
health insurance, and payments to the Union’s ‘‘Fund,’’
union visitation, overtime, and a management-rights proposal.
Additionally, the Union proposed wage increases of $1 per
hour, effective in 1991, 1992, and 1993, with no provision
for what months the increases would be effective. Nor did
this proposal contain any reference to starting termination or
effective dates of the agreement.
The parties met again on June 21, during which the Union
made still another written proposal; concerning which the
parties discussed, reaching agreements on various provisions,
and deferring others for future discussion. This document
also contained no effective dates, nor any reference to the
length of the contract. The duration of agreement clause was
left blank. On July 3, Stroud sent to Steiner a copy of the
Union’s proposal which contained what Stroud believed to
be the agreed-on provisions. This document also left blank
the effective date of the contract, as well as the section enti-
tled duration of agreement which set forth the starting and
termination dates of the agreement.
On July 19, the parties met again, and for the first time
began discussing the major economic items involved, particu-
larly wages, in addition to discussing and reaching agreement
on other items that had been in dispute.
Respondent made its first offer concerning wages. Initially,
it offered a starting rate of $5 per hour, with a raise of 25
cents per hour every 6 months, up to a top rate of $6.75. Ad-
ditionally, Respondent offered to distribute a bonus of 10
percent if it made a profit of 8 percent. However, Respond-
ent informed the Union that it had lost $40,000 last month.
After a caucus, the Union made a proposal of a raise of $1
per hour effective the first year of the contract, 75 cents per
hour effective the second year of the contract, and 75 cents
per hour, effective the third year of the contract. Respondent
countered with a proposal which it entitled final, of 6 paid
personal days a year, plus an additional proposal with respect
to wages. In this respect, Respondent proposed a starting rate
of $5 per hour, with raises to $5.25 after 90 days; to $5.50
after 180 days, and then raises of 25 cents per hour until the
employee reaches the top rate. The top rate would start at
$6.75 per hour as of August 1, 1991. For employees at that
rate, there would be no increase in 1991. Thereafter, the top
rate would be increased to $7 per hour on August 1, 1992,
and to $7.25 per hour on August 1, 1993.
479TRANSIT SERVICE CORP.
3 I note that the prior document submitted by Respondent was enti-
tled ‘‘Company Contract Proposal.’’
4 Stroud had been so informed by one of his representatives, who
checked the docket book of filings at the Regional Office.
The meeting ended with Stroud informing Respondent’s
representatives that he would take a look at their last pro-
posal and get back to them. After reviewing the situation,
Stroud concluded that the Union could live with Respond-
ent’s proposals, and decided to accept. Therefore, he sent to
Respondent a letter dated July 31. The letter states that ‘‘the
Union will accept all terms and conditions previously agreed
to by the parties.’’ The letter further requests a meeting dur-
ing the calendar week beginning August 5, ‘‘for the purpose
of signing a contract since all terms have now been agreed
to by the parties.’’
After not hearing from Steiner, Stroud called in early Au-
gust and agreed on a meeting for August 27. Shortly there-
after, Steiner called Stroud and canceled the August 27 meet-
ing because Mikalanas was not available. They agreed to re-
schedule the meeting, and Stroud asked Steiner to send him
a copy of what Steiner understood the parties had agreed on.
On August 28, Steiner as requested sent Stroud a copy of
what he believed had been agreed on, with a covering letter
stating, ‘‘enclosed please find draft contract for your review,
as per our recent discussion.’’ The document forwarded to
Stroud was entitled, ‘‘Agreement.’’3 The ‘‘Agreement,’’ as
furnished by Steiner, consisted of essentially Respondent’s
conformed copy of Respondent’s proposals as agreed on as
of May 21, plus some additional agreements reached subse-
quently, plus the following section entitled ‘‘Wages and In-
creases’’:
ARTICLE XXII
WAGES AND INCREASES
Wages:
Starting Rate $5.00 per hour
After 90 Days $5.25 per hour
After 180 Days $5.50 per hour
Thereafter every $.25 per hour until employee
6 months: reaches top rate
REACHES TOP RATE
Top Rate
10/1/91 $6.75 per hour
10/1/92 $7.00 per hour
10/1/93 $7.25 per hour
This document as was the case with all the previous docu-
ments exchanged between the parties, left blank the starting
and termination dates, and made no reference to the effective
date of the agreement. Subsequently, a meeting was sched-
uled for September 11.
On September 4, a decertification petition was filed in
Case 13–RD–1933 by Wilma Windham, an employee of Re-
spondent. Apparently because of an administrative backlog in
the Regional Office, the petition was not mailed to Respond-
ent, until September 25. That petition was eventually dis-
missed by the Region because it was filed prior to the 1-year
expiration of the certification year. Windham refiled the peti-
tion on October 11, in Case 13–RD–1943. That petition was
dismissed by the Regional Director on December 27, in view
of the instant complaint, pending the outcome of this case.
The record does not reflect whether Petitioner filed an appeal
or a request for review of the Regional Director’s action in
this regard.
On or about September 5, Steiner telephoned Stroud and
indicated that he wanted to cancel the September 11 meeting,
because a decertification petition had been filed. Stroud re-
plied that this was the first he had heard about a petition
being filed, and that he had not received a copy of it. Stroud
insisted that the meeting for September 11 be held as sched-
uled, regardless of whether a petition had been filed. Steiner
said okay and agreed to meet on September 11 as previously
agreed on.
The meeting was scheduled to begin at 9:30 a.m. at the
Union’s office. Steiner and Mikalunas arrived at 9:45 a.m.
Upon arriving, Steiner made several phone calls, delaying the
start of the meeting until shortly before 10 a.m. At the meet-
ing, Stroud informed Steiner that he had been notified about
the decertification petition.4 Stroud asked Steiner whether the
petition had been management inspired. Steiner replied,
‘‘perhaps.’’ Stroud informed Steiner that he agreed with the
draft contract submitted to him by Steiner on August 28, and
he was prepared to sign the contract. Steiner replied that the
draft was not a complete agreement. Stroud replied that he
would accept it as is, and Steiner responded that Respondent
wanted a 4-year contract. Stroud told Steiner that the parties
had been talking about a 3-year contract all along. Steiner
disputed Stroud’s assertion in this regard. Stroud then went
back and looked at his notes, as well as the various proposals
submitted by the parties. He stated that Steiner was right,
that the parties had not talked about exact dates from year
to year or length of the contract. However, Stroud did state
that all the previous proposals, such as the health proposal
of the Union, and the Union’s wage proposals had been pre-
sented over a term of 3 years. Steiner continued to insist on
a 4-year contract, with no wage increase in the fourth year
of the contract. Stroud asked about the right to reopen the
contract in the fourth year with the right to strike. Steiner re-
sponded that there can be no strike in the fourth year. Stroud
then inquired if there was anything he could do to get a 3-
year contract. Steiner said he was listening. Stroud then pro-
posed a 3-year contract, and submitted some additional fig-
ures for wage increases which were rejected by Respondent.
Stroud then agreed to a 4-year contract, with a wage re-
opener but with a right to strike at that time. Steiner agreed
to a wage reopener in the fourth year, but insisted that no
strikes be allowed at that time. Stroud at that point stated
that he wanted to call his lawyer. Stroud made the call from
a phone in the room, and was told that his lawyer was not
in, but would be beeped and should return Stroud’s call with-
in 5 minutes. He so informed Steiner, who was already gath-
ering up his papers and starting to leave. Stroud asked
Steiner and Mikalunas to wait 5 minutes for his attorney to
call back. Steiner replied that he was there to negotiate and
could not wait all day. Stroud responded that he had waited
for Respondent’s representatives for a half hour to start each
negotiation (because of Respondent’s representatives being
late), so at least they could give him 5 minutes to wait for
his attorney to call. Steiner answered that he was not waiting
while Stroud chased his attorney down, and he was leaving.
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I note significantly that even in Steiner’s version of this alleged
conversation, he did not dispute Stroud’s assertion in the October 16
letter that they had discussed the decertification petition on Septem-
ber 5 and 11.
As Steiner and Mikalanas were walking out, Stroud said, ‘‘If
you want to be that way, get the fuck out.’’ As he was leav-
ing, Steiner told Stroud that there was no need to get upset,
and added that Respondent was withdrawing its proposal.
Steiner did not explain precisely what proposal he was with-
drawing, and in fact Stroud did not hear Steiner withdraw
Respondent’s proposal.
In this connection, Respondent’s witnesses, Mikalunas and
Steiner, were unclear about precisely what proposal was
being withdrawn. Mikalunas testified that Respondent was
withdrawing its ‘‘economic’’ proposal. Steiner, on the other
hand, contends that Respondent intended only to withdraw its
proposal of a 4-year contract that it had made on that day,
but that the withdrawal also included a withdrawal of its pre-
vious wage proposal which was incorporated in the 4-year
proposal that it made. Thus, Steiner, asserted that he intended
to reexamine the whole 4-year package including its wage
proposal. However, Steiner conceded that he did not think
that Stroud heard him withdraw Respondent’s proposal, and
I credit Stroud’s testimony that he did not hear Steiner’s pur-
ported withdrawal.
On October 7, Stroud sent a letter to Steiner, stating that
the Union accepts all terms and conditions in his August 28
draft, plus his proposal of a 4-year contract with no increase
in the fourth year as proposed by Respondent on September
11. Stroud further asked for a meeting at any time during the
calendar week beginning October 7, for the purpose of sign-
ing a contract, since all terms have been agreed to by the
parties.
Steiner responded by letter dated October 14. The letter
states, ‘‘as you are aware, the employer withdrew its pro-
posal for reconsideration prior to your outburst and ejection
of the company representatives from your office on Septem-
ber 11.’’
The letter further states that the company is willing to
meet to pursue negotiations, and suggested October 28 or 29
for this purpose.
Stroud responded by letter dated October 16, as follows:
Dear Mr. Steiner:
I received your letter dated October 14, 1991 today.
This is the first mention of any withdrawal of your pro-
posal to me. Your exact words to me were, ‘‘that’s the
way it is, so take it or leave it.’’ You also have a very
short memory of what happened on September 11,
1991. While I was trying to contact my attorney for
legal advise, you said you were not going to wait
around until I talked to my lawyer, so you folded your
papers and placed them in your brief case and said you
were leaving. I asked you again to wait just a few more
minutes until she returned my call. You refused to wait.
Then I said to you that if you can’t wait a few minutes
so I could get some legal advise, then get the hell out.
You must not forget that in the September 11th
meeting I asked you about the decertification petition
that you spoke to me about on the phone on September
5, 1991. My question to you was, ‘‘was the petition
management inspired.’’ You answer was, ‘‘perhaps
so.’’
The Union is prepared to meet on October 28th or
October 29th, 1991 at any time that is convenient to
you and anywhere in the Chicago area you choose for
the purpose of signing the agreement. Please advise.
Sincerely,
/s/ Frank E. Stroud
General Vice President of the N.P.W.U.
Respondent did not reply to Stroud’s October 16 letter, nor
make any attempt to contact him about setting up another
meeting.
My findings above are based on a compilation of the cred-
ited testimony of Stroud, Steiner, and Mikalunas, which is
based on my evaluation of their comparative testimonial de-
meanor, my examination of their bargaining notes, and my
assessment of the probabilities of their testimony in disputed
areas. Overall, I found Stroud to be a more believable wit-
ness than either Mikalunas or Steiner, and have for the most
part credited his testimony over that of Mikalunas and
Steiner, except where the testimony of Respondent’s wit-
nesses is supported by their bargaining notes.
Additionally, I have relied on a number of other factors
as described below. A most significant area of dispute be-
tween the parties is the question of Respondent’s knowledge
of the pendency of the decertification petition. As I have
found above, Steiner first informed Stroud about the petition
on or about Septemer 5, when Steiner attempted to cancel
the September 11 meeting because of the filing of the peti-
tion, and the subject was mentioned again by Stroud at the
September 11 meeting, during which he asked Steiner if
management had inspired the petition. While both Steiner
and Mikalunas denied finding out about the petition until the
copy was received from the Board in late September, since
as noted I found Stroud to be generally more credible, I have
credited him in this instance as well. Additionally, I note that
Stroud made specific reference to both discussions between
he and Steiner concerning the decertification petition in his
October 16 letter. However, Steiner made no effort to correct
Stroud on this point either by letter or even by phone. As
this record amply demonstrates, Steiner is and was an experi-
enced and careful labor attorney, who would constantly put
his positions and important conversations in writing. I find
that had Stroud not been accurately relating the facts pertain-
ing to their discussions of the decertification petition in his
October 16 letter, Steiner would have made sure to send a
letter disputing Stroud’s assertions. This is particularly sig-
nificant in my view because the Union had filed the instant
charges on October 11.
Another important area of disagreement between the par-
ties concerns Steiner’s testimony that he did in fact respond
to Stroud’s October 16 letter by telephone, during which they
allegedly discussed the status of negotiations, Steiner agreed
to negotiate further with the Union, and Stroud allegedly
agreed to get back to Steiner, which Stroud never did.5 I
have credited Stroud’s testimony that no such conversation
took place. In addition to my overall assessment of the rel-
ative testimonial demeanor of Steiner and Stroud, I also rely
on other factors in making this determination. As I have pre-
viously discussed, I found Steiner to be an experienced and
481TRANSIT SERVICE CORP.
6 As noted above, Hawes did not testify herein.
careful labor practitioner who had a habit of putting impor-
tant matters in writing. I conclude, therefore, that particularly
where the Union had filed the instant charge, that he would
confirm such a conversation in writing had it occurred. Rath-
er, I believe that because Stroud’s letter requested a meeting
for purposes of signing an agreement, which Steiner was
contending had not been reached, he saw no need to respond
to the letter.
Furthermore, I also note that by this time, with the decerti-
fication petition now pending, it is obvious that the Union
was desperate to sign any collective-bargaining agreement
possible, in order to forestall the processing of the petition.
The Union had agreed to sign a contract with no wage in-
crease at all for employees at the top rate for the first year,
but Respondent refused to agree, and added a fourth year to
the contract with no wage increase at all in that year. The
Union agreed to that proposal as well in its October 7 letter.
Therefore, I find it inconceivable that the Union would ig-
nore a request by Respondent for a meeting, wherein the
Union might have been able to accept the Respondent’s
offer. Steiner’s testimony that Stroud refused his request for
a no-strike clause in the fourth year is simply not believable,
since in my view the Union was so anxious to sign a con-
tract, that this clause would not have been significant. While
I have found that the subject of the reopener in the fourth
year plus a no-strike clause was discussed at the September
11 meeting (as per the bargaining notes), I note significantly
that Stroud made no mention of either the reopener or the
no-strike clause in his purported acceptance. Thus, he was at-
tempting to accept Respondent’s initial offer of the 4-year
contract with no raise in the fourth year. Because there was
no mention of the reopener, there was no need for a no-strike
clause in that year, because the general no-strike clause in
the contract would be applicable. Therefore, for these rea-
sons, I find that Steiner did not respond to the Union’s letter
of October 16.
Respondent also adduced testimony from Mikalunas and
Steiner with respect to its decision to propose a 4-year con-
tract and to withdraw its economic or wage proposals.
Mikalunas testified that during the week prior to the Septem-
ber 11 meeting, he participated in a conference call with
Steiner and Hawes, operations manager of Respondent. Ac-
cording to Mikalunas, they discussed the status of negotia-
tions, as well as the fact that business was poor and Re-
spondent was a ‘‘financially troubled business.’’ They also
allegedly discussed that the Union was negotiating with other
companies at the time, and that Respondent was concerned
about getting trapped into a pattern bargaining situation with
other companies. Therefore, Mikalunas asserts that they de-
cided on a proposal of a 4-year contract with a wage re-
opener and a no-strike provision, so that Respondent could
have ‘‘another year of stability for a troubled company’’ as
well to ‘‘avoid the situation at our bargaining.’’ Mikalunas
further testified that he and Steiner would have these discus-
sions regularly with Hawes to report on and discuss the
pending negotiations, and that prior to the early September
discussion, the subject of the length of the contract had not
arisen or been mentioned during these conversations.
Mikalunas also testified that he had not discussed the issue
in conversations with Steiner prior to this discussion, but that
‘‘we may have assumed it was going to be a three year, but
there wasn’t a lot of discussion on it.’’
Steiner confirmed that there had been a conference call a
week before September 11 in which the 4-year proposal was
discussed, but he did not detail any of the specifics of the
conversations, nor provide any of the reasons for Respond-
ent’s decision to propose a 4-year agreement. Hawes did not
testify.
With respect to Respondent’s withdrawal of its proposal,
as noted, I have found that Steiner did state at the end of
the September 11 meeting as he was leaving, that Respond-
ent was withdrawing its proposal, but that Stroud did not
hear Steiner. In that connection, Mikalunas testified that
Steiner intended to withdraw Respondent’s ‘‘economic’’ pro-
posals to ‘‘take a look at them.’’ According to Mikalunas,
confirmed by his bargaining notes, Steiner withdrew Re-
spondent’s proposal after and in response to Stroud’s getting
excitable and upset.
Steiner’s testimony with respect to the withdrawal was
shifting and uncertain. At first, Steiner testified that he was
only withdrawing Respondent’s proposal for a 4-year con-
tract but, on further questioning, changed his testimony to as-
sert that he was withdrawing also Respondent’s wage pro-
posals. Later on in his examination also, Steiner changed
once more and testified that he was only withdrawing the 4-
year proposal and not Respondent’s wage proposal. He fur-
ther asserted that after the September 11 meeting, Respond-
ent had received ‘‘very bad’’ third quarter financial results,
causing it to decide that its previously offered wage proposal
needed to be revisited and needed to be ‘‘looked at.’’ How-
ever, Steiner provided no details as to precisely when or how
or by whom he was informed of these poor financial reports,
and introduced no written corroboration or confirmation of
Respondent’s financial condition. Moreover, no testimony
was adduced by Mikalunas or any other official of Respond-
ent on this subject to corroborate Steiner concerning this al-
leged poor financial report.6 In any event, Steiner admits that
he never informed the Union about this alleged poor finan-
cial report at any time, even in his alleged conversation with
Stroud, subsequent to Stroud’s attempted acceptance of Re-
spondent’s 4-year proposal.
III. ANALYSIS
A. The Alleged Unlawful Refusal to Sign a Contract
It is not in dispute that an employer violates Section
8(a)(1) and (5) of the Act by refusing to execute a collective-
bargaining agreement incorporating the terms agreed on by
the parties during negotiations. H. J. Heinz Co. v. NLRB,
311 U.S. 514 (1941). The essential question to be determined
is whether the parties reached a meeting of the minds on all
material and substantive terms of a collective-bargaining
agreement. Ebon Services, 298 NLRB 219, 224 (1990).
In making such a determination, however, it is clear that
technical rules of contract law do not necessarily control the
formation of a collective-bargaining agreement. Auciello Iron
Works, 303 NLRB 562 (1991); Pepsi Cola Bottling Co. v.
NLRB, 659 F.2d. 87 (8th Cir. 1981). In that connection, an
offer made by one party remains subject to being accepted
by the other party, even if the accepting party has earlier re-
jected the offer or made a counterproposal, unless the offeror
expressly withdraws the offer or unless circumstances arise
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Imprint Co., 273 NLRB 1863 (1985); Mercedes Benz of North
America, 258 NLRB 803 (1981).
8 I note that because the Union’s acceptance of the Respondent’s
offer made no reference to a reopener in the fourth year, there is
no need for a separate no-strike clause for the fourth year, inasmuch
as the no-strike clause in the proposed agreement covers the entire
term of the agreement.
which would lead the parties to believe that the offer has
been withdrawn. Inner City Broadcasting, 281 NLRB 1210,
1216 (1986), and Pepsi Cola, supra.
In applying these principles to the instant matter, General
Counsel argues that a full agreement was reached on all ma-
terial terms on July 31, when the Union accepted the pro-
posal made by Respondent at the July 19 meeting, and that
this acceptance was repeated at the start of the September 11
meeting, when Stroud accepted the written proposal as pre-
pared by Steiner, incorporating the agreement reached by the
parties.
Respondent argues that the parties neither discussed nor
agreed to significant material terms of the contract, to wit,
the term of the contract or the effective, commencement, and
termination dates of the agreement. Raytown United Super,
287 NLRB 1155 (1988); Springfield Electric Co., 285 NLRB
1305, 1306 (1987); Koenig Iron Works, 282 NLRB 717, 718
(1987).
While these, as well as other cases,7 establish that these
matters are material terms and must be agreed to before an
agreement will be found, it is possible to infer agreement on
effective date or term of the agreement based on other con-
duct of the parties, even absent specific discussion of these
issues. Luther Manor Nursing Home, 277 NLRB 35 (1985);
Moran Oil Producing Co., 204 NLRB 773 (1973); Cabinet
Mfg. Corp., 144 NLRB 842, 843 (1963).
Here, while as Respondent correctly observes, the length
of the contract was never specifically discussed by the par-
ties, all the offers, proposals, and counterproposals made by
both parties throughout the negotiations provided for yearly
wage increases or in some cases health and welfare contribu-
tions, over a period of 3 years. Moreover, Mikalunas admit-
ted that Respondent ‘‘may have assumed it was going to be
a three year [contract].’’ Since it is also clear that Stroud on
behalf of the Union also assumed that the contract was going
to be for a 3-year term, I conclude that both parties believed
that agreement had been reached on a term of 3 years, Waste
Systems Corp., 290 NLRB 1214, 1219 (1988), and that the
parties in practice used the dates of their various wage offers
to determine the duration of the entire contract. Luther
Manor, supra at 35.
Even if it is found that no agreement was reached on a
3-year agreement, as Respondent contends, there can be no
question that an agreement on a 4-year term was reached
when Stroud accepted Respondent’s offer of a 4-year con-
tract in his letter of October 7. Although Respondent did at-
tempt to withdraw this offer at the close of the September
11 meeting, I have found, consistent with Steiner’s own testi-
mony, that Stroud did not hear Steiner’s purported with-
drawal. Therefore, since the withdrawal was not commu-
nicated to the Union, it was not effective, and still subject
to being accepted by the Union. The fact that the Union and
Respondent made several counterproposals, i.e., a reopener
with or without a no-strike clause, after its initial offer was
made, does not constitute a withdrawal of its previous offer
of a 4-year contract with no wage increase in the fourth year,
Auciello, supra, Inner City, supra, which the Union accept-
ed.8
That leaves the question of the effective dates of the
agreement, and whether General Counsel has established a
meeting of the minds on that subject. I conclude that he has
not.
While such an agreement can be implied from the cir-
cumstances of the bargaining, even absent specific discussion
of the issue, Luther Manor, supra; Moral Oil, supra, I do not
believe that the circumstances here permit such an inference
to be drawn. I note initially that General Counsel contends
that agreement was reached on July 31 when Stroud notified
Respondent of the Union’s agreement to Respondent’s last
proposal offered on July 19. Yet, that proposal called for
wage increases at intervals of 3 years, starting on August 1,
1991. However, when Steiner, at Stroud’s request, prepared
what Steiner believed to be the agreement reached by the
parties, he changed these dates to three intervals starting on
October 1, 1991. At the start of the September 11 meeting,
Stroud accepted this proposal, while testifying that he be-
lieved that he was agreeing to a contract with an effective
date of October 1, and an expiration date of September 30,
3 years later. However, this matter had never been discussed,
and I do not believe one can infer from statements, conduct,
or admissions of Respondent that Respondent had agreed
with that view. In fact, since Steiner did not explain why he
changed the dates for measuring increases from August to
October, it seems to me that he did so because he knew that
the agreement would not be signed until the parties met
sometime in September. Therefore, I conclude that Steiner
left the starting and termination dates blank on the draft con-
tract that he prepared on August 28 because he did not know
the date of the parties’ meeting at the time he prepared the
document, and that he intended that the effective date of the
agreement would be the date the contract was signed, which
would have been September 11, had Respondent not refused
to sign upon the Union’s acceptance. Indeed, General Coun-
sel argues that an effective date of September 11 should be
ordered because it is ‘‘reasonable and equitable.’’ Moran Oil,
supra. I do not agree. The issue is not whether the date the
contract could have been signed is ‘‘reasonable and equi-
table,’’ but whether the parties implicitly or explicitly agreed
to that date. Moran Oil, supra, relied on by the General
Counsel, in the Board’s footnote 2, emphasized the fact that
the effective dated ordered by the administative law judge
was consistent with agreements reached on other portions of
the contract, i.e., the finalizing effect of ratification. Thus,
the best that could be said for the General Counsel’s case is
that both parties believed that agreement had been reached
on all terms of a contract, but that Respondent believed the
effective date would be September 11 and the Union be-
lieved it to be October 1. This does not constitute a meeting
of the minds on an important subject, and indicates a mutual
misunderstanding or mistake regarding the effective date of
the agreement. Cherry Valley Apartments, 292 NLRB 38, 40
(1988).
483TRANSIT SERVICE CORP.
9 Although I have found above that the absence of an agreement
on effective dates precludes a finding that a full contract was agreed
on, there is little doubt that this issue would not have been a prob-
lem. The Union was clearly anxious to sign any contract, and wheth-
er the effect date was September 11 or October 1 undoubtedly would
not have mattered, and I conclude that Respondent so believed.
10 Indeed, it is also significant that Respondent did not propose the
4-year contract on September 11, until after the Union agreed to sign
Steiner’s August 28 draft contract.
Therefore, I conclude that, although the Union purported
to accept Respondent’s offer on September 11, consisting of
Steiner’s August 28 document, there was no meeting of the
minds on the question of effective dates, and that Respondent
did not violate Section 8(a)(1) and (5) of the Act by refusing
to execute an agreement Cherry Valley, supra; Imprint,
supra; Springfield, supra.
Although I have found above that the Union accepted Re-
spondent’s offer of a 4-year agreement by Stroud’s October
7 letter which obviates any problem with finding an agree-
ment on the contract’s duration, the issue of the effective
date had still not been resolved. At that point, the October
1 date for the measuring of the first wage increase had
passed, and there is no testimony in the record from Stroud
as to what effective date he intended to accept, when he
agreed to Respondent’s proposal. In these circumstances
based on the above analysis and authorities, the absence of
a meeting of the minds on the effective date of the contract
prevents a finding that full agreement was reached on Octo-
ber 7, and compels a finding that Respondent did not violate
Section 8(a)(1) and (5) of the Act by refusing to execute an
agreement with the Union on and after October 7 or at any
other time. Therefore, I shall recommend that the allegations
of the complaint, as amended, which so allege shall be dis-
missed.
B. The Alleged Unlawful Withdrawal of Proposals
As Respondent correctly argues, a withdrawal of a pro-
posal previously agreed on is not necessarily violative of the
Act or indicative of bad faith. Dubuque Packing Co., 287
NLRB 499, 539 (1987); Reliable Tool Co., 268 NLRB 101
(1983); NLRB v. Tomco Communications, 567 F.2d 871, 883
(9th Cir. 1978); Food Service Co., 202 NLRB 790, 803
(1973).
However, such a withdrawal will be considered unlawful
and designed to frustrate bargaining unless the Employer
demonstrates that it had good cause for the withdrawal of
proposals to which it had previously agreed. Natico, Inc., 302
NLRB 668, 670–671 (1991); Arrow Sash & Door Co., 281
NLRB 1109 fn. 2 (1980); Northwest Pipe & Casing Co., 300
NLRB 726 (1990); NLRB v. F. Strauss & Sons, Inc., 536
F.2d 60, 64 (5th Cir. 1976); Mead Co., 256 NLRB 686
(1981), enfd. 697 F.2d 1013, 1022 (11th Cir. 1983).
Here, since I have found above that the parties had implic-
itly agreed to a 3-year contract by their previous positions
and conduct, Respondent’s decision to withdraw that pro-
posal and substitute a 4-year contract with no raise in the
final year must be evaluated under the good cause standard.
Respondent’s only attempt to demonstrate good cause for its
change of position comes from the testimony of Mikalunas
who recounted an alleged conference call, involving Steiner,
Hawes, and himself wherein the decision to propose the 4-
year agreement was allegedly made. I find that this testimony
is insufficient to establish good cause. Mikalunas claims that
Respondent decided on the 4-year proposal because of its al-
legedly poor financial condition and because it was con-
cerned about being trapped into a ‘‘pattern bargaining situa-
tion.’’ However, neither Mikalunas nor any other of Re-
spondent’s witnesses testified as when these matters came to
its attention. Indeed, the record reveals that Respondent had
been consistently complaining about its poor financial condi-
tion throughout the bargaining, and that at the July 19 meet-
ing, when it made its wage increase offer, informed the
Union that it had lost $40,000 last month. Additionally, Re-
spondent has not established that its pattern bargaining fears
were a recent problem, and it can be assumed that it was
aware of the Union’s efforts to bargain with other employers
throughout the negotiations. Thus, since these issues, i.e., the
poor financial condition of Respondent, plus the alleged
problem of pattern bargaining, were known to Respondent
when it made its offers on the basis of a 3-year contract, I
cannot conclude that these items motivated its subsequent
change of position to a 4-year proposal on September 11.
Rather, the evidence demonstrates to me that the with-
drawal was motivated by the filing of the decertification peti-
tion, and Respondent’s consequent desire to avoid reaching
agreement so that the decertification petition could be proc-
essed. It is noteworthy that on or about September 5, Steiner
called Stroud and sought to cancel the meeting previously
scheduled for September 11, because the decertification peti-
tion had been filed. It is significant to note that all terms of
an agreement, other than effective dates, had been agreed
upon, Steiner had previously sent the Union a draft contract
on August 28, and Respondent obviously and correctly be-
lieved that the Union intended to sign that document, after
the effective date was agreed on,9 on September 11. Steiner
being an expereinced labor attorney was aware that Respond-
ent could not lawfully refuse to meet because of the decerti-
fication petition, so when Stroud insisted on meeting as
scheduled on September 11, Respondent in my view found
another way to avoid reaching agreement prior to the end of
the certification year (October 9). Therefore, I find that Re-
spondent has not established good cause for its decision to
withdraw its 3-year proposal, and substitute a 4-year contract
with no raise in the fourth year, and that in fact this proposal
was made in order to avoid an imminent agreement being
reached,10 prior to the end of the certification year. Mead
Co., supra; F. Strauss, supra at 64; Natico Pipe & Casing
Co., 300 NLRB 726, 734 (1990).
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by such conduct.
Furthermore, at the close of the September 11 meeting,
Respondent attempted to withdraw its proposal which in-
cluded its prior wage increase package that had been in-
cluded in its draft contract. It subsequently confirmed in
writing that withdrawal by its letter of October 14, after the
Union attempted to accept the 4-year proposal in its October
7 letter. General Counsel contends, and I agree, that these ac-
tions of Respondent were similarly motivated by a desire to
avoid reaching agreement, and were not shown to have been
for good cause. Respondent argues in its brief that the pro-
posals were withdrawn ‘‘in response to Stroud’s angry dia-
tribe and refusal to continue to negotiate,’’ and that the wage
proposal was withdrawn for economic reasons (i.e., Respond-
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I would come to the same conclusion, with regard to the wage
proposal, even if it were found that no agreement had been reached
on a 3-year agreement, and that the 4-year proposal was not unlaw-
ful. Steiner’s conduct in not allowing the Union 5 minutes to receive
a call from its attorney, coupled with Respondent’s failure to ade-
quately document its economic defense, clearly demonstrates that
these withdrawals were an unlawful attempt to avoid signing an
agreement.
12 As noted, Steiner asserted that he did in fact reply by telephone
to Stroud’s letter, but I have not credited Steiner’s testimony in this
respect.
ent’s allegedly poor third quarter financial results). I do not
agree.
It is true that Stroud ordered Respondent’s representatives
to leave in a hostile manner coupled with the use of an ob-
scenity. However, I note that Respondent’s representatives
were in the process of leaving anyway, because Steiner
would not wait 5 minutes for the Union’s attorney to return
Stroud’s call. I find this conduct of Respondent to be clearly
inappropriate, particularly in view of the fact that Respond-
ent’s representatives had themselves been late for the very
same meeting. Thus, I conclude that Respondent’s conduct
provoked Stroud’s outburst, which in any event would not
provide sufficient justification for Respondent to withdraw its
previously agreed-to wage proposal.
Respondent’s reliance on its alleged poor third quarter re-
port is equally misplaced. I note initially that Mikalunas fur-
nished no supporting testimony to Steiner’s unsubstantiated
contention that such a report motivated Respondent’s actions.
Moreover, Respondent failed to introduce the alleged finan-
cial records, nor did Steiner provide any details as to pre-
cisely when or from whom he found out about its poor third
quarter results. Most importantly, I have found that Respond-
ent intended to withdraw its wage proposal at the close of
the September 11 meeting, although Stroud did not hear
Steiner’s attempt to do so. Thus, since even Steiner con-
tended that he found out about the third quarter results after
the September 11 meeting, that could not have been a factor
in its decision to attempt to withdraw its wage proposal at
that meeting.
Rather, the evidence overwhelmingly demonstrates that
these withdrawals and attempted withdrawals were but a con-
tinuation of Respondent’s earlier unlawful conduct of with-
drawing its previous agreement on a 3-year contract. Re-
spondent was continuing in its efforts to avoid signing an
agreement that it knew or at least believed the Union was
ready to accept, in the hopes that the certification year would
end and the decertification petition would be processed. I
find that Steiner’s actions of not waiting 5 minutes for the
Union’s attorney to call back, not only to be inappropriate
as described above, but motivated by a desire to terminate
the meeting before its last offer could be accepted by the
Union. Respondent obviously knew how desperate the Union
was to sign an agreement, particularly in view of the pending
decertification petition. I also conclude that when Stroud
asked for time to call his attorney, Respondent believed that
the completion of the call would result in the Union agreeing
to its 4-year proposal. Thus Respondent was anxious to leave
before that event transpired. This conclusion is fortified by
the fact that the Union in its October 7 letter did accept Re-
spondent’s 4-year proposal, with no raise in the fourth year,
and that Respondent rejected that acceptance on the assertion
that the offer had been withdrawn at the September 11 meet-
ing.
Based on the foregoing, I am persuaded that Respondent’s
withdrawals and attempted withdrawals of its wage proposal
were not supported by good cause, and were designed to
avoid an imminent agreement. Mead, supra; Natico, supra;
Arrow Sash, supra; Northwest Pipe, supra; F. Strauss, supra.
Therefore, it has violated Section 8(a)(1) and (5) by this con-
duct.11
C. The Alleged Refusal to Meet and Bargain
I have found above that Respondent ignored and made no
response to the Union’s letter of October 16, in which Stroud
requested a meeting ‘‘for the purpose of signing the agree-
ment.’’ While Respondent has provided no defense to or rea-
son for its refusal to respond,12 I suspect that Respondent
may have viewed the letter as a request to meet only for the
purpose of signing a contract, and did not reply since it be-
lieved that no contract had been agreed on.
However, such a position is no defense to Respondent’s
refusal to meet. An employer faced with a demand to meet
in order to sign a contract, cannot simply ignore the request,
even if no contract had been agreed on. It is obligated to in-
form the Union that it believed that no agreement had been
reached, and offer the Union the opportunity to change its
position and continue to bargain. Petropoulos Bros. Appli-
ances, 169 NLRB 1161, 1167–1168 (1968); Plastiline, Inc.,
190 NLRB 365, 374 (1971); Case Concrete, 220 NLRB
1306, 1309 (1975); Tile, Terrazzo & Marble Assn., 287
NLRB 769, 782 (1987). See also Stanford Realty Co., 306
NLRB 1061 fn. 2 (1992) (request to sign a contract sub-
sumes a demand to recognize and bargain).
Therefore, since Respondent herein made no reply and ig-
nored the Union’s request to meet in Stroud’s letter of Octo-
ber 16, it has thereafter refused to meet and bargain with the
Union in violation of Section 8(a)(1) and (5) of the Act.
Petropoulos Bros, supra; Tile Terrazzo, supra; Stanford,
supra.
D. The Decertification Petition
General Counsel requests that the dismissal of the RD pe-
tition in Case 13–RD–1943 be upheld, or in the alternative
that a finding be made that Respondent’s conduct was so se-
rious that any petition filed after September 11 was tainted.
General Counsel citing NuAimco, Inc., 306 NLRB 978
(1992), in which the Board, in approving a settlement agree-
ment, observed that not every unfair labor practice is suffi-
ciently serious to taint a decertification, argues that a finding
that the conduct here is sufficiently serious is warranted.
However, General Counsel has cited no case or other au-
thority that permits such a determination to be made, where
as here, the representation case has not been consolidated
with the instant matter, and is not before me. Indeed, I note
that the petition and the dismissal letter have not even been
introduced into the record. Nor does the record show whether
Petitioner has filed a request for review of the Regional Di-
rector’s dismissal. Nonetheless, assuming the General Coun-
sel’s description of these documents to be accurate, I do not
485TRANSIT SERVICE CORP.
13 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.
believe that it is appropriate for me to rule on the representa-
tion case which has not been made a part of this proceeding.
The fact that as the General Counsel argues the Petitioner
was served with a copy of all the relevant documents herein,
including the complaint and notice of hearing, is not suffi-
cient in my view to overcome this obstacle to my deciding
representation case issues. See for example Jefferson Hotel,
309 NLRB 705 (1992), and Canter’s Fairfax Restaurant, 309
NLRB 883 (1992), in which the Board required that a peti-
tioner be a party to any settlement agreement that provided
for dismissal of a decertification petition, finding that mere
notice to the petitioner and the opportunity to be a party to
the agreement is insufficient to justify such a dismissal.
Accordingly, I conclude that in the context of this case, I
am without authority to rule on the representation case, and
that in any event it would be inappropriate to do so, without
the Petitioner having had the opportunity to state her position
and be heard on the matter. I would note, however, that of
course the Regional Director will be able to consider my un-
fair labor practice findings above, should the Petitioner re-
quest that the petition be reinstated, after compliance with
the Order herein.
Therefore, I shall deny the request of the General Counsel
to make findings with respect to the representation case.
CONCLUSIONS OF LAW
1. Transit Service Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Truck Drivers, Chauffeurs, Warehousemen and Helpers
Union, Local 707, an affiliate of the National Production
Workers Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union has been at all times material herein the des-
ignated and exclusive collective-bargaining representative of
the employees in an appropriate unit consisting of:
All drivers employed by the Respondent at its facil-
ity currently located at 4711 North Clark Street, Chi-
cago, Illinois; excluding all office clerical employees,
professional employees, guards, supervisors as defined
in the Act and all other employees, and owner opera-
tors.
4. By withdrawing bargaining proposals in order to frus-
trate bargaining and to prevent the reaching of an agreement,
and without good cause, Respondent has violated Section
8(a)(1) and (5) of the Act.
5. By refusing to meet and bargain with the Union on or
after October 16, 1991, Respondent has violated Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. General Counsel has not established by a preponderance
of the evidence that Respondent has otherwise violated the
Act as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in violations
of Section 8(a)(1) and (5) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act. In this
regard, I shall recommend that the certification year be ex-
tended for an additional 6 months. Den-Tal-Ez, Inc., 303
NLRB 968 fn. 2 (1993).
Additionally, I also do not believe that merely ordering
Respondent to bargain with the Union will provide sufficient
relief for the violations committed herein. I have found
above that Respondent withdrew its offer of a 3-year contract
on September 11 in order to prevent the Union from accept-
ing its previous offer as set forth in Steiner’s August 28 draft
contract. Although the Union’s purported acceptance was in-
effectual, because the effective dates had not been agreed to,
Respondent’s action nonetheless had the desired effect of
preventing agreement. Indeed, I am confident that had Re-
spondent not withdrawn its 3-year offer, the parties would
have quickly resolved the question of the effective date, and
reached agreement on that date, nearly a month before the
expiration of the certification year. In these circumstances, I
deem it appropriate to restore the status quo to the extent
feasible by ordering Respondent to reinstate its unlawfully
withdrawn proposal of a 3-year agreement along with
Steiner’s August 28 draft contract, and bargain in good faith
with the Union over the effective dates of the agreement.
Mead Corp., 256 NLRB at 686–687; Northwest Pipe, 300
NLRB at 736–737; Star Dental, supra.
In the event that a finding is made that Respondent did not
violate the Act by withdrawing its 3-year contract proposal,
I would recommend alternatively that a similar remedy
would be appropriate with respect to Respondent’s 4-year
contract proposal. Thus, once again I have concluded that
Respondent’s withdrawal of this proposal which included
withdrawal of its previous wage proposal as reflected in its
August 28 draft contract was also designed to prevent the
Union from accepting the proposal and to frustrate agree-
ment. Therefore, a remedy of requiring the reinstatement of
its 4-year proposal, including all the terms set forth in the
August 28 draft contract would best effectuate the Act and
restore the status quo. Mead, supra; Northwest Pipe, supra;
Star Dental, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Transit Service Corporation, Chicago, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain in good faith with Truck
Drivers, Chauffeurs, Warehousemen and Helpers Union,
Local 707, an affiliate of the National Production Workers
Union.
(b) Withdrawing or retracting bargaining proposals made
to or agreements reached with the Union, without good
cause, or in order to frustrate bargaining or to prevent the
reaching of a full agreement with the Union.
(c) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, meet and bargain with the Union in good
faith for at least 6 months thereafter as if the initial year of
Board certification has not expired and, if an understanding
is reached, embody the understanding in a signed agreement.
(b) Reinstate in its entirety for a reasonable time, its pro-
posal for a 3-year contract incorporating the terms reflected
in its draft contract of August 28, 1991, and bargain in good
faith over the effective dates of the agreement.
(c) Post at its Chicago, Illinois facility copies of the at-
tached notice marked ‘‘Appendix.’’14 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint, as amended is
dismissed insofar as it alleges violations not found herein.