TTS Terminals, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 2007

351 N.L.R.B. 1098 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 68
1098
TTS Terminals, Inc. and International Brotherhood
of Teamsters, Local Union 705. Case 13–CA–
43370
December 14, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 11, 2007, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief. The General Counsel filed
cross-exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
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,1 and conclusions,2
and to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge found that the events discussed in sec. II,B, pars. 10–12 of
his decision occurred on February 6, 2006. The General Counsel ex-
cepts to that finding, contending that these events actually occurred at
the March 16, 2006 bargaining session. In its answering brief, the
Respondent stated that it did not dispute that the events occurred on
March 16. Accordingly, we find merit in the General Counsel’s excep-
tion, and we correct the error.
2 We find it unnecessary to pass on the General Counsel’s exceptions
to the judge’s failure to additionally find that the Respondent violated
Sec. 8(a)(5) and (1) by engaging in regressive bargaining and repudiat-
ing the agreed-upon collective-bargaining agreement. The judge’s
recommended Order substantially remedies all of the allegations in the
complaint, and finding those additional violations would not materially
affect the remedy.
Chairman Battista agrees that the Respondent violated Sec. 8(a)(5)
and (1) by refusing the Union’s demand that it execute the collective-
bargaining agreement reached on April 21, 2006. The Chairman notes
that, during an early bargaining session, the Union’s negotiator in-
formed the Respondent’s negotiator that the Union had a two-step
ratification process requiring the approval of the collective-bargaining
agreement by the Union’s membership and its secretary-treasurer.
However, at the final bargaining session on April 21, 2006, the Union’s
negotiator notified the Respondent’s negotiator that “we uncondition-
ally accept your offer.” By clearly communicating this “unconditional”
acceptance of the Respondent’s offer, the Union dispensed with its self-
imposed ratification procedure and formed a binding and effective
agreement. See Personal Optics, 342 NLRB 958, 958 fn. 2 (2004)
(union created binding agreement by accepting employer’s offer after
dispensing with self-imposed unit member ratification vote), enfd. 165
Fed. Appx. 1 (D.C. Cir. 2005); Sacramento Union, 296 NLRB 477, 488
(1989) (explaining that a union is at liberty to change its self-imposed
position on ratification). Although the Union did obtain ratification of
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, TTS
Terminals, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(d).
“(d) Within 14 days after service by the Region, post at
its facilities in Willow Springs and Cicero, Illinois, cop-
ies of the attached notice marked “Appendix.”4 Copies
of the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 25, 2006.”
2. Substitute the attached notice for that of the admin-
istrative 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

the agreement, it would not have been free to walk away from the
agreement following its contract-creating unconditional acceptance
even if the membership or the secretary-treasurer had failed to ratify the
agreement. Similarly, following the Union’s unconditional acceptance,
the Respondent could not lawfully refuse to execute the collective-
bargaining agreement. By refusing the Union’s May 25, 2006 execu-
tion demand, the Respondent violated Sec. 8(a)(5) and (1).
3 We shall modify the date in par. 2(d) of the judge’s recommended
Order to conform to the date of the unfair labor practice as set forth in
par. 5 of the judge’s conclusions of law. We shall also modify the
judge’s notice to conform to the recommended Order.
TTS TERMINALS, INC. 1099
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain in good faith with re-
spect to wages, hours, and other terms and conditions of
employment by refusing to execute the collective-
bargaining agreement agreed upon and provided to us by
International Brotherhood of Teamsters, Local Union
705 (the Union) on May 25, 2006. The Union is the ex-
clusive bargaining representative for the following unit:
All full-time and regular part-time gate inspectors em-
ployed by us at our facilities currently located at the
Burlington Northern Santa Fe rail yards at 7600 Santa
Fe Drive, Willow Springs, Illinois and at 5601 W. 26th
Street, Cicero, Illinois; but excluding all office clerical
employees and guards, professional employees and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL forthwith sign the collective-bargaining
agreement agreed upon with the Union and forwarded to
us on May 25, 2006.
WE WILL make you whole, with interest, for any loss of
earnings and other benefits you may have suffered as a
result of our refusal to sign the agreement.
TTS TERMINALS, INC.
Jessica Muth, Esq., for the General Counsel.
Maynard A. Buck, Esq. (Benesch, Friedlander, Coplan &
Aronoff, LLP), of Cleveland, Ohio, and Alexander Plona,
Esq. (Alexander Plona & Associates, LPA), of Independ-
ence, Ohio, for the Respondent.
Edward Burke, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Chicago, Illinois, on September 14, 2006. The charge
was filed May 10, 2006,1 by the International Brotherhood of
Teamsters, Local Union 705 (the Union). The complaint was
issued June 28. The complaint alleges that TTS Terminals, Inc.
(the Respondent) violated Section 8(a)(5) of the National Labor
Relations Act (the Act) by engaging in regressive bargaining
and failing to acknowledge, implement, abide by, and execute
the parties’ collective-bargaining agreement. The Respondent
denies any unlawful conduct.
On the entire record, including my credibility determinations
based on the demeanor of the witnesses, as well as my credibil-

1 All dates are in 2006, unless otherwise indicated.
ity determinations based on the weight of the respective evi-
dence, established or admitted facts, inherent probabilities, and
reasonable inferences drawn from the record as a whole and,
after considering the briefs filed by the counsel for the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, with an office and
place of business in Chicago, Illinois, has been engaged in the
business of providing ramp services to the Burlington Northern
Santa Fe railroad. During the 12 months preceding June 28,
2006, the Respondent, in conducting its business operations,
has purchased and received at its Chicago, Illinois facility
goods valued in excess of $50,000 directly from points outside
of the State of Illinois. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Background
The parties have no bargaining history. From about 2002
through September 2005, the Union was recognized as the ex-
clusive collective-bargaining representative of the gate inspec-
tors employed by the predecessor employer, Central Intermo-
dal. This recognition was embodied in successive collective-
bargaining agreements, the most recent of which was effective
from May 2003 thorough May 2005. About December 2005,
the Respondent became the successor employer for the unit and
recognized the Union as the designated collective-bargaining
representative of the unit. Thus, at all material times since at
least 2002, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of the
employees in the unit.
The following employees of the Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time gate inspectors employed
by the Employer at its facilities currently located at the Bur-
lington Northern Santa Fe rail yards at 7600 Santa Fe Drive,
Willow Springs, Illinois and at 5601 W. 26th Street, Cicero,
Illinois; but excluding all office clerical employees and
guards, professional employees and supervisors as defined in
the Act.
B. The Bargaining Sessions
All the bargaining sessions occurred at a Sleep Inn in Chi-
cago. The initial meeting was on January 20. The representa-
tives for the Respondent at all the bargaining sessions were
Attorney Alexander Plona and General Manager Arthur
Gneuhs. Attorney Plona was retained by the Respondent as its
general counsel and human resources specialist. He has served
in those capacities for 15 years. The Union’s spokesperson for
all the bargaining sessions was its general counsel, Ned Burke.
Burke was accompanied at the meetings by Santos (Sam)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
Marinez, the union business agent and one or two bargaining
unit members. (“Marinez” is the spelling in the transcript. It is
also spelled “Marinas” and “Martinez” in other documents.
Regardless of the spelling the person is the same individual.)
Burke testified that he told the Respondent’s representatives
that while the Union was not ready to discuss terms and condi-
tions it would be seeking a spring 2008 contract expiration date.
Burke explained that the Union hoped to use a common expira-
tion date as leverage to obtain a pattern contract with the rail-
road vendors. The Respondent’s representatives do not recall
any mention regarding a common expiration date.
The parties also discussed two approaches that would allevi-
ate the need to negotiate an entirely new agreement. The first
was to work from the previous Central Intermodal agreement.
The second was to use one of two agreements recently negoti-
ated between the Union and railroad vendors QTS and Pacific
Rail Services. Plona asked Burke to provide him with copies of
the QTS and Pacific Rail Services agreements. Burke agreed
and his notes from the session reflect his agreement. Plona also
contends that he asked Burke to get him a signed copy of the
Central Intermodal agreement. Burke disputes this contention.
According to Burke, Plona also said that if the Respondent
assumed the Central Intermodal agreement it would need new
wage and benefits rates. Burke testified that Plona specifically
mentioned the 401(k) provision, stating that it “was richer than
their company plan.” The parties agreed to meet on February 6.
Before then Burke e-mailed the QTS and Pacific Rail Services
agreements to Plona.
The same individuals, with the addition of unit member Tho-
mas Brewer, next met on February 6. (Santos (Sam) Martinez
is incorrectly identified as Tony Sarwas throughout the tran-
script, see, e.g., Tr. 19.)
At the February 6 meeting, Plona stated that although he had
made a cursory review of the QTS and Pacific Rail Services
agreements he was more interested in assuming the Central
Intermodal contract. Burke said, “[T]hat’s fine, we can go in
any direction you want to go.” Plona asked the Union if they
had a wage proposal. After a caucus the Union orally presented
an offer of $12.50 an hour with a 2-year progression. Accord-
ing to Burke, he told Plona that the Union needed to review the
Respondent’s 401(k) plan and healthcare plan before it could
present an offer on those issues.
Burke testified that during the meeting Plona indicated that
he did not have a copy of the Intermodel contract. Burke un-
derstood that to mean that Plona did not personally have a copy
with him. Burke stated that he assumed that Plona was familiar
with the agreement because the Respondent was operating un-
der the Central Intermodal agreement. During rebuttal Burke
testified that while he was e-mailing the two contracts to Plona,
he looked for, but was unable to locate, the Central Intermodel
agreement in his computer. He asked Marinez to give a copy to
the Company. Burke further recalled that during this meeting
Marinez offered to go to his truck and get a clean copy of the
Central Intermodal agreement, but Gneuhs replied that they
“already got one.” Gneuhs denied the truthfulness of Burke’s
statement regarding the forgoing incident. (Tr. 137–138.)
Burke denies that the Respondent distributed a two-page
document (R. Exh. 2). The document is entitled, “Open Con-
tract Issues” and dated “01–20–06.” Under “Company Pro-
posal” are six separate proposals, addressing “Holidays,
Per/Sick, Wages, Health/Welfare, Retirement, Vacations.” In
small print on the bottom left of the page is “F:\Comapny Pro-
posal 1–19–06 doc,” Plona testified that was the date the docu-
ment was prepared and its location on his computer. The sec-
ond sheet contains two paragraphs and is entitled, “TTS Man-
agement Rights.” It has no identifier, nor is there any indica-
tion that it is the second page of a two-page document.2 Plona
testified that he prepared the document in anticipation of pre-
senting it to the Union on January 20. He did not do so because
the Union was not prepared to discuss substantive issues on
January 20.
Plona stated that in response to the Union’s verbal proposal
he believes that he offered a verbal counterproposal. Using his
notes as a guide he explained that the far left column is, as
marked, the current wage rate, next is the Union’s proposal and
the last column on the right is the Respondent’s counterpro-
posal. He offered no explanation regarding of the column of
numbers between the Union and the Respondent’s proposals
underneath “@ 12.00 cap.” He did explain that the notes on the
bottom were based on his discussions with Gneuhs and were
not part of the negotiations.
The Union caucused and then presented a written proposal.
The first sentence states: “Accept Central Intermodal contract
with following changes.” Items 1 and 2 reflect the Union’s
acceptance of the Respondent’s proposals on health insurance
and retirement. Item 3 is requests that Central Intermodal sen-
iority apply for all purposes. Item 4 proposes 4 sick days rather
than 2 sick days as proposed by the Respondent. Item 5 pro-
poses that employees currently paid more than the proposed
wage scale continued to be paid at that rate. Item 6 is the Un-
ion’s counterproposal on wages with a termination date of
March 31, 2008. (Tr. 22–24; GC Exh. 3.)
The parties agree that the March 31, 2008 termination date
was discussed at this meeting. Burke testified that once again
he explained the need for a common expiration date. In re-
sponse to Plona’s hypothetical question concerning an em-
ployer who would not agree to the date, Burke stated that he
would address that issue when it arose. He also explained the
Union’s internal ratification procedure.
After caucusing, Plona offered a counterproposal regarding
the wages. The counterproposal was handwritten on the sheet
containing the Union’s proposal. The counterproposal also
corrected the $3 figure (erroneously written by Burke) to 3
percent in item 2. (GC Exh. 4.) Plona had to leave after offer-
ing the counterproposal. Burke said that he would immediately
prepare a counterproposal and e-mail it to Plona. The counter-

2 The Respondent correctly notes (R. Br. at 4 fn. 1) that the court re-
porter erroneously indicates that a duplicate of this exhibit was not
submitted to the reporter at the hearing. The Respondent attached cop-
ies of the exhibit to the briefs submitted to myself and the counsel for
the General Counsel. I note that I am in total agreement with the Re-
spondent’s contention that the exhibit was admitted and submitted to
the court reporter. I also observe that the attachment is identical to the
document I received at the hearing, and counsel for the General Coun-
sel’s lack of objection. Accordingly, I have requested that the attach-
ment be inserted in its correct place in the Respondent’s exhibit file.
TTS TERMINALS, INC. 1101
proposal was e-mailed at noon. The first sentence of the coun-
terproposal reiterates, “Accept Central Intermodal contract with
following changes”: the changes correct item 2, reiterate items
1 and 3–5, and item 6 is a new wage proposal with the same
March 31, 2008 termination date. (GC Exh. 5.)
Plona e-mailed his response on March 31. He accepted
items 1–5, and the March 31, 2008 termination date. He of-
fered a counterproposal regarding the wage scale and wrote that
the motel room was reserved for the parties’ next meeting. on
“Friday 4–21–06 from 9:00 AM to 1:00 PM.” On April 4,
Burke acknowledged the e-mail and wrote that he “should have
a response soon.” (GC Exh. 7.) Plona replied the same day,
writing, “Thanks Ned! Maybe we can execute on 4–21–06.”
(GC Exh. 8.)
Plona testified that some time between April 4 and 21 he
spoke with the Respondent’s president regarding the negotia-
tions. The president told him that because the Respondent’s
revenue was controlled though 2010 labor cost also had to be
controlled. Accordingly, the 2008 termination date could place
the Respondent in financial jeopardy. Plona accepts responsi-
bility for failing to be aware of the situation.
The parties met on April 21. After an exchange of pleasant-
ries, Burke asked Plona if the Central Intermodal seniority
would be used in the wage scale contained in Plona’s last pro-
posal. Plona said it would and Burke replied, “[W]ell, in that
case Alex, we unconditionally accept your offer.” Plona at-
tempted to renege on the March 31, 2008 termination date, but
Burke stated that they had a deal. Plona suggested meeting on
May 18. Burke agreed, but said that he would not negotiate
because the deal was complete. The conversation became
heated and the parties adjourned.
Burke spoke with Plona on April 22 and asked if he had
talked to his client. Plona said that he had and reiterated that
the Respondent could not accept a 2008 expiration date, and
that the expiration date had to be in 2010. Burke mentioned
unfair labor practices and Plona told him not to threaten him
and the call ended.
Plona canceled the May meeting because of ill health and
suggested a meeting in June. Burke’s response was to e-mail
Plona a copy of the final agreement on May 25, with a message
stating, “Attached is a copy of the TA [tentative agreement] we
intend to vote today at the facilities.” The agreement consists
of the six agreed on items incorporated into the Central Inter-
modal agreement, with an expiration date of March 31, 2008.
Plona responded, “As you well know, the 3–1–08 was not
TA’d.” Plona later learned that the agreement was ratified.
Shortly thereafter, Burke rejected another offer to meet and the
unfair labor practice charge followed.
III. DISCUSSION
It has long been settled that Section 8(d) of the Act requires
the parties to a collective-bargaining relationship, once they
have reached agreement on the terms of a collective-bargaining
agreement, to execute that agreement at the request of either
party. H. J. Heinz Co. v. NLRB, 311 U. S. 514 (1941). This
obligation attaches only if it has been found that there has been
a “meeting of the minds” on all material terms of an agreement.
Intermountain Rural Electric Assn., 309 NLRB 1189, 1192
(1992). The General Counsel has the burden of showing not
only that the parties have reached the requisite “meeting of the
minds” on the agreement reached but also that the document
which the respondent refused to execute accurately reflects that
agreement. Park Maintenance, 348 NLRB 1373, 1381 (2006).
A “meeting of the minds” is determined “not by the parties’
subjective inclinations, but by their intent as objectively mani-
fested in what they said to each other.” MK–Ferguson Co., 296
NLRB 776 fn. 2 (1988). Thus, subjective understandings (or
misunderstandings) of the meaning of terms that have been
agreed to are irrelevant, provided that the terms themselves are
unambiguous when “judged by a reasonable standard.” Vallejo
Retail Trade Bureau, 243 NLRB 762, 767 (1979), enfd. 626
F.2d 119 (9th Cir. 1980).
Based on the principles cited above, I find, for the reasons
set forth below, that the General Counsel has established a
“meeting of the minds” on the terms of a contract and that the
document admitted as General Counsel Exhibit 10, accurately
reflects that agreement. Accordingly, the Respondent is obli-
gated to execute the collective-bargaining agreement negotiated
between it and the Union.
Counsel for the General Counsel correctly argues, and the
record supports, that it was the Respondent that chose to adopt
the terms of the old Central Intermodal agreement with some
economic modifications. After several meetings, the Union
made a comprehensive proposal covering six issues. The initial
sentence of the Union’s proposal and in all its subsequent pro-
posals state, “Accepts Central Intermodal contract with the
following changes:” and the proposal then lists the six modifi-
cations. After several exchanges the Respondent agreed to all
the numbered proposals as well as the termination date and
submitted a counterproposal on wages—the only remaining
open item. Burke acknowledged the proposal and said that he
would respond shortly. In response Plona exclaims, “Thanks
Ned! Maybe we can execute on 4–1–6,” the date of the next
meeting.
Counsel for the General Counsel argues that all the objective
factors demonstrate that the parties had achieved a meeting of
the minds regarding all substantive terms of their collective-
bargaining agreement when the Union unconditionally accepted
the Respondent’s proposal on April 21.
The Respondent contends, in essence, that things are not al-
ways as they appear. For instance when asked if he made ref-
erence to Burke’s “statement to accept Intermodal contract with
the following changes,” Plona testified that he did not. The
reason offered was because “I didn’t go over the language yet
with Ned,” and he “still didn’t have a copy of the union’s con-
tract.” (Tr. 91.) His answer does not explain why he did not
question Burke as to why Burke wrote what had to be, from
Plona’s alleged point of view, totally gratuitous language into
his proposal.
Equally puzzling is Plona’s answer to the question whether
the Central Intermodal contract was even discussed at the
March 16 meeting, answered obliquely, “If we did, I would
have told Burke I still don’t have a copy of it.” (Tr. 85.) I find
Plona’s failure to inquire about his request—well over a month
after it was made—and his lack of recollection on about the
issue, belie his contention as to the importance of the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
dent obtaining a copy of the Union’s Central Intermodal con-
tract.
That contention is further diluted by the fact that Plona testi-
fied to applying the terms of the Central Intermodal contract to
the current work force “for the most part.” Gneuhs talks of two
copies of the contract, one that was faxed to him and one that
was found in a draw. Both individuals demonstrated their famili-
arity with the terms of the contract. Thus, Plona told Burke that
he needed relief from Central Intermodal’s pension plan because
it was too costly. Gneuhs acknowledged differences in pay peri-
ods and holidays. In short, I find that the Respondent did not
need the Central Intermodal contract. This finding is supported
by Burke’s testimony that Gneuhs responded to Marinez’ offer to
get him a copy by replying, “[N]o thanks we’ve already got one.”
(Tr. 142.)
The Respondent contends that Burke’s testimony regarding
that exchange should not be credited over Gneuhs’ denial. The
Respondent argues that Burke should have recalled this incident
when cross-examined during the General Counsel’s case-in-
chief. I disagree. The record supports the General Counsel’s
argument that the Respondent’s emphasis on the Union not pro-
viding its copy of the Central Intermodal contract is of recent
vintage. The documentary evidence contains not a clue suggest-
ing that the absence of the Union’s copy of the Central Intermo-
dal contract was any impediment bargaining. In this regard the
most significant document is Plona’s four-page affidavit. The
affidavit contains absolutely nothing to suggest that the document
had any relevance to negotiations. Accordingly, I find that the
exchange between Marinez and Gneuhs was of no moment when
it occurred and as such I am unwilling to discredit Burke’s testi-
mony because it was given on rebuttal rather than cross-
examination.
I find Burke to be a more credible witness than Plona or
Gneuhs. Gneuhs admitted reviewing his testimony with Plona
before the hearing. Both men have a motive to disassemble in an
effort to negate an agreement that the Respondent’s president
considers unsatisfactory. Burke appears to have no such incen-
tive. I also see no reason for the Union not to provide the Re-
spondent with a copy of its Central Intermodal agreement, and
none is advanced by the Respondent. Accordingly, I find that the
parties agreed to accept the Central Intermodal agreement as
modified by the six items in the Union’s proposal of March 16,
2006, as well as the termination date of March 31, 2008. (GC
Exh. 3.)
The Respondent additionally contends that it had several out-
standing proposals when the Union accepted its final proposal on
April 21. The Respondent points to the document entitled
“OPEN CONTRACT ISSUES” dated “01–20–06.” Under the
date, in bold letters, is “Company Proposal.” (R. Exh. 2.) Plona
testified that he prepared this sheet on January 19 but did not give
it to the Union on January 20, because the Union was not ready
to discuss substantive issues. Conceivably, the heading used by
the Respondent is inconsistent with its current position. It ap-
pears that “open contract issues” implies not only that there is a
contract in being, but also that there are closed, or settled, issues.
Regardless, Plona and Gneuhs claim that they handed this docu-
ment and a two-paragraph sheet entitled “TTS Management
Rights” to the union representatives at the February 6 meeting.
Burke denies ever seeing the document.
Burke testified that the only substantive discussion that oc-
curred on February 6 was the discussion of the Union’s wage
proposal. It is unclear from the testimony of Plona and Gneuhs
exactly when during the meeting they allegedly distributed the
“Company Proposal.” It is highly unlikely that a veteran negotia-
tor like Plona would have distributed it before receiving the Un-
ion’s proposal and thus placing the Respondent in the position of
having to negotiate with itself. Burke testified that as soon as the
meeting began Plona asked for the Union’s wage proposal. He
testified that he wrote the Union’s proposal on the left side of the
page to the right of the current wage rates. His notes are consis-
tent with his testimony. He states that he and Gneuhs then cau-
cused and developed a counterproposal, which he wrote on the
right side of the page. He believes that he verbally presented the
counterproposal to the Union. It is at this juncture that Plona’s
notes become problematic. There is an unexplained column of
numbers between the Union’s proposal and the Respondent’s.
There also appears to be no correlation between the Respondent’s
proposal contained in Plona notes (R. Exh. 10), the proposal he
contends he distributed to the Union as part of the “Company
Proposal sheet” and the Respondent’s proposal contained in the
spread sheet dated March 16. (GC Exh. 2.) I find it highly im-
probable that after receiving the Union’s initial wage proposal the
Respondent would then distribute the “Company proposal sheet,”
and immediately caucus to formulate another wage proposal that
was never presented.
A review of Plona’s affidavit reveals that Plona stated during
the February 4 meeting that he “basically reviewed with the Un-
ion the Employer’s proposal which was to use the old Central
Intermodal contract with some modifications.” (GC Exh. 13 at
2.) I find that statement, combined with Burke’s credited testi-
mony that he never saw the Company’s proposal sheet but did
verbally give the Respondent a wage proposal, to be an accurate
representation of the February 6 meeting.
Regarding the Respondent’s contention that on February 6 it
also presented a sheet entitled, “TTS Management Rights” to the
Union, I find not only that the sheet was never distributed but that
management rights were never discussed. The writing on the
sheet consists of two paragraphs, the first is 11 lines in length.
Combined, the contents express what can only be described as an
extremely expansive management-rights clause. The Central
Intermodal agreement does not contain a management-rights
clause. Oftentimes, the introduction of a management-rights
clause during bargaining, especially a clause as extensive as this,
may create contention among the parties. The record establishes
that until the Respondent attempted to renege on its offer the
bargaining was conducted in a professional and cordial manner.
Moreover, I find it inconceivable that the Respondent presented
this management-rights clause and yet it did not merit a pen
stroke in either parties’ notes, nor even a mere mention by Plona
anywhere in his affidavit. Gneuhs states that in response to the
question of “where we stood on the management rights clause,”
Burke replied that he had to get it read by other people in his
organization. (Tr. 126.) This response, allegedly given almost 2
months after the clause was proposed by an experienced negotia-
tor and attorney, is simply beyond belief, and I so find.
TTS TERMINALS, INC. 1103
Plona concedes that his use of the word “execute” shortly after
presenting what was his last proposal “might not have been the
right word.” (Tr. 94.) I find that an incredible understatement.
Plona explains:
Obviously I didn’t mean [we’re] going to sign a contract
that day. But I thought we could get to a point where he
could take it for a vote. I felt there was only a few open is-
sues. If I would get a copy of the contract, I could compare
it against the one that was found in a drawer. And if that
were true, there were small contract lang [sic] issues that we
could handle. There is no reason we couldn’t have gotten
that done in four hours. [Tr. 94–95.]
The Respondent, in brief (R. Br. at 12), provides with specificity
exactly what remained, if one were to accept Plona’s scenario:
Indeed, of the twenty-six articles in the purported agree-
ment, covering thirty-six (36) pages, the parties actually dis-
cussed only wage rates, health coverage, retirement plan
coverage, seniority and personal/sick days. There was no
substantive discussion whatsoever concerning Scope of the
Agreement (Article 1), Recognition and Union Security (Ar-
ticle 2), Hours (Article 4), Guarantees (Article 5), Holidays
(Article 6), Vacations (Article 7), Uniforms (Article 9),
Workers’ Compensation (Article 10), Stewards (Article 11),
Transfers and Subcontracting (Article 12), Safety (Article
13), Protection of Rights (Article 14), Union Inspections
(Article 17), Grievance Procedure (Article 18), Time Clocks
(Article 19), Veterans (Article 20), Jurisdiction (Article 21),
Economic Standards (Article 22), Reopening (Article 23),
Government Approval (Article 24), and Separability and
Savings Clause (Article 25). (See Purported Agreement,
Exhibit GC–10.)
The Respondent’s management-rights clause should also be
added to the list.
I find Plona’s scenario incredible and reject it completely. In
so doing, I note that this also is not mentioned at all in Plona’s
affidavit and is completely at odds with Burke’s forthright and
credible testimony.
In agreement with counsel for the General Counsel, I also re-
ject the Respondent’s argument that assuming agreement was
reached on April 21 it was not final because the agreement had
not been ratified. Counsel for the General Counsel is correct in
her assertion that the parties did not discuss or agree to any
ground rules requiring ratification by unit members as a condition
precedent to a binding agreement. Accordingly, if the Union
does have an internal ratification requirement, it has no impact or
relevance to the final and binding nature of the agreement
reached between the Respondent and the Union.
Based on the foregoing, I find that the Respondent and the Un-
ion reached a “meeting of the minds” on all substantive terms of
their collective-bargaining agreement when the Union uncondi-
tionally accepted the Respondent’s final proposal on April 21,
2006, and that the Respondent thereafter has reneged on the
agreement, and failed and refused to execute the agreement when
it was forwarded to the Respondent on May 25, 2006. Accord-
ingly, I find that the Respondent, by its conduct set forth above,
has violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, TTS Terminals, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union, International Brotherhood of Teamsters, Local
Union 705, is a labor organization with the meaning of Section
2(5) of the Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time gate inspectors employed
by the Employer at its facilities currently located at the Bur-
lington Northern Santa Fe rail yards at 7600 Santa Fe Drive,
Willow Springs, Illinois and at 5601 W. 26th Street, Cicero,
Illinois; but excluding all office clerical employees and
guards, professional employees and supervisors as defined
in the Act.
4. At all times material, the Union has been the exclusive col-
lective-bargaining representative of the employees in the unit
found appropriate for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By failing and refusing to execute and sign the collective-
bargaining agreement agreed to by the Union and the Respondent
and forwarded to the Respondent on May 25, 2006, the Respon-
dent has engaged in and is engaging in an unfair labor practice in
violation of Section 8(a)(1) and (5) of the Act.
6. The unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in an unfair la-
bor practice, I find that it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the poli-
cies of the Act.
I recommend that the Respondent forthwith sign the collec-
tive-bargaining agreement that was forwarded to it by the Union
on May 25, 2006. I also recommend that the Respondent make
whole its unit employees who may have suffered losses as a re-
sult of the Respondent’s failure to sign and abide by the agree-
ment, in a manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended3
ORDER
The Respondent, TTS Terminals, Inc., Chicago, Illinois, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith by refusing to
execute the collective-bargaining agreement agreed upon with
International Brotherhood of Teamsters, Local Union 705 (the

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
Union) and forwarded to the Respondent on May 25, 2006. The
Union is the exclusive collective-bargaining representative of all
the employees in the following unit:
All full-time and regular part-time gate inspectors employed
by the Employer at its facilities currently located at the Bur-
lington Northern Santa Fe rail yards at 7600 Santa Fe Drive,
Willow Springs, Illinois and at 5601 W. 26th Street, Cicero,
Illinois; but excluding all office clerical employees and
guards, professional employees and supervisors as defined
in the Act.
(b) 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. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Forthwith, sign the collective-bargaining agreement agreed
upon with the Union and forwarded to the Respondent on May
25, 2006.
(b) Make its unit employees whole, with interest, for any loss
of earnings and other benefits they may have suffered by reason
of the Respondent’s failure to sign the agreement, as set forth in
the remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Willow Springs and Cicero, Illinois, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since April
21, 2006.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”