Waste Systems Corp.

National Labor Relations Board - Board DecisionsSep 23, 1988

290 N.L.R.B. 1214 (N.L.R.B. 1988)

1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Waste Systems Corp . and United Steelworkers of America, AFL-CIO, CIC. Cases 18-CA-10233 and 18-CA-10293 September 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 25, 1988, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-excep- tion and a supporting and reply brief. The Charg- ing Party filed a letter in support of the General Counsel's position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's ruling, findings,' conclusions as modified and to adopt the recommended Order as modified.2 The judge found that the Respondent violated Section 8(a)(5) by refusing to execute an agreement reached in September 1987, and by instituting uni- lateral changes in November 1987. We adopt only the finding of the violation for refusing to execute the agreement. The judge found that the Respondent and the Union reached agreement on a new contract on September 9, 1987, which was recapitulated in a subsequent phone conversation to clarify and cor- rect the draft agreement the Respondent had pre- pared following the final bargaining session. This agreement, with the corrections agreed to by the Respondent, was ratified by the Respondent's em- ployees on September 14, 1987. The Respondent has refused to sign or implement the agreement. The statutory obligation to bargain in good faith established in Section 8(a)(5) of the Act includes ' The Respondent's exceptions implicitly challenge the judge's credit- ing of uncontradicted testimony as a basis for his findings It is the Board's established policy not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Prod- ucts, 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 find- ings The General Counsel excepts to the judge's failure to find an additional 8(a)(5) violation based on the Respondent's attempt to withdraw its final offer to the Union We agree with the judge that the contract was in effect at the time of the attempted withdrawal As the remedy for the Respondent's unlawful refusal to execute the contract effectively encom- passes a remedy for the additional violation sought, we find it unneces- sary to pass on the General Counsel's cross-exception 2 We amend the judge's remedy to provide that the Respondent shall pay backpay as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971) the obligation to reduce to writing and sign any agreement reached during the course of collective bargaining . H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). Therefore, we agree with the judge that the Respondent's refusal to sign and abide by the agreement violated Section 8(a)(5) and ( 1) of the Act, The judge also concluded that workplace regula- tions instituted by the Respondent in November 1987 were unlawful unilateral actions.3 The changes, however, according to the testimony of the union representative, were permitted under the management-rights of the contract. We believe, given the union agent 's admission , that the judge's unilateral changes finding is inconsistent with his finding that there was a contract between the par- ties . Under that contract, which we find the Re- spondent must execute and abide by, the Respond- ent was privileged to make the work rule changes. Accordingly, we dismiss the complaint allegation that the Respondent violated the Act by changing the loitering and lunchtime credit work rules. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 4 and renumber the subsequent paragraph. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Waste Systems Corp., Albert Lea, Min- nesota, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Delete paragraphs 1(b), 2(c), and 2(d) and re- letter the subsequent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. a The judge based this conclusion on equitable grounds, denying the Respondent the opportunity to contest the existence of the contract and at the same time attempt to take advantage of the contract's management- rights clause 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 ordered us to post and abide by this notice. 290 NLRB No. 161 WASTE SYSTEMS CORP Accordingly, we give you the following assur- ances WE WILL NOT fail and refuse to acknowledge and sign a collective-bargaining agreement reached with United Steelworkers of America, AFL-CIO, CLC, the exclusive bargaining representative of our employees in the following unit All full-time and regular part-time production and maintenance employees employed at or out of our facilities in Albert Lea, Austin, Blue Earth and Fairmont, Minnesota and Lake Mills, Iowa, excluding office clerical employ- ees, professional employees, guards and super- visors as defined in the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL sign the contract reached with the Union in September 1987 and honor that contract through its life WE WILL make employees whole for any and all losses they have suffered because of our failure to acknowledge, sign, and honor our contract with the Union, and WE WILL pay interest on those losses WASTE SYSTEMS CORP James L Fox, Esq, for the General Counsel David R Hots, Esq (Felhaber, Larson, Fenlon & Vogt, PA), of Minneapolis, Minnesota, for the Respondent John G Engberg, Esq (Peterson, Engberg & Peterson), of Minneapolis, Minnesota, for the Charging Party DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard these consolidated cases in trial on January 26, 1988 , in Minneapolis, Minnesota The matter arose as fol- lows The United Steelworkers of America, AFL-CIO, CLC (the Charging Party) filed a charge docketed as Case 18-CA-10233 on September 24, 1987 Following an investigation of the charge, the Regional Director for Region 18 issued a complaint and notice of hearing in Case 18-CA-10233 on November 6, 1987 The Charging Party filed Case 18-CA-10293 on November 23, 1987 Following an investigation, the Regional Director for Region 18 issued an order consolidating cases, consoli- dated and amended complaint, and notice of hearing on December 31, 1987, consolidating the two cases for hear- ing The consolidated amended complaint alleges and the answer denies that Respondent violated Section 8(aX5) and (1) of the National Labor Relations Act (Act) by failing and refusing to execute a written contract em- bodying an agreement reached with the Charging Party 1215 on September 17, 1987 The complaint further alleges that Respondent violated Section 8(a)(5) and (1) of the Act by making certain changes in terms and conditions of employment of represented employees without afford- ing the Charging Party an opportunity to meet and bar- gain concerning the changes and, finally, alleges that in November 1987 Respondent wrongfully withdrew its contract proposals during negotiations with the Charging Party because the Charging Party had filed an unfair labor practice with the National Labor Relations Board (Board), and notwithstanding the fact that the parties had reached previous agreement with respect to those proposals, thereby violating Section 8(aX5) and (1) and Section 8(d) of the Act All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine, and cross-examine witnesses, to argue orally, and to file posthearmg briefs On the entire record, including briefs from the General Counsel, Respondent, and the Charging Party, and my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION The consolidated amend complaint alleges and the answer admits that at all times material, Respondent has been an Iowa corporation with its principal office and place of business located in Albert Lea, Minnesota, with additional facilities located in Lake Mills, Iowa, and Austin, Fairmont, and Blue Earth, Minnesota, where it has been engaged in the business of transporting, storing, and disposing of solid waste and waste recycling During the calendar year ending December 31, 1987, Respond- ent, in the course and conduct of its business operations, sold and shipped from its facilities located within Minne- sota products, goods, and materials valued in excess of $50,000 directly to points outside the State of Minnesota Further, during the same period, in the course of its busi- ness operations, Respondent purchased and received at its facilities located within Minnesota products, goods, and materials valued in excess of $50,000 directly from points outside the State of Minnesota The pleadings es- tablish, and I find, that Respondent is now , and has been at all times material , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION The Charging Party is a labor organization within the meaning of Section 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Evidence Concerning Collective-Bargaining Negotiations 1 Background At relevant times Respondent's president has been Ron Roth, whose offices are located in St Paul, Minnesota 1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD During the same period Respondent's vice president and general manager was David Bergan . At relevant times, Respondent's counsel assisting during the course of nego- tiations was David R. Hols of Minneapolis , Minnesota. Representing the Charging Party during the relevant events was Paul Hanson of Albert Lea, Minnesota, for many years the staff representative of the Charging Party. On September 24, 1986, the Charging Party was certi- fied as the exclusive collective- bargaining representative of employees in the following unit (the unit): All full-time and regular part-time production and maintenance employees employed at or out of Re- spondent 's facilities in Albert Lea, Austin, Blue Earth and Fairmont, Minnesota and Lake Mills, Iowa; excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. The pleadings establish and I find that the unit is appro- priate for purposes of collective-bargaining within the meaning of Section 9(b) of the Act. The pleadings fur- ther establish and I find that at all times since September 24, 1986, the Charging Party, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representa- tive of unit employees for purposes of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 2. The bargaining' Following the Board's certifiction of the Charging Party as representative of unit employees, Respondent and the Charging Party commenced bargaining. Face-to- face bargaining commenced in December 1986 and ended on September 9, 1987, totaling approximately 16 meetings. Paul Hanson of the Charging Party was the spokesman for the Union's negotiating team, assisted by two employees. Ron Roth was the spokesman for Re- spondent's negotiating team, assisted by David Bergan and, on one occasion, by William Paul. Hanson testified that he was made aware that Re- spondent's negotiating committee was being advised by Counsel Hols. Hanson testified, however, that Hols did not physically participate in the negotiations nor at any time did Roth ever suggest that any agreements in nego- tiations were subject to the approval of Hols. Hanson re- called that Roth mentioned in later negotiation sessions that Hols had made suggestions for changes in language ' The great bulk of the testimony respecting bargaining was supplied by Paul Hanson, called as a witness by the General Counsel. David Bergan , appearing on behalf of Respondent , testified only regarding a specific document. Bergan testified to the submission of a document at the commencement of a negotiation session, as discussed in detail infra, which Hanson did not recall Each witness gave every appearance of honesty and directness and presented a straightforward and convincing demeanor. I credit each witness concerning the matters testified to With respect to the tuning of the submission of the document testified to by Bergan , I credit his testimony and find , consistent with Hanson 's testimo- ny, that Hanson simply did not recall the event in question . The testimo- ny of these individuals , coupled with the unchallenged documentary evi- dence , is the basis of the following factual recital already agreed to, but at no time did Roth advise that the suggestions were preconditions to a final agreement.2 At the negotiation session on July 23, 1987, Respond- ent submitted a written proposal to the Charging Party, which included proposed language on contract articles 5.04 and 8.14(D). At a later bargaining session on August 5, 1987, Roth proposed certain modifications in article 5.04 and Hanson agreed to those modifications if certain changes could be made in section 8.14(d). Agreement was reached. Hanson presented a summary of the agree- ment reached as to article V to Roth at the next bargain- ing session on August 20, 1987. At that session Roth re- viewed the doucment and made a comment in Hanson's recollection, "I may have agreed to that too soon." Roth proposed additional language changes that were further discussed at the next bargaining session on September 2, 1987. Further agreement was reached on additional modifications to those clauses. Hanson testified that he told Roth at this bargaining session that he would re- write article V in light of the agreed-upon changes. At the bargaining session on September 9, 1987, Hanson submitted to Roth a draft, submitted into evidence as General Counsel's Exhibit 8, which was a written form of the agreed-upon article V language. Hanson testified without contradiction that Roth "received it and agreed with it." Hanson recalled Roth's specific term of approv- al was "Okay." Several matters of substance separated the parties at the commencement of the September 9 bargaining ses- sion, including issues of union shop and the wage rate for the classification rear loader leadman. At the conclusion of the bargaining session, agreement had been reached with respect to all matters. Hanson raised with Roth the proper form for signature lines on the signature page of the written contract and provided Roth with the sample form. Hanson testified that the meeting ended with ev- eryone in agreement. Mr. Roth said that if the committee recommended [the contract as agreed to], he would agree to what we wanted and include the checkoff and union shop language, and the committee said that they would recommend the contract in its entirety to the rank and file. We all said, thank you, we had good meet- ings , we shook hands and left. The Company, Mr. Roth was going to compile drafts that would in- clude all of the changes we had discussed on the 2 Hanson testified as follows under cross-examination by counsel for Respondent: Q Okay Mr Roth told you at the start of negotiations that he himself was a layman , not a professional negotiator, is that right? A As I recall it , Mr. Roth had told me that he had negotiated contracts and that he was the chief spokesman for this negotiations Q Did Mr. Roth tell you from time to time he was getting legal review between meetings of what was done in the bargaining? A As I recall, at the beginning , he told me something like, "Paul, you know that I am dealing with Mr. Hols as an attorney but I will be handling these negotiations." Q Well, in point of fact, Mr Roth did from time to time tell you across the table that something had to be changed because he had gotten a legal opinion , is that correct? A Yes, he came back and said that he talked to (Counsel Holsl on a couple of occasions and says he advised me to try to get these changes. WASTE SYSTEMS CORP 1217 September 9 meeting, get three copies to the Union, and we said when we saw those , if it was all in order we would set a ratification meeting I think we talked about having a ratification meeting as early as Monday , which would be the 14th [of Sep- tember 1987] I think we weren't sure at that time and Mr Roth asked me to send him a letter on it On September 10, 1987, Hanson sent Roth a letter in- cluding a sample signature page and asking Roth to make arrangements so that certain employees working the night shift could attend the "scheduled contract ratifica- tion meeting on Monday, September 14, at 6 30 p in " Hanson sent Roth a second letter on the same day with the following text This letter will confirm our agreements reached yesterday afternoon resulting in a complete contract proposal Company will make all necessary changes and provide three (3) complete copies to the Union for review If all is in order the Union plans to have a mem- bership meeting at 6 30 p in, Monday, September 14 at the Union center in Albert Lea to present the final proposal for ratification The Union committee and myself have agreed to support and recommend the final proposal as agreed upon in yesterday's meeting for acceptance I wish to thank you personally for the under- standing and professional manner in which you ad- dressed the concerns of your union employees during the negotiations Respondent prepared three copies of the draft agree- ment, which, by means of the employee-members of the negotiating committee , were transmitted to Hanson who received the copies on September 14 Hanson testified that on reviewing the draft agreement, he discovered that articles 504 and 8 05 did not include certain lan- guage proposed by Respondent and agreed to by the Union Hanson then called Roth at his workplace and had a telephone conversation with hum Hanson testified that he told Roth that he had reviewed the draft con- tract and had some questions Initially the conversation returned to contract language respecting overtime wage rates, and some questions Roth had on a variation be- tween overtime and weekend wage rates Roth asserted that the draft reflected their agreement and Hanson ac- cepted this characterization The conversation then turned to article 5 which Hanson contended reflected certain of the changes agreed to, but did not include cer- tam qualifying languages and certain language addressing a 5-day working trial Hanson continued in his testimony regarding Roth's response He seemed to review his notes on that end of the phone, looked at it and understood what I said He said, the secretary must have missed that, left it out And he said, put in the page as we agreed to I then said that Section 8 05 is the same way, that was the section that reads in the draft that there shall be no split shift I said, you and [sic] requested and agreed to adding the words "unless mutually agreed to by the parties " I said, that is an omission He said that the secretary must have missed that too Put it in I said that we were going to have a ratification meeting that afternoon at 6 30 and that I would present the contract as we had just agreed to it Hanson testified that there were no new proposals made during the course of the telephone conversation and that at its end he was aware of no areas of disagreement be- tween the parties Later that day at the ratification meeting , employees voted to accept the agreement Hanson attempted to report this to Roth but was unable to reach him On Sep- tember 16, 1987, Hanson mailed Roth a letter with the following text As I have not been able to reach you by tele- phone, I will advise you by this letter that final Company proposal of the Labor Agreement reached on our meeting on Wednesday, September 9, 1987, was ratified at a meeting of Waste Systems' employees on Monday, September 14, 1987 We, therefore, consider your final proposal acceptable and in force effective as of September 1, 1987 Please call upon me at your earliest convenience so that we can make the necessary arrangements to sign the completed document On September 17, 1987, the union committee signed the collective-bargaining agreement draft attaching the earli- er prepared recapitulation of article 5 and further attach- mg a cover letter with the following handwritten cover sheet signed by Hanson to Roth This agreement was presented and accepted as changed by including "new" 504 section (attached) And by adding the words "unless agreed to by the parties" to Section 8 05 "THERE SHALL BE NO SPLIT SHIFTS" as per our telephone conver- sation on Monday, September 14, 1987 I and the committee have signed to indicate our approval I will expect to hear from you early next week Later that day, Roth and Hanson spoke by telephone Roth informed Hanson that Bergan had received "some- thing from the National Labor Relations Board, and he knew something was going on with employees, but he didn't know what " a Hanson asked Roth "what he wanted to do about signing the contract " Roth told Hanson he would "get them to Mr Bergan and Mr Bergan will get them to me I'll see [Bergan] by Monday I'll pass [the contract] on to Mr Hols to review and will get them signed " Following several attempts to contact Roth by tele- phone , Hanson reached him on October 8, 1987 Roth in- formed Hanson he was going to meet with Hols the fol- s A decertification petition had been filed with the Regional Office of the National Labor Relations Board It was subsequently dismissed for being out of time 1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lowing Friday or Monday and that "he would get back to me after that meeting ." Hanson reached Roth again by telephone on October 14, 1987 . Roth informed Hanson that he was just leaving the office and that he would see Hols the following day and get back to him. Roth and Hanson had no subsequent communication re- garding the contract sent by Hanson to Roth . Hanson testified that neither Roth nor any other agent of Re- spondent at any time informed him or to his knowledge any other agent of the Union that the document trans- mitted by the Union to Respondent did not completely reflect the agreement reached during bargaining. On September 24, 1987 , the initial charge in this matter was filed, and on November 6, 1987 , the original complaint issued . On November 6, 1987 , Roth sent Hanson a letter with the following text : "Waste Systems' previous contract offer to USW No . 3539 is hereby with- drawn ." There have been no subsequent negotiation ses- sions or other communication between the parties as of the date of the hearing. 3. Evidence concerning the alleged unilateral changes Apparently , since January 1 , 1985, a date preceding the date of certification of the Charging Party , Respond- ent has maintained an employee policy handbook that contains the following language under the heading Pay- period and Timecards.- One-half hour will be deducted each day to cover time for lunch for hourly paid employees who are not able to punch in and out, such as dnv- ers and mechanics working away from the shop. NO EXCEPTIONS !! All other hourly paid employ- ees working at the shop area are required to punch in and out. Falsification of timecard information will be grounds for immediate dismissal. Loitering by the timeclock while still punched in will be viewed similarly . Acts such as these are dishonest and will not be tolerated. David Bergan testified that sometime in early or mid- summer 1987 Respondent posted a memo that "because there were a lot of people writing 'no lunch ' on their timecards , that if that was to be allowed for payroll pur- poses that it be approved by someone in supervisory ca- pacity ." There is no dispute that unit employees took ad- vantage of this policy and regularly obtained supervisory approval to receive pay without deduction for lunch under appropriate circumstances . Bergan testified con- cerning Respondent 's change of this practice in Novem- ber 1987: Well, the situation of not getting approval on the timecards was getting out of hand . I was getting a lot of questions on Monday from the personnel de- partment about should I or should I not pay this person for the time indicated as a "no lunch" and there was no initials by it authorizing it. So , we felt the situation was getting out of hand , at the staff meeting , the following staff meeting , we decided that we were going to go back to what the employ- ee handbook said on a "no exception" basis to elimi- nate the problem. Respondent posted an intercompany notice to employ- ees on or about November 18, 19871, with the following text: As of Novemeber 30, 1987, all employees will be REQUIRED to take their one-half hour lunch period . This time will be deducted from the time- cards without exception . Employees who work in or around the shop will continue to punch out for lunch as they presently do. There was no dispute that the Union was never notified of this change in practice that constituted, in effect, a restoration of the personnel manual rule. David Bergan testified that in early November he had occasion to observe employees loitering in the work areas after punching out their time cards . He noticed in particular one driver who would spend an excessive amount of time in the shop after his work had been com- pleted and he had punched out. Noticing this, Bergan had a notice to be posted , which stated in part: It has been brought to my attention that there is a need to clarify three important rules. Loitering in the shop areas prior to punching in and after punching out is not allowed. Depart promptly from the shop areas after punching out. Engaging in casual conversations with other em- ployees while still clocked in is disruption to them and interferes with their ability to concentrate on their work . Please respect your fellow employees in this regard. This notice would not have to be posted if these rules were not being abused. Failure to heed the items listed above will result in disciplinary action. There is no disputes that the Union was neither notified of nor provided an opportunity to bargain concerning the content of the notice . As of the time of the hearing no disciplinary action had been initiated with respect to either notice. The various contract proposals that are the subject of the dispute regarding the existence of a binding agree- ment, as described above, all contain a management- rights paragraph , that , inter alia, provides Respondent the right to establish reasonable rules covering employee conduct . All the collective-bargaining proposals also contain grievance and binding arbitration language. Under examination by counsel for Respondent , Hanson conceded that the management-rights language contained in the proposals would , in his view, allow Respondent to institute the types of rule changes described in the no- tices quoted above. WASTE SYSTEMS CORP 1219 4 Analysis a Allegation that Respondent is bound to sign the collective-bargaining agreement The parties are not at essential disagreement concern- mg the case law applicable to the issue in dispute Thus, the Supreme Court long ago approved the doctrine that the statutory obligation to bargain in good faith estab- lished in Section 8(a)(5) of the Act includes the obliga- tion to reduce to writing and sign any agreement reached during the course of collective-bargaining nego- tiations H J Heinz Co v NLRB, 311 U S 514 (1941) The General Counsel makes the following additional ar- gument on brief Where a portion of the agreement is reduced to writing, additional terms may still be found based on oral agreements not included in the written agreement Fashion Furniture Manufacturing Inc , 279 NLRB No 95 (April 30, 1986), ALJ slip op at 1 The ultimate determination of whether agreement has been reached is a question of fact to be decided on the basis of an evaluation of whether the parties have engaged in conduct manifesting an intention to be bound Capitol-Husting Co , 671 F 2d at 243, Pittsburgh-Des Moines Steel , 202 NLRB at 888 Respondent points out that the Board has further held, however , that mere surmising concerning portions of an agreement does not establish sufficient meeting of minds to obligate any party to sign such an agreement Merce- des-Benz of North America , 258 NLRB 803 (1981) The issue is essentially one of fact Turning to the facts of the case, Hanson's uncontra- dicted testimony regarding the conclusion of the Septem- ber 9 , 1987 bargaining session supports a finding, which I make, that the parties believed they had reached com- plete agreement on a collective -bargaining agreement In this regard I reject Respondent's argument that the par- ties understood that any agreement Roth undertook at the bargaining table was subject to the subsequent ap- proval by Respondent's counsel It is true, however , that not all the agreement had been reduced to a single writing as of September 9 Re- spondent argues on brief The meeting ended on a note that these tentative agreements were to be written up and submitted for review This is clearly not a meeting of the minds on a contract In point of fact, when the written language was submitted , it was not agreed upon The areas of disagreement were significant and sub- stantive The difference between the Union 's position and Re- spondent 's position, insofar as it was manifested in the draft sent to the Union after the September 9 negotiation session, was the subject of the important telephone call between Hanson and Roth on September 14 Respondent argues on brief that any agreement manifested in that conversation was simply an agreement to review and study the Union's proposed changes and that Roth, en- gaged in other business at his office during the conversa- tion, could not reasonably be held to have approved in any final sense the statements of Hanson I reject this ar- gument on the facts Hanson , who was the sole person to testify regarding the conversation, and who has been credited elsewhere, persuasively testified that he did not propose new language to Roth , but merely indicated that some sort of typographical omission had occurred and that previously written out protions of the contract had not been included in the complete final draft Further, Hanson attributes to Roth a complete approval of the suggestions Hanson had proposed On this credited testi- mony, I reject Respondent's contention that there was some type of ambiguity that prevented a meeting of the minds on these issues Rather, like Respondent's argu- ment that any agreements reached by Roth were subject to later review and approval by Hols, I find the position is not supported by the facts In reaching this decision regarding the agreement reached on September 9 and recapitulated on September 14, I have considered the entire bargaining process as re- vealed on the record as a whole and find that the Gener- al Counsel has clearly met her burden of establishing that a final and binding agreement was reached by the par- ties Having made these factual determinations and apply- ing the case law cited above, I find that Respondent was obligated to sign and abide by the collective-bargaining agreement as of September 14, 1987 , and that its failure thereafter to do so constitutes a violation of Section 8(aX5) and (1) of the Act'' b The unilateral change allegations The unilateral change allegations are, like the dispute concerning whether agreement was reached, not subject to serious disagreement concerning the controlling case law The General Counsel correctly cites the Supreme Court's decision in NLRB v Katz, 369 U S 736 (1962), for the proposition that a unilateral change in represent- ed employees' terms and conditions of employment is a violation of Section 8(a)(1) and (5) of the Act irrespec- tive of the subjective good or bad faith of the employer The General Counsel further cites case law for the prop- osition that work rules are terms and conditions of em- ployment and mandatory subjects of bargaining within the meaning of the Katz decision, citing Timken Roller Bearing Co , 70 NLRB 500, 502 (1946), enf denied on other grounds 161 F 2d 949 (6th Or 1947) Respondent makes the following argument on brief 4 The General Counsel further contends that Respondent's actions fol- lowing the September 9 agreement were based on a desire to end its rela- tionsh.p with the Charging Party in reliance on certain decertification ac- tivity undertaken by the employees, which was ultimately held to be without force or effect by the Regional Director Respondent did not assert any conduct by employees in justifying a withdrawal of recogni- tion of the Charging Party Rather, Respondent has at no time in this liti- gation challenged the Charging Party's representative status concerning employees in the unit Inasmuch as the allegation turns on whether an agreement was reached, rather than whether Respondent acted in good or bad faith in refusing to sign the collective-bargaining agreement, I shall make no findings respecting the General Counsel's further allega- tions in this regard 1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With regard to the alleged unilateral changes in work rules, the record establishes that there was no change at all The work rules were in existence at all times material The memos were posted pursuant to some growing abuses of these rules by the em- ployees In any event , if these were changes in the rules, they were not unilateral changes The Union and the Employer had already agreed upon contract language which gave the Employer the right to in- stitute rules without prior negotiations with the Union Accordingly, the unilateral change allega- tions must fail Respondent 's argument that there was a previously ex- isting rule covering the matters in question fads with re- spect to the antiloitering notice The employee hand- book, relevant sections that are quoted above, deals with loitering when punched in That rule may not fairly be read to cover the state of affairs following an employees' punching out The employee handbook therefore gives Respondent no shelter as to that allegation The hand- book does explicitly cover the luncheon period rule There is no doubt , however, that this rule had been changed both by practice and by an explicit memo posted by Respondent The later return to the strict handbook policy was therefore a change in work rules backed by the threat of discipline , that had a potentially significant effect on employees' wages Respondent's final argument is that the Union and the Company had agreed to contract language giving Re- spondent the right to set rules such as those under chal- lenge here This defense may be further augmented by the fact that I have found , supra, the collective-bargain- ing agreement was agreed to in September and was bind- ing on Respondent and the Charging Party before the November memos that are under challenge here If there had been no collective-bargaining agreement but, rather, only a partial agreement as to the management-rights clause as part of a collective-bargaining agreement not yet fully agreed to, Respondent's defense would fail One may not rely on partial agreements concerning an as yet unexecuted collective-bargaining agreement Thus, absent some specific agreement to the contrary , the par- ties must await a complete agreement before relying on partial agreements preceding the final resolution Ac- cordingly, Respondent's argument that the management- rights clause had been agreed to even if the remainder of the contract had not been agreed to is not a defense to the unilateral change allegations It remains to be resolved, however, in light of my findings that the contract was in effect, whether Re- spondent may assert a contract defense while simulta- neously denying that the contract was in effect I find that Responent is not entitled to the benefits of the col- lective-bargaining agreement that might otherwise accrue to it while simultaneously denying the contract 's exist- ence In essence Respondent may not have its cake and eat it too The very nature of an acknowledgement of the existence of a binding collective-bargaining agree- ment establishes a stability and security to a collective- denies such a contract exists Thus, for example , whereas the management-rights clause may in fact allow rule changes, a denial of the validity of the contract as a whole constitutes a denial of the efficacy of the griev- ance and arbitration clause, and in essence seeks to assert rights under the document without conceding any matching obligations Such an asymmetry is inequitable and may not be allowed to prevail Thus , this argument gives no defense to Respondent In summary then, I have found that in November 1987 Respondent made two significant changes in work rules concerning unit employees which , backed by the threat of discipline, had a significant impact on unit employees I have further found , and the parties do not dispute, that the Union was at no time notified or provided an oppor- tunity to bargain respecting these changes Accordingly, pursuant to the cases cited supra , Respondent's actions violated Section 8(a)(5) and (1) and Section 8(d) of the Act THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action to effectuate the purposes of the Act, in- cluding the posting of remedial notices in English, and should the Regional Director determine under the cir- cumstances at the time of the posting warrant additional languages 5 Having found that Respondent at all times since Sep- tember 14, 1987 , has failed and refused to acknowledge and sign the collective-bargaining agreement reached be- tween the parties on September 9, 1987 , I shall order Re- spondent to execute the agreement and supply the Charging Party with signed copies of the contract Fur- ther, I shall order Respondent to retroactively apply the terms of the collective-bargaining agreement from the date of its effective term, making whole, as necessary, all employees who lost wages or other benefits because of Respondent 's failure to apply the terms and conditions of the contract in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950) Interest shall be included on the monetary losses involved , with interest calculated in accordance with the policy of the Board set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987) The Respondent shall further be ordered to rescind the unilateral changes in company rules and practices made in November 1987 rescinding as necessary any and all discipline or other adverse actions following from em- ployee breaches of the unilaterally changed rules Re- spondent shall expunge from its records any and all ref- erences to breaches of these unilaterally changed rules and practices by employees and shall notify those em- ployees and the Charging Party, in writing, that such ex- punction has occurred and that previous breaches will not be the basis of subsequent adverse action against the employees Sterling Sugars, 261 NLRB 472 (1982) This remedy will include restoring employees who lost lunch bargaining relationship that is absent when one party 5 Laborers Local 383, 266 NLRB 934, 939-940 fn 9 (1983) WASTE SYSTEMS CORP deduction waivers and will include interest on all losses pursuant to the cases cited supra The Charging Party , on brief, requests that the elec- tion bar arising from the certification on September 24, 1986, be extended and continued until the collective-bar- gaining agreement is executed Such an action is unnec- essary inasmuch as the Board normally does not enter- tain elections during the time that an employer is engag- ing in unremedied violations of Section 8(a)(5) of the Act rising to the level of repudiation of a collective -bargain- Ing agreement Further, the collective-bargaining agree- ment, found to be effective here even if it is not as yet signed , precludes an election under normal circum- stances The General Counsel has sought a visitatonal clause in its proposed remedy The Board in its recent decision, Cherokee Marine Terminal, 287 NLRB 1080 (1988), es- tablished standards for the inclusion of such relief in a normal remedy Those standards have not been met here Accordingly, I shall not include the relief sought On these findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Charging Party is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(5) and (1) of the Act by, at all tiles since September 14, 1987 , failing and refusing to execute the collective-bargaining agreement reached with the Charging Party on September 9, 1987 4 Respondent violated Section 8(aX5) and (1) and Sec- tion 8(d) of the Act by making unilateral changes in em- ployee work rules in November 1987 concerning (a) Employee presence in the facility following punch- mg out, and (b) Denying employees the opportunity to obtain credit for lunchtime worked 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- s ORDER The Respondent, Waste Systems Corp, Albert Lea, Minnesota, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Failing and refusing to execute a collective-bargain- ing agreement reached on September 9, 1987, with the Charging Party concerning employees in the following unit s If no exceptions arc filed as provided by Sec 10246 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 1221 All full-time and regular part-time production and maintenance employees employed at or out of Re- spondent's facilities in Albert, Lea, Austin, Blue Earth and Fairmont, Minnesota and Lake Mills, Iowa, excluding office clerical employees , profes- sional employees, guards and supervisors as defined in the Act (b) Changing rules and practices governing employee presence in work areas after punching out and employee practices concerning credit for lunches worked with su- pervisory approval without providing notice and an op- portunity to the Charging Party to bargain concerning the rules (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Execute and return to the Charging Party copies of the contract reached on September 9, 1987 , with the Charging Party concerning the employees in the unit (b) Apply the contract retroactively to its commence- ment date, making employees whole , with Interest, for any loss of wages and other benefits that would have been received or accrued but for Respondent 's failure to apply the collective-bargaining agreement from its effec- tive date (c) Restore the status quo ante, rescinding the person- nel rules and practice changes made in November 1987 concerning employee payments for lunchtime not taken and for rules and practices governing remaining in the work areas after punching out, making employees whole with interest (d) Rescind and expunge all references to any employ- ee violations of the rule implemented in November 1987, as described above , notifying those employees and the Charging Party, in writing, that this has been done and such violations will not be used as a basis for future action against the employees (e) Preserve and , on request, make available to the Board or its agents for exammation and copying , all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (f) Post at all of its facilities where unit employees are employed copies of the attached notice marked "Appen- dix " Copies of the notice , and translations in other lan- guages determined by the Regional Director , after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted Reasonable steps shall be * If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board ' shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD taken by the Respondent to ensure that the notices are (g) Notify the Regional Director in writing within 20 not altered , defaced , or covered by any other material. days from the date of this Order what steps the Re- spondent has taken to comply.