Amcor Rigid Plastics

National Labor Relations Board - Administrative Judge Opinions

Nov 6, 2015

13-CA-145992 (N.L.R.B. Nov. 6, 2015)

JD–61–15
Batavia, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMCOR RIGID PLASTICS
and Case 13–CA–145992
CHICAGO & MIDWEST REGIONAL JOINT
BOARD, WORKERS UNITED/SEIU
Christina Hill, Esq.
for the General Counsel.
Frederick L. Schwartz, Esq. and
Lavanga V. Wijekoon, Esq.
for the Respondent.
David P. Lichtman, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case was tried in Chicago,
Illinois, on July 28, 2015. The Chicago & Midwest Regional Joint Board, Workers United/SEIU
(the Charging Party or Union) filed a charge on February 6, 2015, and the General Counsel
issued the complaint and notice of hearing in this matter on May 14, 2015.
The complaint alleges that Amcor Rigid Plastics (the Respondent), violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) by, since on or about February 4,
2015, failing and refusing orally to execute a written contract containing the agreed upon terms
and conditions of employment for the unit employees that the parties reached on November 6,
2014.1 The Respondent, in its answer, denied that it violated the Act as alleged.

1 All dates are 2014, unless otherwise indicated.
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2
On the entire record,2 including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a corporation with an office and place of business in Batavia, Illinois,
has been engaged in the manufacture and nonretail sale of plastic bottles. Annually, the 10
Respondent, in conducting its business operations described above, sold and shipped from its
Batavia, Illinois, facility goods valued in excess of $50,000 directly to points located outside the
State of Illinois.
The Respondent admits, and I find, that it is an employer engaged in commerce within 15
the meaning of Section 2(2), (6), and (7) of the Act, and that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
20
A. The Facts
1. Background
The Respondent and the Union have had a collective-bargaining relationship since the 25
first contract was negotiated in 2010. That collective-bargaining agreement was effective by its
terms from November 1, 2010 through October 31, 2014. At all material times, the Union has
been designated as the exclusive collective-bargaining representative of the Respondent’s
approximately 100 employees in the following appropriate unit:
30
All full-time and regular part-time hourly paid production and maintenance
employees at the Company’s Batavia, Illinois location, but excluding all office
clerical, professional employees, confidential employees, technical employees,
sales employees, plant clerical employees, guards and supervisors as defined in
the “National Labor Relations Act” as amended.35

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “Jt. Exh.” for Joint Exhibit; and “R. Exh.” for Respondent’s Exhibit.
3 In making my findings regarding the credible evidence, including the credibility of the witnesses, I
consider the testimonial demeanor of such witnesses, the context of the testimony, and the consistency
and inherent probabilities based on the record as a whole. In certain instances, I may have credited some
but not all, of what the witness said. I note, in this regard, that “nothing is more common in all kinds of
judicial decisions than to believe some and not all” of the testimony of a witness. Jerry Ryce Builders,
Inc., 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), revd. on other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349 NLRB 939,
939–940 (2007). In addition, I have carefully considered the testimony in contradiction to my factual
findings, but I have discredited such testimony.
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3
In late September 2014, the parties commenced negotiations for a successor collective-
bargaining agreement. The Union’s negotiating committee consisted of Union Representative
and Lead Negotiator Jose Silva; Local Union President Anthony Stewart (also known as
Quenton); Union Vice President Tracy Sheffer; Union Steward and Union Secretary Theresa
Susinka; and Union Committee Members Walter Piekarski, Brian Allen, and Greg Boyle. The 5
Respondent’s negotiating committee consisted of Respondent Counsel and lead negotiator
Frederick Schwartz; Respondent Counsel Lavanga Wijekoon; Human Resource Manager Kari
Johnson; and Human Resource Generalist Mary Lobezoo.
2. The Sub-Holiday Provision10
As will be discussed in great detail below, the question of whether the parties reached an
agreement on the terms and conditions of employment for the unit employees in a successor
collective-bargaining agreement is focused on whether they agreed to keep one key clause
originally contained in the 2010–2014 collective-bargaining agreement: Article X (Vacations), 15
Section 5, which the parties refer to as the “sub-holiday” provision. (Jt. Exh. 1).4 That provision
provides:
Section 5: Holidays which Fall during Scheduled Vacations
When holidays fall within a plant vacation shutdown the shutdown period will be 20
extended by the number of such holidays. In the event one of the holidays set
forth in Article IX, Section 1 falls within a vacation period, an employee may
make arrangements to request an additional day off, if he so desires, during the
calendar year in which the holiday is observed. Any such day shall be requested
in advance and would require approval of the supervisor. (Jt. Exh. 1).25
As referenced in the sub-holiday provision, Article IX: Holidays (8-Hour and 12-Hour
Schedule), Section 1, sets forth the “Scheduled Holidays” and provides that “the following days
shall be observed as holidays in this plant: New Years Day, Easter, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, 30
Christmas Day, and New Years Eve.” (Jt. Exh. 1). Thus, under the 2010–2014 collective-
bargaining agreement, when employees’ vacations fell on a holiday that was recognized in
Article IX, Sec. 1, employees could substitute that day for another day during the calendar year.
Among the Respondent’s approximately 87 plants in the United States, the sub-holiday provision
is only applicable to the unit employees in the Respondent’s Batavia, Illinois plant, and the 35
Respondent viewed the provision as an “administrative issue” that it wanted to remove from the
contract.
3. The bargaining leading up to the November 6, 2014 session
40
The parties’ negotiations consisted of 8 bargaining sessions on the following dates:
September 30, October 1, 2, 14, 15, 16, and 24, and November 6. While Schwarz was present at
all the bargaining sessions, Union Counsel Robert Cervone was only present at the November 6
bargaining session, where he served as the lead negotiator for the Union.

4 For simplicity, Article X, Section 5 is sometimes referred to herein as Article 10, Sec.5, in English
or regular numerals as opposed to Roman numerals.
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4
In the first bargaining session, Schwartz, as Respondent’s Counsel and lead negotiator,
proposed that Article 10, Sec. 5, the sub-holiday provision, be removed from the contract, along
with various other provisions. The record reveals there was no comment or discussion by the
Union about the sub-holiday provision in that bargaining session. Consistent with the 5
Respondent’s statement that it wanted to remove the sub-holiday provision from the contract, the
Respondent’s September 30, 2014 contract proposal contained the Article 10, Sec. 5 sub-holiday
provision in the text of the document, with a red line through the entire provision (sometimes
referred to as “red-lined” or “red-line stricken”). (Jt. Exh. 2, p.10).5
10
In the bargaining sessions that followed on October 1, 2, 14, 15, 16, and 24, the parties’
did not mention or discuss the sub-holiday provision. The Respondent offered two proposals on
October 14. The first contained the Article 10, Sec. 5 sub-holiday language in the text of the
document, but it was red-line stricken. (Jt. Exh. 3, p. 10). The second October 14 proposal also
contained a red-line stricken Article 10, Sec. 5 sub-holiday provision. (Jt. Exh. 4, p. 10). 15
Likewise, the Respondent’s October 24 proposal contained the red-lined stricken text of the sub-
holiday provision, the only difference being that the Respondent re-numbered it as “Section 4”
rather than “Section 5.” (Jt. Exh. 5, p. 10).
With regard to the October 24 bargaining session, Silva testified that on that date, the 20
parties agreed to have the sub-holiday provision remain in the contract. (Tr. 28). While I have
found that Silva was a credible witness for the reasons stated below in the “credibility
determination” section of this decision, I find that his vague assertion that the Respondent agreed
on October 24 to keep the sub-holiday provision in the contract is not supported by the record.
In fact, the record failed to establish that the parties at any time in the negotiations prior to 25
November 6, discussed the sub-holiday provision after the Respondent’s initial statement that it
wished to remove the provision from the contract. Silva’s assertion that there was an agreement
to keep the sub-holiday provision in the draft proposal is also not supported by the fact that the
Respondent submitted a proposed agreement that day which had the sub-holiday provision
stricken. (Jt. Exh. 5, p. 10).30
On October 27, Schwartz emailed Silva another proposed agreement, identified in the
“subject” line of the email as “Changes to Final CBA: Discussion.” (Jt. Exh. 7). In that email
Schwartz stated: “[a]ttached is the draft of the tentative agreement on all terms.” That
document, identified as Jt. Exh. 6 in the record, contained the text of the Respondent’s 35
previously proposed contracts, but for the first time the proposed deleted provisions and
comments were set forth in smaller sized print in boxed sections along the right side margins of
the pages with corresponding dotted lines from the “deleted” or “comment” boxed text over to
the body of the agreement, apparently indicating the location in the document where the
deletions or comments originated. The deleted text was circled or boxed with a red line, and the 40
word “Deleted:” was in bold print and preceded the body of the deleted provisions. With regard
to the disputed sub-holiday provision, on page 10 of that proposal the text of the sub-holiday

5 The Article X, Sec. 5 sub-holiday provision in the Respondent’s September 30 proposal had the
exact wording as the sub-holiday provision in the 2010–2014 collective-bargaining agreement, with one
exception--the word “day” in the phrase “Any such day shall be requested” was made plural in the
September 30 proposal, and read: “Any such days shall be requested” (Jt. Exh. 2, p. 10).
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5
provision was removed from the body of the draft and set forth in a deleted box on the right side
margin of the page, with a red-lined box around it. The deleted box containing the sub-holiday
provision stated as follows:
Deleted: <#> Holidays which Fall during Scheduled Vacations5
When holidays fall within a plant vacation shutdown the shutdown period will be
extended by the number of such holidays. In the event one of the holidays set
forth in Article IX, Section 1 falls within a vacation period, an employee may
make arrangements to request an additional day off, if he so desires, during the
calendar year in which the holiday is observed. Any such day shall be requested 10
in advance and would require approval of the supervisor. (Jt. Exh. 6, p.10).
In an email from Silva to Schwartz dated October 28, 2014 at 8:36 p.m., Silva asked
Schwartz to review the calculations on the wage scale for the 12-hour shift schedule on the 3rd
and 4th years of the contract, asserting that the Union calculated the wages at a different wage 15
rate, and he provided a copy of the classification and corresponding wage rates in a graph. (Jt.
Exh. 7, p. 5). In addition, in another email from Silva to Schwartz dated October 29, 2014 at
10:53 a.m., Silva stated:
Fred, our notes reflect that Article 10 section 4 below was withdraw [sic] by the 20
company and agreed upon to return to CCL.6
Section 4: Scheduling Vacations
Vacations shall not be carried over from year to year. While the Company will so
far as practicable endeavor to grant employees their choice of vacation periods 25
according to seniority, the Company reserves the right to schedule the vacation
periods as in its opinion best serves the efficiency of the operations of the Plant.
This may include scheduling vacations during temporary shutdowns of the whole
Plant or any part of the Plant, [sic] Employees who had their vacation scheduled
prior to the announcement of such temporary shutdown will have the option of 30
rescheduling their vacation to be taken during that period. (Jt. Exh.7).
In an email dated October 29, 2014 at 1:07 p.m., Schwartz informed Silva that the
Union’s calculations did not track the proposal the Respondent made, and Schwartz also stated:
“Regarding the vacation question you raised, you are correct, it is CCL.” (Jt. Exh. 7).35
The record, however, establishes that neither Schwartz, nor any other Respondent
official, proposed to remove the Article 10, Sec. 4 “scheduling of vacations” provision from the
contract. Silva testified that he meant to convey to the Respondent that he believed there was
agreement to keep the sub-holiday provision in the contract, but he mistakenly set forth and 40
provided the text for the scheduling vacation provision, which was never actually at issue. Silva
testified that in the earlier proposed contract version, what was once Article 10, Sec.5 sub-
holiday (Jt. Exhs. 3 and 4) was then changed by the Respondent to Article 10, Sec.4. (Jt. Exh. 5).

6 The record reveals that “CCL” is an abbreviation for “current contract language,” which apparently
reflected the intent to have that language remain in the successor collective-bargaining agreement. (Tr.
27).
JD–61–15
6
Silva admitted that upon realizing he conveyed the wrong provision to Schwartz, he never
informed Schwartz about that mistake. Silva thereafter referred the contract issues to Cervone
for him to handle. He informed Cervone that the Union had two issues--the wage calculations
and the sub-holiday provision. Silva testified that he became aware of his mistake in the email
before the ratification vote on November 4, because Cervone caught the mistake and told him the 5
“scheduling vacations provision” was not the provision he wanted.
The Union presented the Respondent’s October 27 proposal sans the sub-holiday
provision to the union membership for a ratification vote on November 4. Silva testified that his
legal counsel advised him to present the Respondent’s proposal as it was, with the 10
recommendation to the membership that it not be ratified, so that the proposal could be rejected
and the parties could continue to bargain. It is thus undisputed that Silva presented the October
27 draft proposal from Schwartz (Jt. Exh. 6) to the union membership on November 4, 2014 for
ratification, and he informed the members that he was not recommending ratification of the
proposal because there was a dispute over the sub-holiday provision--the Union wanted to keep it 15
in and the Respondent wanted to delete it. (Tr. 71). As a result, the membership did not ratify
the proposed contract. Silva testified that he informed the Respondent that the ratification vote
was rejected, and the parties decided to go back to the bargaining table on November 6, 2014, for
another session.
20
4. The November 6, 2014 bargaining session
After the ratification failed, the parties met to bargain on November 6, 2014. The
Respondent’s negotiating committee that day consisted of Schwartz; Wijekoon; Johnson; and
Lobezoo. The Union’s negotiating committee consisted of Cervone, Silva, Stewart, Sheffer, 25
Susinka, Piekarski, Allen, Boyle, and Elizabeth Robinson (the recording secretary).7 While the
parties agree that they met that day to bargain, and that an agreement was eventually reached and
signed at the conclusion of that session, the Respondent’s witnesses presented a different version
than that presented by the General Counsel’s witnesses as to what transpired when the parties
met for that session. In short, the General Counsel’s witnesses testified that at the conclusion of 30
that session, the parties agreed the sub-holiday provision would remain in the successor
agreement, and the Respondent’s witnesses testified that the parties agreed not to include the
sub-holiday provision. The relevant testimony presented on that issue is as follows.
According to Silva’s testimony, the session started by Schwartz asking the union 35
committee why the contract proposal was rejected, and he and Cervone informed Schwartz that
there were two issues--the wage calculation was not correct and the Article 10, Sec.5 sub-holiday
provision was omitted from the contract. According to Silva, Schwartz said they could work it
out. Schwartz asked if they knew of any calculations that could meet what the Union wanted,
and Cervone provided some wage calculations to Schwartz. The Respondent’s negotiating team 40
then caucused for approximately an hour and a half. When the negotiations resumed, Schwartz
presented a new wage scale chart in response to that presented by the Union. Schwartz
explained the new wage calculations to the Union, and then the union committee caucused for
approximately 15–20 minutes. According to Silva, the parties then met again and Cervone
informed Schwartz that the Union was willing to accept the Respondent’s new wage calculations 45

7 This session was also the only bargaining session that Cervone attended.
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with no changes or counter proposals, if the Respondent would agree to keep the Article 10, Sec.
5 sub-holiday provision. Silva testified that Schwartz responded “yes,” and at that point,
Piekarski asked Schwartz “point blank” if Article 10, Sec. 5 was “going to stay in,” and
Schwartz said “yes.” (Tr. 35). Silva testified that he informed Cervone that he wanted the
Respondent’s agreement to keep the sub-holiday provision in the contract to be reflected in 5
writing, so Cervone indicated in writing on page 10 of the contract proposal that the sub-holiday
provision was going to stay in, and Schwartz agreed and signed off on it. (Jt. Exh. 8, p. 10).
Silva was very clear in his testimony that while the parties were in the process of signing
page 10 of the agreement, they never had any discussions regarding the Article 10, Sec. 4 10
“scheduling vacations” provision, or any other vacation provision other than the sub-holiday
provision. In fact, Silva testified that prior to the November 6 session, the Respondent never
proposed during any of the bargaining sessions to delete the “scheduling vacations” provision,
which immediately preceded the sub-holiday provision in the text of the original contract and in
the Respondent’s draft proposals. (Tr. 43).15
After the parties’ reached an agreement and signed off on the proposed wage scale and
sub-holiday provision on page 10, they executed the following “Memorandum of Agreement”
signed by Cervone for the Union and Schwartz for the Respondent, and dated November 6,
2014:20
This Memorandum of Agreement (“MOU”) is entered into by and between
AMCOR RIGID PLASTICS USA INC., BATAVIA PLANT, BATAVIA, IL the
Employer and the Chicago & Midwest Regional Joint Board, WORKERS
UNITED/SEIU, and its local 1557 on this 28th day of October 2014 with an intent 25
to be legally bound.
WHEREAS, the parties are bound to a collective bargaining agreement
effective from November 1, 2010 and expiring on October 31, 2014; and
WHEREAS, the parties have reached agreement on the terms on a
successor collective bargaining agreement;30
NOW, THEREFORE, it is agreed that:
1. The parties shall enter into a new collective bargaining agreement
which incorporates and maintains all of the terms of the collective
bargaining agreement effective November 1, 2010 to October 31,
2014 except as specifically modified below or by attachments to 35
this Memorandum.
2. The parties will finalize and execute a full collective bargaining
agreement setting forth the terms of this MOA as soon as
practicable.
3. The following changes to the current agreement are attached and 40
have been signed by the parties’ representatives.
4. Duration: This MOA is effective on November 1, 2014 and
expires on October 31, 2018. It will be superseded by the fully
executed CBA referred to in paragraph 2, above.
The parties agree that the MOA and the CBA is subject to union ratification. (Jt. 45
Exh.8, p.1).
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Silva also testified that the parties attached the MOU and the new wage schedules (Jt. Exh. 8, pp.
2–3), to the front of the contract proposal. (Jt. Exh. 8). Silva then informed the Respondent’s
committee members that he intended to take the agreement to the members for ratification.
Cervone’s testimony corroborated Silva’s version of what transpired in the November 6 5
bargaining session. Like Silva, Cervone testified that when Schwartz asked why the contract
was not ratified, he (Cervone) told Schwartz there were two main issues – wages and Article 10,
Sec. 5 which the Respondent was proposing to delete. According to Cervone, after the issues
were identified, the bulk of the discussion was devoted to wages. They talked about how they
could insert additional monies into the wage scale to bring the Union where it needed to be, and 10
Cervone presented some wage calculations to Schwartz. Cervone testified that the Respondent
caucused for approximately an hour and a half, and when they resumed bargaining, Schwartz
presented a new wage proposal to the Union. The Union then caucused, and according to
Cervone, when the parties met again, he informed Schwartz that the Union could accept the new
proposal on wages provided the Respondent agreed that the sub-holiday provision would remain 15
in the contract. Cervone testified that Schwartz agreed to his offer.
Similar to Silva, Cervone testified that when Schwartz agreed to keep the sub-holiday
provision in the contract, Piekarski asked Schwartz directly if he was going to keep that section
in the contract, and Schwartz said “yes, it’s going to stay.” Cervone also testified that as the 20
parties were discussing the Article 10, Sec. 5 sub-holiday provision, Silva asked him to get the
agreement on the sub-holiday provision in writing, so he wrote on the top of page 10 of the
Respondent’s proposed contract, “stays in,” and he drew a line with his pen down to and
touching the upper left corner of the red box containing the deleted sub-holiday provision in the
right hand margin of the page. Cervone then put his initials and date of 11/6/14 above the “stays 25
in” notation. (Jt. Exh. 8 and Jt. Exh. 13). On the subject of the parties’ agreement to keep the
sub-holiday provision in the contract, Cervone specifically testified: “when we agreed that
former Article 10, Section 5 [was] going to stay in the new collective bargaining agreement, I
pointed to the language in the redline document where Mr. Schwartz had proposed to delete it
and we said: This is going to stay in the contract,” and Schwartz agreed. (Tr. 150). In addition, 30
Cervone testified “I pointed to that box, I drew the line to that box, and I wrote: stays in.” (Tr.
150). After Cervone signed page 10, Schwartz signed the document next to the notation and line
with the words “for the Company,” and he also dated it 11/6/14. Cervone testified that neither
Schwartz, nor anyone else from the Respondent’s bargaining committee, asked any questions for
clarification on what they were signing, expressed confusion over what was agreed to, or asked 35
what the drawn line had indicated.
Piekarski, a current employee of the Respondent and past union president, presented
testimony that corroborated that of both Silva and Cervone regarding what was said in that
November 6 bargaining session. Piekarski testified that the biggest issues were wages, keeping 40
Easter as a paid holiday, and keeping sub-holidays as current contract language. Specifically,
concerning the sub-holiday provision, Piekarski testified that keeping it in the contract was a
quid pro quo for the Union’s acceptance of the Respondent’s new wage proposal. He testified
that while the Respondent’s negotiating team was “not thrilled with it,” at the end of the day,
they accepted it. (Tr. 95). He also corroborated the testimonies of Silva and Cervone that 45
Schwartz agreed to keep the sub-holiday provision in the contract. Piekarski testified that when
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he specifically asked Schwartz if the sub-holiday provision stayed as “current contract
language,” Schwartz answered “yes.” (Tr. 95).
Schwartz, on the other hand, painted a much different picture of what transpired in the
November 6 meeting. Schwartz, a management labor and employment attorney with over 255
years of experience, testified that he had negotiated over 100 collective-bargaining agreements
over his career, and he described himself as an “experienced labor attorney.” (Tr. 281).
Schwartz, along with Johnson, testified that removing the sub-holiday provision from the
contract was one of the Respondent’s prime objectives in the negotiations for the successor
agreement, and on that basis, there was little surprise for the union negotiating committee when 10
Schwartz proposed deleting the sub-holiday provision in the September 30 bargaining session.
He also testified that in that meeting, the Union did not register an objection to his proposal. In
fact, Schwartz testified that the sub-holiday provision was never brought up again during
bargaining by either party, and the Union submitted the Respondent’s proposal that did not
contain the sub-holiday provision to the membership for ratification. According to Schwartz, 15
after the ratification failed, Silva informed him via email that the only issues were wages and
keeping Article 10, Sec. 4 (Scheduling Vacations) in the contract (which Silva admitted was a
mistaken referral to the sub-holiday provision).
With regard to the November 6 bargaining session, Schwartz testified that when he asked 20
the Union why the ratification failed, Cervone told him it was due to the wages, and that Cervone
never mentioned anything about the omission of the sub-holiday provision. Schwartz admits to
adjusting the wages and presenting a new wage proposal to the Union, and that the Union agreed
to his restructuring of the wages. Contrary to the testimonies of Silva, Cervone, and Piekarski,
however, Schwartz denied that Cervone said anything about keeping the Article 10, Sec. 5 sub-25
holiday provision in the contract, and he denied being specifically asked about the sub-holiday
provision by Piekarski before signing page 10 of the proposed contract.
Schwartz admitted that he signed page 10 of the contract proposal after Cervone wrote
“stays in,” drew the line to the deleted sub-holiday provision, and signed it for the Union. 30
However, Schwartz testified that he initialed page 10 because prior to that meeting he had an
email inquiry from Silva regarding the language of Article 10, Sec. 4 Scheduling Vacations, and
he “wanted to make sure that Mr. Silva understood that [he] was in agreement with his email.”
(Tr. 272). According to Schwartz, as he was signing page 10, he looked up at Silva and said:
“This is regarding the emails we had” and Silva nodded “in affirmance.” (Tr. 272). The General 35
Counsel’s witnesses, however, denied that Schwartz made any qualifying statements about the
fact that “stays in” referenced earlier emails or anything to that effect. (Tr. 124).
According to Schwartz’s testimony, he did not understand that “stays in” meant he was
agreeing the sub-holiday provision stayed in the contract. (Tr. 299). Instead, Schwartz testified 40
that he agreed to make the reference to Cervone’s handwritten statement: “stays in” on page 10,
because the Sec. 4 Scheduling Vacations provision became renumbered, and he was “agreeing to
keep Sec. 4 per Silva’s email.” (Tr. 273). When asked on direct examination what Cervone said
about signing “this particular language,” Schwartz answered: “He indicated to me that Jose
[Silva] wanted it signed because there had been questions raised about the provision.” (Tr. 273–45
274). Schwartz added: “I didn’t ask him what he meant by that, but what I interpreted that to
mean was the e-mails that Mr. Silva and I had had regarding Section 4.” (Tr. 274). Schwartz
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admitted on cross-examination that he did not ask Cervone for clarification as to what he was
agreeing to sign off on, and he did not ask Cervone or Silva what was meant by writing “stays
in” on page 10. Despite Schwartz’s assertion that he believed he was agreeing to keep the
Article 10, Sec. 4 Scheduling Vacations language in the contract, he admitted on cross-
examination that the Respondent never proposed deleting the Article 10, Sec. 4 Scheduling 5
Vacations language from the contract proposals in the first place. (Tr. 281). Finally, Schwartz
testified that the first time he learned the Union was alleging the Respondent agreed to keep the
sub-holiday provision in the contract, was when he reviewed Silva’s December 1 email to
Johnson. (Jt. Exh. 10).
10
Johnson, the Respondent’s human resource manager at the Batavia, Illinois facility since
April 2014, testified that the Respondent’s objectives for the successor contract bargaining were:
removing holidays, removing sub-holidays, wages, removing pyramiding of overtime, and
changing the way vacation was paid. (Tr. 175). She testified that after Schwartz’s initial
proposal on September 30 to remove the sub-holiday provision, no one brought it up again, and 15
the Union never objected to the fact that the provision was removed from the proposed tentative
agreement.
With regard to the November 6 bargaining session, Johnson testified that she did not
remember Schwartz or Cervone signing off on page 10 of the proposal, so she did not offer any 20
testimony regarding what was said by Cervone or Schwartz when they were signing the proposed
agreement. (Tr. 223; 229–230). She did, however, offer testimony on what transpired in that
November 6 bargaining session leading up to the signing of the agreement. Johnson described a
somewhat different version of the event than that conveyed by Schwartz. She testified that in the
November 6 session, it was brought to her attention that removal of the Easter holiday from the 25
list of recognized holidays in the contract was an issue, along with wages, but that the Union
never indicated the sub-holiday provision was an issue. (Tr. 190–191).
Johnson testified that in the November 6 bargaining session, the Union’s acceptance of
the wage proposal was conditioned on the Respondent leaving something in the contract that the 30
Union wanted in return (Tr. 191–192)—in essence, a quid pro quo. Initially, Johnson testified on
direct examination that the item the Union wanted back in order to agree to the wage proposal
was the Easter holiday, which the Respondent initially proposed to delete from Article 9, Sec. 1.
(Tr. 193) (Jt. Exh. 3, p. 7). Johnson testified on direct examination with regard to this
conditional offer as follows:35
Q. During this process, did you have to make a conditional offer to the
Union?
A. Yes. There was a request to make changes to something that I didn’t have
the authority to do.40
Q. And what were those changes?
A. Adding the Easter holiday back in. We had previously had an agreement
that Easter was not going to be part of the contract.
Q. Was that in exchange for something else?
A. Yes. It was my understanding at the end of the negotiations that the Union 45
was willing to agree to our wage proposals if we also agreed to give them back
the Easter holiday.
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Q. So were sub-holidays part of this conditional offer?
A. They were not.
Q. So you mentioned that you didn’t have authority to make the conditional
offer.
A. That is correct.5
Q. Did you obtain authority to make the conditional offer?
A. Yes. Actually, we requested a caucus so that I could step out of the room
and contact my plant manager and let him know what the Union’s request was in
order to get authorization to allow a change to what we had already agreed to.
Q. And who is the plant manager?10
A. Robert Healy.
Q. Do you recall exactly what you told him?
A. I remember saying that: You’re not going to really like this. Because I
knew that the Easter holiday was important to him, it was another one of those
items that no other Amcor location has, and that was kind of the theme, so I 15
thought that he would be upset, so I made the comment to him that: You’re not
going to like this, but the Union wants the Easter holiday in order to agree to the
new wage schedule.
Q. And was this – did you get authority to make this conditional offer?
A. I did. He said: If we can get this done and settle this, then yes, go ahead 20
and give them Easter back, and agreed to their terms.
Q. And did you make this conditional offer to the Union? Did you personally
make this conditional offer to the Union?
A. I didn’t personally do that, no.
Q. Who did?25
A. Mr. Schwartz.
Q. And it was accepted?
A. Yes. My understanding was yes, absolutely.
(Tr. 191-193)
30
On cross-examination, Johnson elaborated further on the conditional offer and acceptance
by the Union, stating that in that session, it was Cervone who told her he could recommend the
Respondent’s new wage scale proposal if the Respondent agreed to give them back the Easter
holiday. (Tr. 221–222).
35
The record reveals, however, that on further cross-examination Johnson was shown
documentary evidence establishing that the Respondent had agreed to reinstate the Easter holiday
as a recognized holiday in Article 9, Sec. 1 before the November 6 bargaining session even
occurred. Thereafter, she changed her testimony and claimed the conversations about the Easter
holiday actually occurred in the October 24 bargaining session, not in the November 6 40
bargaining session. (Tr. 232).
45
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12
5. The events following November 6, 2014, and the Respondent’s stated refusal to execute
any final draft of the collective-bargaining agreement that included the
sub-holiday provision.
The agreement (Jt. Exh. 8 and Jt. Exh. 13)8 was ratified by the membership on November 5
7, 2014. Silva testified that he texted Schwartz and informed him of the contract ratification. In
an email to Silva from Johnson dated November 24, 2014, Johnson attached what she described
in the email as the “final CBA ratified Nov. 7, 2014 – clean copy.” (Jt. Exh. 9). Silva testified
that he reviewed the final draft and found six discrepancies, including the deletion of the sub-
holiday provision. In an email dated December 1, 2014, he informed Johnson of the six 10
discrepancies, including the fact that the Article 10, Sec. 5 sub-holiday provision was not in the
agreement, and that the parties had agreed it should have remained in the contract. (Jt. Exh. 10).
On that same day, Johnson sent a reply email informing Silva that she would “look this over”
and get back to him. In an email dated December 18, 2014, Silva asked Johnson if she had a
chance to look at the six discrepancies.15
In an email to Cervone and Silva dated January 29, 2015, Schwartz addressed the
Respondent’s failure to include the sub-holiday provision in the final draft of the contract.
Schwartz stated that there was an issue regarding the terms of the collective-bargaining
agreement. (Jt. Exh. 12). He attached the emails (Jt. Exh. 7) that Silva sent him wherein Silva 20
mistakenly identified Article 10, Sec. 4 Scheduling Vacations as being at issue when he meant to
refer to Article 10, Sec. 5 sub-holiday provision. In the January 29 email, Schwartz stated that
Silva’s emails reflected the company’s agreement to keep the current contract language (on
scheduling vacations) as is, but on the other hand, the Respondent had proposed all along to
delete the sub-holiday provision language, and that deletion was contained in the final proposal 25
and it was not raised as an issue during the emails back and forth regarding Article 10. Schwartz
then stated in the email:
However, the “signed off” document that we initialed on November 6 (also
attached) does not clearly identify the Company’s agreement to “keep current 30
contract language” regarding Section 4, as reflected in the prior emails. Instead, it
could be read to indicate that the Company “agreed” to keep the sub holiday
provision in the new agreement. We have reviewed all of the notes and proposals
that went back and forth, and there is no indication that we altered our position
that sub holidays were to be deleted. I understand the parties are meeting locally 35
next week. We would like this issue to be addressed so that the contract can be
finalized. We cannot agree to keep sub holidays, based upon the bargaining
history and the position the Company consistently took…. (Jt. Exh.12).
It is undisputed that the parties were able to resolve the discrepancies identified by Silva, 40
with the exception of the deletion of the sub-holiday provision. In a meeting with Johnson on
February 4, 2015, Silva informed her that they had a verbal agreement and memorandum of
understanding where Schwartz had agreed to include the sub-holiday provision, and that the
provision should be included in the final draft so the Union could sign off on it. Silva testified

8 The record establishes that Jt. Exh. 13 is the same document as Jt. Exh. 8, except that it is a color
version of that document.
JD–61–15
13
that Johnson informed him that keeping the sub-holiday provision was “a mistake” and “all along
they proposed to delete it.” (Tr. 50). Johnson also informed him that the Respondent would not
sign a contract with the sub-holiday provision in it. Silva testified that the Respondent has since
refused to sign any collective-bargaining agreement that reflects the terms of the agreement
reached on November 6, 2014.5
Johnson testified that since informing the Union that the Respondent would not sign the
collective-bargaining agreement, the Respondent has been following the terms and conditions of
the ratified agreement (Jt. Exhs. 8 and 13), but has been denying employee requests for sub-
holidays. (Tr. 204). In this regard, the record contains a letter dated November 11, 2014, from 10
Human Resource Generalist Marie Lobbezoo to employee Salomon Galvan regarding his
“Request to ‘Sub’ Holidays in December 2014.” In that letter, she advised the employee that
“based on the recently ratified union contract, employees will not be allowed to move or ‘sub’
Holidays to a date other than the actual date on which the Holiday occurs” and that such requests
“will not be honored.” (R. Exh. 1). The record does not reflect how many employees, other than 15
Galvan, were affected by the Respondent’s refusal to implement the sub-holiday provision.
B. The Credibility Determinations
It is undisputed that on November 6, 2014, the parties reached agreement on a successor 20
contract. The complaint alleges, and the Respondent admitted, that the parties “reached
complete agreement on the Unit’s terms and conditions of employment to be incorporated in a
collective-bargaining agreement.” (GC Exh. 1(d) and 1(f)). The parties, however, disagree over
what was agreed to, and they have offered different versions of what was said in the post
ratification rejection bargaining session on November 6. As mentioned above, General Counsel 25
witnesses Cervone, Silva, and Piekarski testified that in the November 6 bargaining session, the
Union offered to accept the Respondent’s wage proposal if the Respondent agreed to keep the
sub-holiday provision in the contract, and that the Respondent, through Schwartz, unequivocally
agreed to keep the sub-holiday provision in the contract. Conversely, Respondent witnesses
Schwartz and Johnson testified that the Union never raised the sub-holiday provision as an issue 30
in that session, and specifically, Schwartz testified that he did not agree to keep the sub-holiday
provision in the successor agreement.
As the versions of what was agreed to in the November 6 bargaining session differ on this
critical issue, as the finder of fact, I must determine the credibility of these witnesses. Credibility 35
determinations may rely on a variety of factors, including the context of the witness’ testimony,
the witness’ demeanor, the weight of the evidence, established or admitted facts, reasonable
inferences that may be drawn from the record as a whole, and the inherent probabilities of the
allegations. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), 40
enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all or nothing
propositions. Indeed, nothing is more common than for a judge to believe some, but not all, of
the testimony of a witness. Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352 NLRB
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950),
revd. on other grounds 340 U.S. 474 (1951). Accord: General Fabrications Corp., 328 NLRB 45
1114 fn. 1 (1999), enfd. 222 F.3d 218 (6th Cir. 2000). See also J. Shaw Associates, LLC, 349
NLRB 939, 939–940 (2007).
JD–61–15
14
My overall observation during the trial was that the General Counsel’s witnesses were
very credible in their testimony and demeanor, and that they testified in convincing, straight
forward, and consistent manners which were indicative of truthfulness. In particular, I find that
they provided clear, detailed and mutually corroborative testimony with regard to what
transpired at the November 6, 2014 bargaining session. On the other hand, Respondent 5
witnesses Johnson and Schwartz testified in a less convincing manner, and were at times
inconsistent, vague, evasive, and presented testimony that was self-serving, unbelievable,
implausible, and less than forthright.
With regard to the General Counsel’s witnesses, I find Silva testified in an honest and 10
straight forward manner. Although he asserted that the Respondent agreed on October 24 to
keep the sub-holiday provision in the contract, while the record did not support that assertion,
such a discrepancy is insufficient to affect the credibility of his assertions as to what was said
and agreed to in the November 6 bargaining session. I find that Silva’s testimony with regard to
what was agreed upon in that session was reliable and honest, and it was not only consistent with 15
the testimonies of both Piekarski and Cervone, it was consistent with the documentary evidence
establishing that Schwartz agreed to (and signed off on) the notation that the sub-holiday
provision “stays in” the contract. (Jt. Exh. 8, p. 10).
Piekarski, a current employee who offered testimony in opposition to the Respondent’s20
interests, testified in a sincere, unrehearsed, and very convincing manner, despite the fact that he
appeared to be mistaken with regard to his testimony that the Easter holiday was an issue in the
November 6 bargaining session. I find that he presented credible and honest testimony regarding
the fact that the Union conditioned acceptance of the Respondent’s wage proposal on Schwartz’s
agreement to keep the sub-holiday provision in the contract. Piekarski also testified that he had 25
not provided the General Counsel with affidavit testimony during the investigation of the charge,
and that he had only briefly spoken with Counsel for the General Counsel via telephone a few
days before the trial commenced. (Tr. 97). Piekarski’s testimony thus revealed that he was an
unrehearsed witness who had minimal interaction with Counsel for the General Counsel prior to
the trial. In addition, Piekarski’s testimony was particularly reliable, as it is well settled that the 30
testimony of current employees that contradicts that of their employer is “particularly reliable
because [the employees] are testifying adversely to their pecuniary interests.” The Avenue Care
and Rehabilitation Center, 360 NLRB No. 24, slip op. at 1, fn. 2 (2014); Advocate South
Suburban Hospital, 346 NLRB 209, 209 fn. 1 (2006), quoting Flexsteel Industries, 316 NLRB
745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996); see also Gold Standard Enterprises, Inc.,35
234 NLRB 618 (1978). Thus, I find that Piekarski’s current employment status serves as a
significant factor in my determination that he was a credible witness.
Of all the General Counsel’s witnesses, however, I was most impressed with Cervone’s
demeanor and testimony. He testified in a very credible and sincere manner, displaying an 40
accurate recollection of the details of the November 6 meeting that was consistent with the
testimony offered by Silva and Piekarski, and most importantly, it was plausible and consistent
with the undisputed documentary evidence. Cervone’s testimony that Schwartz agreed to his
offer that the Union would accept the Respondent’s proposed wage calculations if the
Respondent agreed to keep the sub-holiday provision in the contract, is directly supported by the 45
fact that on page 10 of the document, Cervone wrote “stays in” and drew a line from that
JD–61–15
15
annotation to the sub-holiday provision in the deleted section found in the right hand margin of
the page, and that Schwartz agreed that the provision would stay in, and he signed off on it.
The Respondent’s witnesses, on the other hand, were not credible, and they presented
testimony replete with contradiction. Johnson testified in a manner that was inconsistent, 5
unpersuasive, and at times vague and evasive. With regard to Johnson’s testimony that the
parties allegedly agreed to remove the sub-holiday provision from the contract prior to
November 6, she was purposely vague and despite that assertion, she testified that she did not
recall how that agreement came about, or what was said on that matter. (Tr. 210). She was also
evasive when being questioned on cross-examination with regard to how she determined the 10
Union allegedly agreed to remove the sub-holiday provision from the contract, when in fact the
parties never had any conversations about that provision prior to November 6. (Tr. 210–220). In
addition, she was evasive when being questioned on cross-examination about how the sub-
holiday provision language went from being “stricken” in the Respondent’s October 24 draft
proposal (Jt. Exh. 5) to “deleted” in the tentative agreement if the parties never discussed it. (Jt. 15
Exh. 6) (Tr. 210–220).
Johnson also presented conflicting and inconsistent testimony. She testified that one of
the Respondent’s main “objectives” in bargaining for the successor agreement was to remove the
sub-holiday provision. That testimony, however, was inconsistent with the fact that 20
Respondent’s “2014 Union Negotiation Summary” (that Johnson drafted and distributed to the
bargaining unit employees) never mentioned that one of the Respondent’s “proposed goals” was
to eliminate or remove the sub-holiday provision from the contract. (GC Exh. 2). Instead,
Johnson’s summary stated “The Company went into negotiations with 3 areas of focus. We
intended to eliminate the Schedule Premium, change the Vacation Pay Calculation to a base rate 25
of pay, and change the way Overtime is calculated.” (GC Exh. 2, p. 5). Johnson also testified
that in the November 6 session, Cervone said the Union would accept the Respondent’s newly
proposed wage schedule if the Respondent agreed to give them back the Easter holiday. (Tr.
221). That testimony, however, was inconsistent with the documentary evidence showing that
the Respondent had already agreed to reinstate the Easter holiday before the November 6 30
bargaining session occurred. On cross-examination, Johnson then changed her testimony to
reflect that the conversations about the Easter holiday actually occurred in the October 24
bargaining session, not in the November 6 bargaining session. (Tr. 232).
I also find that the testimony of Schwartz was not credible. He testified in a self-serving 35
manner wherein he presented contrived, unbelievable, and implausible testimony. His testimony
was also internally inconsistent, inconsistent with the undisputed documentary evidence, and
inconsistent with Johnson’s testimony. I find that the testimony of Schwartz was particularly
incredible in his assertions that the Union did not inform him that the sub-holiday provision was
one of the issues that caused the ratification vote to fail, and that the Union failed to mention 40
keeping the sub-holiday provision in the contract in the November 6 bargaining session. I
similarly discredit his assertion that he did not agree to keep that provision in the contract in
exchange for the Union’s acceptance of his wage proposal. In finding that Schwartz’s testimony
is not credible or believable, I specifically note the following:
45
JD–61–15
16
(1) With regard to Schwartz’s inconsistent testimony, I note that his testimony about the
facts of November 6 was inconsistent with the assertions he made while questioning Silva.9
When Schwartz was questioning Silva on cross-examination about what was said in the
November 6 bargaining session as he (Schwartz) was signing off on the sub-holiday provision on
page 10 of the contract, he stated:5
Q. “And do you recall, Jose, that as I was signing the document I looked up…at
you and you said to me: this relates to the emails that we had? And I said: yeah.
The email we had about Section 4.”
A. “No.” (Tr.73). 10
However, when Schwartz offered testimony as a witness on behalf of the Respondent, he
testified to the opposite—that it was he (Schwartz) who asked if the notation was pertaining to
the emails. Specifically, Schwartz testified: “In fact, as I recall, as I was signing this, I recall
looking up and saying to Jose: This is regarding the e-mails we had, and him nodding in 15
affirmance.” (Tr. 272).
(2) Schwartz’s testimony, like that of Johnson’s, was inconsistent with the undisputed
documentary evidence. Schwartz, like Johnson, testified that it was critical for the Respondent
to remove the sub-holiday provision from the contract because it was one of the Respondent’s 20
main goals in bargaining for the successor agreement. However, the Respondent’s “2014 Union
Negotiations Summary,” created by Johnson and provided to the bargaining unit employees,
failed to identify removal of the sub-holiday provision as one of the Respondent’s “proposed
goals.” (GC Exh. 2).
25
(3) Critically, Schwartz’s testimony was inconsistent with Johnson’s testimony.
Schwartz testified that the Union only presented one issue in the November 6 bargaining
session—wages. (Tr. 265). Johnson, on the other hand, testified that in the November 6 session
there were two issues presented by the Union—one was wages and the other was an item that the
Respondent removed from the contract proposal that the Union wanted to have reinstated. (Tr. 30
190–193). She elaborated further, testifying that the item Respondent removed was “one of
those items that no other Amcor location has” which at the time she believed was the Easter
holiday. (Tr. 193). Significantly, no explanation was offered by the Respondent as to why its
two key (and only) witnesses differed on this important point.
35
(4) On that same subject, while Schwartz testified that Cervone’s acceptance of the
Respondent’s wage proposal was not conditioned on keeping either the Easter holiday or the sub-
holiday provision in the contract (Tr. 296–297), Johnson testified that the Union’s acceptance of
the wage proposal was, in fact, conditioned on the Respondent’s leaving something in the
contract that the Union wanted in return, which on her direct-examination testimony she believed 40
was the Easter holiday. Johnson specifically testified that Cervone was the person who
requested the conditional offer when he told her he could recommend the Union’s acceptance of

9 Although I do not base my credibility findings on Schwartz’s assertions while questioning the
witness because such are not testimony under oath, I nevertheless find such assertions persuasive and
noteworthy when examining the stated facts in those statements in comparison to the stated facts made in
his statements under oath.
JD–61–15
17
the Respondent’s new wage scale proposal if the Respondent agreed to give the Union back the
Easter holiday. (Tr. 221–222). Johnson testified that Schwartz then made that conditional offer
to the Union, and it was accepted. (Tr. 193). The record is also devoid of any explanation for the
conflicting testimony of the Respondent’s witnesses on this important matter.
5
(5) As mentioned above, the record reveals that the Respondent agreed to reinstate the
Easter holiday as a recognized holiday prior to the November 6 bargaining session. That
evidence consisted of the proposed draft of the contract presented by the Respondent for
ratification, which already contained the Easter holiday (Jt. Exh. 8, p. 7), and the Respondent’s
“2014 Union Negotiation Summary,” authored by Johnson, that notified the employees that 10
Respondent was willing, in the “final proposal,” to “[a]llow [e]mployees to keep Easter and the
floating holiday[,] the 2 holidays the company intended to eliminate” (GC Exh. 2, p.4; Tr. 225–
226). On cross-examination, Johnson changed her testimony to claim the conversations about
the Easter holiday actually occurred in the October 24 bargaining session, not in the November 6
bargaining session. (Tr. 232). Significantly, however, Johnson never retracted nor corrected her 15
testimony that the Union’s acceptance of the Respondent’s wage proposal on November 6 was
conditioned upon something in return, in essence a “quid pro quo,” and that she had to call her
plant manager at a caucus during that session to get his approval to give the Union what it was
demanding to get the contract done. (Tr. 193).
20
While I have found Johnson to be an incredible witness, and I do not believe her assertion
that the sub-holiday provision was never raised in the November 6 bargaining session, I do
believe her assertion that the Respondent agreed to give the Union something back in the
contract that it wanted in exchange for acceptance of the Respondent’s wage proposal. Contrary
to Johnson’s and Schwartz’s denials however, I find that item was the sub-holiday provision. 25
That finding is plausible when consideration is given to the credible evidence offered by the
General Counsel’s witnesses, and the documentary evidence showing that Schwartz signed on
page 10 of the draft proposal signifying his agreement that the sub-holiday provision “stays in”
the contract. (GC Exh. 8). In addition, Johnson testified that the Union offered to accept the
wage proposal if the Respondent would put back into the contract a certain provision that was 30
taken out, and that certain provision, which was only found in the Batavia bargaining unit,
required her plant manager’s approval during that session for its reinstatement. Since the record
establishes that the Easter holiday could not have been that provision, the only plausible item it
could have been was the sub-holiday provision.
35
(6) I also find that Schwartz’s testimony that the Union only raised one issue—wages—
is not plausible considering the credible facts of this case. Initially, I find it implausible that the
Union would mislead the Respondent as to what the issues were that lead to the unit employees’
rejection of the contract in the ratification vote. Instead, it is reasonable to believe that the
Union, rather than hide one of the reasons for the contract’s rejection, would have made it very 40
clear in that final bargaining session what the employees required in the contract to approve it.
Secondly, if the wage proposal really was the only issue holding up an agreement on the
contract, it stands to reason that Schwartz would have simply signed off on the new wage
proposal that he attached to the contract. Instead, he also signed off on page 10 of the agreement
where the notation “stays in” is connected by a line to the deleted sub-holiday provision. One 45
would think that if in fact Schwartz’s assertions were true, he would have questioned why
Cervone wanted to sign off on the vacation page of the contract when in fact there was no issue
JD–61–15
18
other than wages. And thirdly, if in fact there was only one issue as Schwartz testified, why was
it necessary for Johnson to seek her plant manager’s approval during that session to include
something else in the contract that the Respondent had previously taken out? If Schwartz’s
testimony were true, it would stand to reason that Johnson could have agreed to the wage
proposal without calling to get her plant manager’s approval. Thus, Schwartz’s testimony is 5
simply not plausible or believable on this subject.
(7) In addition, I find that Schwartz’s testimony that he signed off on page 10 of the
proposal because he had received the October 29 email from Silva wherein Silva mistakenly
objected to the Respondent’s withdrawal of Article 10, Sec.4 “Scheduling Vacations” from the 10
draft proposal (Tr. 272; Jt. Exh. 7), is not believable or credible. In that connection, Schwartz
testified: “I wanted to make sure that Mr. Silva understood that I was in agreement with his
email.” (Tr. 272). In addition, Schwartz asserted that he signed page 10 by the notation “stays
in” because he “was agreeing to keep Sec. 4 per Silva’s email.” (Tr. 273). I do not credit these
assertions, nor do I credit Schwartz’s testimony that he told Silva on November 6, when he 15
signed off on page 10 of the proposal: “This is regarding the emails we had,” and that Silva
allegedly nodded in affirmance. (Tr. 274).
Schwartz’s assertions in this regard are self-serving, nonsensical, implausible, and simply
not credible. In the first place, it is clear from the record that Silva made a mistake when he 20
referenced Section 4 “Scheduling of Vacations” in his October 29 email. The record reveals that
the Scheduling of Vacations provision was originally found in the 2010–2014 collective-
bargaining agreement at Article 10, Section 3. (Jt. Exh. 1). While the Respondent’s initial draft
proposals contained that provision at Article 10, Sec.4, the draft proposal the parties eventually
agreed upon in the November 6 bargaining session had the Scheduling of Vacations provision in 25
Article 10, Sec.3 (Jt. Exh. 8).10 It is important to note that in none of the Respondent’s proposed
agreements had it ever removed that provision from the contract, nor had it ever suggested that it
be removed. When Silva informed Schwartz in his October 29 email that the Respondent had
removed that provision from the contract, when in fact Schwartz knew he had never done so in
the first place, it would have been apparent that Silva made a mistake. Instead of pointing that 30
out to Silva, Schwartz simply assured Silva that the provision was going to stay in the contract in
a reply email that same day. (Jt. Exh 7). Thus, I find that Schwartz’s assertion that signing off on
page 10 was to show that he “was agreeing to keep Sec. 4 per Silva’s email,” when in fact the
Respondent never removed it in the first place, and after Schwartz had previously assured Silva
by email that it was staying in the contract in any event, is nonsensical and strains credulity. It is 35
also implausible as it is reasonable to believe that if in fact Schwartz’s assertions were true, he
would have asked Cervone why the line was drawn to the sub-holiday provision, instead of to the
Scheduling of Vacations provision. One could also reason that Schwartz would have asked
Cervone why the annotation on page 10 did not make reference to the Scheduling of Vacations
provision. Instead, Schwartz, by his own admission, never asked Cervone for clarity as to what 40
“stays in” meant, nor did he inquire as to what he was agreeing to initial off on. (Tr. 298).

10 The record reveals that in the September 30 draft of the 2014–2018 agreement (Jt. Exh. 2) and the
first October 14 proposal (Jt. Exh. 3) the provision was changed to Article 10, Sec. 4. In the second
October 14 proposal (Jt. Exh. 4), the October 24 proposal (Jt. Exh. 5), and the October 27 proposal (Jt.
Exh. 6), the Scheduling of Vacations provision was changed back to being identified as Article 10, Sec. 3.
Finally, in the November 6 draft proposal the provision was in Article 10, Sec. 3. (Jt. Exh. 8).
JD–61–15
19
(8) I further find that what makes Schwartz’s assertions on this point even more
unbelievable is the fact that the Scheduling of Vacations provision that he was allegedly
affirming was to stay in the contract, is not even found on page 10 of the proposal—it is on page
9. The text of Article 10, Sec. 4 found on page 10, and that which Schwartz by his own 5
testimony was confirming to “stay in” the contract, was the provision for “Vacation Request
Process,” and not the “Scheduling of Vacations” provision that was the mistaken subject of
Silva’s email. Thus, if Schwartz’s assertions were true, it only stands to reason that he would
have signed off on page 9 of the draft where the Scheduling of Vacations provision was found,
which he undisputedly did not do.10
(9) While I find that Schwartz incredibly testified that he was agreeing to keep the
Scheduling of Vacation language that was never proposed to be deleted, I further find incredible
his untenable assertion that he did not read the language and he did not know what he was
signing. (Tr. 283–284). This claim is without support and is not credible. It was the Respondent, 15
not the Union that created the draft proposal the parties worked with and signed during the
November 6 session. (Tr. 35–36, 270; Jt. Exh. 6 and 8). Schwartz had emailed the Respondent’s
last offer to the Union on October 27, which was the document the parties worked with on
November 6. Therefore, Schwartz had a copy of the underlying document. If in fact Schwartz’s
truly believed he was signing another section of the proposal (Tr. 285) or that he was unsure as 20
to what he was signing and agreeing to (Tr. 273–274, 283–284), he had a copy of the document
(that he created) in his possession, and all he had to do was look at it. Likewise, I find that
Schwartz’s testimony that he did not understand that “stays in” meant the sub-holiday provision
stayed in the contract (Tr. 299) is equally unbelievable and implausible because if there was any
ambiguity about that annotation, it is reasonable to believe that Schwartz, an experienced labor 25
lawyer with 25 years of experience negotiating contracts, would have asked Cervone for
clarification, or sought an explanation of what the drawn line meant, which in this case it is
undisputed he did not do. (Tr. 298–299). I also find it is inconceivable to conclude that Schwartz
would agree in writing in the final hours of negotiations to keep language which he never
proposed to delete in the first place, without any questions or discussions, and without reading it.30
(10) In addition, I find Schwartz’s claim that the Union was to blame for his allegedly
not knowing what he was signing because when he left the November 6 meeting he did not have
a copy of the agreement, and the Union did not provide him with a copy until sometime after
January 22, 2015. (Tr. 292–294), is unfounded and without support in the record. This assertion 35
is baseless because he could have asked for a copy of the contract, but he admitted that he did not
request one. (Tr. 295). Schwartz also admitted that even though he was aware the ratification
vote passed on November 7, he did not ask for a copy of that contract at that time either. (Tr.
296).
40
(11) Finally, I find further evidence establishing that Schwartz’s testimony is not
credible can be found in his communication with the Union after the November 6 bargaining
session. After it was brought to Schwartz’s attention that the Union took issue with the fact that
the sub-holiday provision was not in the final draft of the contract, Schwartz sent an email to
Cervone and Silva dated January 29, 2015, wherein he addressed the Respondent’s failure to 45
include the sub-holiday provision in the final draft of the contract by stating that the “signed off”
document initialed on November 6 “could be read to indicate that the Company ‘agreed’ to keep
JD–61–15
20
the sub holiday provision in the new agreement.” (Jt. Exh. 12). If in fact Schwartz truly did not
agree to keep the sub-holiday provision in the contract as he alleged, a more plausible response
would have consisted of a stern and adamant statement from Schwartz to Cervone, stating that he
never entered into any such agreement with the Union on November 6. However, he failed to do
that. Instead, Schwartz’s response was to acknowledge that the “signed off” document could in 5
fact evince Respondent’s agreement to keep the sub-holiday provision in the contract. I find that
response serves as further evidence that Schwartz’s testimony and assertions are not credible,
believable, or plausible.
On the basis of the above, I find that the credible record evidence establishes, as the 10
General Counsel’s witnesses have alleged, that in the November 6 bargaining session, Cervone
informed the Respondent that wages and the sub-holiday provision were issues, that the Union
would agree to the Respondent’s wage proposal if the Respondent would agree to keep the sub-
holiday provision in the contract, and that Schwartz verbally agreed to that proposal. In addition,
I find that Schwartz thereafter indicated in writing that the sub-holiday provision would stay in 15
the contract by signing off on Cervone’s notation of “stays in” which was connected by a written
line to the deleted sub-holiday provision.
C. The Issues
20
The issues presented in this case are whether the parties had a “meeting of the minds”
with regard to keeping the sub-holiday provision in the successor collective-bargaining
agreement, and whether the Respondent’s statement on February 4, 2015, that it would not sign a
contract that contained the sub-holiday provision, and consistent with that, its subsequent refusal
to execute any contract that contained the terms and conditions of employment agreed to by the 25
parties on November 6, 2014, constituted a violation of Section 8(a)(5) and (1) of the Act.
D. The Contentions of the Parties
The General Counsel and the Union allege that in the November 6, 2014 bargaining 30
session, the Respondent agreed in unambiguous terms to keep the sub-holiday provision in the
contract in exchange for the Union’s agreement to accept the Respondent’s wage proposal. The
General Counsel alleges that the Respondent’s oral refusal to execute a written contract
containing the sub-holiday provision as the terms reached on November 6, violated Section
8(a)(5) and (1) of the Act.35
The Respondent alleges that it consistently took the position that the sub-holiday
provision be removed from the contract, and the Union agreed to its removal and presented that
proposal to the membership for ratification on November 4, 2014. The Respondent also alleges
that the sub-holiday provision was never identified as an issue in the final negotiating session on 40
November 6, the parties never discussed the sub-holiday provision that day, and it never agreed
to keep the provision in the contract.
With regard to the November 6, 2014 bargaining session, the Respondent contends that
the line drawn by Cervone from the “stays in” notation is ambiguous as “it is unclear to where 45
the line points” (Resp. Brief p. 2), and that the “stays in” language and the line drawn from it
does not appear to refer to anything, and is therefore ambiguous.” (Resp. Brief p. 20). In
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addition, the Respondent contends that the Union’s argument that the “stays-in” language shows
Respondent agreed to retain the sub-holiday provision on November 6 relies solely on
Schwartz’s alleged “unilateral mistake,” which as a matter of law the Union cannot exploit to its
advantage. (Resp. Brief at p. 3). Furthermore, Respondent contends that even if Schwartz
intended to retain the sub-holiday provision, he could not have done so since he allegedly did not 5
have authority “for such drastic action.” (Resp. Brief at p. 11). Finally, the Respondent argues
that when the Union asked the Respondent to sign an agreement that retained the sub-holiday
provision, it never provided Respondent with its version of the agreement (Resp. Brief at p. 13),
and therefore it was not “presenting an agreement that reflected a meeting of the minds.” (Resp.
Brief at p. 3).10
Based on these arguments, the Respondent argues that the General Counsel has not met
the burden of showing that the Respondent refused to sign a contract reflecting the parties’
meeting of the minds, and that the complaint should be dismissed.
15
E. Analysis
It is well established that the obligation to bargain collectively under Section 8(d) of the Act
requires either party, upon the request of the other, to execute a written contract incorporating an
agreement reached during negotiations. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). The Board 20
has held however, that the obligation to execute a written contract arises only after a “meeting of the
minds” has been reached on all substantive issues and material terms, provided there was in fact the
intent to have a contract. Hempstead Park Nursing Home, 341 NLRB 321, 322 (2004); Sunrise
Nursing Home, Inc., 325 NRLB 380, 389 (1998); Intermountain Rural Electric Assn., 309 NLRB
1189, 1192 (1992); In re Buschman Co., 334 NLRB 441, 442 (2001). The Board has also determined 25
that it is the General Counsel’s burden of showing that the parties not only had the requisite
“meeting of the minds” on the agreement reached, but also that the document the respondent
refused to execute accurately reflected the agreement of the parties. Hempstead Park Nursing
Home, supra at 322; Windward Teachers Assn., 346 NLRB 1148, 1150 (2006).
30
The Board has held that in situations where there is reliance on a document to prove
intent, the principles of contract law are applied to determine whether the parties reached a
“meeting of the minds.” If the terms of the document are unambiguous, the parties’ “meeting of
the minds” is based on objective terms of the contract rather than subjective understanding (or
misunderstandings) of the terms by the parties. Hempstead Park Nursing Home, supra at 322. 35
However, if the document contains terms that are ambiguous and the parties attach different
meanings, a “meeting of the minds” is not established. In addition, if as a result of the ambiguity
the misunderstanding is neither party’s fault or both parties are to blame, there is no “meeting of
the minds” and that seeming agreement will not create a contract. Id. at 322–323.
40
The Board has also held that a party’s signifying assent to an unsigned paper can serve as
the formation of a contract. New Orleans Stevedoring Co., 308 NLRB 1076, 1081 (1992); Kelly
Private Car Service, 289 NLRB 30, 39 (1988). The fact that parties may plan to sign an
agreement later does not preclude the prior formation of that contract by signifying assent to an
unsigned paper. Kelly Private Car Service, supra at 39. The Board has found that the issue is 45
one of intention, and thus the question is whether the parties intended to have a contract as
evidenced by a “meeting of the minds.” Id. In determining whether an agreement has been
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reached by the parties, the Board has held that it is not strictly bound to “the technical rules of
contract law but is free to use general contract principles adapted to the collective-bargaining
context.” New Orleans Stevedoring Co., supra at 1081; citing NLRB v. Electra-Food Machinery,
Inc., 621 F.2d 956, 958 (9th Cir. 1980).
5
With regard to the Respondent’s assertion that the parties did not have a “meeting of the
minds” on November 6 to include the sub-holiday provision in the contract, it initially argues in
its brief that it consistently took the position that the sub-holiday provision be removed from the
contract, and that the Union agreed to its removal and presented that proposal to the membership
for ratification on November 4, 2014. While it is true the record establishes that up to the 10
November 6 bargaining session, the Respondent maintained its position that it wished to remove
the sub-holiday provision from the contract, it also establishes that the parties never had
discussions indicating that the Union agreed to remove that provision from the contract.
Regardless of whether the Union “agreed” to Respondent’s removal of the provision, the record
clearly shows that the Union nevertheless presented the Respondent’s October 27 proposal, sans15
the sub-holiday provision, to the union membership for a ratification vote on November 4. I find
that while these facts provide relevant information pertaining to the bargaining leading up to the
final bargaining session on November 6, they do not necessarily provide proof of whether or not
the parties had a “meeting of the minds” on including the sub-holiday provision in the November
6 bargaining session. In fact, whether or not the Union agreed to keep the sub-holiday provision 20
in the draft proposal on October 24 is of little consequence when analyzing the critical issue in
this case—whether the Respondent agreed in the November 6 bargaining session to keep the sub-
holiday provision in the successor contract in exchange for the Union’s agreement to accept the
Respondent’s wage proposal.
25
The Respondent also alleges in its brief that the sub-holiday provision was never
identified as an issue in the final negotiating session on November 6, the parties never discussed
the sub-holiday provision that day, and it never agreed to keep the provision in the contract, as
the Union alleges it had done. As mentioned above, I have soundly discredited these assertions,
and likewise, I find no merit in the Respondent’s arguments based upon them.30
I find that the credible evidence and the undisputed documentary evidence establish that
the Respondent agreed in the November 6 bargaining session to keep the sub-holiday provision
in the contract in exchange for the Union’s agreement to accept the Respondent’s wage proposal,
thus evincing the requisite “meeting of the minds” on the parties’ agreement to include the sub-35
holiday provision in the collective-bargaining agreement. In that November 6 bargaining
session, Cervone informed the Respondent that wages and the sub-holiday provision were issues,
and that the Union would agree to the Respondent’s wage proposal if the Respondent would
agree to keep the sub-holiday provision in the contract. Schwartz was specifically asked by
Piekarski if he was agreeing to keep the sub-holiday provision in the contract, and he answered 40
“yes, it’s going to stay.” While Silva asked Cervone to get the agreement on the sub-holiday
provision in writing, Cervone pointed to the sub-holiday provision in the right hand margin of
the page where Schwartz proposed to delete it, and he asked Schwartz if the sub-holiday
provision was going to stay in the contract, and Schwartz agreed that it would stay in. Cervone
then wrote on the top of page 10 of the Respondent’s proposed contract, “stays in,” and drew a 45
line with his pen from that notation down to and touching the upper left corner of the red box
containing the deleted sub-holiday provision in the right hand margin of the page. Cervone
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evidenced the Union’s agreement to keep the sub-holiday provision in the contract by initialing
the page for the Union, and Schwartz indicated Respondent’s agreement to include the sub-
holiday provision by signing his name for the Company next to the “stays in” notation and the
drawn line, thus clearly evincing Respondent’s written agreement to keep the sub-holiday
provision in the contract. The credible evidence establishes that neither Schwartz, nor anyone 5
else from the Respondent’s bargaining committee, ever expressed confusion over what they were
agreeing to or asked questions seeking clarification on what they had agreed to.
The parties then executed a memorandum of understanding at the completion of the
November 6 bargaining session, confirming their agreement to the terms of the collective-10
bargaining agreement, which was the document the parties had just signed off on. (Jt. Exh. 8). It
is undisputed that the parties reached an agreement on November 6.11 The Union informed
Schwartz at the close of the November 6 session that the Union was going to take the agreement
(Jt. Exh. 8) to a second ratification vote. On November 7, the agreement was ratified.
Approximately 2 months after the contract was ratified, the Respondent provided the Union with 15
an integrated copy for signature. The Union noticed errors in the agreement, including the
deletion of the sub-holiday provision. All discrepancies were resolved by the parties, except for
the deletion of the sub-holiday provision. On January 29, 2015, the Respondent, by Schwartz,
informed the Union that it would not agree to include the sub-holiday provision in the contract
that the parties had agreed to in that final negotiation session on November 6, 2014, and on 20
February 4, 2015, the Respondent informed the Union for the first time that the sub-holiday
provision in the contract was a mistake and no agreement would be signed with that provision in
it. Thereafter, the Respondent never executed a contract containing the terms and conditions
agreed to by the parties on November 6, and the Respondent thereafter has denied employee
requests to use the sub-holiday provision.25
In analyzing this case, I first find that the sub-holiday provision in the collective-
bargaining agreement is a material term and a substantial issue, as the provision allows the
employees to substitute days off for any days during the calendar year if their vacation days fall
on a holiday, and that single provision has resulted in the Respondent’s refusal to sign any 30
agreement that contains it. Thus, I find that the obligation to execute a written contract arose
after the parties’ “meeting of the minds” on all substantive and material terms and the intent
evinced by the parties to have a contract on November 6, 2014.
I also find that the written agreement that the parties signed off on and executed with a 35
memorandum of understanding on November 6, 2014 (Jt. Exh. 8), is unambiguous in its terms,
especially with regard to the inclusion of the sub-holiday provision in that agreement. While the
Respondent contends that the line drawn by Cervone from the “stays in” notation is ambiguous
because it is allegedly “unclear to where the line points,” and allegedly “does not appear to refer
to anything,” (Resp. Brief pp. 2 and 20), those contentions are not supported by the record. I 40
find there is nothing ambiguous about the written notation of “stays in” on page 10, or the line
that connects it directly to and touching the upper left corner of the red-boxed deleted portion of
the sub-holiday provision in the right hand margin of the document. That notation and drawn
line evince the parties’ clear, unequivocal, and unmistakable intent to agree to the sub-holiday

11 As the Respondent admitted in its answer to the complaint. GC Exh. 1(d) (complaint) and GC Exh.
1(f) (answer).
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provision’s inclusion in the contract. I further find the assertion of ambiguity is not only without
support, it is belied by the fact that at the time of signing off on the inclusion of that language,
Schwartz never sought nor asked Cervone for clarification of the notation and line. It stands to
reason that if in fact the Respondent believed the notation and line were ambiguous, Schwartz
would have asked for clarification or for the meaning of such a notation and drawn line. Instead, 5
no requests for clarification were made by the Respondent.
I also find that the credible record evidence establishes that Schwartz freely, willingly,
and knowingly agreed to include the sub-holiday provision in the contract in exchange for the
Union’s agreement on the Respondent wage proposal, and that there was no “mistake” about his 10
agreement to do so. This finding is established by the fact that Schwartz was asked by both
Piekarski and Cervone if he was agreeing to include the sub-holiday provision in the contract,
and he answered both with “yes.” In fact, Cervone actually pointed to the sub-holiday provision
when he asked Schwartz if he agreed to that provision staying in the contract. Schwartz also
admitted that he willingly signed the notation on page 10 after Cervone made the annotation and 15
drew the line to the sub-holiday provision. (Tr. 285). Thus, the Respondent’s assertion that
inclusion of the sub-holiday provision was somehow a mistake is not supported by the credible
testimony or the undisputed documentary evidence, and it is without merit.
Along the same line as the Respondent’s “mistake” allegation, as discussed above, 20
Schwartz also claimed: (1) he thought he was signing another section of the proposal (Tr. 285),
when in fact the evidence revealed he signed off on including the sub-holiday provision after
Cervone wrote “stays in” and drew a line to the sub-holiday provision, after he neglected to ask
Cervone for clarification of what “stays in” or the drawn line meant; and after the provision he
believed he was signing turned out to be on a different page of the agreement; (2) he was unsure 25
as to what he was signing and agreeing to (Tr. 273–274, 283–284), when the evidence reveals
that the Respondent created the document the parties were working from in that session, and he
could have looked at it; and (3) that the Union did not provide him with a copy of the agreement
until sometime after January 22, 2015 (Tr. 292–294), when in fact the evidence showed that he
never asked for a copy of the agreement. As mentioned in the credibility section of this decision, 30
I find these assertions by Schwartz to be incredible, and I likewise find those allegations by the
Respondent in support of its case to be baseless and without merit.
The Respondent also contends that even if Schwartz intended to retain the sub-holiday
provision, he could not have done so since he allegedly did not have the authority “for such 35
drastic action.” (Resp. Brief at p. 11). In the first place, I note that Schwartz’s claim of lack of
authority on this single issue is premised on the Respondent’s assertion that this issue was a
“primary objective” for the Respondent, and that he needed permission before agreeing to keep
the language in the contract. (Tr. 274–275, 300). As mentioned above, however, the evidence is
at odds with that claim, as Respondent’s “2014 Union Negotiation Summary” (GC Exh. 2) fails 40
to mention removal of the sub-holiday provision as a goal or primary objective. In addition,
Schwartz never at any time prior to arriving at an agreement on November 6, expressed to the
Union that his authority was limited in any manner or that he needed prior approval from anyone
before agreeing to terms and/or signing a contract. (Tr. 26). Cervone’s and Silva’s testimony
that Schwartz never expressed any limitation on his authority was convincing and dispositive on 45
this issue.
JD–61–15
25
Furthermore, Schwartz, as the chief negotiator for the Respondent, never provided the
Union with clear notice that he had any alleged limited authority in negotiating the contract (Tr.
26), as it was incumbent upon him to do, if in fact that was the case. The Board has held that
“the law is clear that when an agent is appointed to negotiate a collective-bargaining agreement
that agent is deemed to have apparent authority to bind his principal in the absence of clear 5
notice to the contrary.” Sands Hotel & Casino, 324 NLRB 1101, 1108–1109 (1997) (quoting
University of Bridgeport, 229 NLRB 1074 (1977). I find that it strains credulity to believe that
an experienced counsel such as Schwartz, who negotiated many contracts over his career, would
fail to notify the Union of such lack of authority if in fact it were true. Thus, having determined
that Schwartz had authority without expressed limitation to agree to terms or finalize an 10
agreement, I find that he agreed to the terms of the successor agreement on behalf of the
Respondent, which included the sub-holiday provision.
Finally, the Respondent argues that when the Union asked the Respondent to sign an
agreement that included the sub-holiday provision, it never provided Respondent with its version 15
of the agreement (Resp. Brief at p. 13), and therefore it was not “presenting an agreement that
reflected a meeting of the minds.” (Resp. Brief at p. 3). I find this argument also lacks merit.
The record reflects that throughout all the bargaining sessions, the parties were working from the
Respondent’s computer drafts of the contract. When the parties reached agreement on the
contract (which was comprised of Jt. Exh 8 and the memorandum of understanding) they signed 20
off on a draft created by the Respondent. The Respondent then provided the Union with the final
draft of the agreement for signature, but that agreement did not contain all the terms of the
November 6 agreement as the sub-holiday provision was missing. The Union did not sign the
agreement, but instead correctly asked the Respondent to include the sub-holiday provision in the
final draft and then requested that Respondent sign it. In this connection, on February 4, 2015, 25
Silva met with Johnson and Lobezoo for a labor-management meeting. (Tr. 50–51). During that
meeting, Silva informed Johnson that the sub-holiday provision should be included in the draft
because it was agreed to on November 6, and he requested that she sign it, otherwise the Union
would be forced to file charges with the NLRB. (Tr. 51). Johnson refused to sign the contract,
and told Silva the November 6 agreement was a “mistake,” the Respondent did not agree to keep 30
the sub-holiday provision in the contract, and it would not sign a contract that included the sub-
holiday provision. (Tr. 51). It is thus undisputed that since February 4, 2015, Respondent has
refused to execute any contract containing the sub-holiday provision.
It appears the Respondent’s argument on this point is that even though the Union asked it 35
to sign the contract that included the terms of what it admitted was an agreement on November 6
(including the sub-holiday provision), which the Respondent unequivocally refused to do, it did
not violate the Act because the Union neglected to provide the Respondent with its own version
of the agreement that included the sub-holiday provision in it. In other words, under the facts of
this case, even though the Union asked the Respondent to sign the agreement reached on 40
November 6, which it said it would not do, the Union was nevertheless required to take the
Respondent’s draft and retype it with the sub-holiday provision in it, and then present it to the
Respondent and request that it be signed. I find no merit to this assertion. In the first place, to
require such action under the facts of this case would require an exercise in futility, as the
Respondent had already unequivocally stated that it would not sign an agreement that included 45
that provision. Second, the Respondent failed to provide any case law to show that such actions
would be required by the Board under facts similar to the instant case. And third, it is well
JD–61–15
26
settled that an employer who fails to reduce to writing and apply an agreement reached with the
bargaining representative of its employees violates the Act. Maury’s Fluorescent & Appliance
Service, 226 NLRB 1290, 1292 (1976); H.J. Heinz Co., supra at 526. The Respondent was
therefore obligated to include the sub-holiday provision in the final draft of the contract, and it
was then further obligated to execute that contract when the Union requested it. 5
As noted above, the Board has held that the General Counsel has the burden of showing
not only that the parties had the requisite “meeting of the minds” on the agreement reached, but
also that the Respondent refused to execute a document that accurately reflected that agreement.
Windward Teachers Assn., 346 NLRB 1148, 1150 (2006). I find that when Silva told Johnson 10
that the sub-holiday provision should be included in the contract as was agreed to, and then
requested that she sign that contract, the Union presented the Respondent with a contract which
reflected the November 6 agreement of the parties. I further find that Johnson’s statement that
the Respondent would not sign a contract that had the sub-holiday provision in it, constituted an
oral or verbal refusal to execute the agreement reached by the parties, thus demonstrating that the 15
General Counsel not only met the burden of showing a “meeting of the minds” with regard to
including the sub-holiday provision in the contract, but also the burden of showing that the
Respondent failed and refused to execute a document that accurately reflected that agreement.
I note that well established legal precedent establishes that such oral or verbal refusals to 20
execute a written contract that incorporates an agreement reached during negotiations, such as
the agreement in this case to include the sub-holiday provision in the successor collective-
bargaining agreement, constitute a violation of Section 8(a)(5) and (1) of the Act. H.J. Heinz Co,
supra; New Orleans Stevedoring Co., supra; Electra-Food Machinery, Inc., 241 NLRB 1232,
1233 (1979), enfd. 621 F.2d 956 (9th Cir. 1980) (Board found respondent’s refusal to execute a 25
contract which embodied the terms agreed upon with the union, based solely on the inclusion of
an open shop clause, constituted a violation of Section 8(a)(5) and (1) of the Act).
The Respondent, however, argues that there are two Board decisions that support its
argument that there was “no meeting of the minds,” and therefore, no violation of the Act—30
Apache Powder Company, 223 NLRB 191, 194–195 (1976) and Mary Bridge Children’s
Hospital, 305 NLRB 570, 573 (1991). With regard to Apache Powder Company, the Respondent
argues that Schwartz “inadvertently” signed the agreement to keep the sub-holiday provision in
the contract. The Respondent asserts that in Apache Powder Co., the Board upheld the
Administrative Law Judge’s decision finding that the parties had not reached an agreement in 35
negotiations to change the so-called “pension break date” in the contract. Id. at 191. In that case,
the respondent’s offer which was agreed to and incorporated into the contract, proposed a change
in the existing multipliers of $5 (to $6) and $7.50 (to $9), respectively. Id. The union argued that
it assumed respondent was offering to change the break date as well as the multipliers. However,
the Board agreed with the Administrative Law Judge that such an interpretation was “so palpably 40
at odds with the pension provisions of the existing contract as to put the [union] on notice of an
obvious mistake by the respondent.” Id. The Board reasoned that to change the break dates, the
respondent would have increased the multiplier from $5 to $9, and such an assumption could not
be reconciled with respondent’s offer to change only the $5 multiplier to $6 and the $7.50
multiplier to $9. Id. The Board also agreed with the Administrative Law Judge’s reasoning that 45
“this mistake was so obvious so as to have placed a person of reasonable intelligence on guard;
and that the terms of the initialed agreement, considered in context, are ambiguous with respect
JD–61–15
27
to the intent of the parties concerning the break dates.” Id. at 195. For those reasons, there was
no meeting of the parties’ minds as to the break dates. Id.
According to the Respondent, a “reasonably intelligent person would have surmised that
when Mr. Schwartz placed his initials next to the ‘stays in’ language…he had no intention to 5
change Amcor’s consistently held position that the sub-holiday language was removed.” (Resp.
Brief at 18–19). I find however, that there is no merit to this argument, and that the
Respondent’s reliance on Apache Powder Co. is misplaced because the facts of that case are
clearly distinguishable from a number of facts in the instant case. First, in the instant case, the
record establishes that the “stays in” notation and drawn line are not ambiguous, but instead 10
clearly reflect that parties’ intent to keep the sub-holiday provision in the contract. Second,
unlike the facts of Apache Powder Co., Schwartz did not make a mistake when he signed off on
the notation and drawn line. When Cervone and Piekarski asked him directly if he was agreeing
that the sub-holiday provision was to “stay in” the contract if the Union accepted the
Respondent’s wage proposal, he answered both of them in the affirmative. Schwartz also failed 15
to seek any clarification from Cervone pertaining to the notation and line that he drew, and he
failed to ask for an explanation as to the meaning of the notation and line. Third, even assuming
Schwartz made a mistake by signing off on the agreement to keep the sub-holiday provision in
the contract, such a “mistake” is not so palpably at odds with the terms of that agreement so as to
put the Union on notice of an obvious mistake by the Respondent. In fact, acceptance of the 20
Union’s request to keep the sub-holiday provision in the agreement was perfectly in keeping with
the quid pro quo of the Union agreeing to the Respondent’s wage proposal. Thus, in the instant
case, the evidence does not establish that the Union had notice of the Respondent’s purported
“mistake” prior to the ratification vote on November 7, 2014. And fourth, even assuming
Schwartz’s agreement to keep the sub-holiday provision in the contract was a mistake, the Board 25
has held that “rescission for unilateral mistake is, for obvious reasons, a carefully guarded
remedy reserved for those instances where the mistake is so obvious as to put the other party on
notice of an error.” Id at 191. The instant case is clearly distinguishable from those cases where
the mistake was obvious, or where the Union was on notice of the alleged mistake. On that
basis, even assuming Schwartz’s agreement was an error, rescission of the contract is not 30
warranted.
In Mary Bridge Children’s Hospital, 305 NLRB 570, 573 (1991), the Board affirmed the
Administrative Law Judge’s decision that the parties had not reached an agreement because of a
mistake concerning night-shift bonuses. In that case, the Board affirmed the Administrative Law 35
Judge’s finding that there was no meeting of the minds since neither party intended to depart
from the original method of calculating the bonuses and the record showed no hint that the
employees would suffer particular hardship or prejudice if the employer were relieved of the
consequences of the mistake. Id. at 572–573. The Respondent, citing Mary Bridge Children’s
Hospital, for support, argues that even if Schwartz inadvertently agreed to include the sub-40
holiday provision in the contract, it was a “mistake” that the Union should not be able to
capitalize on. The Respondent argues that in Mary Bridge Children’s Hospital, the Board held
that “[i]f a written contract…is so drawn as not to correspond with the proved intention of the
parties, the one who would be benefited by the error will not be permitted to enjoy these
benefits.” Id. at 573 (quoting Corbin, Contracts Sec. 606 at p. 655 (1951)).45
JD–61–15
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I find the Respondent’s reliance on Mary Bridge Children’s Hospital is unpersuasive as it
too is distinguishable from the facts of the instant case. The facts of the instant case establish
that Schwartz did not make a mistake in agreeing that the sub-holiday provision was to stay in
the contract. The record establishes that his agreement to keep the sub-holiday provision in the
contract was knowingly and purposefully intended as his response to the Union’s offer to accept 5
the wage proposal as a quid pro quo for keeping the sub-holiday provision in the agreement. In
addition, even assuming that Schwartz made a mistake, unlike the facts of Mary Bridge
Children’s Hospital, Schwartz, in agreeing to keep the sub-holiday provision in the contract in
exchange for the Union’s acceptance of the Respondent’s wage proposal and getting the contract
done, did in fact intend to depart from his original position of removing the sub-holiday 10
provision from the contract. Finally, the instant case is distinguishable on the basis that, even
assuming the inclusion of the sub-holiday provision was a mistake (which I have found it was
not), relieving the Respondent from the consequences of that mistake by allowing that provision
to be excluded from the contract, would result in hardship and prejudice to the employees
because it would prevent them from exercising the right to sub-holidays at their request, which 15
was a right secured through the collective-bargaining process.
Based on the record evidence in this case, and the well-established legal precedent
discussed above, I find that the Union and the Respondent had the requisite “meeting of the
minds” on November 6, 2014, to include the sub-holiday provision in the successor collective-20
bargaining agreement. I further find that the Respondent’s oral refusal on February 4, 2015, to
execute a written contract containing the agreed upon terms and conditions of employment for
the unit employees that the parties reached on November 6, 2014, and its subsequent failure and
refusal to execute a written contract which embodied the terms of that agreement reached by the
parties on November 6, 2014, violated Section 8(a)(5) and (1) of the Act. 25
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.30
2. The Chicago & Midwest Regional Joint Board, Workers United/SEIU (the Union) is a
labor organization within the meaning of Section 2(5) of the Act.
3. At all material times, the Union has been the exclusive collective-bargaining 35
representative of the following appropriate unit:
All full-time and regular part-time hourly paid production and maintenance
employees at the Company’s Batavia, Illinois location, but excluding all office
clerical, professional employees, confidential employees, technical employees, 40
sales employees, plant clerical employees, guards and supervisors as defined in
the “National Labor Relations Act” as amended.
4. By failing to bargain in good faith with the Union by, since on or about February 4, 2015,
orally informing the Union that it would not execute a written contract, and thereafter failing and 45
refusing to execute any written contract containing the agreement reached on November 6, 2014,
for the unit employees’ terms and conditions of employment, and thereby failing and refusing to
JD–61–15
29
comply with and abide by the terms of the collective-bargaining agreement effective by its terms
from November 1, 2014 through October 31, 2018, the Respondent violated Section 8(a)(5) and
(1) and of the Act.
5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and 5
(7) of the Act.
REMEDY
10
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
I shall require the Respondent to, upon request, execute the collective-bargaining 15
agreement reached with the Union on November 6, 2014, effective by its terms from November
1, 2014 to October 31, 2018, containing the terms and conditions of employment for the unit
employees, which includes the sub-holiday provision of Article X, Section 5 entitled “Holidays
which Fall During Scheduled Vacations” on page 12 of the parties’ 2010-2014 collective-
bargaining agreement, and to abide by the terms of that agreement. I shall also require the 20
Respondent to make whole the unit employees for any losses they may have suffered as a result
of the Respondent’s failure execute the collective-bargaining agreement, including but not
limited to any losses resulting from the Respondent’s failure to implement the sub-holiday
provision, in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 25
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:1230
ORDER
The Respondent, Amcor Rigid Plastics, Batavia, Illinois, its officers, agents, and
representatives, shall35
1. Cease and desist from
(a) Failing and refusing to execute and comply with the successor collective-bargaining
agreement which embodies the terms of the agreement covering the production and maintenance 40
unit at its facility in Batavia, Illinois, reached on November 6, 2014, between itself and the
Chicago & Midwest Regional Joint Board, Workers United/SEIU (Union).

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–61–15
30
(b) In any like or related manner, 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 effectuate the policies of the Act.
5
(a) On request, forthwith execute the collective-bargaining agreement as requested by the
Union on February 4, 2015, containing the terms and conditions of employment for the
employees as agreed to by the parties on November 6, 2014, which includes the sub-holiday
provision of Article X, Section 5 entitled “Holidays which Fall During Scheduled Vacations” on
page 12 of the parties’ 2010-2014 collective-bargaining agreement, in the following appropriate 10
production and maintenance unit:
All full-time and regular part-time hourly paid production and
maintenance employees at the Company’s Batavia, Illinois
location, but excluding all office clerical, professional employees, 15
confidential employees, technical employees, sales employees,
plant clerical employees, guards and supervisors as defined in the
“National Labor Relations Act” as amended.
(b) Make whole all affected bargaining unit employees for any losses they may have 20
suffered as a result of the Respondent’s failure and refusal to execute the parties’ collective-
bargaining agreement reached on November 6, 2014, including but not limited to any losses
resulting from the Respondent’s failure to implement the sub-holiday provision of the collective-
bargaining agreement.
25
(c) Preserve and, within 14 days of a request or such additional 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
electronic form, necessary to analyze the number of vacation days due employees requested 30
under the sub-holiday provision of the collective-bargaining agreement, and under the terms of
the Order.
(d) Within 14 days after service by the Region, post at its Batavia, Illinois facility, copies
of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by the 35
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. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 40
Respondent customarily communicates with its employees by such means. Reasonable steps

13 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.”
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of business
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 February 4, 2015.5
(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.
10
Dated, Washington, D.C., November

15
31
or closed the facility involved in
6, 2015
Thomas M. Randazzo
Administrative Law Judge
JD–61–15
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 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 a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to sign the collective-bargaining agreement reached on
November 6, 2014 with the Chicago & Midwest Regional Joint Board, Workers United/SEIU
(the Union) which embodies the terms and conditions of employment for our employees,
including the sub-holiday provision of Article X, Section 5 entitled “Holidays which Fall During
Scheduled Vacations,” in the following appropriate unit:
All full-time and regular part-time hourly paid production and maintenance
employees at the Company’s Batavia, Illinois location, but excluding all office
clerical, professional employees, confidential employees, technical employees,
sales employees, plant clerical employees, guards and supervisors as defined in
the “National Labor Relations Act” as amended.
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, upon request, forthwith execute the collective-bargaining agreement reached with
the Union on November 6, 2014, containing the terms and conditions of employment for our
employees in the bargaining unit, which includes the sub-holiday provision of Article X, Section
5 entitled “Holidays which Fall During Scheduled Vacations,” on page 12 of the parties’ 2010–
2014 contract, and abide by the terms of said agreement.
WE WILL make whole all bargaining unit employees for any losses they may have suffered as a
result of our failure and refusal to execute the parties’ collective-bargaining agreement reached
on November 6, 2014, including but not limited to any losses resulting from our failure to
implement the sub-holiday provision of the collective-bargaining agreement.
AMCOR RIGID PLASTICS
(Employer)
Dated: ____________ By: ______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below or you may call the Board’s toll-free number 1-866-667-NLRB (1-866-667-6572).
Hearing impaired persons may contact the Agency’s TTY service at 1-866-315-NLRB. You may also obtain
information from the Board’s website: www.nlrb.gov.
The Rookery Building
209 South LaSalle Street, Suite 900
Chicago, IL 60604-5208
(312) 353-7570
Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-145992 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.