Brink's USA

National Labor Relations Board - Board Decisions

Jul 1, 2009

354 N.L.R.B. 312 (N.L.R.B. 2009)

354 NLRB No. 41
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Brink’s USA and Law Enforcement Employees Be-
nevolent Association. Case 22–CA–27870
July 1, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 4, 2009, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. July 1, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for re-
hearing filed Nos. 08-1162, 08-1214 (May 27, 2009).
2 Although the General Counsel states that credibility is not an issue
in this case, the General Counsel appears to have implicitly excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
Benjamin W. Green, Esq., for the General Counsel.
Herbert I. Meyer, Esq. and Stafford A. Woodley Jr., Esq. (Cro-
well & Moring), of New York, New York, for the Respon-
dent
Richard J. Merritt, Esq., of Lindenhurst, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Newark, New Jersey and New York, New
York, on five days from June 24 to July 2, 2008. The Com-
plaint alleges that Respondent, in violation of Section 8(a)(1)
and (5) of the Act, refused to bargain in good faith with the
Union by engaging in surface bargaining. The Respondent
denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent in October, 2008, I
make the following1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business at 481-495 New Jersey Railroad Avenue, Newark,
New Jersey, is engaged in the business of transporting, protect-
ing, processing and storing money and valuables. Annually,
respondent performs services valued in excess of $50,000 in
states other than New Jersey. I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act and that Law Enforcement Employ-
ees Benevolent Association is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On April 20, 2006, the Union was certified as the exclusive
collective-bargaining representative of Respondent’s employ-
ees in the following appropriate unit
All full-time and regular part-time drivers, messengers,
guards, vault guards, coin and currency guards, ATM techs,
garage persons, night loaders and premise guards employed
by Respondent at its 481-495 New Jersey Railroad Avenue,
Newark, New Jersey facility, excluding all other employees
and supervisors as defined in the Act.
The Law Enforcement Employees Benevolent Association,
(LEEBA), was formed in 2002. Its founder and president,
Kenneth Wyndor, is a retired New York State Trooper. The
vice president of the Union, Marlando Williams, is also a re-

1 The record is corrected so that at page 15, line 17 the date is May
23; at page 36, line 2 the date is “12-27”; at page 51, line 13 the correct
phrase is “Bates stamped”; at page 107, line 21, the phrase should be
“Newark branch”; at page 161, line 12 and 13, the phrase should read
“surface bargaining”.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tired New York State Trooper. Union Attorney Richard Merritt
is a retired airline pilot.
The first collective-bargaining session between the Union
and the company took place on May 23, 2006. LEEBA’s bar-
gaining committee consisted of Williams, Merritt and Union
recording secretary Robert Meletiche. Williams gave an affi-
davit in which he identified himself as the chief negotiator.
Merritt testified herein that the Union never designated a chief
negotiator and that both he and Williams had authority to bar-
gain. The lead negotiator for Brink’s was Attorney Jeffrey
Pagano. Attorneys Herbert Meyer and Stafford Woodley also
attended the negotiations on the company’s behalf. Meyer
testified that on May 23 and thereafter it seemed that Merritt
was the chief negotiator for the Union.
In addition to its certification to represent the Newark em-
ployees of Brink’s, LEEBA represents employees of the New
York City Environmental Police which is under the jurisdiction
of the New York State and City public employee bargaining
laws.2 The Union also represents the private police force of a
gated community in Brooklyn.3
The testimony of Williams and Merritt makes clear that their
knowledge of labor relations stems from their employment in,
respectively, the New York State public employee sector and
the airline industry. Williams has never concluded a collective-
bargaining agreement under the NLRA.4 Attorney Merritt testi-
fied that his labor relations experience stems from his employ-
ment under the Railway Labor Act. In that milieu negotiations
went on for a long time and all contracts were retroactive to the
expiration date of the prior contract. Merritt testified that dur-
ing the negotiations at issue herein he believed that any collec-
tive-bargaining agreement he negotiated with Brink’s would be
retroactive to the date of the Union’s certification. Merritt testi-
fied that throughout the negotiations with Brink’s he believed
that if impasse were declared some neutral agency would de-
cide the terms of the contract between the Union and Brink’s.
Merritt testified that he was unfamiliar with NLRB procedures.
The existing pay scale for the Newark employees is shown
on a document variously referred to as the “132 grid” or as the
“grid.”5 As described by Meyer, the grid is a system of flat pay
by seniority. The wage rates are grouped by job title. Each job
title is given an entering wage rate and there are progressive
step increases by seniority after a certain number of months
have been worked. The grid provides employees with auto-
matic hourly wage increases in their 13th month of employment
and in the 37th, 61st and 97th month of employment.6 As an
example, after 12 months a Building/Turret Guard goes from

2 This force is charged with protecting the City’s upstate reservoir
system. No collective-bargaining agreement is in effect for this unit.
3 No collective-bargaining agreement is in effect for this unit.
4 It suffices for purposes of this decision to point out that the New
York State public employee bargaining laws bar strikes by public em-
ployees and provide for impasse procedures that culminate in interest
arbitration; the negotiations are often lengthened by political and
budget considerations.
5 Each Brink’s location has a grid showing wage rates for that par-
ticular location.
6 There are some exceptions for part-time employees.
$9.45/hour to $9.85/hour; a Messenger goes from $11.60/hour
to $12.60/hour.
B. Credibility of the Witnesses
I find that Williams did not have an accurate recall of all the
events about which he testified. His testimony occasionally
contradicted the written evidence. For example, he faulted the
employer for being unavailable to bargain during certain peri-
ods but the documentary evidence shows that this was not the
case. Williams’ bargaining notes were sketchy and incomplete
and did not offer a reliable record of the negotiation sessions.
Williams occasionally testified to one version of events on
direct examination and to a different version on cross-
examination.
I find that Merritt had a very poor memory for the events at
issue. I will give only a few examples: It is well established
that the parties herein used the initials “TA” to signify that they
had reached a tentative agreement on certain contract language,
but Merritt stated on direct examination that he did not recall
what the initials “TA” mean. Merritt often testified that he had
not received certain documents where the record is indisputable
that he had indeed been given the documents. When asked
about a significant event such as the Brink’s notice to the Union
of a change in the company-wide insurance plans applicable to
the unit employees, Merritt at first did not recall responding to
the letter even though the parties eventually bargained and
reached agreement on this subject. I also observed that Merritt
was combative with Counsel for the General Counsel when
called for direct examination, and I observed that he did not
listen to some questions and he did not answer them. Merritt
adopted a cavalier attitude to portions of his testimony. When
asked about the 132 wage grid applicable to the unit members,
Merritt stated, “I’ve seen it on a piece of paper, 132, but I truly
don’t know what the hell 132 means.”
I generally credit the testimony of Pagano, Meyer and
Woodley. Their testimony was supported by their voluminous
notes taken during the course of negotiations and was consis-
tent with other documentary evidence.7 Of further importance
is the fact that much of the testimony provided by the Pagano
and Meyer was uncontradicted by the General Counsel’s wit-
nesses or by the documentary evidence.
Many of the factual assertions in the General Counsel’s Brief
are based on the testimony of Merritt and Williams. As will be
seen from my discussion of the collective-bargaining negotia-
tions, I have not credited the General Counsel’s narrative of the
negotiations where it is based on the testimony of Merritt and
Williams. Instead, I have relied on the testimony of Meyer and
Pagano, their notes and the other documentary evidence.

7 Meyer, Pagano and Woodley took notes at the bargaining sessions
and these were introduced into evidence. In general, Meyer took the
detailed notes of the meetings while Pagano and Woodley often took
cursory notes or wrote in the margins of the proposals under discussion.
BRINK’S USA 3
C. The Negotiations Between Brink’s and LEEBA
1. May 23, 2006 bargaining session and
subsequent communications
a. Negotiations
The parties met on May 23, 2006. The Union was repre-
sented by Williams and Merritt. Brink’s was represented by
Meyer and Pagano.
Williams recalled that at the first bargaining session the par-
ties discussed the discharge of employee Vasquez and the re-
sulting unfair labor practice charge filed by the Union. The
parties also discussed progressive discipline and arbitration.
The Union asked for the immediate implementation of Union
dues check-off.
Meyer testified that at the start of the meeting Brink’s gave
the Union information about Vasquez’ discharge and handed
over a copy of the Brink’s employee handbook. Merritt stated
that Brink’s was anti-Union. Pagano disputed this, saying that
Brink’s had not filed objections to the election and that it had
signed contracts at other locations. Meyer’s notes indicate that
Merritt said the Union had taken the Vasquez case to the NLRB
because there was no arbitration mechanism in place. Pagano
replied that Vasquez was terminated for conduct that amounted
to a breach of security. Pagano said an arbitrator might have
decided whether Vasquez engaged in the conduct for which he
was fired but that an arbitrator could not second guess Brink’s
security measures. Merritt demanded an immediate grievance
and arbitration procedure, immediate visitation rights for the
Union and an immediate dues check-off retroactive to April 20,
2006. Pagano replied that he would consider the Union’s de-
mands and negotiate on these subjects. At that point Pagano
remarked that the Union had immediate demands but was offer-
ing nothing in return. The Union then asked for a clear defini-
tion of security and a book that specified what acts could lead
to termination. Pagano stressed the need for flexibility and
challenged the Union to accept that security is paramount.
Pagano told the Union to draw up a collective-bargaining
agreement and promised that the company would then prepare a
counter proposal. The Union reiterated its request for immedi-
ate dues check-off and Pagano replied that the company would
not agree at that time but would see where the parties went in
the negotiations.
Pagano testified that on May 23, 2006 he discussed security
training and gun training with the Union. Pagano said that
employees were trained on security procedures and if the Union
disputed the enforcement of the rules and regulations it could
demand arbitration of that issue. Pagano viewed this as a major
concession because he was agreeing to arbitrate the implemen-
tation of Brink’s rules. Pagano explained that Union visitation
was a problem because of Brink’s security arrangements. The
Union wanted its officers to be able to carry their firearms but
the company did not permit visitors to be armed on its prem-
ises.8 The parties discussed the possibility of leaving firearms
in the cars if the parking lot were available.

8 As retired State Troopers, the Union’s officers were licensed to
carry firearms.
Pagano testified that he explained to Merritt and Williams
that the collective-bargaining agreement had to be negotiated in
its entirety and that the parties could not leave any open issues
in the hope that they would be resolved by interest arbitration.
b. Communications May through August 2006
On May 29 Merritt followed up the discussions with a letter
stating some of the same Union demands and requesting certain
information.
Pagano replied by letter of June 6; he declined immediate
visitation and dues check-off but he offered to negotiate on
these subjects. Pagano also replied to the various information
requests and attached 28 pages of responsive documents.
On June 19, Pagano sent an e mail to Merritt asking when he
would receive the Union’s initial contract proposal and asking
for suggested dates to meet for collective-bargaining. Pagano
stated that he would not be able to prepare a counter-proposal
until he received the Union’s demands and he said that he
would not be available to meet during the month of August.9
Merritt replied on June 29 that he had not received Pagano’s
June 6 letter nor the requested documents. On June 30 Meyer
answered on behalf of Pagano that the June 6 communication
had been sent by Fed Ex and had been signed for by either Mer-
ritt or his wife at 2:17 pm on June 7.10 Meyer remailed the
material to Merritt on the same date.
On August 9 Merritt wrote to Pagano concerning a discipli-
nary action against employee Marcucci. Merritt further stated,
“[B]ecause of the Vasquez situation and the fact that an im-
proper practice petition is pending at the NLRB, LEEBA has
suspended contract negotiations and will await the outcome of
the Vasquez termination case at the NLRB.”11 Pagano replied
to Merritt on the same date that, “Brink’s stands ready to nego-
tiate a collective bargaining agreement. In my opinion
LEEBA’s course of action is in error as the issues you raise . . .
have nothing to do with the duty to negotiate as provided under
the NLRA.”
c. Communications September through December 2006
The Union sent its first proposal to Brink’s on September 27,
2006. Merritt’s cover letter to Pagano stated:
Please review the agreement and give me a call con-
cerning the sections of the Agreement that we need to ne-
gotiate.
Please notice that I have omitted pay in the agreement
as LEEBA would like to negotiate compensation to be in-
cluded after our bargaining is completed.
Although Merritt’s letter stated that the Union proposal did
not contain a pay demand, the document did in fact include a
section entitled “Wage Schedule.” That section stated that the
minimum rate was “to be negotiated and agreed upon.” It also
contained the following language:

9 Pagano had orally advised Merritt that he had custodial visitation
with his sons in the month of August.
10 The FedEx tracking summary was furnished to Merritt.
11 Williams testified that after May 23 the Union did not continue
negotiations because the Vasquez case had not been resolved.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
On the effective date of this agreement, all bargaining
unit employees shall receive a One Dollar ($1.00) per hour
increase over and above their current rate of pay.
Upon the first and second anniversary date of this
Agreement, all bargaining unit employees shall receive an
additional One Dollar ($1.00) per hour increase over the
prior current rate of pay.
The Union’s proposal included sections taken from the
Brink’s booklet outlining Working Conditions and Benefits
(WCB), including sections dealing with vacation, bereavement
leave, jury duty, medical insurance, the 401(k) plan, uniforms,
drug-free workplace, and various breaks.
Meyer testified that the Company’s negotiators believed
some of the Union proposals were unlawful. The union secu-
rity provision was contrary to law and the checkoff provisions
were made retroactive to the date of certification. The leave of
absence provisions were not consistent with the FMLA and the
ADA. The Company thought that the proposal required appli-
cation of strict seniority in determining overtime and this was
harsh because it could not be implemented when a truck was
already out on the road. The entire contract was to be retroac-
tive to the date of certification and this was also unduly harsh in
the view of management. The Company thought the wage
proposal was unreasonable.
The parties had been conducting settlement discussions of
the Vasquez matter; the unfair labor practice charge was condi-
tionally withdrawn on October 30 and the final steps were
taken to implement the settlement on December 5, 2006.
On November 9 Pagano wrote to Merritt to inform him that
effective January 1, 2007 there would be changes to the various
company-wide insurance plans covering Brink’s employees.
Pagano offered to meet with the Union to discuss the changes
and to bargain on “these discrete matters and any different and
alternative plans LEEBA may desire for the Newark bargaining
unit, as well as any other mandatory subject of bargaining.”
Pagano stated that time was of the essence and he urged that the
parties meet and bargain without delay. His letter concluded,
“If you and LEEBA desire to meet and bargain on these dis-
crete issues and other mandatory subjects of bargaining as well,
please advise me right away and provide your immediate avail-
able dates for the parties to meet.”
Merritt responded to Pagano on November 17. He asked for
the current insurance plans asserting that the Union “does not
have the current policies and would like to see the current poli-
cies along with the proposed changes before meeting.” Merritt
also stated that “LEEBA would like to meet and have further
negotiations at the earliest possible date but feels neutral nego-
tiation site would be more appropriate.” Merritt suggested a
hotel near LaGuardia airport.
On November 29 Merritt sent an e-mail to Pagano. While
also discussing other subjects not related to the issue in this
case, Merritt asked for a counter-proposal to the Union’s writ-
ten demands and threatened to file a charge with the NLRB.
Pagano replied to Merritt on December 1, 2006. Pagano
pointed out that the materials relating to the current insurance
benefits had been provided twice in June pursuant to the Un-
ion’s information request; he attached the materials pertaining
to the company-wide changes effective January 1, 2007. Pa-
gano noted that Merritt had refused to meet and negotiate de-
spite Pagano’s request for negotiations. Pagano stated that
Brink’s had a complete contract proposal and that he wanted to
meet face to face with the Union and present the proposal. He
said, “[I]t requires a detailed explanation regarding many of the
terms and conditions contained in the proposal and the reasons
for the inclusion of those terms and conditions in the proposal,
to assure your and LEEBA’s full understanding of what Brink’s
considers important to the operations of the Newark Branch.”
Pagano reiterated that time was of the essence concerning the
insurance changes and he offered to meet on December 5 and
6.12 Pagano declined to incur an expense for a meeting location
and he offered his offices or a Newark location.
Merritt could not meet during the week suggested by Pagano
because he was due to commence a trial on December 4. On
December 2 Merritt wrote to Meyer that the Union was con-
fused about the offer to negotiate concerning the changes to the
company-wide insurance plan. Merritt and Williams did not
know whether Brink’s suggested, “that LEEBA negotiate the
Company wide plan for its members? Or is there something
different being offered to the organized members over the other
members of Brinks?” Merritt requested a copy of the Brink’s
complete counter proposal prior to scheduling a negotiating
session.
Pagano sent the Company’s contract proposal to Merritt on
December 6. Pagano repeated that the proposal required expla-
nation and he assured Merritt that, “[E]ach and every one of the
terms and conditions contained in the proposal are open and
subject to bargaining and to modification or deletion through
the good faith bargaining process.” Pagano also explained the
offer to negotiate about changes in the company-wide insurance
plan. The Company’s initial proposal contained provisions for
Union security, checkoff, Union visitation, a grievance proce-
dure with arbitration, merit pay increases and employee senior-
ity. According to Meyer, the Company wanted to signal that its
offer was a starting point on the way to reaching an agreement.
The Company’s initial proposal was for the wages and steps
in the 132 grid to remain unchanged for one year, and for merit
increases thereafter. Brink’s proposed that if an employee was
required to work in a lower paid classification than his usual
job title he would be paid the lower rate for the time. This was
different from the working conditions actually in effect and it
was less favorable to the employees. Unlike the conditions
actually in effect, the proposal did not call for overtime pay.
Newark employees were currently guaranteed four hours pay if
called in to work, but the initial Company proposal only guar-
anteed two hours pay. The Company’s initial proposal was less
generous than the current conditions on break times, the reten-
tion of jury duty pay and vacation time. The Company pro-
posed that employees would bear all future increased costs in

12 The Union wished to meet at a hotel near Shea Stadium while
Brink’s did not want to pay for a hotel and Pagano suggested that the
parties meet at his law firm in Manhattan where he would provide a
separate room for the Union to caucus. I shall not discuss this issue at
length as I do not believe it has any bearing on the issue of surface
bargaining.
BRINK’S USA 5
medical benefits and, in other respects, the proposal was less
favorable to employees than the current system. Meyer testi-
fied that Brink’s initial proposal was a starting point and that
the Company improved on it in the course of the negotiations.13
Although the Union’s demand had included a just cause pro-
vision for discharge, the Brink’s initial proposal did not provide
for just cause. In fact, the Company proposed that in the arbi-
tration of discharge grievances, “the arbitrator shall determine
only whether or not the discharged employee committed the
violation for which he/she was discharged by the Company,
without consideration of any asserted mitigating facts or cir-
cumstances.”14
On December 22, 2006 Brink’s mailed a check to Vasquez’
attorney in connection with the settlement of the unfair labor
practice case.
On December 23 Merritt wrote to Pagano suggesting that the
parties meet for negotiations on December 27, 28 or 29.
2. December 27, 2006 bargaining session and
subsequent communications
The parties met for collective-bargaining negotiations on
December 27, 2006. Pagano and Meyer represented Brinks;
Merritt, Williams and Meletiche represented the Union.
The Union asked about the employees’ fears that the Newark
office would be closed and the Company gave its assurances
that there were no plans to close the location. The discussion
explored the role of Brink’s Global Services which provided
jewelry deliveries between Manhattan and Newark Airport and
which had been the subject of complaints related to tardiness.
Employees of the Newark branch provided the service in addi-
tion to their other runs.
The parties discussed the fact that a prior branch manager in
Newark had not imposed discipline uniformly. They agreed
that management would post a notice stating that the rules and
regulations in the employee handbook would be followed in the
future. The parties discussed the discharges of a non-unit
member and a messenger in the bargaining unit. Then the Un-
ion and the Company went through their respective proposals
and compared the provisions. They discussed dues checkoff,
seniority and protective vests. The Union was opposed to ter-
mination at will for probationary employees. The Union agreed
to the implementation of the medical insurance changes by the
company-wide carrier. The parties discussed the grievance and
arbitration proposals. The Union wanted employees to have 45
days to file a grievance while the Company asked for 72 hours.
Pagano then said he would agree to 7 days for filing a griev-
ance.15 The parties aired their respective positions on this is-
sue. They agreed on the time within which the arbitrator had to
submit the award. The Union wanted the employees to be paid
for time spent in the grievance procedure; Pagano proposed that
the arbitrator have the authority to decide this issue in each

13 As will be discussed below, Brink’s eventually agreed to changes
on many of these subjects.
14 The employer’s position was not modified until June 9, 2008
when it submitted a management rights proposal that stated the com-
pany could discharge employees for just cause.
15 Williams’ bargaining notes show that Pagano proposed seven days
or one week.
case. A number of tentative agreements were reached during
this session. At the end of the session, Merritt remarked that
the meeting had been productive. He said he would be in Flor-
ida in January and the parties agreed to meet on February 6,
2007.
On January 31, 2007 Pagano sent Merritt the proposed notice
to employees informing them that effective immediately all
employees are required strictly to adhere to the contents of the
Handbook for Brink’s Personnel.
In subsequent communications, Merritt offered that a griev-
ance should be submitted in 10 working days and he mistakenly
recalled that Brink’s was still insisting on 72 hours. He asked
whether the parties could agree on progressive discipline and he
asked about changes to the employee notice about the Hand-
book.
3. February 6, 2007 bargaining session and
subsequent communications
a. Negotiations
The parties met on February 6, 2007. Pagano and Meyer
represented the Company; Merritt, Williams and Meletiche
were there for the Union.
The parties agreed to the wording of the notice to employees
concerning strict adherence to the Handbook.
The parties discussed a new proposal from the Union which
Merritt had sent to Pagano shortly before the meeting began.
The Union had drafted a new recognition clause which would
have expanded the recognition to all of New Jersey; the Com-
pany replied that the certification applied only to the Newark
branch. Pagano offered a successors clause and the parties
agreed to the language. The parties agreed that the probation-
ary period for new employees would be 90 days. The Union
wanted to be able to arbitrate the termination of probationary
employees but Brink’s rejected this demand. The parties
agreed on the language of a Union security provision.
The parties discussed the Union’s proposed article on disci-
pline in great detail with each side giving practical reasons for
their respective positions.
The Union proposed an introductory clause which stated,
“The effective date of the Agreement shall be April 20, 2006
for pay and benefits for covered employees and for the purpose
of setting dues collection and initiation fees payable to
LEEBA.” In a clause devoted to wages and hours of work, the
Union proposed, inter alia, that on the effective date of the
agreement employees would receive a $1.00 per hour increase
over their current rate of pay. Upon the first and second anni-
versary dates employees would receive an additional $1.00
increase above their then current pay rate. The proposal stated
that a starting rate of pay for employees was to be negotiated,
and once the probationary period was completed “the pay scale
shall automatically advance to the current rate in effect for all
other employees performing the same job functions covered
under this agreement.” This provision was inconsistent with
the 132 grid currently in effect which provided a series of step
increases for employees in each job title based on length of
service.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Merritt and Williams asked about wage increases and the
fact that the Newark 132 grid had not been increased in 2006.16
Meyer told the Union that although the grid for each branch
was reviewed every year not every branch received an increase
in the grid amounts. Meyer asked the Union for a suggestion.
He said that a review was to be done in February 2007. He
asked the Union if the review should be performed and the
Company should determine whether to increase wages on the
grid. In the alternative, Meyer said, the parties could negotiate
a review to determine the increase. Meyer testified that he
asked if Brink’s should forget the 132 grid. The Union then
agreed that the Company would review the pay grid to see if it
should be increased and then notify the Union and negotiate
whether to give an increase and if so how much.
After a lunch break, Merritt complained that the Company
was nit-picking over every word in the Union proposal. He
said he wanted to get to the bottom line. Pagano wanted to read
the Union proposal and discuss it at the meeting, but Merritt did
not want to do this. Pagano replied that the Company had re-
ceived the Union’s proposal only that morning and that the
parties had been discussing serious issues. Merritt said he
wanted to know where they were going and whether there
would be a pay increase. Pagano said the only way to know
that was to determine the contract. Merritt asserted that the
Union proposal was 95% equal to the Company’s proposal and
that he did not want to sit and nit-pick for the next four hours.
Merritt asked that Pagano go through the Union proposal and
tell him where it was objectionable and Pagano replied that he
had to compare the Union proposal to the Brink’s proposal.
Pagano said he could not make a wage proposal and he asked
Merritt to explain the Union’s proposal on wages and benefits.
Pagano asked how the Union’s language impacted the 132 grid.
Williams said that they needed a raise and needed to know what
change would be made to the 132 but that a 25 cent or 50 cent
raise would not be sufficient. Merritt said the Union wanted
$1.00 to start as stated in the Union proposal; if the company
did not agree then the parties were at impasse. Pagano said he
had asked a simple question. Merritt replied that he wanted
$1.00 to April 20, 2006; if not the parties were at impasse.
Pagano testified that Merritt pointed his finger at him. At that
point, Pagano told Merritt to lower his voice and stop pointing
and that if Merritt did not like his method of negotiating he
could leave. According to Pagano and Meyer, Merritt then left
in a huff. Williams testified that Pagano asked Merritt to leave,
but he also stated that Merritt yelled and pointed at Pagano and
that Pagano told him to stop and sit down, adding that if Merritt
did not like it he could leave. When Pagano went to the eleva-
tor bank to apologize to Merritt at Williams’ request, Merritt
was gone. Pagano and Meyer continued the discussion of wage
increases with Williams and Meletiche.
b. Communications February 2007
On February 7, 2007, Pagano confirmed arrangements he
had made with Williams that the parties would meet again on
February 13 near JFK airport from 10 am to 2:30 pm. On Feb-

16 Employees were receiving seniority step increases but there had
been no general increase in the grid amounts.
ruary 8 Merritt wrote to Pagano asking whether he would give
the Union an economic package and “changes” before the
meeting date. Pagano replied
In order for Brinks to assess the progress of the negotiations
and understand whether a wage proposal is appropriate under
the circumstances to be presented at the next negotiating ses-
sion please confirm LEEBA’s position remains as you stated
in the last meeting. That is, unless Brinks agrees to the pro-
posal presented by LEEBA at the meeting, it determined that
an impasse existed and declared an impasse in the negotia-
tions.”
Merritt sent Pagano a draft proposal on February 10 and e
mail that stated, “If Brink’s is unable to offer an economic
package, kindly inform me and I will cancel the next bargaining
session.” The Union draft was ostensibly based on the Brink’s
proposal; Merritt wrote that the Union’s proposal “clearly in-
corporates 90% of what Brink’s proposed to LEEBA and is
formatted with the same Article numbers used by Brink’s.”
Pagano replied on February 12. He pointed out that there
were many differences still remaining between the Union’s and
the Company’s draft contracts. Pagano wrote
We have reviewed and analyzed your proposal. The
first half or so did track the provisions contained in
Brink’s proposal but only in title. Except for the three or
four provisions that we had already “tentatively” agreed to
and initialed, you substantively changed virtually every
provision contained in Brink’s proposal. Consequently,
negotiations must continue in order to resolve the vast dif-
ferences between the proposals.
Furthermore, the second half or so of your proposal
addresses the same provisions contained in the first half in
many respects, and contradicts those provisions…. Re-
garding your request for a wage proposal by Brink’s at
tomorrow’s session, we believe that a proposal at such
time would not be appropriate. . . .
Pagano went on to reject the demand that any wage increases
be retroactive to April 20, 2006, and he asked whether the Un-
ion’s wage proposal was its “bottom line.”
Later in the day on February 12 Merritt wrote to Pagano.
With regard to the substantive aspects of the negotiations, Mer-
ritt stated17
Brink’s . . . is therefore declaring an impasse on any
request to increase wages and/or benefits. Please confirm.
Brink’s apparently wants the unfettered discretion to
terminate any employee at any time without recourse. . . .
Progressive discipline is an industry standard and I believe
an arbitrator will agree. I also believe that cost of living
increases in pay will be awarded. So, sit tight on pay
raises and progressive discipline because an arbitrator will
grant them.

17 Merritt also asked for financial information and this was refused
by Pagano. I will not detail those exchanges because they are not rele-
vant to my decision.
BRINK’S USA 7
4. February 13, 2007 bargaining session and
subsequent communications
a. Negotiations
The parties met on February 13, 2007 at a Holiday Inn in
Queens. The Company was represented by Pagano and Meyer;
Merritt and Williams were there for the Union.
Merritt had prepared a new Union proposal which he
claimed was 90% the same as the Brink’s proposal. Meyer
informed Merritt that there were still many significant differ-
ences between the two.
The Union had not altered its Union security provision to
correct what Brink’s believed was a violation of the NLRA.
Pagano informed the Union that Brink’s had reviewed the
132 wage grid for Newark and that no changes were being
made in the wage rates. Pagano stated that he was still pre-
pared and authorized to negotiate on wages with the Union.
Pagano said the Union had left blank the provision for a starting
wage rate; he asked the Union what it wanted as a starting rate.
Pagano then agreed to pay overtime after 40 hours of work in
a week. Neither Pagano’s question about the starting rate nor
this change in the Brink’s position produced any movement by
the Union on the subject of wages.
Williams said that the Union was not interested in merit
raises. Instead, the Union wanted a flat increase of $1.00 each
year, retroactive to the April 20, 2006 certification date. Pa-
gano rejected a retroactive wage increase and said he would
only agree to a raise “going forward.” Williams replied that the
Union had represented the employees from the date of certifica-
tion and that Brink’s had to negotiate back to 2006. Pagano
told him that he was wrong; the contract would be prospective.
Williams insisted that the retroactivity of wages and the entire
contract was mandatory as a matter of law to the date of certifi-
cation, but Meyer explained that this was not the case under the
NLRA. Meyer stated, however, that except for the Union secu-
rity provisions, the Company would bargain about retroactivity.
Pagano said that Brink’s would negotiate about wages and that
its offer was to grant merit increases. Merritt rejected this offer
and said that the parties were at impasse.18
Meyer told the Union that it was unheard of in the private
sector to have retroactivity of wages for an initial collective-
bargaining agreement, although it was common in successor
agreements.
The parties discussed the Company’s proposal to pay em-
ployees working in a lower classification the rate for that classi-
fication. The Union objected to the reduction. Merritt said he
thought there was an impasse and he proposed going through
the proposals to see where the parties were at impasse. Meyer
testified that Merritt said all he wanted to do was determine
where the parties were at impasse, and then he would “take it to
the NLRB.” Merritt said the arbitrator would grant a retroac-
tive wage increase. Merritt was still under the impression that
the Board had the power to compel interest arbitration. Pagano
told the Union that the parties were not at impasse.

18 Williams testified that he still believed that “Brink’s had no dis-
cretion as to when our contract was to start, and that it had to be retro-
active to our start date of certification.”
Merritt said the parties were at impasse over the Union’s
demand to grieve and arbitrate the discharge of probationary
employees. Pagano said Brink’s still wanted to negotiate.
Merritt said the parties were at impasse over the wording of the
disciplinary provisions. The Union’s proposal had language
imposing certain duties on management and Pagano said he
was not willing to negotiate management’s duties. Pagano
went through the disciplinary language and explained why he
objected to it. He also agreed to certain provisions suggested
by the Union.
At Merritt’s request, Pagano then went through the Union’s
written proposal and indicated which particular provisions
Brink’s rejected and which were accepted. Pagano said that
certain provisions were important and complex and had to be
looked at closely. These included articles relating to shop
stewards and seniority. Pagano indicated that certain Union
demands relating to seniority could be met.
Pagano then pointed out that the Union’s proposal contained
two provisions relating to probationary employees and he said
that the provisions contradicted each other. Merritt flew into a
rage and called Pagano a “prick” and a “cock-sucker.” Meyer
told Merritt that the latter had twice characterized the meeting
as the “last meeting” and he asked whether the Union wanted
another meeting. Merritt acknowledged that his February 13
proposal had mistakes, including the two conflicting probation-
ary provisions. The parties then discussed layoffs. Merritt
wanted layoff by strict seniority and Pagano said employee
qualifications must be considered. Williams suggested senior-
ity within a classification and Pagano agreed to the concept and
said the language would have to be worked out.
Merritt said he did not want another meeting unless the
Brink’s made some substantive changes. Williams testified that
the Union position was not to engage in further negotiating
sessions until the employer made a good faith financial pro-
posal.
Williams testified that after this meeting, Merritt told him the
company did not want to negotiate management’s duties and as
a result he would remove the management rights provision
from the Union proposal.
b. Communications February through April 2007
On February 14, 2007 Merritt wrote to Pagano, enclosing a
new Union proposal. Merritt asked that Pagano respond by
February 25. Merritt wrote, “I’m further informed that where
Brink’s has declined to give a pay raise LEEBA is entitled to
economic information concerning the Newark operation. I
therefore make demand for disclosure of economic information
concerning the profit and loss of the Newark station.” Pagano
replied on February 15 declining to furnish the information
because “Brink’s never asserted in these negotiations an inabil-
ity to increase compensation, but rather, its unwillingness to
increase wages due to competitive factors in the marketplace.”
On February 27 Pagano wrote to Merritt in response to the
draft agreement of February 14. He pointed out that the new
draft specifically made the entire contract retroactive to April
20, 2006, including the wage increase and Union security.
Pagano wrote that the retroactive application of Union security
was unlawful. Pagano noted that Merritt’s draft had omitted a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
management rights clause on the ground that Brink’s would not
negotiate such a clause. Pagano restated his position that the
Company would indeed negotiate such a clause but that Brink’s
would not negotiate over management’s duties.
Pagano’s letter proceeded to comment in great detail on the
Union’s February 14 proposal, attaching a copy of the Union’s
new draft with explanatory annotations. Pagano pointed out
that the Union’s newest draft contract changed many of the
provisions that the parties had already agreed to and initialed.
Pagano’s letter has not been refuted by any record testimony or
evidence and it is supported by the draft collective-bargaining
agreement with initials written next to each agreed-upon para-
graph by representatives of the company and the Union. I
credit Pagano’s letter and I shall rely upon it together with other
record evidence and the draft showing agreements reached
prior to February 14.19
On February 6 Merritt and Pagano had initialed the first
paragraph of a draft collective-bargaining agreement with lan-
guage stating that it was “effective the ___ day of ___, 200_”.
Merritt’s February 14 draft replaced the word “effective” with
the word “executed.” As Pagano pointed out, this was in line
with the Union’s continuing demand that the Company agree to
a fully retroactive contract. Pagano also pointed out that Mer-
ritt had omitted language which would apply the contract to
Brink’s Global Services and its successors, as previously
agreed by the parties. Pagano reiterated his opposition to rec-
ognizing the Union for the entire State of New Jersey. Pagano
noted that language relating to probationary employees had
been agreed to by Merritt previously but that Merritt had now
changed the agreed-upon provisions. Pagano repeated his op-
position to submitting the discharge of probationary employees
to the grievance procedure. Pagano noted other minor language
changes made by Merritt and explained his position with re-
spect to those changes.
Pagano stated his agreement to much of the Union’s Febru-
ary 14 draft relating to discipline and he explained where he
rejected the language offered by the Union.
Pagano noted that Brink’s had agreed to various Union pro-
posals relating to uniforms, equipment and personal appearance
during the February 13 bargaining session. He again rejected
the Union demand that the Company pay the cost of protective
gear.
Pagano rejected the demand for a $1.00/hour increase retro-
active to April 20, 2006 and he restated Brink’s current pro-
posal to retain the status quo for the first year of the agreement.
However, he said that Brink’s was willing to negotiate an
across the board increase either standing alone or in connection
with the 132 wage grid.
Pagano noted that on February 13 he had agreed to pay over-
time for work in excess of 40 hours per week. Pagano rejected
overtime pay for all hours worked on holidays. Pagano agreed
to the Union’s proposal that employees working on certain

19 This draft is General Counsel’s Exhibit #18 in evidence. The
document in evidence bears handwritten changes agreed to by the par-
ties in later sessions as well as notes made by Williams. Williams
testified that these notes were not complete; further the document does
not reflect the agreements of December 10, 2007.
listed holidays would receive an additional eight hours pay.
The Union’s proposal, as written, would have given employees
who worked on holidays both overtime pay and an additional
eight hours pay.
Pagano agreed to certain of the Union’s proposals for various
types of leaves of absence but he said that the precise language
was still to be worked out. With respect to two Union propos-
als, Pagano believed that the language was contrary to the
FMLA and to the law regarding military leave. Pagano agreed
to the Union’s vacation proposal but disagreed with the word-
ing of certain provisions. Pagano agreed in principle with most
of the Union’s draft concerning health benefits but he did not
agree to the language as written. Pagano agreed to some of the
Union’s language regarding seniority and rejected other provi-
sions. Pagano rejected the Union’s grievance and arbitration
proposal and stated his preference for the language he had of-
fered the Union. Pagano agreed with the principle of no
strikes/no lockouts, but preferred the language in the Brink’s
proposal.
The letter closed with Pagano’s offer to meet and bargain
with the Union and requested that Merritt advise him how he
wished to proceed.
On March 6, 2007 Merritt replied to Pagano, contesting vari-
ous points in Pagano’s letter. Merritt attached another draft
collective-bargaining agreement. This document made some
changes in response to Pagano’s letter, for example in the rec-
ognition clause and the probationary employee provision.
However, the entire agreement was still retroactive to April 20,
2006. As Meyer and Pagano read the Union’s newest draft it
provided a $1.00/hour increase effective April 1, 2007 and
another $1.00/hour increase on April 20, 2007, the first anni-
versary date of the agreement, and the effect of these increases
on the 132 grid was not made clear.20
Pagano answered Merritt’s letter on March 15, complaining
that Merritt had not responded to most of the points raised in
Pagano’s February 27 letter about the Union’s draft. Pagano
asked for another meeting with the Union in order to discuss
both the LEEBA and the Brink’s proposals. Pagano said that
Brink’s would give consideration to wage increases.
Merritt replied to Pagano on March 20. He complained that
Pagano had not gone through the specifics of the latest Union
draft and that Pagano did not acknowledge changes made by
the Union, and he asked Pagano to revisit each Union proposal
giving the reasons for rejection. Merritt said, “Based on your
response to this request, LEEBA will determine if any further
meetings will be fruitful or productive.”
On April 22 Merritt wrote to Pagano asking Brink’s to jus-
tify its position on various issues and suggesting that the parties
meet on April 30 at a golfing community on Long Island.21

20 The Union representatives were orally stating their demand for a
contract retroactive to April 20, 2006 and the wording of the Union’s
proposal declared that the agreement would be “effective” on that date.
Article VI of the Union’s proposal provided for a $1.00/hour increase
on April 1, 2007 and on the first anniversary date of the contract, which
would be April 20, 2007. The draft also provided for a $1.00/hour
increase on the second anniversary date of the contract.
21 The location is Williams’ place of residence.
BRINK’S USA 9
Pagano responded to Merritt the next day and agreed to the
meeting.
5. April 30, 2007 bargaining session and
subsequent communications
The parties met for negotiations on April 30, 2007 in Coram,
New York. Merritt and Williams represented the Union;
Meyer and Pagano represented Brink’s.
The parties went through the Company’s March 30 proposal.
Brink’s withdrew some language that excluded the recognition
language of the contract from the purview of arbitration and the
parties agreed to all the language in that Article I. Brink’s
withdrew some language in the article dealing with probation
and the parties signed off on the first section of that Article II.
However, the Union would not agree that discipline of proba-
tionary employees was not subject to grievance and arbitration
and that issue was still open. The parties had already agreed to
the union security language in Article III. The parties agreed to
the language of Article IV Rules and regulations which refer-
ence the company Handbook for Personnel. The parties agreed
to many provisions of Article V Discipline, including the lan-
guage which listed those violations that could lead to discharge.
At the end of the session Merritt asked whether there was a pay
raise in the future and Pagano replied that the grid already in
place provided increases in pay based on length of service.
At Merritt’s request, on May 7, 2007 Pagano sent him copies
of the provisions the parties had signed off on at the April 30
meeting as well as copies of Brink’s initial December 6, 2006
proposal.
There appears to have been no communication between the
parties until June 26 when Pagano wrote to Merritt and Wil-
liams concerning Brink’s Global Services Division. Pagano
informed the Union that there was a shortage of personnel in
Newark and that Brink’s wished to transfer the Global Services
Division work to another branch outside New Jersey. No lay-
offs would result from the transfer. Pagano offered to bargain
on the decision and the effects of the proposed transfer of work
and he asked for an early meeting date.
6. July 9 and 10, 2007 bargaining sessions
On July 9 Brink’s was represented by Pagano and Woodley
and the Union was represented by Merritt and Williams.
As described below, Brink’s handed the Union a written
wage proposal. The starting rate for probationary employees
was left blank. No wage increase was provided during the first
year of the agreement during which the 132 wage grid would
remain in effect. The proposal included a wage reopener for
the first and second anniversaries of the effective date of the
Agreement. The previous employer proposal for merit in-
creases had been removed.
Williams asked whether Brink’s would agree to a statement
of progressive discipline. Pagano replied that in the armored car
business the concept of progressive discipline was not appro-
priately applied to dishonesty; stealing $1 was as bad as steal-
ing $10,000. Williams said progressive discipline could be
applied to absenteeism. He suggested a statement to the effect
that nothing in the agreement would prohibit management from
using progressive discipline. The parties agreed on a statement
that the Company in its discretion could take prior discipline
and performance into account in imposing discipline. Brink’s
did not want to agree to any provision for progressive discipline
except in cases of absenteeism and similar violations.
The parties also discussed and reached agreement on many
sections of the contract dealing with drug and alcohol use and
testing. The parties reached agreement on Article V Uniforms,
Equipment and Appearance. At first Pagano rejected the Un-
ion’s demand that the Company pay half the cost of protective
vests for those employees who wished to wear the vests.22 On
July 10, however, the parties signed off on a provision requir-
ing such a payment which was consistent with the current
Brink’s policy.
The Union then moved to the subject of wages. Merritt com-
plained that Brink’s would not grant any increases so as to pun-
ish the employees for selecting the Union. Merritt said the
Company would spend $1 million rather than allow LEEBA to
spread. Pagano then offered a wage re-opener in the 2nd and
3rd years of the contract. Williams asked why the Union
should agree to that and Pagano replied that Newark was a
“shitty branch.” Pagano said this was a proposal for a defini-
tive wage increase.
Williams suggested that the parties put the wage issue aside
and asked to move to Article VII Holidays. Merritt said the
listed holidays were fine and he agreed to the holiday pay lan-
guage.23 The parties discussed leaves of absence and sick
leave. Pagano suggested that after 3 days off sick an employee
must submit a doctor’s note; this was a change from the em-
ployer’s prior more restrictive proposal. Pagano also agreed,
contrary to his initial position, that an employee need not work
a full year before accumulating the right to sick leave. The
parties discussed the accumulation of sick leave days. Pagano
rejected the Union demand for an additional “annual day off.”
On July 10 Pagano and Woodley were again representing the
company and Merritt and Williams were again there on behalf
of the Union. The parties returned to a discussion of sick leave.
The Union disagreed with the Company’s proposal. Pagano
wrote a new proposal and the parties then agreed upon a policy
for sick leave accrual and payment of unused sick leave.24 The
parties discussed vacation pay and their different views of when
an employee should be deemed full-time and entitled to vaca-
tion pay.
Merritt again asked for financial information relating to
Brink’s operations and when Pagano refused on the ground that
the company had not pleaded inability to pay, Merritt angrily
characterized his position as “bullshit” and said the company
was treating him like an idiot. At Williams’ suggestion, the
parties took a break.
After the break Pagano asked for a counter proposal relating
to part-time employees and Merritt said the Union’s demand

22 Brink’s does not mandate the wearing of protective vests. Some
employees believe that they decrease safety because a shooter would
aim for the head instead of the chest if an employee were wearing a
vest.
23 The agreed upon Article VII Holidays was less favorable than the
terms currently in effect.
24 The Union agreed in Article VIII Sick Days that employees would
accumulate 3 sick days per year. Under the current policy in effect,
employees had 5 days per year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
had not changed; the Union would define part-time employees
as those who regularly work less than 32 hours per week. The
Company’s position was that employees working fewer than 40
hours per week should be considered part-timers.
Merritt then asked whether Brink’s had contracts with all of
its customers. When Pagano replied that he did not know Mer-
ritt said the parties were at impasse. Merritt asked for all the
customer contracts and Pagano told him to make a formal re-
quest in writing demonstrating the relevance of the request.
The parties agreed to Article X Medical, Vision and Dental
Benefits. The Union agreed to various sections of this Article,
including a section requiring the employees to pay any in-
creases in the premiums for the health plans from the effective
date of the agreement forward. Brink’s employees currently
pay only a portion of the premiums for health coverage, and in
past years increases in premiums had been borne proportion-
ately by both the Company and the employees. There was no
discussion of this section. The Union only questioned another
provision requiring employees to work 120 days before they
became eligible for medical benefits. Brink’s currently re-
quired only 90 days on the job. It is reasonable to wonder
whether the Union negotiators understood the import of the
language they initialed. As the General Counsel points out, the
premiums for health coverage have risen significantly in recent
years. However, none of the testimony or documentary evi-
dence shows that the Union expressed any concern about the
insurance premiums.
Williams said the parties should go back to discussing vaca-
tions and Pagano said he was not moving on that issue as he
had done for sick pay. The Union asked for an additional day
for bereavement leave and asked to add grandparents to the
paragraph. Pagano agreed to this demand and the parties
signed off on Article XI.25 The Union asked that employees
called to jury duty be paid by the company and keep the fee
given to them by the State. Pagano said the Company’s system
was to pay only the difference between the jury duty fee and
the employee’s hourly wage.26
The parties discussed the no-strike no-lockout provisions of
Article XIV and agreed to the contract language with some
changes demanded by the Union. The parties signed Article
XV Non-Discrimination. The parties discussed Article XVI
Length of Service/Seniority and signed off on the language as
drafted during the discussion.
At the end of the meeting the parties agreed that the subjects
for discussion at the next session would be management rights,
wages, Union visitation and leaves of absence.
The Company stated that it was unavailable to meet in Au-
gust. The record does not disclose why there was no collective-
bargaining session until October. Although Williams testified,
“They were not going to be available to meet I believe until the
fall” I find that the Company stated it was not available in Au-
gust which comports with Pagano’s custodial arrangements to
spend August with his children.

25 The provision on bereavement in Article XI agreed to by the Un-
ion was less favorable than the current policy.
26 This was incorrect.
7. October 10, 2007 bargaining session and
subsequent communications
a. Negotiations
The parties met on October 10, 2007 at the Long Island loca-
tion selected by the Union. Meyer and Pagano represented
Brink’s and the Union was represented by Williams, Meletiche
and Merritt.
Meyer testified that Merritt was over an hour late and that
the parties held discussions before his arrival. The Union and
the Company discussed drug testing. Then, Meyer asked
whether the Union still insisted on retroactivity. According to
Meyer, Williams replied that the Union was flexible but that
there had to be some retroactivity of wages, union shop and
dues checkoff. Williams did not specify how far the Union
would back off from its requested effective date of April 20,
2006. According to Williams the Union withdrew its demand
that the Union security provision be retroactive to April 2006.
Pagano proposed that the parties agree to a three-year contract
with step increases per the grid for the first year and a wage
reopener for the second and third years. Williams asked to hold
that discussion until Merritt was present.
The parties discussed visitation. Williams wanted to carry
his gun when meeting unit members on site but Brink’s does
not admit any armed person to its facilities. The Company
offered to provide a parking space in the facility if the Union
gave notice of its visit so that the gun could safely be left in a
car. The parties corrected a typographical error in the draft
agreement and the Company agreed to certain changes in the
draft requested by the Union. Finally, the parties agreed to
Article XX Union Visitation and Williams said Merritt would
sign off when he got to the meeting. As initialed by the parties
on October 10, the provision permitted two Union officers to
visit the premises, rather than the one officer originally pro-
posed by Brink’s. The visits were permitted during working
hours for grievance processing.
The parties agreed to Article XXI General Provisions and
Williams said Merritt would sign off when he arrived.
After Merritt joined the meeting he repeated his request for
financial information and Pagano stated that Brink’s had never
pleaded an inability to pay.27 Merritt then pressed his request
for copies of contracts between Brink’s and his customers. In
the discussion that ensued, Merritt repeatedly called Pagano a
“fucking liar” and pointed his finger at Pagano. When Pagano
told him to stop it Merritt repeated his curses, called Pagano a
“fucking coward” and said, “Step outside and settle this.” Pa-
gano said that he had no obligation to bargain further that day
and he stated his intention to leave. After some talk with Wil-
liams, Pagano left the room.
Meyer then informed Merritt that his behavior was disre-
spectful. He said that the Union could get a contract but that
was not the way to get one. Merritt replied that this was “bull-
shit” and he left the room.
Soon after, in the parking lot, Meyer and Pagano spoke with
Williams for about an hour. They discussed the Union’s re-

27 Pagano gave Merritt a legal memorandum with citations on the is-
sue of requests for financial information.
BRINK’S USA 11
quest for information. Williams repeated the Union’s demand
for a $1.00/hour wage increase. Williams testified that he told
the management representatives that the Union wanted an in-
stant pay increase of $1.00/hour retroactive to April 2006 and
that he wanted to add a merit increase to that amount. Meyer
testified that Pagano replied that the Company did not want to
give a retroactive increase and wanted to keep the grid but that
it was flexible on the wage increase. Pagano asked how the
Union’s proposal would impact the grid and Williams could not
answer that question. Meyer asked Williams for dates to nego-
tiate further.
b. Communications October through November 2007
Thereafter, Meyer and Merritt exchanged e-mails giving
their versions of the meeting. Meyer asked Merritt to suggest
further dates for collective bargaining. Merritt suggested bind-
ing arbitration to resolve the contract.
On October 19 Pagano wrote to Williams and Merritt about
yearly changes in the company-wide employee insurance pro-
gram. Pagano stated that unless he heard to the contrary,
Brink’s would implement the changes on January 1, 2008.
Pagano offered to negotiate concerning the changes or any
alternative plan that the Union might propose.
Merritt wrote to Meyer on October 20, 2007. Merritt’s letter
covered five areas:
Merritt stated that the Union would agree to a three year con-
tract if it commenced on April 20, 2006 and expired on April
19, 2009. If Brink’s wanted a later commencement date, the
Union would only agree if the contract expired on April 19,
2009. Merritt did not explain this demand. Merritt stated that
Brink’s had refused to discuss a Union proposal on shop stew-
ards, and he asserted that the parties were deadlocked on this
issue. Merritt withdrew the Union’s proposal for a contractual
provision covering managers and salaried personnel. Merritt
confirmed that Brink’s had agreed to implement a DOT stan-
dard relating to drug testing. Merritt stated that, “until Brink’s
decides to present a reasonable period of time for filing a griev-
ance, we are deadlocked on this issue.”
Pagano replied to Merritt on October 29.28 Pagano com-
mented that Merritt had regressed from Williams’ statement on
October 10 that the Union would be flexible on retroactivity.
Pagano analyzed the Union’s wage demand in light of this posi-
tion and pointed out that the Union was asking for “a $1.00 per
hour across-the-board wage increase retroactive to April 1,
2007, another $1.00 per hour increase retroactive to April 20,
2007, and another $1.00 per hour increase effective April 20,
2008.” Pagano repeated the Company’s offer of a three-year
contract but stated that, “Brink’s will consider a shorter dura-
tion of a CBA as well as additional wage increases than we
have already proposed, but rejects any retroactivity of the CBA
. . . .” I note that in the voluminous correspondence between
the parties, no Union representative ever disputed the Com-
pany’s reading of the March 6, 2007 Union proposal. The Un-
ion never denied Brink’s repeated assertions that it was seeking
a $1.00/hour raise on April 1, 2007 and another $1.00/hour
raise on April 20, 2007.

28 I shall only discuss the most important portions of Pagano’s letter.
Pagano recapitulated the parties’ discussions concerning
shop stewards and visitation and clarified that Brink’s only
objected to the Union’s language that “the stewards and their
assistants” could be relieved from duty whenever they chose to
conduct Union business and that they would be paid for their
time. Pagano reiterated the Company’s proposal about shop
stewards and Union representation during investigatory inter-
views. With respect to the grievance and arbitration proposals,
Pagano pointed out that Merritt remained under a misapprehen-
sion about the company’s position. Pagano reminded Merritt
that in December 2006 he had offered to allow seven days to
file a grievance and had withdrawn Brink’s original proposal
that a grievance must be filed within 72 hours.
On November 19, 2007 Williams wrote to Pagano, suggest-
ing that the two men meet after Thanksgiving for an “informa-
tion session” in order to set the stage for further negotiations.
8. December 10, 2007 bargaining session and
subsequent communications
a. Negotiations
The parties met for collective bargaining on December 10,
2007. Meyer and Pagano represented Brink’s. The Union was
represented by Williams and Meletiche.
The Company again assured the Union that the Newark
branch was not closing.
The parties agreed on many changes to the language of the
grievance and arbitration provisions in Article XIII. Pagano
testified that the Company changed its proposals on the time for
the various steps of the grievance procedure. The Company
also agreed to pay for attendance at grievance and disciplinary
meetings while on duty. However, Williams said that he would
not initial any items as tentatively agreed because all provisions
had to be OK’d by Merritt. The section dealing with the pow-
ers of the arbitrator was left open. The Brink’s proposal did not
give the arbitrator discretion to reduce a penalty or discipline
and there was no provision for back pay if a grievance was
sustained. The Union wanted the arbitrator to have more dis-
cretion.
The parties discussed their respective management rights
proposals. Meyer said the Union’s clause was ridiculous and
Williams pointed out that the Company’s proposal had too
many words. Meyer agreed to send a shorter revised manage-
ment rights proposal to the Union. Pagano proposed a modifi-
cation giving some seniority to part-time employees.
The parties discussed portions of Article XXI General Provi-
sions that had not previously been agreed to. The Union ob-
jected to section 3 regarding waiver and the parties agreed to
hold that issue. The parties agreed to section 2 and to sections
4 and 5 with revisions requested by the Union. Again, Wil-
liams refused to sign off because he had to review the issues
with Merritt. When Meyer objected that Merritt would come
back with issues and the parties would be at square one again,
Williams promised that this would not be the case. Williams
said he would review the agreed upon language with Merritt
and e-mail the Company that the language was either agreed to
or that the Union still had “issues.”
The parties discussed Article XXII Confidentiality. Pagano
agreed to consider the Union’s concern that the language of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Brink’s proposal might prevent the Union from giving some
Company documents to a government agency.
The parties discussed those portions of Article IV Rules and
Regulations relating to drug and alcohol testing that had not
been previously agreed to. The parties agreed to Article XXIII
Separability. Williams said that the Union would submit a
suggested grievance form. He asked the Company to propose
language on the use of cell phones. The parties again discussed
the need to provide a parking space for Union officials who
were carrying firearms. The Union said it would train the shop
stewards and the parties discussed issues related to training and
meetings.
The parties tried to identify those contract issues that re-
mained open. Williams and Pagano agreed that the Union
would send an e-mail identifying issues that remained open in
the Union proposal. Williams ended by promising that the
Union would be in touch to schedule another meeting.
Williams testified that he sent an e-mail to Merritt about the
agreements he had reached with Brink’s, but he and Merritt
never had a thorough discussion about the issues. Williams
testified that when he gave Merritt the details of his December
10, 2007 meeting with Brink’s he did not list any major out-
standing issues other than wages. Williams testified that Mer-
ritt did not approve any of the tentative agreements concluded
at the December 10 session. Williams acknowledged that he
had promised the Company representatives a letter giving Mer-
ritt’s conclusions and listing all the issues that remained out-
standing in the view of the Union. Williams never sent this
letter to Pagano and Meyer nor did he move to schedule another
meeting as he had promised to do. Williams did not offer any
testimony to explain his failure to seek further negotiations
after December 10, 2007.
Merritt testified that he was not aware that the Company had
met with Williams and Meletiche on December 10, 2007; he
stated that he heard about it long afterwards from Union presi-
dent Wyndor. Merritt said he did not ask anyone what had
happened at the meeting. Williams reminded Merritt that he
sent a list of provisions that he had agreed to with Pagano but
Merritt testified that he did not recall receiving the information.
In fact, Merritt testified, he first heard about the meeting of
December 10, 2007 just before testifying in the instant hearing
on July 2, 2008.29
On January 21, 2008 Kenneth Wyndor, the LEEBA presi-
dent, addressed a letter to the Brink’s bargaining unit members.
Wyndor told the members that LEEBA “has attempted to nego-
tiate an agreement that would give you periodic pay raises, job
security and a written discipline policy. . . . While we have
achieved a grievance and discipline policy in negotiations,
Brink’s has refused to budge on any economic packages that
would provide you with pay raises.” Wyndor went on to say
that the members could only obtain a pay raise by going on
strike. He said that the company would not give anything other
“than the present merit system.”30 Wyndor concluded by tell-

29 I note that on June 9, 2008 Meyer wrote to Merritt about the meet-
ing in a letter described below.
30 Wyndor was apparently unaware that Brink’s had changed its of-
fer from merit increases to a wage reopener.
ing the employees that, “If you agree to a contract without a
pay raise, you will avoid a strike and allow LEEBA to begin to
accrue funds in the form of dues that will allow the building of
a strike fund.” The letter enclosed a ballot with which the em-
ployees could either vote “to accept a contract with no eco-
nomic package” or vote “to strike to achieve a substantial pay
raise.”
Williams testified that at about this time the Union may have
realized that it could not obtain interest arbitration for the con-
tract with Brink’s.
b. Communications June 2008
The next communication from the Union to Brink’s was
dated June 4, 2008, shortly before the first day of the instant
hearing. Merritt wrote to Pagano that “in consideration of the
pending proceedings before the NLRB” he was seeking to de-
termine whether Brink’s would move to a “moderate wage
increase.” Merritt said, that the Union proposed “a $.75/hour
increase until April 1, 2007 and an additional $1.00/hour raise
to April, 2008. Time for filing a grievance should be twenty
(20) days.”31
On June 9 Meyer replied on behalf of Brink’s. Meyer said
that the Union’s demand amounted to an increase of $.75/hour
retroactive to April 20, 2006 and $1.00 retroactive to April 20,
2007. Meyer pointed out that the Union had not abandoned its
demand that the entire contract be retroactive to April 20, 2006.
Meyer stated that Brink’s was willing to review its wage pro-
posal if the Union changed its demands. Meyer pointed out
that the Union had never honored Williams’ promise to give a
final answer on the agreements reached at the December 10,
2007 negotiating session. Meyer also faulted the Union for
failing to provide dates for further meetings as promised by
Williams on December 10, 2007. Meyer attached the revised
management rights proposal that he had drafted after the De-
cember 10 meeting in anticipation of further bargaining. Meyer
stated that Brink’s accepted the Union’s proposal for a 20 cal-
endar day period to file a grievance. Meyer closed by stating
that the parties were at impasse if the Union continued to insist
on wage increases retroactive to April 20, 2006 and for a con-
tract retroactive to that date. However, if the Union stated that
it would modify its retroactive demands in future bargaining,
Meyer said that Brink’s would meet and bargain with the Un-
ion.
Merritt responded to Meyer on June 9, stating among other
things, that the Union was not asking for retroactive Union
dues. Merritt did not give Brink’s any dates for further negotia-
tions. Merritt testified that he did not read the revised man-
agement rights proposal sent to him by Meyer on June 9.
On June 20, 2008 Williams wrote to the bargaining unit em-
ployees. He told them that, “The only major outstanding issue
is an economic package or wage increase.” He informed the
employees that, “LEEBA believes the Newark employees are
deserving of a pay increase dating back to April 2006. We
propose a $.75/hour increase until April 01, 2007 and an addi-
tional $1.00/hour raise to April, 2008.” In his testimony herein,

31 I have omitted material that rehashed controversies arising during
the negotiations as well as the response from Brink’s.
BRINK’S USA 13
Williams affirmed that the only major outstanding issue as of
June 20, 2008 was a wage increase.
9. Additional testimony of the negotiators
On cross-examination, Williams was asked about the 132
wage grid that was in effect in January 2006 and that was still
in effect at the time of the hearing. Williams testified that the
Union had asked for $1.00/hour increases effective April 20,
2006, April 20, 2007 and April 20, 2008. However, Williams
said, the last Union demand was for $.75 retroactive to April
20, 2006 and $1.00 retroactive to April 1, 2007. Williams said
that the increase would apply to all employees regardless of
their step placement on the grid. However, Williams could not
say whether the increases were to be added to the step increases
provided by the grid. He could not say whether the rates set
forth for each step in the grid were to be raised. He could not
say if an employee who received a $1.00 increase one year
would also get the step increase as augmented by the $1.00
increase that had been provided in the prior year. Williams did
not understand how the Union’s demand would actually work
in raising the employees’ wages. He ended up by saying that
he thought the Union had asked to eliminate the grid. Williams
could not explain the Union demand’s effect on seniority and
whether the Union’s proposal was that all employees in a title
were to be paid the same hourly rate regardless of seniority.
On cross-examination Merritt was similarly not able to ex-
plain the Union’s wage demand. At first he maintained that he
did not have a copy of the 132 wage grid when the Union made
its wage proposals in September 2006, although the record
clearly shows that this is incorrect.32 Then Merritt said he did
not reference the wage grid or take it into account in making
the Union wage demands. Merritt also said that the Union did
not propose to eliminate the grid; he just wanted to put in the
wage increases. Finally Merritt testified that the Union pro-
posal encompassed the grid. Merritt testified that the Union’s
last proposal of June 4, 2008 demanded a $.75/hour increase as
of April 20, 2006 for each step on the grid. The $.75 was to be
added to the existing scale. If in the month after receiving a
$.75/hour wage increase the employee went to the next step on
the grid the new rate would have been raised by $.75. How-
ever, the Union also wanted $1.00/ retroactive to April 20,
2007, so the rates would have been raised by $1.75/hour on
execution of the contract. Merritt stated that the Union also
demanded a $1.00/hour increase retroactive to April 20, 2008.
I note that this explanation was never given to Pagano and
Meyer during the negotiations.
Merritt maintained that the employees had not been getting
any wage increases during the bargaining because he had not
been told of any increases. He apparently did not realize that
the grid system was providing the employees with wage in-
creases as they attained different steps of seniority.
Merritt testified that the language of the Union proposal
made the entire agreement retroactive to April 20, 2006. He
testified that this was not a clerical error. However, he said that
he accepted Pagano’s statement that retroactive dues could not

32 Merritt resisted admitting that he was given information by Brinks
in June 2006.
be collected under the NLRA and if that request appeared in
any documents it was an error.
Merritt said when the bargaining began he was asking for a
$1.00/hour increase over existing wages and he was willing to
make concessions to get the $1.00/hour.
On cross-examination Meyer testified that by October 10,
2007 the Union had agreed to less favorable terms than the
employees currently enjoyed with respect to medical benefits,
sick days, vacation, bereavement, jury duty and holidays.
Meyer pointed out that Merritt had never finally agreed to the
arbitration provisions and to the drug and alcohol provisions
that he had negotiated with Williams and that had been changed
in ways requested by the Union. Meyer acknowledged that the
zipper clause proposed by the company, if agreed to in its
original form, would waive certain of the Union’s rights to
bargain over working conditions and benefits. Meyer also
pointed out that Brink’s had agreed to many provisions that
were important to the Union such as a succcessorship clause,
concessions on probationary employees, Union security and
checkoff, discipline and a plethora of language modifications
requested by the Union. Meyer emphasized that the draft con-
tract, as it read during the hearing, was not a final contract.
D. Discussion and Conclusions
The General Counsel asserts that Brink’s did not offer a
comprehensive contract to which the Union might agree. The
General Counsel states that Brink’s wage offer was unreason-
able and designed to avoid an agreement. The General Counsel
argues that Brink’s made harsh proposals that sought regressive
give-backs and bargaining waivers on subjects including disci-
pline, work rules, protective vests, assignment of work to non-
unit personnel, vacation, sick leave, holidays, bereavement
leave, jury duty, medical benefits, layoffs and subcontracting.
The General Counsel states that Respondent failed adequately
to explain its demands for bargaining waivers and regressive
give-backs and that this amounts to an indication of bad faith.
The General Counsel states that Brink’s made a regressive
wage proposal without providing proof of its rationale. The
General Counsel asserts that the Company’s initial proposal to
change from a system of mandatory seniority-based increases
to a system of merit wage increases was unjustified.
Further, according to the General Counsel, the only conces-
sions made by Brink’s were Union security and dues checkoff
and extremely limited provisions for Union visitation and
grievance/arbitration procedures.
The General Counsel points out that the Union displayed an
extraordinary willingness to accept regressive and discretionary
proposals in order to secure a wage increase and job protection.
The General Counsel sums up by stating that “Respondent
sought to insure that the parties would not reach agreement by
making wildly unacceptable proposals that it could not justify
or substantiate.”
In Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984),
the Board summarized its views on surface bargaining. The
Board began by stating the obligation of the parties under Sec-
tion 8(d) of the Act to meet and confer in good faith, “but such
obligation does not compel either party to agree to a proposal or
require the making of a concession.” Although the parties have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
a duty to negotiate with a sincere purpose to find a basis of
agreement the Board cannot force a party to make a concession
on any specific issue. An employer’s overall conduct must be
scrutinized to determine whether it has bargained in good faith.
The total conduct will show whether an employer is lawfully
engaging in hard bargaining or unlawfully endeavoring to frus-
trate the possibility of arriving at any agreement. A party may
stand firm on a position based on a reasonable belief that it is
fair and proper or that “he has sufficient bargaining strength to
force the other party to agree.” Thus, adamant insistence on a
bargaining position is not of itself a refusal to bargain in good
faith. Conduct indicative of a lack of good faith includes delay-
ing tactics, unreasonable bargaining demands, unilateral
changes in mandatory subjects of bargaining, efforts to bypass
the union, failure to designate an agent with sufficient bargain-
ing authority, withdrawal of already agreed-upon provisions
and arbitrary scheduling of meetings.
There is no evidence in the record that Brink’s made any uni-
lateral changes in mandatory subjects of bargaining, that it
engaged in efforts to bypass the Union, that it failed to desig-
nate an agent with authority to bargain, that it withdrew agreed-
upon provisions or that it scheduled meetings arbitrarily. Fur-
ther, the evidence recited above shows that Brink’s always
responded promptly to the Union’s requests for collective-
bargaining meetings and that it responded to the Union’s re-
quests for information either by furnishing the documents or
explaining why the information would not be produced. In-
deed, the evidence shows that Brink’s frequently requested new
dates for negotiations with the Union and deplored the Union’s
suspension of negotiations while an unfair labor practice charge
was being settled. Further, from the first day of negotiations
the Company’s negotiators explained to the Union that the en-
tire contract would have to be negotiated, and the company
repeatedly sought to dispel the Union negotiators’ erroneous
belief that by law the contract had to be retroactive to the date
of certification and that the negotiations were subject to manda-
tory binding interest arbitration by the NLRB.
The General Counsel has characterized many of Brink’s bar-
gaining proposals as regressive. A reading of the cited cases
shows that the Board defines “regressive” bargaining as a
change from a prior more favorable bargaining proposal. Mid-
Continent Concrete, 336 NLRB 258, 260 (2001); Challenge-
Cook Bros., 288 NLRB 387, 388 (1988); Rescar, Inc., 274
NLRB 1, 2 (1985). It is clear that, as in Challenge-Cook and
Rescar, even a regressive proposal advanced during the course
of negotiations is not unlawful if the circumstances explain it.
The record herein shows that Brink’s did not alter any of its
initial proposals so as to make them less favorable to the em-
ployees.
Other cases consider the validity of an initial contract pro-
posal that is less favorable than existing conditions. Such a
proposal is not per se unlawful. In I. Bahcall Steel Industries,
287 NLRB 1257, 1261 (1988), the Board affirmed the follow-
ing discussion:
[I]t is not unusual at the outset of negotiations for the parties,
both union and management, to make demands that they real-
ize, in all likelihood, will not be included in the final agree-
ment. . . . However, the Board does not normally inject itself
into the negotiations to proscribe such proposals. More often,
the give and take of negotiations governs the final results.
What really takes place, apart from whatever cunning and
guile may achieve, is an economic test of strength. The rela-
tive economic strength of the parties and the recognition of
those realities, are the factors which produced the middle
ground where agreement is reached.
In the instant case, the Union laid out its priorities at the first
bargaining session. The Union asked for the immediate im-
plementation of a dues checkoff provision retroactive to the
date of certification, a definition of acts leading to termination,
a grievance and arbitration procedure and visitation rights for
the Union. The record shows that Brink’s responded to this
request by including in its first and subsequent proposals a
Union security provision with dues checkoff, Union visitation,
and a grievance procedure with arbitration. Responding to the
Union’s first written demand, the Company’s proposal included
merit pay increases. As the General Counsel has pointed out,
the grievance procedure and the Union visitation proposal were
limited and the merit pay proposal was not advantageous, but
that in itself does not make these initial proposals unlawful.
Further, the Company discussed them with the Union and made
changes to all these proposals. The Brink’s negotiators ex-
plained the concern with security and discipline and how this
concern impacted the company’s willingness to compromise on
issues of discipline, visitation and the grievance and arbitration
provision. The Company explained at length how its security
concerns impacted its proposal to limit the powers of the arbi-
trator. Eventually, the agreed-upon sections of the contract
included a definition of acts leading to termination, a grievance
and arbitration procedure, a visitation procedure and Union
security. The General Counsel urges that some of the agreed-
upon provisions were not advantageous to the employees; nev-
ertheless, they represented agreement on items that the Union
had asserted were of prime importance.
Similarly, the General Counsel points out that the Union
agreed to less advantageous terms than were currently in place
with respect to bereavement leave, sick leave, jury duty, vaca-
tion, holidays and medical benefits. Nevertheless, the record
shows that all of these items were bargained and agreed to by
the parties and that Brink’s responded to the Union’s request
for improvement over the original proposals with respect to
bereavement and sick leave. The record does not disclose
much discussion of the health insurance benefits provision.
Apart from questioning the waiting time for eligibility for
health benefits the Union made no effort to improve on the
Company’s offer in this area and there is no particular testi-
mony to show why the Union agreed to the provision requiring
employees to pay all future premium increases. However, Mer-
ritt testified that the Union wanted a significant increase over
existing wages and he was willing to make concessions to get
the increase. This, perhaps, is one reason for the Union’s con-
cessions which are otherwise not discussed in the record.
The General Counsel relies on A-1 King Size Sandwiches,
Inc., 265 NLRB 850 (1982), a case where the Board found that
the employer had engaged in surface bargaining by insisting on
BRINK’S USA 15
retaining “total control over virtually every significant aspect of
the employment relationship.” The decision in that case relied
principally on the employer’s insistence that there would be no
bargaining on wage rates; the employer’s decision to grant a
merit increase would be final because the Union could merely
make suggestions while observing a merit review for each em-
ployee. Further, the company retained total control over disci-
pline and discharge, layoff and recall and working conditions.
Manifestly, the bargaining in the instant case resulted in agree-
ments on many terms and conditions including subjects relating
to discipline, discharge, seniority and layoff. These agreements
may not have been as favorable to the Union as might have
been imagined; however, the Union signed off on them. The
unequal economic power of the Union and Brink’s was a sig-
nificant, and wholly lawful, factor in the negotiations. It is not
unlawful for an employer to engage in hard bargaining in order
to gain an advantage from the realities of the situation.
Another factor in the outcome of the instant negotiations was
the behavior of the Union negotiating team. By their own ad-
mission, the Union negotiators were inexperienced in bargain-
ing under the NLRA. The record shows that Merritt and Wil-
liams believed that the contract they were negotiating would be
retroactive to the date of certification by operation of law.
Further, the Union representatives believed that any unresolved
issues would be submitted to mandatory interest arbitration.
Indeed, Merritt repeatedly taunted the Brink’s representatives
with the prospect that an arbitrator would give the Union cer-
tain contract provisions that the Company would not agree to in
negotiations. Merritt frequently declared impasse on various
issues in the belief that these issues would be submitted to in-
terest arbitration under the aegis of the NLRB.
These unfounded and erroneous beliefs on the part of the
Union negotiators contributed to the Union’s dilatory behavior
during negotiations. The Union suspended negotiations after
the first bargaining session while an unfair labor practice
charge was resolved. The record is replete with instances
where the Company negotiators requested bargaining dates and
chided the Union for failing to come to the table. Thus, the
Union would not supply dates for bargaining for the periods
from May 23 to December 27, 2006 while the ULP charge was
being settled, and it did not initiate any contact with Brink’s
from December 10, 2007 to June 4, 2008 even though on De-
cember 10 Williams had promised to contact the employer with
dates for further negotiations. I contrast this with the delays
occasioned by the Company’s negotiators who were not avail-
able in August 2006 and August 2007. The record shows that
Merritt was reluctant to attend meetings with the Company;
instead, he often wanted to negotiate on the telephone or in
writing. Brink’s was not required to conduct negotiations by
phone or by mail. Alle Arecibo Corp., 264 NLRB 1267, 1275
(1982). The Union’s conduct was a result of the Merritt’s and
Williams’ belief that it did not matter how long the negotiations
dragged on because ultimately the Union was entitled to a ret-
roactive contract to be written by an arbitrator.
Nor can it be said that the Company’s negotiators used their
superior knowledge to beguile the Union. From the first bar-
gaining session on May 23, 2006 Pagano informed the Union
that all the provisions of the contract would have to be negoti-
ated, and the Company consistently told Merritt and Williams
that there was no mandatory retroactivity for any of the contract
terms. The Company explained that interest arbitration was not
available to resolve the negotiations. Neither Williams nor
Merritt offered any reason at the instant hearing why they did
not believe the information given to them by Pagano and Meyer
or why they did not do some research to inform themselves
concerning the provisions of the law under which they were
negotiating.33 Because he erroneously believed that an arbitra-
tor would necessarily impose a retroactive contract Merritt was
quick to declare “impasse” whenever the Company did not
accept a Union proposal and the Union negotiators were con-
tent to delay the negotiations.
Another difficulty in the negotiations arose from the Union’s
failure to revise its written demands to comport with the
agreements it had reached. Thus, the Company negotiators
could not be certain whether the Union was abandoning agree-
ment on items that had previously been negotiated.
Despite all of the delays and difficulties in the negotiating
process many of the terms of a collective-bargaining agreement
were in place by December 10, 2007. At the last negotiation
session, the parties agreed to a number of provisions which
Williams promised to discuss with Merritt and then confirm
with the Company. Williams informed Merritt of these agree-
ments after December 10 but he received no response from
Merritt. Williams apparently did not press Merritt for an an-
swer and he did not communicate further with the Company.
In typical fashion, Merritt denied receiving any information
about the agreements reached by Williams and the company on
December 10, 2007. Nevertheless, Williams testified that by
2008 the only issue remaining was wages. The Union sent a
letter to the bargaining unit members on January 21, 2008 in-
forming them that all that remained to be agreed upon was a
wage increase. Thus, the Union itself believed that it had
achieved substantial agreement on a collective-bargaining
agreement; the exception was wages. Whatever other gaps may
still have been present, it is clear that the Union did not con-
sider them significant obstacles to the attainment of a complete
collective-bargaining agreement if wages could be resolved.
The record shows that the Company tried to discuss wages
with the Union on various occasions. At the second bargaining
session on February 6, 2007 Pagano asked the Union to explain
its wage demand. As set forth in detail above, the Union’s
demand called for yearly $1.00/hour pay increases beginning
on the effective date of the agreement and the Company wanted
to know how this demand would impact the existing grid sen-
iority pay system. Merritt did not try to explain the demand;
instead, he declared impasse and soon left the meeting. At the
next meeting on February 13 Pagano pointed out that the Un-
ion’s draft agreement had left a blank in the provision for a
starting wage rate and he asked the Union what amount it pro-
posed. The Union did not reply to this question. The Company
then agreed to pay overtime after 40 hours of work. At that
point the Union repeated its demand for a flat increase of

33 Williams testified that the Union did not know that the contract
could not be reached through mandatory interest arbitration until some-
time around January 2008.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
$1.00/hour each year retroactive to April 20, 2006. When Pa-
gano said the Company would only agree to a raise going for-
ward, Williams replied that wages and the entire contract were,
as a matter of law, retroactive to the date of certification.
Meyer explained that this was not the case under the NLRA.
Pagano said the Company was offering merit increases, and
Merritt again declared impasse. On February 27 Pagano wrote
to Merritt stating, inter alia, that the Company rejected the de-
mand for a $1.00/hour wage increase retroactive to April 20,
2006 but he offered to negotiate across the board increases
either standing alone or in connection with the existing wage
grid. He said he would negotiate about the retroactivity of
wage increases. Merritt responded on March 6; the Union’s
draft agreement provided a $1.00/hour increase on April 1,
2007 and another $1.00 increase on April 20, 2007. Merritt did
not explain how this would impact the seniority step increases
in the grid.
On July 9, 2007 the Company gave the Union a new wage
proposal which abandoned merit increases and called for a
wage reopener on the first and second anniversaries of the
agreement. On October 10, 2007 the Company asked whether
the Union still insisted on retroactivity and Williams said the
Union was flexible but it needed some retroactivity of wages.
However, later the same day Williams said the Union wanted
an immediate $1.00/hour increase retroactive to April 2006.
Meyer said the Company did not want retroactivity but that it
wanted to keep the grid and was flexible on the wage increase.
The Company asked how the Union’s proposal would impact
the grid; Williams could not explain the Union’s proposal. On
October 29 Pagano again raised the subject of wages and
pointed out that the Union’s demand apparently still was for a
$1.00/hour increase on April 1 and 20, 2007 and on April 20,
2008. Pagano said the Company would consider different wage
increases than those it had already proposed.
I conclude that the Union did not respond in any meaningful
way to the various overtures by Brink’s designed to get the
parties to a wage discussion. Despite changes in the Com-
pany’s wage proposals and inquiries by the Company as to the
meaning and ultimate direction of the Union’s wage requests,
the Union never changed its wage demands.34 Throughout the
negotiations the Union insisted on three retroactive $1.00/hour
wage increases even though Brink’s emphasized that it would
not grant such a large increase on a retroactive basis. The Un-
ion never told Brink’s what it was demanding as a starting rate,
even though several draft agreements left that number blank
and the Company asked what the Union proposed on that issue.
Further, the Union never explained its wage demand in terms of
the grid. In fact, Williams could not explain in the instant hear-
ing whether the Union was asking to eliminate the grid and, if
so, what the wage schedule would look like and whether there
would be differences in pay based on seniority. Merritt testi-
fied, inconsistently, that he did not take the grid into account

34 Shortly before the instant hearing commenced in June 2008 the
first retroactive wage increase demand was changed from $1.00/hour to
$.75/hour. This was done “in consideration of” the fact that the hearing
was about to open. This proposal was not made during the bargaining
between the parties.
and that the Union did not want to eliminate the grid. Eventu-
ally at the instant hearing Merritt also tried to explain how the
Union’s demand meshed with the grid. But Merritt never gave
this explanation to Brink’s during the negotiations.
The Union did not change its wage demands or try to explain
them because, until after the Union abandoned the negotiations
following the December 10, 2007 meeting, the Union negotia-
tors believed that the law required the submission of the con-
tract to interest arbitration with retroactive effect. Merritt, who
seemingly had the last word on whether to approve an agree-
ment with the Union, taunted Brink’s with the prospect of arbi-
tration resulting in retroactive wage increases.
In these circumstances, it was well nigh impossible to reach
agreement on a wage provision for the contract. The Union did
not change its demand during the bargaining and the Union
could not explain the effect of its demand on the existing wage
patterns established by the grid. The Union negotiators ex-
pressed their conviction that an arbitrator would grant retroac-
tive wage increases in line with the Union position in negotia-
tions. As a result the Company’s efforts to ascertain where the
parties might come to a meeting of the minds were doomed to
failure. If the company had made more generous wage offers
as the bargaining progressed it might well have ended up bar-
gaining against itself.
Finally, as described above, after the December 10, 2007
meeting the Union did not keep its promise to contact the Com-
pany with Merritt’s decision concerning the many agreements
reached by Williams. Williams had assured Meyer and Pagano
that the Union would be in touch to schedule further negotia-
tions, but the Union did not contact the Company. Although
the Union told its members that all that remained was to negoti-
ate a wage provision, the Union did not proceed to bargain on
this subject pursuant to Williams’ promise on December 10,
2007. The Union abandoned the negotiations until it sent the
letter of June 4, 2008 shortly before the instant hearing was set
to open.
The Union’s initial position had been for a three-year con-
tract ending on April 19, 2009 with retroactive $1.00/hour wage
increases. The Union never abandoned its demand for a con-
tract effective on the date of certification.35 The Union’s final
communication to Brink’s on June 4, 2008 still called for retro-
active increases effective in April 2006 and April 2007; the first
increase was reduced to $.75/hour, but no indication was given
of the increase sought for 2008. By this time it was clear that
the Company was not willing to give wage increases retroactive
to 2006 and Meyer’s response reiterated this point. Meyer told
Merritt that Brink’s would review its wage proposal if the Un-
ion changed its demand for a contract with wage increases ret-
roactive to April 2006. The Company was adhering to its oft
stated and consistently held position that it would not agree to a
retroactive contract with wage increases going back to the date
of certification. Brink’s had consistently informed the Union of
its position that initial collective-bargaining agreements were
not usually retroactive to the date of certification. Brink’s be-
lieved that its position was fair and proper. The Company had

35 The Union did eventually abandon retroactive application of Un-
ion security and dues check-off.
BRINK’S USA 17
explained to the Union the difference between public sector and
private sector bargaining and from 2006 the Company had
urged the Union to come to the bargaining table. Brink’s was
entitled to stand firm on its position against retroactive wage
increases. In the same way, the Union was also standing firm
on its position for retroactive wage increases and the Union was
also engaging in hard bargaining on the wage issue. The Union
had achieved agreements which it deemed important and it had
made concessions in an effort to obtain other objectives, but the
Union negotiators were not prepared to budge on the issue of
wage retroactivity. Brink’s had the right to test its bargaining
strength against the strength of the Union. Challenge-Cook
Bros. 288 NLRB 387, 389 (1988). The fact that wages were
not agreed to is not, in itself, evidence of unlawful bargaining
by the Company. I. Bahcall Steel Industries, supra at 1261. I
do not find that the Company’s position on the retroactivity of
wages was an attempt to frustrate agreement with the Union.
Given the facts found above, I cannot conclude that Brink’s
engaged in surface bargaining.
CONCLUSION OF LAW
1. The General Counsel has not proved that Brink’s refused
to bargain in good faith with Law Enforcement Employees
Benevolent Association in the following appropriate unit
All full-time and regular part-time drivers, messengers,
guards, vault guards, coin and currency guards, ATM techs,
garage persons, night loaders and premise guards employed
by Respondent at its 481-495 New Jersey Railroad Avenue,
Newark, New Jersey facility, excluding all other employees
and supervisors as defined in the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36
ORDER
The complaint is dismissed.
Dated, Washington, D.C. February 4, 2009

36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.