Diplomat Envelope Corporation

National Labor Relations Board - Board Decisions

Aug 18, 1982

263 N.L.R.B. 525 (N.L.R.B. 1982)

DIPLOMAT ENVELOPE CORP.
Diplomat Envelope Corporation and Printing Spe-
cialties and Paper Products Union No. 447, In-
ternational Printing and Graphic Communica-
tions Union, AFL-CIO. Case 29-CA-7983
August 18, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On March 4, 1982, Administrative Law Judge
Steven B. Fish issued the attached Decision in this
proceeding. Thereafter, both Respondent and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I Respondent's request for oral argument is denied as the record, the
exceptions, and the briefs adequately present the issues and the positions
of the parties.
In light of our adoption of the Administrative Law Judge's finding that
the parties had entered into an agreement as of August 6, 1981, we find it
unnecessary to rely on the Administrative Law Judge's discussion of
Noide Brothers v Local 358, Bakery A Confectionery Workers Union, AFL-
CIO. 430 U.S. 243 (1977). and American Sink Top d Cabinet Co.. Inc., 242
NLRB 408 (1979).
Citing the Multiemployer Pension Plan Amendment Act of 1980, the
Charging Party contends that the Administrative Law Judge erred with
respect to the proposed make-whole remedy as to employee benefit con-
tributions found to be due and owing by Respondent. Citing
Merryweather Optical Company, 240 NLRB 1213. 1216, fn. 7 (1979), the
Administrative Law Judge, at fn. 59, specifically provided that such mat-
ters, including the awarding of interest on employee benefit contributions,
would be left "to further proceedings." We agree with the Administra-
tive Law Judge that such matters are better resolved at the compliance
stage of this proceeding.
We deny the Charging Party's request that Respondent be assessed liti-
gation expenses as Respondent's defenses are not, in our opinion, patently
frivolous. Heck's Inc., 215 NLRB 765 (1974).
a Respondent contends that the transcript in this case contains several
serious inadequacies, inter alia, the omission of a number of pages of testi-
mony. We have carefully reviewed the transcript and find that the errors
in it are not so serious as to prejudice any of the parties nor is there any
indication that any testimony has been omitted from the transcript.
263 NLRB No. 75
hereby orders that the Respondent, Diplomat En-
velope Corporation, Long Island City, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT fail or refuse to execute the
collective-bargaining agreement agreed upon
between us and the Union.
WE WILL NOT unilaterally cease making
payments on behalf of our unit employees in
the Union's pension, welfare, or annuity funds;
fail to grant wage increases due under the col-
lective-bargaining agreement to our employ-
ees; or fail or refuse to arbitrate the discharge
of our employee Thomas Dugan.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request by the Union, forth-
with execute the contract upon which agree-
ment was reached between us and the Union.
WE WILL give retroactive effect to the
terms and conditions of employment of said
contract, and make whole our employees for
any losses they may have suffered by reason of
our failure to sign the agreement, with interest.
WE WILL pay all contributions to the
Union's pension, welfare, and annuity funds as
provided for in the collective-bargaining
agreement, which have not been paid and
which would have been paid absent our un-
lawful discontinuance of such payments.
WE WILL arbitrate the discharge of employ-
ee Thomas Dugan.
DIPLOMAT ENVELOPE CORPORATION
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: Pursuant
to charges filed on May 5, 1980, by Printing Specialties
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Paper Products Union No. 447, International Print-
ing and Graphic Communications Union, AFL-CIO,
herein called the Union or the Charging Party, the Re-
gional Director for Region 29 issued a complaint and
notice of hearing on July 31, 1980. Said complaint al-
leges that Diplomat Envelope Corporation, herein called
Respondent, violated Section 8(a)(1) and (5) of the Act,
by refusing to sign a written agreement agreed to with
the Union on or about August 3, 1979,1 by unilaterally
failing and refusing to make payments to various union
funds, by failing to pay an agreed-upon wage increase,
without notifying or affording the Union an opportunity
to bargain about such actions, and by failing and refusing
since on or about February 6, 1980, to arbitrate the dis-
charge of Thomas Dugan, one of Respondent's employ-
ees.
A hearing was held before me on March 23, 24, and
25, 1981, in Brooklyn, New York, with respect to the al-
legations encompassed by said complaint. I have careful-
ly considered the General Counsel's oral argument, as
well as the briefs which have been received from Re-
spondent and the Charging Party.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, is engaged in
the printing and manufacturing of envelopes and related
paper products, with its principal office and place of
business at 23-23 Borden Avenue, Long Island City,
New York. Annually, Respondent purchases and causes
to be transported and delivered to its place of business
paper, paper products, and other goods and materials
valued in excess of $50,000, delivered directly to its
place of business from States of the United States other
than the State of New York. Respondent admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that the Union is and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
11. THE FACTS
Respondent is a closely held corporation with Roy
Arroll, its president, a member of the board of directors,
and a one-third stockholder, being the chief operating of-
ficer of the Company. Roy Arroll has been president of
Respondent since its inception in 1952.2
Respondent's other officers and directors are Mark
Arroll, Roy's brother, who is also Respondent's attorney,
Beatrice Krassner, sister of Roy and Mark, and Robert
Krassner, Beatrice's husband, who shares the day-to-day
operation of the business with Roy Arroll.3
All dates hereinafter referred to unless otherwise indicated are in
1979.
2 Roy Arroll majored in and has a B.A. and a master's degree in eco-
nomics.
I Beatrice Krassner works part time for Respondent, performing book-
keeping functions.
For over 20 years the Union has been the collective-
bargaining representative of Respondent's employees.
Prior to 1970 Respondent was a member of the Paper
Merchants Association, an Employer Association of 45
to 50 employers, and applied collective-bargaining agree-
ments negotiated by the Association and the Union to its
employees.
On March 16, 1970, Respondent by letter, withdrew
from membership in the Association. Respondent, along
with two other employers4 who had been members of
the Association and had also withdrawn, requested bar-
gaining with the Union on a joint basis. The Union con-
sented and negotiations were conducted in this fashion in
1970. Roy Arroll was present and participated in these
negotiations along with representatives of the other
firms, and each of the three companies signed separate
contracts with the Union. Respondent's contract, dated
November 26, 1970, was signed by Roy Arroll and by
James Mitchell, president of the Union, and was effective
from April 1, 1970, to March 31, 1973. The agreement
provides for wage increases for various classifications of
employees over a 3-year period, welfare benefits, a cost-
of-living plan, a pension plan, and a clause entitled "Set-
tlement of Disputes, Differences and Grievances." Said
clause, article 13, reads as follows:
All disputes, differences and grievances that arise
shall be taken up in the first instance between the
shop steward, if there be one, and by the Union
representative and the Employer. An employee may
present his own grievance personally, if he chooses
to do so, but nothing contained herein shall be
deemed to limit, in any way, the right of the Union
to present to the Employer any complaint of viola-
tion of this contract. If no settlement is arrived at,
then the dispute, difference or grievance shall be
submitted for arbitration to an arbitrator appointed
by the New York States Board of Mediation, whose
decision shall be binding on all parties. A violation
of this contract or of any previous contract shall
survive the expiration of such contracts, and the
fact that a subsequent contract is signed between
the Union and the Employer shall not be deemed to
be a bar to the Union's claim of violation at an ear-
lier date under the provisions of the then existing
contract.
Subsequent to the completion of the negotiations re-
sulting in the execution of the above contract, Mitchell
received a phone call from Roy Arroll. Arroll indicated
to Mitchell that Respondent wished to go into the manu-
facturing end of the business. 5 Arroll requested a meet-
ing to discuss terms and conditions of employment for
such employees. A meeting was held, at which time
Mitchell offered Respondent the total manufacturing di-
vision contract which the Union had with other employ-
ers in the industry. At that time the manufacturer's con-
4 The other two companies were Atomic Envelope Co. and Melo En-
velope Corp., herein called Atomic and Melo, respectively.
I Previously Respondent had been engaged solely in the printing
aspect of the industry, employing only employees engaged in printing
and warehousing functions.
526
DIPLOMAT ENVELOPE CORP.
tract was less expensive than Respondent's printing con-
tract. Arroll rejected Mitchell's offer of the total manu-
facturers contract, stating that Respondent had enough
with Association contracts, and that if there was going
to be mistakes made, Respondent preferred to make them
on its own.
Accordingly, an agreement was negotiated covering
the manufacturing employees employed by Respondent,
which was incorporated in an addendum to the prior
agreement covering Respondent's printing employees.
The addendum dated March 24, 1971, changed the rec-
ognition clause and included new classifications of em-
ployees performing manufacturing functions. Minimum
wage schedules were agreed to for those employees, as
well as raises of $6 per week effective on November 1,
1970, S2 per week effective on May 1, 1971, $10 per
week effective on November 1, 1971, and $6 per week
effective on November 1, 1972.6 In all other respects the
1970 contract between the parties was applicable to Re-
spondent's manufacturing employees.
In 1973, negotiations for a new agreement were con-
ducted by Mitchell and Mark and Roy Arroll. Respond-
ent indicated that it was paying higher wages than its
competitors in the manufacturing portion of the business.
Mitchell reminded Respondent that in 1970 the Union
had offered it the manufacturing division agreement and
this offer was refused. He added that Respondent made
its choice and that the Union was not in a position to
permit a reduction in benefits for its employees. This
issue precipitated a 9-week strike.
Negotiations continued, resulting finally in a new col-
lective-bargaining agreement, executed on September 4,
1973, retroactive to April 1, 1973. The parties resolved
the problem of Respondent's competitive disadvantage
vis-a-vis its manufacturing competitors' wages, by agree-
ing to wage increases in the second and third year of the
contract based on wage increases agreed to by three of
Respondent's competitors, Brenner Envelope Corp.,
herein called Brenner, New York Envelope Corp.,
herein called New York, and Huxley Envelope Corp.,
herein called Huxley. These employers were in the third
year of their contracts when Respondent was negotiating
with the Union. It was therefore agreed that the raise to
be granted to Respondent's manufacturing employees for
the first year was to be $7 per week, the same amount
granted to these employer's employees in the third year
of their contracts. Since the contracts of Brenner, New
York, and Huxley were expiring in a year, the amounts
of raises for their employees in future years was un-
known at the time of Respondent's negotiations. There-
fore Mitchell suggested and Respondent agreed that, so
as to prevent Respondent from setting the pattern for
future increases, wage increases for the second and third
year of the contract would be the lowest increase agreed
on by these other companies. The language agreed to
with respect to Respondent's manufacturing employees'
wages is set forth below:
WAGE INCREASES
6 As a result of these negotiations, as of November 1, 1972, Respond-
ent's manufacturing employees' increases exceeded those granted by its
competition.
Effective April 1, 1973, no employee of the Enve-
lope Manufacturing Division shall receive less than
$7.00 per week wage increase. Effective April 1,
1974, and April 1, 1975, the employees of the Enve-
lope Manufacturing Division shall receive the same
increase agreed to by Brenner Envelope Corp.,
New York Envelope Corp. and Huxley Envelope
Corp.
In the event the wage increases agreed to by Bren-
ner Envelope Corp., New York Envelope Corp.
and Huxley Envelope Corp. vary, then the wage in-
creases to be paid by Diplomat Envelope Corpora-
tion shall be the lowest increase paid by either of
the above-mentioned corporations. With regard to
employees hired on or after April 1, 1973, by Diplo-
mat Envelope Corporation in the Envelope Manu-
facturing Division, Diplomat shall not be required
to pay such employees more than the scale then
prevailing.
The Agreement by Diplomat Envelope Corporation
to be bound by the lowest wage increase, as afore-
said, negotiated by Local #447 and the Envelope
Manufacturing Industry consisting of Brenner En-
velope Corp., New York Envelope Corp. and
Huxley Envelope Corp. shall be limited solely to
the term of this Agreement which terminates on
March 31, 1976, and it shall in no way be consid-
ered as precedent in any future negotiations in any
legal proceeding or in any manner whatever. ?
The parties executed a 14-page collective-bargaining
agreement, applicable to all its unit employees, except as
modified by a 4-page addendum applicable only to Re-
spondent's manufacturing employees. In addition to the
wage increase provisions as set forth above, the adden-
dum also provided manufacturing employees less vaca-
tion entitlements than for Respondent's printing employ-
ees, 8 as well as providing for less sick leave, severance,
and layoff notice benefits for manufacturing employees
than for printing employees. Further the addendum also
included a geographic areas clause and successors and as-
signs clause, which provides in substance that, if more fa-
vorable such clauses are negotiated with Brenner, New
York, or Huxley in their forthcoming contracts with
regard to either geographic area or successors and as-
signs, then Respondent shall receive the more favorable
clause, at the expiration of the contract and at the option
of Respondent in its next contract. Further, if a more re-
strictive clause is negotiated with these firms, Respond-
ent shall retain its present clause or clauses.
The main collective-bargaining agreement provides for
welfare, pension, annuity, and cost-of-living benefits and
increases for all its employees. The addendum permits
Respondent to pay the moneys due for April and May
1973 to the welfare annuity and pension funds for the
7 The insertion of the latter paragraph was insisted on by Respondent
Mitchell admitted that Respondent requested this language because it
"didn't want it to be a precedent."
I This brought Respondent's manufacturing employees more in line
with the vacation schedules of its competitors
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacturing employees to be paid in five equal month-
ly payments from September 1973 to January 1974.
The contract also contains the identical settlement of
disputes and grievances clause as the 1970-73 contract as
set forth above, except that the American Arbitration
Association is substituted for the New York State Board
of Mediation as the source for selection of arbitrators.
Article 11(a) of the 1973 contract contains a provision
that with respect to the welfare fund, Respondent must
continue to make payments in the event of a termination
of an employee for 60 days after such termination or
layoff.9
The contract also provides under the cost-of-living
clauses that there shall be automatic increases when the
CPI raises one point or more to be applied to Respond-
ent's contributions to the Union's welfare, pension, or an-
nuity funds or a general increase as the Union shall
direct. ' 0
Finally the 1973-76 contract in its welfare pension and
annuity provisions provides that payments shall be made
in accordance with the rules and regulations of said
funds. These provisions had not previously appeared in
prior contracts between the parties.
In 1976, the parties negotiated another collective-bar-
gaining agreement. The agreement which runs from
April 1, 1976, to March 31, 1979, consists of a 15-page
agreement which covers both printing and manufactur-
ing employees, except as modified by a 4-page addendum
which applies only to manufacturing employees. Prior to
the execution of this agreement and addendum the par-
ties executed a memorandum of agreement. " The
memorandum on its face does not indicate whether or
not it applies to Respondent's manufacturing employees.
The memorandum provides for a wage increase of $12
per week for the first year, $12.75 the second year, and
$15 for the third year. Additionally, welfare increases for
each year and an annuity increase in the third year and
an increase in the maximum cost-of-living payments cov-
ering the term of the contract are set forth therein.
The memorandum of agreement does not state that all
the terms of the prior contract would apply except
where changed, but in fact all the terms of the memoran-
dum were incorporated into the main agreement,' 2 in-
cluding the welfare increases which were applied to both
manufacturing and printing employees. The first year
wage increase of $12 per week was incorporated into the
contract for the printing employees and into the adden-
dum covering the manufacturing employees. Thus, it ap-
pears and I so find that the memorandum of agreement
I This provision was carried over from the 1970 contract.
'o Such a clause also appeared in the 1970 contract, except that annu-
ities were not included therein.
t" All three documents (the memorandum of agreement, main con-
tract, and addendum) are dated May 14, 1976. However all parties agree
that the memorandum of agreement was negotiated and signed at some
point prior to the signing of the contract and the addendum.
Is The main agreement also contains the same settlement of disputes
clause providing for the Americnn Arbitration Association as the source
of arbitrators, as in the 1973 contract. Additionally the identical clauses
relating to contributions to the funds in accordance with the rules of the
funds, welfare payments for terminated employees for 60 days, and cost-
of-living increases to be paid at the option of the Union as in the 1973
contract were carried over in the 1976 agreement.
was applicable to both manufacturing and printing em-
ployees.
The addendum covering manufacturing employees is
identical to the 1970-73 addendum, except for the annu-
ity and wage provisions. There is no dispute that the par-
ties specifically discussed the annuity revision during the
1976 negotiations. Arroll protested the fact that his man-
ufacturing competitors had not been forced to grant the
same fringe benefits as Respondent, and he requested
some relief from the Union. Mitchell indicated that he
would attempt to bring these competitors up to Respond-
ent's level at the next negotiation, and specifically stated
that he would propose annuities for these companies.'3
Mitchell, after again reminding Arroll that he had his
chance to agree to the manufacturers contract in 1970
and chose not to do so finally agreed to give Respondent
some relief by freezing annuity payments for manufactur-
ing employees at $10 per week.
The addendum as noted included the $12-per-week in-
crease for the first year of the contract for manufactur-
ing employees, payable on April 1, 1976. For the second
and third years, April 1, 1977, and April 1, 1978, the ad-
dendum included the identical language as in the prior
1970-73 contract, as set forth above, essentially tying
these increases to increases granted by Brenner, Huxley,
and New York. Included also was the same qualifying
language, limiting this clause to the term of that agree-
ment, and stating that "it shall in no way be considered
as precedent in any future negotiations in any proceeding
or in any manner whatever."
Mitchell testified that the above-cited clause was
agreed to in 1976 without any negotiation or discussion,
and that he merely changed the dates and included the
clause in the addendum, which was signed by Arroll.
Mark and Roy Arroll on the other hand testified that
there was extensive discussion and negotiation about this
clause, and that Respondent again reluctantly agreed to
its inclusion. Based on comparitive demeanor consider-
ations, I credit Mitchell. I found Mitchell's responses to
be forthright, candid, and sincere, and on the whole
found him to be a most believable witness. On the other
hand the Arroll brothers, particularly Roy, in my judg-
ment were often argumentative, evasive, and unconvinc-
ing in many of their responses, and demonstrated a tend-
ency to contrive their testimony to fit what they be-
lieved to be supportive of their positions. I therefore
credit Mitchell on this issue, as well as in any other area
where his testimony conflicts with the testimony of
either Mark or Roy Arroll or both of them.
Subsequent to the execution of the 1976-79 contract,
Roy Arroll indicated to Mitchell that there was insuffi-
cient work available for a full-time shipping clerk. Arroll
therefore requested that the then current shipping clerk,
David Smith, be transferred from printing to the manu-
facturing division, with no loss of pay, but with addition-
al job responsibilities. This was agreed to by the Union,
and memorialized in a side letter dated March 10, 1977,
and signed by Arroll and Mitchell. The letter reflects
Smith's additional job responsibilities, as well as provid-
13 At the time Huxley, Brenner, and New York paid less for pension
and welfare for their employees and had no annuity in their contracts.
528
DIPLOMAT ENVELOPE CORP.
ing that annuity fund contributions for Smith and his suc-
cessors shall be at the manufacturing division rate. On
April 12, 1977, an additional letter was signed by the
parties, clarifying the fact that all successors and any re-
placements of Smith will be included as part of the
March 10 addition to the addendum. All parties agree
that these letters were to be considered part of the 1976-
79 contract.
On April 1, 1977, and in 1978, Respondent instituted
the wage increases for its manufacturing employees that
had been granted to Huxley's, Brenner's, and New
York's employees in the first 2 years of their contracts.1 4
On January 1, 1979, Mitchell sent a letter to Respond-
ent requesting negotiations for a new contract. Subse-
quently Arroll and Mitchell orally agreed to await the
outcome of the Union's negotiations with Atomic, Melo,
and Westshore Envelope Co., herein called Westshore,
which were the larger printing competitors of Respond-
ent. The Union concluded negotiations with these com-
panies by executing a memorandum of agreement with
each company dated June 28, 1979, providing that
"except for the following amendments, our Collective
Bargaining Agreement which expired on March 31, 1979
shall remain in full force and effect." The memorandums
were identical for each company, providing for wage in-
creases of $20 per week, effective on April I of each
year, and increases in welfare benefits, pension, and pro-
gression schedule, and the insertion of a new classifica-
tion of general helper, duties and rate of pay to be
agreed upon. It was also agreed that all moneys due
under the cost-of-living plan shall be used to increase
contributions to the annuity fund.
On July 11, 1979, at Respondent's office, Mitchell and
Pat DeGennaro of the Union met with Roy Arroll and
Bob Krassner to commence negotiations. Mitchell pre-
sented Arroll with the memorandum of agreement be-
tween the Union and Atomic and proposed this as the
Union's demands for the printing employees. Mitchell
also indicated that, in the last year of the manufacturers'
contract, a wage increase of $11 was granted as well as
an improvement in vacations. Mitchell proposed that this
$11 increase be granted to the manufacturing employees
in the first year of the contract and that the vacation im-
provements also be instituted. This constituted the
Union's proposals for the manufacturing employees.
Mitchell proposed that these would be the changes re-
quested by the Union from the parties then current col-
lective-bargaining agreement. Nothing was mentioned
about any increases for manufacturing employees in the
second or third year of the contract.
Arroll agreed to review the Union's proposals and to
call Mitchell and set up the next meeting. 1
"4 The raises were $10 per week the first year and Sl$ for the second.
"8 Arroll denies receiving any copy of the Union's memorandum with
Atomic or any other company during this or any meeting. He contends
that he was given a laundry list of demands from the Union which were
discussed. Mitchell and DeGennaro denied ever submitting such a list to
Arroll, and I credit their denials. In addition to my assessment of the
credibility of Arroll vis-a-vis Mitchell as outlined above, I also rely in this
instance on the fact that Roy Arroll could not produce a copy of such
demands nor could his brother Mark who denied receiving any such de-
mands, although Roy Arroll testified that he probably furnished his
brother with such a copy. Additionally the agreement ultimately signed
The parties met next on August 1, 1979, at the office
of Mark Arroll. Present were Mitchell, DeGennaro,
Roy, and Mark Arroll. Mark Arroll began the meeting
by complaining about the fact that the Union was going
to arbitration over the discharge of Charles White.' e
Mitchell replied that the Union had no choice. Mark
continued that he felt it was unfair for Respondent to be
forced to pay for welfare severance for 60 days to em-
ployees like White who were discharged for cause.
Mitchell responded that he was not at liberty to negoti-
ate the trust agreement or the rules and regulations of
said funds. That subject was debated back and forth and
led to a discussion of the arbitration procedure in the
contract. Mark Arroll contended that the arbitration pro-
cedure currently utilized of selecting arbitrators from the
American Arbitration Association (AAA) was too expen-
sive. It was suggested that there be a switch from using
the AAA to the New York State Board of Mediation, as
a source for arbitrators, since this would result in a sub-
stantial reduction in fees. It was agreed that the New
York State Board of Mediation would be substituted for
the AAA for the selection of arbitrators. 17
The conversation turned to the wages and benefits for
Respondent's manufacturing employees. The Union's
proposal for an $11 increase for the first year of the con-
tract was discussed. DeGennaro indicated to Respondent
that the $1 increase for that particular year was more
than a fair amount. Respondent's officials agreed on this
figure.
This finding is based on the credited testimony of De-
Gennaro, who impressed me as a believable witness. I do
not credit Mark Arroll's contrived testimony that De-
Gennaro stated that the $1 I increase would be a one
time increase and that there would be no increase for the
next 2 years. Even his brother Roy contradicted Mark
on this point, denying that there was any mention of
whether there would be raises in the remaining 2 years
of the contract. This corroborates Mitchell and DeGen-
naro, and I so find that there was nothing said by the
Union or Respondent at the meeting about whether or
not raises would be provided for in the second and third
years of the contract with respect to manufacturing em-
ployees.
Roy Arroll brought up the fact that Respondent was
the only Employer engaged in manufacturing who was
paying an annuity and that Respondent was paying
higher pension and welfare than its competitors."' Arroll
by Respondent coincided with the Atomic memorandum in most respects
using identical language.
Is White had been discharged by Respondent for allegedly assaulting
Krassner.
IT The Arroll brothers testified that the agreement reached with re-
spect to the arbitration clause was to substitute the process of mediation
with arbitration. I do not credit such testimony and instead credit Mit-
chell's and DeGennaro's version as set forth above. In addition to my
comparative demeanor assessments discussed infra. I also rely herein on
Mark Arroll's January 7 letter setting forth Respondent's objections to
the alleged agreement, which will be discussed below. This letter fails to
mention this alleged discrepancy, although mentioning numerous others.
Thus, I find this to be a mere afterthought conjured up by Respondent to
justify not signing the agreement, and further tends to corroborate the
union witnesses' testimony on this issue
ts At the time Respondent was making higher pension and welfare
contributions than New York, Brenner, and Huxley, and neither of these
Continued
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested that either the annuity payment be eliminated
or modified for Respondent, or that Respondent's total
wage package including fringe benefits be equalized with
these competitors.
Mitchell replied that he could not take away or reduce
the annuity that the people have and that he could not
agree to wages for employees which were not compara-
ble in the industry. Mitchell did state that Respondent's
manufacturing competitors (New York, Huxley, and
Brenner) would probably come closer to Respondent's
pension payments in the upcoming negotiations and that
he would propose an annuity for these firms in these ne-
gotiations and would try to get it in the next contract to
be signed. 9
Mitchell also reminded Respondent that he had frozen
the annuity at $10 per week for its manufacturing em-
ployees in 1976, and that Respondent had its chance in
1970 to agree to the manufacturers contract in toto, and
had declined to do so.
Based on the failure of Respondent's officials to con-
test the Union's specific proposals for printing employ-
ees, and, although Respondent's proposals such as no
welfare payments for discharged employees were still on
the table, Mitchell concluded that in his mind there was
sufficient agreement reached for him to draw up a pro-
posed memorandum of agreement, which he indicated
that he would do. None of Respondent's officials made
any response to Mitchell's assertion that he would draw
up such an agreement, and the meeting concluded.
Mitchell then went back to his office and prepared a
memorandum of agreement, dated August 3, 1979. The
agreement uses the same preliminary language as is in-
cluded in the Atomic, Melo, and West Shore memoranda
of agreement; "Except for the following amendments our
Collective Bargaining Agreement which expired March
31, 1979 shall remain in full force and effect."
The first portion of the agreement is entitled manufac-
turing and printing divisions. It sets forth the term of the
agreement, April 1, 1979, to March 31, 1982, increases to
the Union's welfare fund totaling $21 per week per em-
ployee over a 3-year period, and a provision extending
the trial period for new employees from 30 to 60 days if
Respondent requests. In addition the agreement contains
the following language; "3. Settlement of Disputes, Differ-
ences and Grievances. The American Arbitration Associ-
ation shall be replaced by the New York State Board of
Mediation."
companies was paying for an annuity. Respondent employed 14 employ-
ees engaged in manufacturing functions. and 4 involved in printing work.
Brenner employs approximately 100 employees, New York 200, and
Huxley 50-55.
19 I do not credit Mark or Roy Arroll's testimony that Mitchell guar-
anteed or assured Respondent that its competitors would get an annuity
in their next contract. In fact Roy Arroll, when pressed on cross-exami-
nation as to the words used by Mitchell in assuring Respondent that these
firms would get an annuity, admitted that Mitchell had merely promised
to make a proposal to these companies for an annuity. Arroll testified
that "when they indicate that they're going to propose something you
can rest assured they're going to get it," and admitted that, based on this
assumption of his, he took the Union's promise to propose an annuity as
being tantamount to a promise to secure such an agreement from his
competitors. This is an example of the contrived testimony of Arroll,
which supports my conclusion to discredit him generally as indicated
above.
The agreement then divides into a section entitled
manufacturing division only. Section 1, entitled wages,
states, "Effective April 1, 1979 no employee shall receive
less than a weekly increase of Eleven Dollars ($11.00)
per week." Nothing in the agreement refers to an in-
crease in 1980 or 1981 for the manufacturing employees.
Section 2 of the portion of the agreement restricted to
manufacturing employees permits Respondent to pay in-
experienced employees 75 cents an hour below mini-
mum, but that such employee must reach the minimum
by receiving increases of 25 cents per hour per month.
Section 3, entitled vacations, provides for slight increases
in vacation entitlements from the prior agreement.20
The memorandun then includes a section entitled
printing division only, which follows the Atomic memo-
randum of agreement with the Union. As for wages, it
provides wage increases of $20 per week per year, effec-
tive on April 1, 1979, 1980, and 1981. In addition, it was
agreed that cost-of-living increases would be paid into
the annuity fund, the current progression schedule shall
be increased from 18 to 24 months, and a pension in-
crease of $3 per week per employee effective April 1,
1981, was included. Additionally under a section headed
"New Classification," it was provided, "the classification
of General Helper shall be added to our Agreement, the
duties and rates of pay shall be that which is agreed
upon by the Envelope Printers (Melo, Atomic and West
Shore) who have collective bargaining agreements with
Local 447."21
Mitchell, after preparing the memorandum, called Roy
Arroll and arranged for a meeting for August 6 at the
plant. Present were Mitchell, DeGennaro, Roy Arroll,
and Bob and Beatrice Krassner. Mark Arroll was not
present. Mitchell presented Respondent with his pro-
posed memorandum of agreement as set forth above.
Once again Roy Arroll talked about obtaining some
relief by virtue of Respondent having to pay an annuity
and higher fringe benefits than its manufacturing compet-
itors. Mitchell repeated what he had said in prior meet-
ings that the Union hoped to obtain an increase in pen-
sions in the next manufacturers contract and it would
propose an annuity and try to obtain same from Re-
spondent's competitors. Mitchell also repeated that the
Union had given Respondent relief in 1976 by freezing
the annuity for manufacturing employees and could give
no more and again reminded Arroll of his decision in
1970 not to accept the manufacturer's contract in toto as
offered by the Union.
Extensive discussion occurred with respect to Re-
spondent's obligation to pay welfare for 60 days even
where employees are discharged for cause. Particular
mention was made of the Charlie White incident where
Respondent discharged him for allegedly assaulting Bob
Krassner, and the Union was claiming welfare payments
20 For example the prior agreement called for 2 weeks' vacation for
employees employed from 1-10 years, and 3 weeks for those employed
10-20 years. The memorandum of agreement calls for 2 weeks' vacation
for employees employed from 1-9 years and 3 weeks for 9-14 year em-
ployees, with additional days for 14-18 year employees.
21 The Atomic memorandum provided for the addition of this new
classification, with a provision that the duties and rates of pay were to be
agreed upon by the Company and the Union.
530
DIPLOMAT ENVELOPE CORP.
for him for 60 days after discharge. Bea Krassner ex-
pressed particular outrage at this requirement, and could
not understand how the Union could request payments
for one who had assaulted her husband, a high ranking
official and officer of the Company. Mitchell responded
that you cannot judge the Union or the rules by one or
two incidents. He explained that the requirement of con-
tinued contributions is a rule set by the trustees and he
(Mitchell) could not change this policy.
Arroll then asked about obtaining some relief with re-
spect to a night-shift differential. The parties then negoti-
ated a revision in the prior agreement with respect to
this clause.2 2 The agreement which Mitchell inserted
handwritten on the last page of the memorandum of
agreement called for an 8-percent differential from April
1, 1979, to March 31, 1981, and 10 percent from April 1,
1981, to March 31, 1982.
At that point Krassner and Arroll caucused and
agreed to sign the memorandum. Arroll signed on behalf
of Respondent and Mitchell for the Union. Mitchell and
DeGennaro then proceeded downstairs to the plant and
obtained ratification of the agreement. The employees
were specifically informed by Mitchell that the new con-
tract will provide for wage increases for the manufactur-
ing employees of $11 a week for the first year, and for
the second and third years of the contract they would be
receiving the same wage increase negotiated by the
Union with New York, Brenner, and Huxley. There
were no representatives of management present during
the ratification vote, nor does the record reveal that any
official of Respondent became aware of what Mitchell
informed the employees as to what the contract would
contain. Mitchell did inform Arroll that the contract had
been ratified, and in a subsequent conversation in late
August, the parties agreed that Arroll would be permit-
ted to pay the retroactive wage increases in two parts.23
Two or 3 days after the memorandum of agreement
was executed, Roy Arroll informed his brother Mark
that he signed the agreement with the Union. Mark indi-
cated that he was surprised that Roy had signed any
agreements. Roy replied that it looked like a reasonable
enough deal so he signed it. Mark responded, "[A]II right
look, whatever you did you did, we can't undo, let's
wait until the formal contract comes in and you know,
we'll see what if you signed it, you'll have to sign it."
On September 14, 1979, Mitchell as trustee of the
Union's annuity fund mailed a letter to Respondent indi-
cating that effective October 1, 1979, its contribution to
the annuity fund would be increased to $21 per week per
member. Respondent sent no response to this letter to
either the Union or the annuity fund.
Respondent did not make any payments to the fund at
this $21 rate. Payments were made by Respondent at the
$18 rate for printing employees and $10 for manufactur-
*2 The prior addendum provided for a 10-percent differential for night-
shift employees. Respondent had not instituted such a shift, but at the
time of the 1979 agreement was contemplating doing so.
3S Note that the agreement provided for wage increases retroactive to
April 1, 1979. Respondent paid the increases to its employees as agreed
upon.
ing employees covering periods of time up to December
1979.24
In December Mitchell prepared what he believed to
be the collective-bargaining agreement reached by the
parties by redrafting those terms of the 1976-79 agree-
ment and addendum as modified by the memorandum of
agreement executed on August 6. Mitchell mailed a copy
of the proposed agreement with a covering letter dated
December 24, 1979. The letter indicates that the final
draft of the Agreement is enclosed, requests that Re-
spondent review and sign the document, and concludes
by stating, "should there be any questions, please contact
the writer."
Shortly after receiving the proposed agreement from
the Union, Roy Arroll read it over, and contends that he
noticed certain discrepancies between the agreement and
what he believed was agreed to on August 6. He then
sent the agreement to his brother Mark for his review.
Mark Arroll sent a letter to his brother Roy, dated Janu-
ary 7, 1980, setting forth his opinion as to the proposed
contract and his recommendation not to sign same. This
letter constitutes, according to Mark Arroll, Respond-
ent's objections to signing the agreement. Said letter is
set forth below:
RE: Union Contract
Dear Roy:
I have reviewed briefly the copy of the proposed
union contract sent to you by Local 447. As I pre-
viously advised my strong recommendation is that
you not sign it. This proposed agreement has many
items in it not agreed to and omits various items
that were agreed to.
Before discussing these problems it should be
kept in mind that you agreed pursuant to a "memo-
randum of Agreement" dated August 3, 1979 that
the prior agreement which expired on March 31,
1979 was to be extended until March 31, 1982 and
was to ramain [sic] the same except for the changes
specifically set forth in the memorandum of Agree-
ment. With this background in mind here are the
problem areas my initial brief reiview [sic] of the
proposed contract discloses.
One final preliminary note. Before going any fur-
ther please have in front of you the agreement for
1976-1979, the addendum to Agreement dated
5/14/76, the memorandum of Agreement dated
August 3, 1979 and the proposed new contract with
attached riders covering the period 1979-1982.
1. The vacation schedule found on pages 6-7
(paragraph ninth) omits to state that such schedule
is only for the Printing or non-manufacturing divi-
24 Respondent also continued to make pension and welfare contribu-
tions to the appropriate funds for this period of time. Respondent gener-
ally made its payments a number of months past the due date. For exam-
ple the payments for April were made by check dated August 2, and for
May by check dated October 30, and so on. The last payments received
for the month of November 1979, was made by check dated March 24,
1980.
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion and does not set forth the vacation schedule for
the manufacturing division which is less.
The vacation schedule for manufacturing is sup-
posed to be as set forth in the memorandum of
Agreement dated August 3, 1979. Two brief con-
ments should be made about this schedule: (a) this
was never discussed or agreed to at our July 1979
meeting, and (b) there are some obvious typographi-
cal errors. It should read "6 months but less than I
year-I week; I year but less than 10 years-2
weeks" etc. as the old agreement (memorandum
dated 5/14/76) read.
2. With respect to wages, Pages 7-8, paragraph
tenth, it should be made clear that provision only
applies to printing.
3. With respect to wages there is a new classifica-
tion added "platemaker/stripper" with wages of
$245.50, $265.50 and $285.50 for 1979, 1980 or 1981
respectively. This was not agreed to. This category
was not in the old contract and is not mentioned in
the memorandum of Agreement dated August 3,
1979.
4. Also with respect to wages there is a new cat-
egory (p. 8) "General Help" [sic]. The memoran-
dum of Agreement dated August 3, 1979 page 3
refers to a new category of "general helper" and
says we will pay the lowest as negotiated by the
Envelope Printers (Melo, Atomic and Westshore).
We should see their signed contracts before agree-
ing to this. If not we can negotiate our own lower
salary.
5. Again with reference to wages, there is a
clause on page 8 that says in substance employees
performing camera work are to receive $5.00 more
per day that [sic] the platemaker-stripper contract
rate of pay. This was not agreed to. The old con-
tract made no mention of this and the memorandum
of Agreement dated August 3, 1979 said the old
contract was to apply except as provided therein.
The memorandum of Agreement also makes no
mention of this.
6. Again with wages, there are two "riders" at-
tached to the contract which ends with page 15.
The first rider is entitled "Addendum to Agreement
dated 8/3/79." There are several errors undoubted-
ly caused by the secretary copying from an old
agreement and forgetting to change the date or
tense, etc.
a. On Page 1, the first sentence with the heading
"Vacation" the words "the effective date of this
agreement" after "April 1, 1973" should be deleted.
b. The vacation schedule should conform to my
comments in "I" above.
c. The entire paragraph entitled "Geographic
Areas Clause and Successors and Assign Clause"
(P. 1-2 of Addendum to Agreement dated 8/3/79)
should probably be eliminated.
d. [Sic] With regard to Annuity benefits the
Union has created chaos. This is one of the most
important problem areas.
Again as a reminder this contract according to
the memorandum of Agreement dated 8/3/79 is
supposed to be the same as the old 1976-1979 agree-
ment unless something to the contrary is stated.
The old Agreement (1976-1979) on page 13 para-
graph 15 (b) said annuity payments are $10.00 per
week per employee and that effective April 1, 1978
that was to be increased by $2.00 i.e. $12.00 per
week. However, the Addendum to the Agreement
dated 5/14/76 on page 3 provides that notwith-
standing the provisions of Article 15(B) the maxi-
mum contribution for the term of this agreement
(1976-1979) is $10.00 per week per employee.
I interpret this to mean that the maximum contri-
bution to the annuity is $10.00 per week. If we have
paid more we are in my opinion entitled to get a
refund or a credit. In my opinion the simple solu-
tion is to calculate the overpayment and take a
credit against future payments with an accompany-
ing letter to the Union.
The confusion here is just beginning. The new
contract is supposed to have the same terms as the
old contract; however, this is not exactly the case.
The new contract on page 13, paragraph 15(b) calls
for $18.00 a week which is not in accordance with
the old contract or the memorandum of Agreement
dated August 3, 1979. To further confuse the situa-
tion in the first "rider" attached to the new pro-
posed contract entitled "Addendum to Agreement"
dated 8/3/79 on page 2 under the heading "Annuity
Benefits" there is the same language as before
namely notwithstanding the provisions of paragraph
15(b) the maximum contribution to the annuity for
the term of the Agreement (1979-1982) is $10.00 per
week per employee.
e. In the same addendum as referred to above on
page 2 under the heading "Wage increases" there is
a provision for an $11.00 per week increase effec-
tive April 1, 1979. That is what we agreed to in the
memorandum of Agreement dated August 3, 1979.
However, the Union goes on to provide that for
1980 and 1981 we are to pay the same increase as
Brenner, New York Envelope or Huxley. We never
agreed to this. There is nothing in the memorandum
Agreement dated August 3, 1979 to this effect, nor
was it ever discussed in my presence. My under-
standing was that there was only one increase of
$11.00 per week retroactive to April 1, 1979 and
that's what we should stick to.
All references on pages 2-3 to using Brenner,
New York Envelope and Huxley as some sort of
guide should be eliminated.
In the addendum to Agreement dated 5/14/76 on
pages 3-4, we made reference to Brenner, et al.;
however, we specifically stated that such reference
"shall be limited solely to the term of this Agree-
ment which terminates on March 31, 1979, and it
shall in any [sic] way be considered as precedent in
any future negotiations in any legal proceeding or
in any manner whatever." The Union has chosen to
ignore this clear and unequivocal language.
7. The second rider entitled "Tenth: Wages" lists
various classifications and wage rates whose accura-
532
DIPLOMAT ENVELOPE CORP.
cy I cannot confirm as they were not set forth in
the old agreement.
8. Either all references to David Smith should be
deleted including the footnote on the second rider
as in "7" above or the language should be reworded
so as to read as "David Smith formerly performed"
or perhaps better, a brief but inclusive description
of all services performed by David Smith without
mentioning him by name.
9. All references to the Union's or trustee's rules
and regulations should be eliminated.
10. Paragraph Eleventh-Welfare benefits-all
references to us paying welfare benefits for 60 days
after termination or layoff should be eliminated.
11. Paragraph "Thirteenth" should be reworded
so that only the Union can make a claim for a
worker and not the worker or perhaps vice versa
but not both. This is the Charles White problem in
part. The Union's lawyers even suggested this
change.
12. There are a few minor miscellaneous changes
such as cost of living I would recommend but
which are not worthwhile discussing in this already
overlong letter.
13. The agreement should be properly dated. I
can only guess why the date of June 28, 1979 is
given on page 15. It should be January-, 1980 or
whenever.
It is clear to me and I am sure to you that the
Union has and intends to take advantage of every
conceivable clause in their favor. We should do no
less. If by way of example the Union through inad-
vertence or otherwise did not put a clause in the
memorandum of Agreement dated August 3, 1979
that the manufacturing division does not get any in-
crease beyond the initial one of $11.00, that should
be enforced. They should not be permitted to have
all the terms of the memo agreement binding on us
without giving any concessions in the main agree-
ment but allowing them to insert terms in the main
agreement wiich were never in the memo agree-
ment when it is to the Union's benefit.
That the Union intends to push to the limit and
beyond is best illustrated by their demand for var-
ious welfare, disability insurance payments and the
like for people such as Charles White who were
caught stealing and/or who simply left and never
returned. They are even making claims for benefits
never contracted for such as insurance, disability,
etc. I strongly urge that all these claims and annuity
claims be resolved before any new Union contract
is signed. There should be a formal release signed
by the Union dropping and resolving these claims.
Please call me when you get a chance.
Mark Arroll testified that he attempted to reach
Mitchell by phone to inform him of Respondent's objec-
tions to the Agreement, but he was unsuccessful. Re-
spondent did not at that time notify the Union in writing
of its position on signing the Agreement.
On January 25, 1980, Respondent terminated Thomas
Dugan, allegedly for two unauthorized absences. By
letter dated February 6, 1980, DeGennaro notified the
New York State Board of Mediation, with a copy to Re-
spondent, that it had been unable to resolve a dispute
with Respondent regarding Dugan's discharge, and it
was submitting the dispute to the board for resolution.
On February 20, 1980, Mitchell wrote a letter to Re-
spondent inquiring why the Union had not heard from
them as to signing the contract submitted on December
29.
On February 19, 1980, Mark Arroll sent a letter to
Parsonnet, Duggan & Pykon, the Union's attorneys at
the time. This letter was in response to Parsonnet's Feb-
ruary 13 letter to Arroll requesting payments to the
Union's funds through January 1980. Arroll, in his re-
sponse disputing certain of Parsonnet's assertions as to
what moneys were owed, for the first time takes the po-
sition that the proposed contract does not reflect what
the parties agreed to in their August memorandum. The
letter goes on to say that Arroll and Parsonnet had alleg-
edly, when the Charles White problem came up, agreed
that, in the event of a dispute, only the Union could
demand arbitration and not the employee, and that the
new agreement did not contain such a provision.2 5
Arroll then pointed out that he felt the agreement
reached called for nonbinding mediation, but that the
contract submitted by the Union provided for binding
mediation or in other words arbitration.
Arroll concluded the letter by stating that he intended
to move to stay the arbitration requested by the Union
based on Dugan's discharge, which he subsequently did
on February 26, 1980.26 In its moving papers in New
York State Supreme Court, Respondent alleged that no
contract was in existence at the time, contending that the
Union's proposed contract was not in accord with the
agreements reached on August 3, specifying many of the
same objections set forth in Mark Arroll's January 7
letter to his brother Roy. The motion also stated that, in
the event mediation was ordered, it should be nonbind-
ing, since this was agreed to by the parties. The motion
also asserted that service of the Union's demand was im-
proper. The court granted the motion to stay solely be-
cause of deficiencies in service of the Union's demand
for arbitration.
On February 27, 1980, the annuity fund notified Re-
spondent that as of August 1, 1980, annuity contributions
for printing employees would be S24 per week.
On March 20, 1980, Mitchell notified Respondent by
letter that the Union had completed its negotiations with
New York, Brenner, and Huxley and noted that wage in-
creases of S15 per week were therefore payable on April
1, 1980, and April 1, 1981.
Respondent responded on March 28 by a letter from
Roy Arroll to Mitchell rejecting any obligation to pay
this increase, since the August 3 memorandum contains
'5 As noted above, Charles White was terminated for assaulting
Krassner and Respondent was most unhappy about having to arbitrate his
discharge and having been charged by the Union for welfare payments
for the 60-day period subsequent to his discharge.
's Although Arroll phrased the letter and his court papers in terms of
moving to stay mediation, it is clear he was referring to binding media-
tion or arbitration.
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no reference to Respondent's being bound by any in-
creases granted by these other firms.
Respondent did not grant the increases to the manu-
facturing employees as of April 1980, but did grant the
$20 increase per week to its printing employees. Arroll
testified that, since he had clearly agreed to pay this in-
crease, he felt obligated to the printing employees who
had been counting on the raise to institute it on April 1,
1980, and he did so after consultations with his brother
Mark.
On April 14, 1980, the Union filed another demand for
arbitration with respect to Respondent's failure to pay
the manufacturing wage increase, and failure to make
pension, welfare, and annuity payments to the funds.27
By letter dated April 14 from Mark Arroll to Mitchell,
Respondent announced that in its view the Union has re-
scinded the memorandum of agreement executed on
August 3, 1979, and that therefore there was no contract
in existence. The letter further announced that he (Mark
Arroll) was recommending to Respondent that it contin-
ue to pay the wages called for in the memorandum, but
not to pay any fringe benefits, such as annuities, pension,
welfare, etc. until the matter was resolved.a2
Arroll also added in the letter that in his view the
memorandum as to annuities called for the prior con-
tracts rates, i.e., $10 per week, and therefore Respondent
had overpaid for several months and would request a
return of the alleged overpayment.
The letter concludes by stating that dues would con-
tinue to be checked off for a reasonable period of time
until the parties have a chance to resolve the matter.
On April 22, 1980, Respondent commenced an action
in the Supreme Court, New York county, requesting that
the Court rescind the memorandum of agreement signed
by Respondent because of the Union's fraud, 29 or by
reason of mistake and because of subsequent acts and
breaches of the Union,3 0 for a declaratory judgment that
" Arbitration was again stayed by the state court for failure to make
proper service.
" Respondent in fact failed to make any more payments to the funds
after this date. Since Respondent, as noted above, was traditionally sever-
al months behind in its payments, the result was that payments were
made into the funds only through November 1979, and Respondent has
continued to fail to make any payments to the funds for any of its unit
employees to date.
sa The fraud allegation refers to Respondent's claim that union repre-
sentatives materially misrepresented to Respondent's officials that it
would obtain the same wage and fringe benefits from Respondent's com-
petitors in its upcoming negotiations. It was alleged that Respondent
would not have signed the memorandum but for these misrepresentations
by the Union. With respect to this issue Roy Arroll testified that, in each
of the past three negotiations, Mitchell made similar "assurances" to him
that it would obtain the same benefits from Respondent's competitors,
and yet he signed contracts in the past and signed the instant memoran-
dum without obtaining such assurances in writing. In addition as noted
above, when questioned closely on the words used by Mitchell, he ad-
mitted that Mitchell merely said that he would make such proposals and
try to obtain them in negotiations with his competitors.
0o Referring to the Union's proposed agreement in January 1980,
which allegedly differed from the agreement reached in August 1979. It
was also alleged by Respondent that the memorandum of agreement was
signed on August 6, 1979, by Respondent in the absence of and without
prior knowledge or consent of its attorney. In these connections, Arroll,
in cross-examining Mitchell at the hearing, asked him why he had not
notified Mark Arroll of the August 6 meeting and why he signed the
agreement without Mark's being present. Mitchell responded that if
Mark's presence were required it was up to Respondent to have him
certain provisions of the memorandum are null and void
or unconcionable, unconstitutional, or against public
policy, or if the Court finds a valid agreement declaring
the correct meaning of the contract, and for damages.
Additionally, Respondent sought to enjoin the Union
continuing any civil actions against Respondent including
any attempted arbitration or mediation.
Shortly after the filing of this lawsuit, Mitchell and
Roy Arroll had a telephone conversation, in which they
were discussing various subjects. During the course of
this conversation, Mitchell referred to the proposed con-
tract that he had sent to Respondent. He mentioned the
fact that the Union had inadvertently left out a clause on
hiring of new employees which had been agreed to on
August 6 and was included in the memorandum. Mitch-
ell stated that the Union would put this in a separate
letter and send it to Arroll.
Mitchell then referred to Respondent's lawsuit and it's
contention therein that the Union had included a plate-
maker-stripper clause that had not been agreed to.
Mitchell reminded Arroll that they had made an oral
agreement years ago, that, whatever the Union gives to
the Envelope Printers, Respondent would also get.
Mitchell informed Arroll however that if he did not
want this clause included he (Mitchell) would agree to
take it out of the contract. Arroll did not respond to this
offer of Mitchell.
The clause in question provides for a new job classifi-
cation entitled platemaker-stripper with a minimum
salary of $245.50, $265.50, and $285.50 effective April 1,
1979, through April 1, 1981. It also provides that em-
ployees performing camera work shall receive $5 per
day over the platemaker-stripper contract rate of pay. It
is undisputed that neither of these provisions were in-
cluded in the prior contracts nor in the August memo-
randum signed by the parties.
Roy Arroll testified that he would not have signed the
August memorandum if it had included the camera-plate-
maker-stripper clauses as set forth above. At the time
Respondent had no employee in such a job classification.
Frank Cano, a long-term employee making $350-S400
per week, was the only employee regularly performing
such work. Thus the $5 differential would be inapplica-
ble to Cano, since he was and is making well above the
minimum salary in the contract. When asked how the in-
sertion of this clause could cost Respondent any money,
Arroll replied that the Union could say that Cano was a
foreman and he would then have to hire a new man to
perform this work. However, Arroll admitted that the
Union had never taken the position that Cano, a member
of the unit, was a foreman nor that he should not per-
form this work.
On May 7, 1980, the Union filed a motion to remove
Respondent's State Court action to the Federal Court,
and served a counterclaim requesting a declaration that
the parties entered into a valid contract.
On July 1, 1980, Respondent posted a notice that, ef-
fective immediately, it would no longer check off or
there. Nothing was ever said by Roy Arroll or any Respondent official
to the Union that Mark Arroll's presence or approval was required
before an agreement could be reached.
534
DIPLOMAT ENVELOPE CORP.
withhold dues from any employees' salary and would not
remit such dues to the Union.
On July 9, 1980, DeGennaro, at that time the president
of the Union, sent a letter to Respondent, stating that
upon receiving the terms of the August memorandum to-
gether with the final version of the contract sent by the
Union he noticed a clause inadvertently omitted from ar-
ticle eight. The clause was quoted as follows:
The Union, upon written request shall grant the
Employer with the consent of the employee in-
volved, an extension of the trial period not to
exceed an additional thirty (30) calendar days.31
By letter dated March 18, 1981, DeGennaro notified
Respondent that it was in arrears since December 1979
to the Union's annuity, pension, and welfare funds, in the
sum of approximately $48,000.
On May 11, 1981, the Honorable Justice Charles S.
Haight, Jr., of the United States district court, issued a
memorandum opinion and order in Case 80 Cir. 2668-
CSH, dealing with a motion made by Respondent herein
to remand the action filed by it, back to the state court.
Judge Haight found that the complaint states a cause
of action under LMRA Section 301, and the district
court has jurisdiction to determine whether there is a
valid contract. Although Respondent characterized its
complaint in terms of raising state law issues, the Judge
found that this "is belied by the express language of the
complaint, which reveals this is in fact an action to
enjoin arbitration."
Accordingly, Judge Haight denied Respondent's
motion to remand the action to the state court. The
matter has been placed on the "Suspense Docket" of the
court, pending Board disposition of the instant com-
plaint.
Ill. ANALYSIS
A. The Prior Court Actions
Respondent at the outset of the hearing and again in
its brief moved to dismiss the instant complaint "as a
matter of right and of discretion, because of the prior ac-
tions and proceedings pending."
As a result of Judge Haight's decision to deny Re-
spondent's motion to remand the prior state court actions
back to the state court, the only litigation between the
parties which is now pending is Respondent's state court
lawsuit now removed to the Federal Court. Respondent
argues that since this action was commenced prior to the
National Labor Relations Board proceeding and the
Union has asserted a counterclaim in that action, request-
ing essentially the same relief that the Board would
grant, that the instant complaint should be dismissed, and
the issues resolved by the Federal Court. I do not agree.
It is well settled that the Federal Court has concurrent
authority or jurisdiction to decide matters arising under
collective-bargaining agreements, even where conduct
arguably protected or prohibited by the Act may be in-
aL This was the hiring clause referred to by Mitchell in his conversa-
tion with Roy Arroll, set forth above, shortly after Respondent's lawsuit
was filed.
volved. Smith v. Evening News Association, 371 U.S. 195
(1962).
It has also been recognized by the Supreme Court that
the Board is "vested with primary jurisdiction to deter-
mine what is or is not an unfair labor practice." Kaiser
Steel Corp. v. Mullins, 109 LRRM 2268 (1982).
Historically, conflicts arising from dual jurisdiction
have usually been avoided by discretionary action on the
part of the judiciary whereby lawsuits are stayed pend-
ing disposition by the Board of the unfair labor prac-
tice. 32 In fact this was the course chosen by Judge
Haight in the instant matter. It would be anomalous
indeed not to mention a waste of everyone's time and re-
sources to dismiss the instant complaint, and relegate the
parties to go through another hearing in Federal Court.
It is clear that the special administrative competence
of the Board, as recognized by Supreme Court, should
certainly take precedence in the instant case, particularly
over a Federal Court proceeding which has been
stayed. 33
Accordingly, I find no legal or equitable 3 4 basis for
Respondent's assertion that the pendency of the Federal
Court action precludes Board action and mandates dis-
missal herein. 35
I shall therefore deny Respondent's motion to dismiss
and shall proceed to decide the merits of the instant
complaint.36
B. Did the Parties Reach Agreement on Terms of a
New Contract?
It is well established that an employer's failure to
reduce to writing an agreement reached with a union
constitutes an unlawful refusal to bargain. H. J. Heinz
Company v. N.L.R.B., 311 U.S. 514 (1941). The principal
question, therefore, is whether the parties reached agree-
ment, or put another way, whether the parties when they
signed the memorandum of agreement on August 6 had
reached a "meeting of the minds" on terms and condi-
tions of employment for Respondent's employees.
The expression "meeting of the minds" does not re-
quire that both parties have identical subjective under-
sa Newport News Shipbuilding and Dry Dock Company, 253 NLRB 721,
728 (1980).
3s See Newport News, supra, where the Board refused to even give res
judicata effect to a Federal Court decision already decided on the same
issue.
4' Respondent's argument that the Union by asserting a counterclaim
in the Federal Court action has somehow waived the rights to Board de-
termination is without merit. The Union should not be penalized for pre-
serving its rights in said action should the Federal Court decide to adju-
dicate the respective claims asserted.
"s New Orleans Typographical Union Na 17 (E. P. Riws] v. N.LR.B.,
368 F.2d 755. 767 (6th Cir. 1966); Jacobs Transfer, Inc., 227 NLRB 1231
(1977); Newport News. supra.
3s As an additional reason for denying Respondent's motion to dismiss
and defer to the Federal Court proceeding, I note that the instant com-
plaint contains some allegations not dependent on the existence of a cur-
rent contract. Thus the complaint alleges that Respondent unilaterally
changed various terms and conditions of employment of its employees,
and, as will be discussed more fully infra, a violation of the Act can be
found, even if the parties did not reach agreement on the terms of a new
contract as alleged in the complaint. This issue would not seem to be
cognizable under the Federal Court's Sec. 301 jurisdiction. Therefore, to
bifurcate the case and defer part of the instant complaint to the Federal
Court would be a useless and unwieldy procedure.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standings on the meaning of material terms of the con-
tract. Vallejo Retail Trade Bureau and its Employer-Mem-
bers, 243 NLRB 762 (1979). Rather, subjective under-
standings or misunderstandings as to the meaning of
terms which have been assented to are irrelevant, pro-
vided that the terms themselves are unambiguous judged
by a reasonable standard.s
Where the alleged agreement reached is ambiguous,
extrinsic or parol evidence has relevance in determining
whether agreement or a meeting of the minds has been
reached. 8
The bargaining history and all other relevant circum-
stances surrounding the negotiations must be examined to
determine if an enforceable agreement has been reached.
McKinzie, supra; North Coast Counties District Council of
Carpenters, et al. (Cotati Cabinet Manufacturing Corp.),
197 NLRB 905 (1972).
In applying the above-cited principles to the facts
herein, there is no dispute that the parties executed a
memorandum of agreement on August 6. The Union, on
December 29, prepared and sent to Respondent a pro-
posed contract allegedly incorporating the agreement
reached on August 6.
Respondent contends that the Union's proposed con-
tract deviates significantly from the terms of the August
memorandum, and that therefore no meeting of the
minds was reached on the terms of a new agreement.
It is clear that, by signing the memorandum, the par-
ties agreed to extend the terms of the 1976 contract,
except as modified by the memorandum. There is dis-
agreement as to the interpretation of this language, par-
ticularly as it relates to certain clauses in the 1976 con-
tract which the parties did not specifically change in the
memorandum, and which were not specifically discussed
during the 1979 negotiations.
The most substantial of these disagreements, which
Respondent relies on most heavily in its brief in arguing
that no agreement was reached, relates to wage increases
for manufacturing employees. The memorandum calls for
wage increases for manufacturing employees of $11 per
week, effective April 1, 1979. The memorandum is silent
as to second and third year wage increases for these em-
ployees.3 9
The 1976 contract provides second and third year in-
creases for manufacturing employees to be based on
wage increases agreed to by three of Respondent's com-
petitors. This contract also contains language that the
agreement to be bound by the wage increases negotiated
by these firms "shall be limited solely to the term of this
Agreement which terminates on March 31, 1979, and it
shall in no way be considered as precedent in any future
negotiations in any legal proceeding or in any manner
whatever."
I find that the language of these documents creates an
ambiguity as to what the parties intended when the
memorandum was executed, as to second and third year
3s Pittsburgh-DesMoines Steel Company, 202 NLRB 880 (1973); Vallejp
supra.
38 McKinzie Enterprises Inc. d/b/a Cherokee United Super and West-
park United Super, 250 NLRB 29 (1980).
'3 It must be noted that the memorandum provides wage increases for
printing employees in all 3 years of the contract.
increases for manufacturing employees. This ambiguity
must be resolved by an evaluation of all the surrounding
circumstances, including the bargaining history of the
parties' prior negotiations.
My evaluation of the relevant circumstances convinces
me, and I so find, that when Roy Arroll signed the
August memorandum he intended to agree and knew full
well that his manufacturing employees would receive
wage increases in the second and third year of the con-
tract based on increases negotiated by his competitors. I
am supported in this conclusion by an examination of the
bargaining history. The parties had established in 1973 a
pattern of calculating wage increases for manufacturing
employees, by utilizing the figure agreed upon in the
third year of the contract of Respondent's competitors as
Respondent's first year increase, and it's second and third
year increases to be based on the first 2-year increases
agreed to by these competitors in their succeeding con-
tracts. This agreement was reached as a part of the set-
tlement of a 9-week strike in 1973, and included the same
qualifying language set forth herein, that the agreement
is not to be a precedent for future negotiations. Howev-
er, notwithstanding this qualifying language, the parties
in 1976 executed a contract containing the same pattern
of wage increases and the same qualifying language with-
out any specific negotiation or discussion. In 1976, a
memorandum of agreement was executed, and, although
it did not contain language that the terms of the prior
agreement applied except where modified, the parties
treated the memorandum in that fashion. Thus, the first
year wage increase for manufacturing employees, the
welfare provisions which applied to both manufacturing
and printing employees, and other provisions relating to
printing employees set forth in the 1976 memorandum of
agreement were incorporated into the 1976 contract.
Therefore, Respondent's argument that the qualifying
language that the clause shall not be a precedent for
future negotiations means that it was not intended to be
included in subsequent contracts without specific oral
discussions or agreements is not supported by the parties'
bargaining history.
Thus, the qualifying language does not prohibit the
parties from agreeing to continue the same clauses in
future contracts, nor does it refer to in what fashion or
form the parties can manifest their agreement to extend
these clauses in future contracts. The clause does not say
that the parties cannot agree to an extension of this
clause by simply agreeing to extend all the terms of the
prior contract, subject to certain specified exceptions. In
fact at the time that these clauses were first negotiated,
the parties had not bargained using the device of signing
a memorandum of agreement extending the old contract
with modifications, nor is there any evidence that the
parties at that time contemplated bargaining in that fash-
ion. Therefore I do not believe that the clause was meant
to cover this type of bargaining situation. I note that, at
the time these clauses were first negotiated, the Union
had taken the position during bargaining that Respond-
ent, by failing to take advantage of the Union's prior
offer in 1970 of accepting the manufacturer's contract in
toto, was stuck with retention of the benefits it had nego-
536
DIPLOMAT ENVELOPE CORP.
tiated separately. It is therefore more likely that the
qualifying language was inserted to prevent the Union
from taking a similar position in future negotiations with
respect to the retention of this clause of tying wage in-
creases to those negotiated with Respondent's competi-
tors.
In addition to prior bargaining history, I also note that,
during the instant negotiations, Mitchell proposed an in-
crease of $11 per week for manufacturing employees in
the first year of the contract, and that DeGennaro in at-
tempting to convince Respondent to agree to same indi-
cated that this wage increase for the manufacturing em-
ployees was a fair and reasonable request for that partic-
ular year. These comments suggest that additional wage
increases for the second and third years would be includ-
ed in the contract, and I am persuaded that that was Roy
Arroll's belief when he signed the memorandum of
agreement. Roy Arroll impressed me as an intelligent
and able individual. 40 He was an experienced labor ne-
gotiator, having dealt with the Union for 20 years, per-
sonally negotiated three prior contracts, and possessed a
masters degree in economics. It is inconceivable that
Arroll, with this background and in view of the history
of the parties bargaining,4 could have believed that the
Union could or would agree to a contract, wherein Re-
spondent's 4 printing employees would receive increases
totaling $60 per week over a 3-year period, while its 14
manufacturing employees would receive only an S11 in-
crease in the first year of the contract, and no raises in
subsequent years.
Unions in general and this Union in particular would
not and do not normally agree to such contracts, and I
find that Arroll, an experienced labor negotiator was
fully aware of such realities of labor relations. It is of
course true that unions, particularly in today's troubled
economic times, do occasionally agree to forgo wage in-
creases for particular years, and indeed will sometimes
agree to wage cuts or other reductions in benefits. How-
ever, this is generally done only in situations where the
companies are in dire financial straits, usually in order to
avoid layoffs or shutdowns, and are agreed to by unions
only after lengthy negotiations and requests by the com-
panies involved for such reduction or wage freezes.
There is no such evidence of any dire financial problems
of Respondent existing or being brought up during nego-
tiations. Respondent's main contention was simply that it
was unfair that it was paying an annuity and higher
benefits than its competitors and it wanted some relief
from the Union. Mitchell responded by reminding Re-
spondent that he had given them relief in 1976 by freez-
ing the annuity, would try to get an annuity and higher
fringe contributions from Respondent's competitors, and
again brought up Respondent's failure to accept the
entire manufacturer's contract in 1970. To suggest as
Roy Arroll testified that he believed that the Union was
voluntarily, without Arroll even requesting it, giving him
relief by agreeing to no wage increases for the second
and third years of the contract for over 75 percent of the
40 See Annshire Garment Company, Inc., 211 NLRB 595 (1974).
41 I note that all past contracts negotiated by Arroll have included
wage increases for his manufacturing and printing employees in each year
of each contract.
unit employees is incomprehensible and I do not credit
Arroll's testimony to this effect.42
I find that, when Roy Arroll signed the August memo-
randum, he as well as the Union was without question
fully convinced that the agreement to extend the terms
of the old contract would include the clause tying
second and third year increases for manufacturing em-
ployees to the increases agreed to by Huxley, Brenner,
and New York, as the parties had agreed to for the past
three prior contracts. Therefore I conclude that there
was a "meeting of the minds" on the subject.
Respondent also contends that no "meeting of the
minds" occurred with respect to the annuity provisions
of the contract. Respondent notes that the 1979 memo-
randum provides that the prior contract prevails except
where modified, and that the memorandum does not pro-
vide for any increases in annuity payments. The 1976
contract provided for annuities for printing employees of
$10 per week, plus a $2-per-week raise on April 1, 1978.
Respondent argues therefore that since the parties agreed
that the old contract should apply unless modified, that
the $10 figure per week with $2 raise in the last year
should be applied in the 1979 contract.
However, it must be noted that the 1973 and 1976 con-
tracts, as well as the 1979 proposed contract, provided
that cost-of-living (herein called COL) increases are to
be paid by Respondent, at various times, and at the di-
rection of the Union, into any of the Union's funds, in-
cluding the annuity fund. The 1976 contract also pro-
vides a maximum amount payable of $3 per week per
employee per year and $6 per week over the life of the
contract based on this provision, and a $2 increase on
April 1, 1978, in the annuity fund. The record also re-
veals that, by virtue of the application of the 1976 con-
tract, the Union directed annuity increases to be paid,
raising the annuity payments to $13, $16, and finally $18
per week per employee by the time the contract expired.
Since there is an obvious ambiguity as to the meaning of
the terms of the memorandum as it applies to the annuity
provision, it once again becomes necessary to evaluate
extrinsic evidence in order to determine the true intent of
the parties when the August memorandum was execut-
ed. 43
42 I also note in this connection, Mark Arroll's January letter to his
brother, in which he mentions his (Mark's) various objections to the pro-
posed contract. Mark points out that "if by way of example the Union
through inadvertence or otherwise" failed to include a request for in-
creases beyond S$ I in the memorandum that should be enforced. Mark's
use of the word inadvertence in describing the Union's actions is quite
revealing, and further tends to show that Respondent was quite aware
when signing the agreement that second and third year increases were
contemplated, and that Respondent viewed the Union's failure to include
such a provision in the memorandum as inadvertent and not as an agree-
ment to forgo such increases.
4s In Mark Arroll's January letter to his brother, Mark points to the
addendum to the 1976 and the 1979 proposed agreement, which provides
that the maximum contribution shall be S10 per week per employee for
the annuity. He goes on to say that he interprets this to mean that the
maximum contribution to the annuity should be and should have been
SIO per week for all employees, and that Respondent was entitled to a
credit if it had paid more in the interim. However, this position overlooks
the obvious fact that the addendum by its terms is limited in its applica-
tion to manufacturing employees, and the $10 maximum contribution is
also restricted to such employees I find no ambiguity in this area, and in
Continued
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Once again past bargaining history fully supports the
position of the Union and the qeneral Counsel that there
was a meeting of the minds on this issue. In the 1973
contract, Respondent's annuity contribution for all unit
employees was set at $4 per week per employee. In addi-
tion, the contract provides for COL increases to be paid,
at the direction of the Union to any of the Union's funds.
During the 1973-76 period, pursuant to the Union's di-
rections, the payments to the annuity fund were raised to
$10 per employee.
In 1976 the parties signed a memorandum of agree-
ment providing for a $2 increase per employee effective
April 1, 1978, and a $6 maximum increase to be paid to
the annuity as a result of the COL option of the Union.
The 1976 contract did not go back to the $4 figure in the
1973 contract as a starting point, but to the $10 figure
Respondent was paying at the time the old contract ex-
pired. Thus the 1976 contract provided for an annuity
payment of $10 per week, the $2 raise in April 1978, and
the maximum of $6 additional to the annuity fund based
on the COL clause if the Union so directs. The contract
in the addendum provided for freeze of $10 per week to
the annuity for manufacturing employees. Therefore, bar-
gaining history demonstrates that raises in the annuity
have been granted from the amounts paid by Respondent
at the end of the contract, rather than the amounts set
forth in the prior contract.
The 1979 memorandum did not mention raises in the
annuity, except for providing that all moneys due under
the COL clause would be paid to the annuity fund.
During the course of the negotiations in 1979, Respond-
ent asked for some relief from the Union with respect to
the annuity and or other fringe benefits with respect to
its manufacturing employees. Arroll constantly stressed
the fact that his manufacturing competitors had no annu-
ity and were paying lower fringes and requested some
relief from the Union. Mitchell replied that he had grant-
ed relief in 1976 by freezing the annuity at $10 for manu-
facturing employees, and indicated he would try to
obtain an annuity from Respondent's competitors in the
upcoming negotiations, and again reminded Arroll of his
choice in 1970 to refuse to accept the manufacturer's
contract as offered by the Union. There was no mention
of the annuity for printing employees, and in fact after
the Union presented the Atomic memorandum in July,
setting forth the Union's proposals for printing employ-
ees, there was no discussion concerning matters relating
only to printing employees. 4 4 Since the manufacturing
employees constituted the large majority of the unit, it is
logical that the negotiations would center around discus-
sions concerning their conditions of employment. Thus, I
find nothing in the 1979 negotiations to have suggested
to Respondent that the Union was agreeing to reduce the
annuity payments for printing employees from $18 to $10
as Respondent suggests should be the meaning of the
fact Respondent appears to have abandoned this position at the hearing
and in its brief, and simply urges that the old contract's terms of $10 per
week plus a $2 raise after 2 years be applied to the printing employees.
"4 Of course the discussions relating to changing the American Arbi-
tration to the New York State Board of Mediation as the source of arbi-
trators applied to both printing and manufacturing employees, as did Re-
spondent's request to no longer pay welfare benefits to discharged em-
ployees for 60 days, which also came up during the negotiations.
memorandum. Indeed to the contrary, Mitchell again re-
iterated the Union's position frequently asserted in the
past, that he could not and would not agree to reduce
benefits previously granted to the employees.
Once again I rely as in the case of the second and
third year wage increases, upon Arroll's experience as a
labor negotiator, in general and with this Union in par-
ticular, in making my conclusion that he knew full well
that by signing the memorandum in August he was
agreeing to pay $18 per week to start for the annuity for
manufacturing employees.
In fact, the record testimony of Roy Arroll and state-
ments on the record by Mark Arroll further substantiate
this conclusion. Thus, Roy Arroll on direct examination
indicated that, when he went through the Union's pro-
posed contract, he noticed that "they had differences in
the annuity which we didn't even agree to and then we
couldn't understand these differences how they even ar-
rived at them." However, on cross-examination Arroll
admitted that he was fully familiar with how the Union
arrived at its annuity figures. Thus, he admitted as con-
firmed by Mitchell that, during the course of the 1976-79
contract, the annuity for printing employees was raised
to $13 and then lo $16 pursuant to the Union's direction
under the COL clause, and to $18 pursuant to the April
1, 1978, raise provided in the contract. When asked fur-
ther, Roy Arroll indicated that in his view the maximum
under the old contract would be $18 and what he did
not understand was the Union's request to raise the annu-
ity to $21. Mark Arroll then asserted Respondent's posi-
tion on the record to be that the old agreement provided
for increases of $10 which were raised to $18, and that
Respondent understood the memorandum to mean $18
per week. Moreover, Respondent continued to pay $18
per week to the annuity fund for printing employees, as
late as March 24, 1980, covering the month of November
1979. Thus, to suggest that Respondent believed that the
memorandum of agreement meant that annuity payments
were to be reduced to $10 per week is incredulous.
I find accordingly that, when the parties executed the
memorandum of agreement in August 1979, Roy Arroll
as well as Mitchell were in agreement that annuity pay-
ments for printing employees would start at $18 per
week per employee, as Respondent had been paying
when the contract expired, and that pursuant to past
practice and the terms of the last two agreements signed
by the parties COL increases of up to $3 per year and $6
per contract would be applied to the payment to the an-
nuity fund. I note additionally that the 1979 memoran-
dum of agreement specifically states that all moneys due
under the COL clause shall be applied to payments to
the annuity fund. The fact that the Union chose to re-
quest a raise in the annuity payments pursuant to the
COL provision, in the interim between the time the
memorandum was executed and the proposed contract
was submitted to Respondent, is of no consequence. The
parties were treating the memorandum of agreement as
an interim agreement, and Respondent had paid the
wage increases provided therein retroactive to April
1979. Thus, the Union was clearly within its contractual
rights to take advantage of the provision calling for an
538
DIPLOMAT ENVELOPE CORP.
increase to the annuity in 1979 as a result of the COL
having risen. I find that, contrary to the contrived testi-
mony of Roy Arroll, he was well aware that when he
signed the memorandum that the annuity payments to
printing employees would provide for $18 per week, sub-
ject to a maximum of $6 increases under the COL
clauses, and that he knew that the Union's request in
1979 to raise the annuity to $21 and in 1980 to raise it to
$24 was in accordance with what he voluntarily agreed
to when he executed said memorandum on August 6,
1979. Thus, there was a meeting of the minds on this
issue.
Respondent also contends that there was no agreement
reached on the issue of resolving disputes, or in the alter-
native if there was agreement reached, it was for non-
binding mediation. As noted above, I have credited the
Union's witnesses over the contrary testimony of the
Arroll brothers, and have found that during the 1979 ne-
gotiations the parties orally agreed to replace the Ameri-
can Arbitration Association with the New York State
Board of Mediation, and not to replace the process of ar-
bitration with mediation. Contrary to Respondent, I find
no ambiguity in the documents signed on this issue. The
memorandum provides, "Settlemeni of Disputes, Differ-
ences and Grievances. The American Arbitration Associ-
ation shall be replaced by the New York State Board of
Mediation." Since the expired contract provides a para-
graph entitled "Sett:lement of Disputes, Differences and
Grievances," which recites an involved grievance proce-
dure, culminating in arbitration, I find the only reason-
able and logical interpretation of the memorandum to be
an agreement to substitute the New York State Board of
Mediation for the American Arbitration Association, and
that the remainder of the provisions dealing with the
grievance procedure be unchanged. This conclusion is
fortified by the fact that the parties in their 1970 contract
had substituted the New York State Board of Mediation
for the American Arbitration Association, and in all
other respects the clause was the same. In the 1973 con-
tract the American Arbitration Association was substitut-
ed for the mediation board, with again the remainder of
the clause not changed, and this clause was carried over
in tact in the 1976 contract. Therefore, I find that Roy
Arroll and Respondent knew what the New York State
Board of Mediation was, knew that it supplied arbitrators
for arbitration, and was fully aware when the memoran-
dum was signed in August 1979, that the only change in
the grievance procedure was to be a substitution of the
State Board of Mediation for the American Arbitration
Association as the source for arbitrators as the parties
had agreed to in 1970. 4 5
4' I also note in this connection, as set forth above, that Mark Arroll's
letter to Roy in January setting forth his objections to the proposed
agreement did not mention this issue as having been a problem, although
he detailed therein, numerous insignificant areas such as admitted typo-
graphical errors by the Union. This suggests as I have observed that the
arbitration-mediation issue was a mere afterthought conjured up by Re-
spondent to avoid signing the agreement. It is interesting to note that Re-
spondent made no contention that arbitration had not been agreed to
until after the Union filed for arbitration over the discharge of Dugan,
after Respondent had already been enraged by the Union's filing for arbi-
tration and requesting postdischarge welfare payments for employee
Charles White.
The majority of the remaining objections to the pro-
posed contract set forth by Mark Arroll in his January
letter require scant comment. His comments about the
vacation schedule, wage provision pages 7-8, and vaca-
tion schedule again (items 1, 2, and 6 in the letter) have
no merit, as it is clear that the contract and the memo-
randum when read together create no confusion in these
areas.
As to item 4 in Arroll's letter, the general help catego-
ry provision, it is clear that the August memorandum re-
ferred to this category and provided that Respondent
will pay the lowest wage negotiated by Melo, Atomic,
and Westshore. Arroll's letter does not dispute that this
was agreed to, but merely suggests that Respondent see
their signed contracts before agreeing to this or negotiate
its own salary. An examination of the contracts of
Atomic, Westshore, and Melo reveal that Respondent's
contract calls for the identical rates for this category as
provided for by all of these companies. 46
Objection 6(a) in the letter admittedly refers to typo-
graphical errors which had no effect on Respondent's
failure to sign the agreement.
As to Objection 8, regarding David Smith, it is not
clear what Respondent or Mark Arroll is claiming.
There is no question, as admitted by Roy Arroll on the
record that the parties considered the 1977 letters signed
by each party relating to David Smith and the functions
of any successor to Smith to be part of the 1976 con-
tract. The 1979 proposed contract merely incorporated
the substance of these letters into the body of the new
contract
Items 6(c) (the reference to the geographic successors
clause), 9 (the reference to the trustees rules and regula-
tions), 10 (payment of welfare benefits for 60 days after
termination), 11 (rewording of par. 13 so that only the
Union can make a claim), and 12 (cost of living) of Ar-
roll's letter are not matters where he is asserting that the
Union's proposed contract contradicts the memorandum
executed. They are obviously no more than suggestions
to his brother to attempt to renegotiate the agreement
signed in these areas. In fact some of these suggestions,
such as the deletion of the requirement for paying wel-
fare benefits for 60 days after termination, and elimina-
tion of the requirement of paying according to the rules
of the Union's funds, were brought up by Respondent
during negotiations, but were rejected by the Union.
Arroll signed the memorandum of agreement without the
inclusion of these proposals to change the expired agree-
ment. Therefore it was reasonable to construe Respond-
ent's acceptance as agreement to renewal of the old
agreement, with the changes specified therein, and with-
out Respondent's proposals being included. 47
It is again interesting to note Arroll's reference in his
letter to paragraph 13 and his proposal that only the
Union can make a claim for a worker and not the
worker himself and his reference to the Charles White
situation. This comment addresses itself to the grievance
4' The rates were S205 per week the first year, S225 the second, and
$245 the third.
47 Oxmoor Press. a Subsidiary of the Progressive Farmer Company, 207
Nl RB 419 (1973).
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration clause, and as noted above makes no conten-
tion that arbitration had not been agreed to. It does sug-
gest a new proposal by Respondent that only the Union
can bring a claim for arbitration. 48 This lends credence
to the contention urged by the Charging Party that Re-
spondent's actions in denying the existence of a contract
may have been motivated, or at least accelerated by the
Union's decision to seek arbitration of Dugan's discharge
in February 1980.
Arroll in his letter in Objections 3 and 5 refers to the
inclusion of a new category of platemaker-stripper in the
agreement with wages of $245.50 to $285.50 plus a $5-
per-day differential for employees performing camera
work. Neither of these provisions was included in the
parties' 1976 contract nor the 1979 memorandum.
However, the record demonstrates that in a phone
conversation with Roy Arroll, shortly after Respondent
commenced its lawsuit, Mitchell informed Arroll that he
only included these clauses because of a prior gentle-
men's agreement to include whatever other printers re-
ceive, but that, if he (Arroll) desired, the Union would
agree to delete both of these clauses. Arroll did not re-
spond to this offer. Mitchell also informed Arroll that
the Union had in its proposed contract neglected to in-
clude a hiring provision which was agreed to in the
August memorandum and stated that this would be con-
firmed by letter, which was in fact sent in July 1980.49
I find that the parties reached a meeting of the minds
on terms of a new collective-bargaining agreement when
the August 6 memorandum was executed. I further find
that the Union's proposed contract mailed to Respondent
in December correctly reflected this agreement, with the
exception of the inclusion of the above-cited camera-pla-
temaker clauses which were not agreed to, and the ex-
clusion of the hiring clause which was agreed to by the
parties.
Based on the circumstances described above, I find
Respondent was not justified in refusing to execute the
agreement it reached with the Union by its signing a
memorandum of agreement on August 6.
Part of the obligation required by Section 8(d) of the
Act to execute a contract agreed upon by the parties is
the duty to assist in reducing the agreement to writing.
Kennebec Beverage Co., Inc., 248 NLRB 1298 (1980). Re-
spondent took no action to attempt to comply with its
duty to so assist, and in fact when the Union offered to
delete the only clauses in its proposed contract not
agreed to by the parties, and to include an item inadvert-
ently left out, Arroll did not accept the Union's offer,
and persisted in its refusal to sign the contract. Respond-
ent has continued its refusal to sign the agreement,
making numerous objections to the agreement, which I
have found to be spurious and without merit. Therefore I
conclude that, in these circumstances, these errors in the
Union's proposed contract do not serve to relieve Re-
4' It is noted that during the negotiations, when Respondent com-
plained about the Union's having taken White's case to arbitration,
Mitchell defended his action in part by stating that the Union had no
choice, since White could file a charge against the Union for failure to
represent him.
49 Note that Respondent apparently never noticed that this clause was
not included in the contract, and has never aserted that its refusal to ex-
ecute the contract was based in any part on this omission.
spondent of its obligation to execute the contract based
on the terms to which the parties have agreed.5 0
Accordingly, I am persuaded that Respondent after
having agreed upon the terms of a new contract, by
agreeing to extend the prior agreement plus the changes
set forth in the memorandum of agreement, for reasons
best known to itself, decided to renege on said agree-
ment, and to refuse to sign the formal agreement setting
forth the terms agreed upon.
A number of reasons are suggested by the record that
might explain Respondent's change of position. One pos-
sibility is the influence of Mark Arroll. The record estab-
lishes that Mark Arroll was present at the August 1 ne-
gotiation session and did much of the talking and negoti-
ation on behalf of Respondent on that date. Yet, his
brother Roy met on August 6 with the Union without
informing his brother, and signed a memorandum of
agreement without consultation with him. This action
clearly annoyed Mark, who admitted that he was su-
prised at Roy's signing the agreement, and on cross-ex-
amination of Mitchell sought to establish that somehow
Mitchell should not have met with Roy Arroll without
Mark being present. Further, Respondent's court papers
urged as one ground for finding that no agreement was
reached was the fact that Mark, Respondent's lawyer,
was not present at the meeting wherein the memoran-
dum was signed. In addition Mark's January letter to
Roy strongly recommends not signing the agreement,
and urges renegotiation of many matters over which
there is no question had been agreed to by the parties.
Another possibility, as urged by the Charging Party, is
the Union's decision to seek arbitration of Dugan's dis-
charge. As noted, 'Respondent during negotiations had
expressed annoyance with the Union for arbitrating the
discharge of White and seeking welfare payments for
him for 60 days after discharge, pursuant to the contract.
Although Mark Arroll's letter to Roy in January shows
that Respondent had problems with the agreement prior
to Dugan's discharge, it is noted that Respondent failed
to notify the Union of its position that no contract was in
existence until after the arbitration request was filed in
February 1980.
There are many other possible reasons for Respondent
to have reneged on its agreement, including the simplest
reason of all, that after considering more fully its action
in signing the memorandum of agreement it concluded
that it did not like the deal it had made, and preferred to
negotiate a new one.
It can only be conjectured, which I have done, as to
Respondent's reasons for later reneging on what it had
already agreed upon. I need not and do not make any
findings as to what these reasons were. I need only find,
which I do, that this is what did occur.61
Accordingly, I find and conclude that Respondent by
refusing to execute the collective-bargaining agreement,
*O Kennebec, supra' Reppel Steel and Supply Co., Inc., 239 NLRB 358
(1978); Trojan Steel Corporation, 222 NLRB 478 (1976); James F. Stanford,
Inc. d/b/a Ace Machine Co., 249 NLRB 623 (1980); Raven Industrier Inc.,
209 NLRB 335 (1974).
m1 The Walls and Ceiling Contractors Association, etc., 233 NLRB 954,
959 (1977).
540
DIPLOMAT ENVELOPE CORP.
the terms of which it had previously agreed upon, has
violated Section 8(aXl) and (5) of the Act.5 2
C. Respondent's Unilateral Changes
As I have found above that Respondent has unlawfully
refused to execute a contract previously agreed upon, it
must be assumed for the purposes of assessing Respond-
ent's alleged unilateral changes that the contract has con-
tinued in existence.
Accordingly, I find that Respondent by unilaterally
ceasing to make payments into the Union's pension, wel-
fare, and annuity funds; by failing to grant the manufac-
turing employees April 1, 1980, wage increases as pro-
vided for in the agreement; and by failing and refusing to
arbitrate the discharge of Dugan, has violated Section
8(a)(1) and (5) of the Act. 53
Furthermore, even if I were to have found that the
parties had not reached agreement on the terms of a new
contract, Respondent's actions in ceasing payments into
the Union's funds and in refusing to arbitrate the dis-
charge of Dugan would still be violative of the Act.
It is well settled that the health, welfare, pension, and
annuity funds which are part of an expired contract con-
stitute an aspect of employee's wages and a term and
condition of employment which survives the contract.5 4
Subject to certain exceptions not relevant here, an em-
ployer such as Respondent herein violates Section 8(a)(5)
of the Act by unilaterally altering payments into these
funds. Henry Cauthorne, supra.
As to Respondent's failure to arbitrate the discharge of
Dugan, the Board in American Sink Top & Cabinet Co.,
Inc.,5 5 relying on the Supreme Court's Nolde decision, 56
found the failure to arbitrate a discharge violates the
Act, even where the contract has expired, if the dispute
is over an obligation arguably created by the expired
agreement.
The Board relied on the Supreme Court's language in
Nolde that in the "absence of some contrary indication,
there are strong reasons to conclude that the parties did
not intend their arbitration duties to terminate automati-
cally with the contract." Id. at 255.
The facts in American Sink are similar to the instant
case. The contract expired and both the discharge and
arbitration request occurred subsequent thereto and the
employer took the position that, since there is no con-
tract, it would not utilize the grievance procedure.
The Board found that there was no reason to conclude
that the parties intended the arbitration provisions to end
with the contract's term and ordered respondent to arbi-
trate the discharge.
"' Gollin Block and Supply Company, 243 NLRB 350 (1979); K Mart
Corporation (formerly SS Kresge Company). 238 NLRB 1173 (1971);
Walls d Ceiling; Annshire Garment; Oxmoor. supra.
3 Henry Cauthorne, an Individual, t/a Cauthorne Trucking, 256 NLRB
721 (1981); Paramount Potato Chip Company. Inc., 252 NLRB 794 (1980);
Victor Micelli and Sam Micelli d/b/a Riverside Produce Company, 242
NLRB 615 (1979).
6' Henry Cauthorne. supra; Peerless Roofing Co. Ltd. v. N.LR.B., 641
F.2d 734 (9th Cir. 1981).
As 242 NLRB 408 (1979).
a" Nolde Brothers v. Local 358. Bakery & Confectionery Workers Union.
AFL-CIO, 430 U.S. 243 (1977).
In the instant case, the grievance arbitration clause in
the parties' expired contract specifically provides that "a
violation of this contract or of any previous contract
shall survive the expiration of such contracts," and rein-
forces the presumption found by the Board in American
Sink and the Supreme Court in Nolde that the parties in-
tended the arbitration and grievance provisions herein to
survive the expiration of the contract.
Thus, even absent an agreement on the terms of a new
contract, I find that Respondent violated Section 8(a)(1)
and (5) of the Act by ceasing payments into the Union's
funds and by failing and refusing to arbitrate the dis-
charge of Dugan. s 7
CONCLUSIONS OF LAW
1. Diplomat Envelope Corporation is an employer en-
gaged in commerce within the meaning of the Act.
2. Printing Specialties & Paper Products Union No.
447, International Printing and Graphic Communications
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been and
still is the exclusive collective-bargaining representative
of Respondent's employees in the bargaining unit de-
scribed below within the meaning of Section 9(a) of the
Act. The appropriate bargaining unit is:
All employees, including handlers, packers, order
fillers, order pickers, stock men, shipping and re-
ceiving clerks, cutters, rotary cutters, slitters,
sheeters, rewinders, sealers, wrappers, adjusters, op-
erators, floor boys, pressmen, multility pressmen,
ludlow tenders, and offset pressmen, of Respondent,
employed at its Long Island City plant, exclusive of
all other employees, including office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(1 1) of the Act. 8
4. By refusing to sign the collective-bargaining agree-
ment prepared pursuant to the memorandum of agree-
ment agreed upon between Respondent and the Union,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. By unilaterally ceasing making payments on behalf
of unit employees into the Union's pension, welfare, and
annuity funds, by failing to grant a wage increase due
under the collective-bargaining agreement to its employ-
ees, and by failing and refusing to arbitrate the discharge
of its employee, Thomas Dugan, Respondent has en-
"s In connection with this issue, Respondent contends that. since
Dugan's claim for unemployment insurance has been denied by the New
York State Department of Labor after a hearing and on appeal, the
Board should be bound by this determination. This argument is clearly
without merit. Justak Brothers and Company. Inc., 253 NLRB 1054
(1981). Of course Respondent would be free at any arbitration hearing
that might be held to introduce the decision of the State Department of
Labor for whatever consideration or weight that the arbitrator might
choose to accord it.
a, The above-described unit is consistent with that recognized by the
parties in their prior collective-bargaining agreements, and is therefore an
appropriate unit. Henry Cauthorne. supra.
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(aX5) and (1) of the Act.
6. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of the Act.
THE REMEDY
Having found that Respondent violated Section 8(aX5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent violated its obliga-
tion under the Act by refusing to sign a contract em-
bodying the terms of the agreement reached between Re-
spondent and the Union, I shall also recommend that Re-
spondent be ordered upon request to sign such an agree-
ment, to comply retroactively to its effective date with
its terms, and to make whole the employees for loses, if
any, which they may have suffered by Respondent's re-
fusal to sign such an agreement in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing d Heating Compa-
ny, 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
Since I have also found that Respondent unilaterally
ceased making contributions to the Union's pension, wel-
fare, and annuity funds, I shall recommend that it be or-
dered to pay all such contributions to such funds, as pro-
vided for in the collective-bargaining agreement, which
have not been paid absent Respondent's unlawful discon-
tinuance of such payments.
I shall also recommend that Respondent be ordered to
compensate the funds for administration costs and other
expenses incurred by the funds as a result of its accept-
ance of retroactive payments. Turnbull Enterprises, Inc.,
259 NLRB 934 (1982).
I shall recommend leaving the determination of these
amounts to further compliance proceedings. 59
I shall further recommend that Respondent be ordered
to arbitrate the discharge of employee Thomas Dugan.
I deem it unnecessary to specifically order Respondent
to institute the wage increases unlawfully unilaterally
withheld from its manufacturing employees, as provided
for in the contract. The portion of my recommended
remedy set forth above, dealing with Respondent's obli-
gation to give effect to said contract and to make whole
employees for losses suffered as a result of Respondent's
failure to honor such agreement, would encompass such
an obligation by Respondent.
The Charging Party contends that Respondent has
raised numerous frivolous defenses herein and requests
'" Because the provisions of the employee benefit fund agreements are
variable and complex, the Board does not provide for interest at a fixed
rate on fund payments due as part of a "make-whole" remedy. Therefore,
I leave to further proceedings the question of how much interest Re-
spondent must pay into the benefit funds in order to satisfy the "make-
whole" remedy. These additional amounts may be determined, depending
on the circumstances of each case, by reference to provisions in the docu-
ments governing provisions, to evidence of any loss directly attributable
to the unlawful action, which might include the loss of return on invest-
ment of the portion of funds withheld, additional administrative costs,
etc., but not collateral losses. See Merryweather Optical Company, 240
NLRB 1213, 1216 at fn. 7 (1979); Turnbull supra.
that Respondent be ordered to pay litigation expenses,
including attorney's fees, witness fees, union representa-
tives' salaries for days spent at National Labor Relations
Board hearings, transcript costs, and other reasonable
costs and expenses incurred by the Charging Party. Well-
man Industries, 248 NLRB 325 (1980), Heck's Inc., 215
NLRB 765 (1974).
I do not view Respondent's defenses as patently frivo-
lous, and find no basis for awarding litigation expenses
herein. Turnbull, supra.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER6 0
The Respondent, Diplomat Envelope Corporation,
Long Island City, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to execute the collective-bar-
gaining agreement agreed upon by Respondent and the
Union.
(b) Unilaterally ceasing to make payments on behalf of
unit employees into the Union's pension, welfare, and an-
nuity funds; failing to grant wage increases due under the
collective-bargaining agreement to its employees; and
failing and refusing to arbitrate the discharge of its em-
ployee Thomas Dugan.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request by the Union, forthwith execute the
contract upon which agreement was reached with the
Union.
(b) Give retroactive effect to the terms and conditions
of employment of said contract and make whole its em-
ployees for any losses they may have suffered by reason
of Respondent's failure to sign the agreement.
(c) Pay all contributions to the Union's pension, wel-
fare, and annuity funds as provided for in the collective-
bargaining agreement which have not been paid and
which would have been paid absent Respondent's unlaw-
ful discontinuance of such payments.
(d) Arbitrate the discharge of employee Thomas
Dugan.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records relevant or necessary to facilitate the determina-
tion of the amounts due to employees under the terms of
this Order.
60 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto
shall be deemed waived for all purposes.
542
DIPLOMAT ENVELOPE CORP.
(f) Post at its Long Island City, New York, place of
business copies of the attached notice marked "Appen-
dix." 6' Copies of said notice on forms provided by the
Regional Director for Region 29, after being duly signed
by Respondent's authorized representative, shall be con-
6t In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
spicuously posted by it immediately upon receipt thereof,
and maintained by it for 60 consecutive days thereafter,
in places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
543