Maintenance Service Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1985

275 N.L.R.B. 1422 (N.L.R.B. 1985)

1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maintenance Service Corporation and District ,No.
10, International Association of Machinists and
Aerospace Workers , AFL-CIO. Case 30-CA-
8213 - -
21 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 January 1985 Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
Facts
The following statement of facts is based on the
judge's findings, other undisputed testimony, and
documentary evidence drawn from the record.
The Respondent and the Union have been parties
to a series of collective-bargaining agreements since
1973.1 On 28 February 1980 the parties entered
into a 2-year contract expiring- 31 December 1982.
On the same day, the parties also signed a separate
"Side Bar Letter," which provided:
The Company will not employ an additional
number of foremen, so as to increase the
number of foremen in the work force, through
December 31, 1982. In the event of layoff of
any bargaining unit employee, no foreman
shall perform bargaining unit work. In the
event that the shop is not working overtime,
foremen shall not perform bargaining unit
work.-
The 1980-1982 collective-bargaining agreement
was extended until noon 25 February 1983. .On that
date, the employees went on strike, during which
seven supervisors performed -bargaining unit work.
On 16 June 1983 the Respondent .sent a ,letter to its
employees threatening to hire permanent replace-
ments on 27 June if the employees failed to return
to work. - i
On 23 June 1983 Richard J. Marsek, the Re-
spondent's president, and Thomas Lesch, the
Union' s assistant director, met for the purpose -of
negotiating a new collective-bargaining agreement
t The bargaining unit encompasses the Respondent 's production and
maintenance employees and truckdrivers
and a strike settlement- agreement. Marsek com-
mented that foremen had, been performing unit
work.during the strike and indicated that the. Re-
spondent intended they continue to do so after-
wards. Lesch said that he hoped the problem
would disappear, and that the practice violated the
I.A.M. constitution. Neither party mentioned the
side bar letter. -
On- 25 June 1983 the parties met again and-
reached a tentative contract and strike settlement
agreement . Neither agreement referred to the issue
of foremen performing bargaining unit work or to
the side bar letter. On 28 June 1983 the union
membership ratified the tentative contract.
On 6 July 1983 Marsek mailed the text of the 25
June tentative agreement to the Union for review
and signature . Upon receipt, Lesch called Marsek
and told him that the contract looked fine except
the side bar letter was not included. Marsek re-
sponded that he knew nothing about a side bar
agreement. Lesch offered to send Marsek a copy of
the letter, which Marsek testified he had never
seen before.2 After reviewing the letter, Marsek re-
fused to agree to it. The Union thereafter declined
to sign the tentative contract reached 25 June 1983
because there was no agreement with respect to su-
pervisors performing bargaining unit work.
Marsek testified that at a 7 September 1983 meet-
ing3 he stated that the Respondent's position was
that the parties had negotiated a contract with no
restrictions on the amount of unit work foremen
might perform. Marsek also testified that Lesch
proposed changing the dates in the side bar agree-
ment to make it effective 30 September. Marsek did
not agree to this proposal.
On 21 September the parties met and Marsek
again stated he had no intention of signing the side
bar agreement, but he was prepared to sign the
contract as negotiated with no restrictions. Accord-
ing to Marsek, the parties discussed alternatives'
such as restricting the amount of work a foreman
could do to 4 hours a day. A union representative
suggested 2 hours a day, but then dropped it be-
cause the Union "didn't want to get into the num-
bers game." Marsek also asked if the foremen could
join the Union, but the union representatives re-
sponded that they could not. The meeting ended
with no resolution.` -
2 The side bar letter signed 28 February 1980 had been negotiated and
signed by Richard V Marsek, Richard J Marsek's father, who had been
the Respondent 's president in 1980
2 Sometime before the 7 September meeting Lesch called Marsek in an
attempt to resolve the problem Lesch suggested that the Union would
sign the contract without the side bar if the Respondent would pay medi-
cal insurance for 6 months for employees who were still on layoff after
the strike No agreement resulted
275 NLRB No. 198 -
MAINTENANCE SERVICE CORP • 1423
Both parties filed .refusal-to-bargain unfair labor
practice charges, which the Region dismissed 19
October 1983. The dismissal letter, quoted in full in
section III,A, paragraph 6 of the judge's decision,
stated that there was no meeting of the minds on
the side bar letter or the mandatory bargaining sub-
ject of foremen doing bargaining unit work. The
Regional 'Director observed that, although. there
was no reference to the side bar letter during the
negotiations leading to the 25 June 1983 ' tentative
agreement, the Union contended that the language
in the strike settlement, stating that "all of the
items in the tentative agreement, as well as the ex-
pired labor agreement, as modified shall constitute
the new agreement," was intended to include the
side bar letter.
On the other hand, the Regional Director ob-
served that the Respondent asserted that the letter
is a separate document and does not modify the
prior contract. The Regional Director therefore
concluded he was unable to find that a collective-
bargaining agreement existed between the Re-
spondent and the Union.
Both parties appealed the dismissals and, on 8
December 1983, the appeals were denied.
On 3 January 1984 the parties met again. Marsek
and Clifford Buelow, the Respondent's attorney,
represented the Respondent while Richard Presser,
the Union's director, George Urban, the Union's
business - representative, • and Robert Gratz, the
Union's local ' counsel, represented the Union. Ac-
cording to Urban, the Respondent's representative
referred to the side bar letter and stated that the
parties had a past practice of foremen working and
they would be willing to sign the contract with
-that understanding. Urban testified that Gratz re-
plied that when the side bar letter was signed the
past practice was broken and the Union would sign
the contract -,as- is and "take it on a case-by-case
basis if a foreman did any great amount of work."
At that point, Urban stated, the Respondent's rep-
resentatives asked for a recess.
Marsek essentially corroborated Urban's testimo-
ny. He added that, after hearing Gratz' position
that the side bar letter would continue as past. prac-
tice, he wanted a written agreement on how work-
ing foremen would be treated because he was puz-
zled by the Union's position regarding past Prac-
tice. The company representatives stated at the end
of the meeting that they would respond' further by
letter. -
Buelow replied by letter 4 January 1984, (errone-
ously dated 3 January 1984), in pertinent part, as
follows:
At the conclusion of our meeting yesterday,
I stated that the Company would attempt to
develop language concerning the issue of fore-
men performing bargaining unit work. As I
understand the Union's position, it does not
object to foremen performing bargaining unit
work unless the Company uses foremen to pre-
vent laid off bargaining unit employees from
being recalled on a regular full-time basis.
Based on `our . discussion, it appears that the
Union has, no objection to the work which is
presently being performed by the foremen; this
matter became an issue only after the strike
and, then, only for a short period of time.
Accordingly, in order to settle this issue and
the parties' collective bargaining agreement,
the Company proposes that the following be
added to the contract as Article II, Section 2:
Foremen may perform work normally
performed by bargaining unit employees
except that, in the event of a layoff of a bar-
gaining unit employee from a seniority list,
each foreman may perform work normally
performed by employees within that seniori-
ty list if such. work performed by each indi-
vidual foreman is less than 40. hours per
week.
By letter dated 11 January 1984, Urban respond-
ed:
Please be advised that the Union is in com-
plete disagreement with your letter and lan-
guage, dated January 3, 1984. The Union is
willing to sit down and sign the contract as
soon as the Company is ready.
It is the ' Union's understanding, as explained
to the Company, that supervisors working
doing bargaining unit work will not be tolerat-
ed while employees are on layoff. With that
understanding the Union will sign the con-
tract. Any cases of supervisors working will
be taken on a one to_ one basis in the grievance
procedure.
By letter dated 11 January 19,84, Buelow replied,
in, relevant part:
Maintenance • Service Corporation cannot
sign- the agreement under the conditions you
have' suggested in 'your, letter' of January 11,
1984, 'particularly' in 'view of your comment
that-you are in "complete disagreement" with
our letter ' of January 3, 1984. In view of the
comments made by the Union during our
meeting of January 3, which comments I at-
tempted to summarize in my letter, I am at a
loss to explain why you are in "complete dis-
agreement." It would be helpful to the
1424 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
- progress of our negotiations' if you would pro-
vide an explanation.
Buelow also proposed scheduling another bargain-
ing session and suggested that a Federal mediator
be appointed.
By letter dated 16 January 1984 Urban stated:
In response to your most recent January 13,
1984 letter, it is the Union's position that they
are willing to sign the contract without lan-
guage pertaining to supervisors doing bargain-
ing unit work. If there is no one laid off from
that seniority list, or'to deprive any employee
of any overtime, that might•be a different situ-
ation.
If this meets your approval, please contact
my office and set up a date for signing.
On 6 February 1984 the Union filed new refusal-
to-bargain charges against 'the Respondent, alleging
that since about 3 January 1984 the Respondent
had refused to sign the 25 June 1983 agreement,
and had made unilateral changes by ceasing dues
deductions, refusing to put a wage increase into
effect, and eliminating the grievance procedure.
On 28 February 1984 Marsek wrote a letter re-
questing . a, meeting and stating that the "working
foreman language of our letter of January 3, 1984
is negotiable within the general framework."
On 6 March 1984 Urban sent the following, letter
to Marsek:
Be advised that the Union will sign the con-
tract as negotiated and ratified, without any
conditions.
. Please contact my office at your very earli-
est convenience to set up a date to sign the
agreement.
Marsek testified that he did not accept the
Union's' offer because he "hadn't the foggiest idea
what `without conditions' meant ." Urban testified
that when he wrote the 6 March letter he was stat-
ing the position that the Union had taken on 3 Jan-
uary, that the Union "would sign the contract with
no restrictions and go on a one-by-one basis, if the
foremen abused working." In ` response to the
Union's 6 March letter, Marsek wrote a letter to
the Union dated 9 March 1984, requesting a meet-
ing and asking the following questions:
1. If the contract is signed, what is the Union's
position as to. foremen. performing bargain-
ing unit work?
2. If the contract is signed, will it be retroac-
tive, particularly with respect to working
foremen?
3. -If the contract is signed, will the, Union dis-
- pute or file a grievance concerning the work
presently being performed by the ' foremen?
4. If the contract is signed , will the Union dis-
pute or-file a grievance concerning the work
performed by the foremen after the strike?
Urban testified that 'he did not respond to Mar-
sek's questions and offer to meet, because the
"Company already knew everything that transpired
on January 3rd. They were fully informed of the
Union's position."
On 14 March 1984 the Region dismissed the
Union's charge, stating that the evidence failed to
establish that the Respondent violated Section
8(a)(5) and (1) by refusing to sign the tentative col-
lective-bargaining agreement. The Regional Direc-
tor stated that the Union's 6 March letter raised a
closer legal question, but found that it did not
clearly define the . Union' s position on foremen
doing unit work. The Regional Director found that
the issue had not yet been resolved, and according-
ly refused to issue a complaint.
On 21 March 1984 the Regional Director re-
voked his 14 March dismissal letter, stating "this
case raises close legal issues."
On 26 March 1984 Marsek wrote a letter to the
Union that read, in pertinent part:
In your letter of March 6, 1984,' you stated
that the Union will sign the agreement "with-
out any conditions." While I' would much
rather discuss face to face what "without any
conditions" means, in the absence of a meeting
or a written response-from the Union to my
March 9 letter, and based upon your represen-
tation that the Union will sign "without any
conditions," the Company proposes that the
parties sign the agreement with. the under-
standings that (1) the agreement does not
cover-the issue of foremen performing bargain-
ing unit work and (2) there are no other condi-
tions which restrict the Company's right to
assign foremen to bargaining unit work.
Also on 26 March 1984 the Region issued the in-
stant complaint alleging , inter alia s that the parties
reached agreement on terms and conditions of em-
ployment about 6 March 1984 and that since about
9 March the Respondent had refused to execute a
written contract embodying that agreement.
Urban testified that he did not respond" to Mar-
sek's 26 March letter because. "going back to Janu-
ary 3rd, Mr. Marsek and Counsel was [sic] well
aware of the Union's position; that we would sign
the contract without any conditions and go on a
one-by-one basis, if the foremen abused the work-
ing the-doing bargaining unit work."
MAINTENANCE SERVICE CORP
On 6 April 1984 Urban sent copies of the 25
June agreement to Marsek for signature.
On 12 April 1984 Marsek replied to Urban's 6
April letter raising essentially the same questions
about the Union's, position he had in his 9 March
letter. Marsek inquired, inter . alia, whether the
Union agreed that the tentative' contract, if signed,
does not cover foremen performing bargaining unit
work and that there are no other restrictions on the
Respondent's right to assign foremen such work.
By letter dated 30 April 1984, Lesch responded,
inter alia, "The Union's answer is no."
On 15 May 1984 Marsek called Lesch in re-
sponse to the Union's 30 April letter. Marsek testi-
fied that he asked Lesch, "Assuming I sign the
contract today or tomorrow what would happen
regarding the working foremen issue? According
to Marsek, Lesch responded that he did not know
and could not give him an answer one way or an-
other.
The Judge's Decision
The judge found that, under Pepsi-Cola Bottling
Co. v. NLRB, 659 F.2d 87 (8th Cir. 1981), the 25
June 1983 tentative agreement remained a viable
Respondent offer through 3 January. 1984, as it had
not been withdrawn, and the Respondent was will-
ing from 6 July 1983 through 3 January 1984 to
sign the contract without language restricting fore-
men from performing bargaining unit work. The
judge further found that by indicating on 3 January
that it would sign the agreement in its original
form, the Union accepted the outstanding offer.
The judge found a meeting of the minds between
the parties, even though the Union did not agree
with the Respondent that by signing -the contract
as presented the Respondent- would not be restrict-
ed in any manner in the use of foremen to perform
bargaining -unit work. The judge also determined
that the Union accepted the Respondent's offer
within a reasonable period of time and that no in-
tervening circumstances made it unfair to hold the
Respondent to its bargain. 'The judge therefore
concluded that since 3 January 1984 the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
refusing to sign and abide by its agreement. In find-
ing an agreement as of 3 January 1984, the judge
rejected the General Counsel's argument and com-
plaint allegation that an agreement had been
reached 6 March 1984.4
4 The General Counsel has not filed exceptions to the judge's rejection
of its contention that agreement was reached 6 March 1984
1425
The Respondent's Exceptions
The Respondent contends that it was denied its
due process right to timely -notice -of the critical
facts at issue because it had no reason to believe
that 3 January, rather than 6 March as alleged in
the complaint and argued by the General Counsel,
would be the date agreement would be found. The
Respondent also asserts in the alternative that the
parties did not reach a common understanding con-
cerning the working foremen issue as -of 3 January
1984 or any time thereafter. We agree with the Re-
spondent on both counts. -
Conclusions
1. Due process
Although the Union's charge alleged agreement
on a contract on 3 January, the General Counsel,
having previously dismissed the charge, elected
after further investigation to issue a complaint as-
serting agreement as of 6 March 1984: The General
Counsel maintained throughout the hearing that
agreement had not been reached until 6 March.
The only reference to events. in January in the
General Counsel's opening statement was that in
January there were "further discussions" between
the parties. The General Counsel stated its position
was that the contract was effective 6 March. The
General Counsel argued in its posthearing brief
that the parties had not reached agreement until 6
March. The General Counsel did not move to
amend the complaint to allege an agreement as of 3
January.
Both Section 554(b)(3) of the Administrative
Procedure Act and Section 102.15 of the Board's
Rules and Regulations require that the complaint
inform the Respondent of the violations asserted.
The Board may not make findings or order reme-
dies on violations not charged in 'the General
Counsel's complaint or litigated in the subsequent
hearing. See, e.g., Teamsters Local 992- (Pennsylva-
nia Glass Sand Corp.) v. NLRB, 427 F.2d 582, 588
(D.C. Cir. 1970); NLRB v. Blake Construction Co.,
663 F.2d 272, 279 (D.C. Cir. 1981). The Board
may, however, decide a material issue fairly tried'
by the parties regardless of whether it was specifi-
cally pleaded. Blake Construction, above at 279-
280, and cases cited therein.
In Electrical Workers IBEW Local 1186 (Pacific
Electrical Contractors), 264 NLRB 712 fn. 3 (1982),
end mem. 113 LRRM 3816 (9th Cir. - 1983), the
Board reversed a judge's f nding of an 8(a)(5) vio-
lation not alleged in the complaint nor argued by
the General Counsel. The Board found that the
issue had not been fully litigated and that the judge
had improperly intruded on the General Counsel's
1426 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
authority to -frame the case . In Florida Steel Corp.,
224 NLRB 45 (1976), a judge found that the re-
spondent violated Section 8(a)(1) of the-Act by
"promulgating and enforcing" an unlawful nor
access rule. The Board reversed, on the ground..
that "promulgation,"- as opposed to discriminatory
application, was never alleged in the complaint nor
fully litigated.5 - -
Similarly, in NLRB v. Blake Construction Co.,
supra, 663 F.2d 272, the Union filed charges alleg-
ing certain violations of Section 8(a)(5) and (1) of
the Act. These allegations, however, were not car-
ried over and specifically pleaded, in the complaint.
The Board's decision and order, however, was
based in part on the violations not alleged in the
complaint. The Board argued to the court that the
employer actually knew that the 8(a)(5) and- (1)
violations were in issue at the hearing and had suf-. -
ficient opportunity to present its-defense. The court
rejected the. argument, concluding that at no point
in the hearing was-there a "clear statement" from,
the General Counsel that it was pursuing these
8(a)(5) and (1) allegations. On the contrary, the
record showed that the General Counsel-was not -
pursuing them. The court stated: -
We believe that affording such notice during
the proceeding was a minimal obligation espe-
cially in light of the General Counsel's failure
to specifically plead such violations in the
complaint after the Union had included them
in its original charges filed with the Board.
[Id. at 281.] ,
In the instant case, the parties did not fully and
fairly litigate the effect -of the 3 January meeting.
Evidence' concerning the 3 January meeting was
presented at the hearing only ' as background, and
the union representative who the judge found ac-
cepted the Respondent's offer did not- even testify.
The Respondent 'contends that, had- it known that
the 3 January meeting was critical, it would have
presented its defense •differently.s As in Blake Con-
5 The Board also found that the failure to litigate the rule's promulga-
tion was not an oversight.- as the charge had 'included promulgation
among the unlawful conduct alleged The Board stated
The General Counsel chose not to issue a corhplaiht on' this aspect of
the charge, 'and we are `unwilling to' circumvent his authority by
basing an unlawful promulgation' finding upon a record which does
not specifically address this issue ;[Id at 45,fn 2 ] ,
6 In it' brief the Respondent asserts that had it been given proper
notice it may have, inter alia, (I) called Richard V Marsek to corrobo-
rate Richard J Marsek's testimony concerning the 23 and 25 June 1983
meetings with Lesch, (2) introduced the cross-charges and appeal beefs
the partie's filed in the fall of 1983, -(3) introduced the' grievances the
Union filed before 3 January and the Respondent's answers to the griev-
ances, (4) introduced further testimony concerning the offers made"
during the parties' meetings of,7 and 21 September 1983, and (5).retained
other counsel to permit the Respondent's current counsel to testify con-
cerning the 3 January meeting
struction and Florida Steel, both'supra, the critical
date the judge relied on, 3 January, was alleged in
the charge the Union filed 6 February, but was not
carried forth in the - General Counsel's complaint.
The General Counsel's failure to specifically plead
agreement on 3 January in its complaint was not an
oversight, as the General Counsel chose to litigate
the' case on the basis of an alleged 6 March, agree--
ment . The date is material , as the General Counsel
asserted that there was no agreement between the
parties before 6 March 1984. -
As 3 January 1984 was never alleged in the com-
plaint nor litigated at the hearing as a date when
the parties reached agreement, the judge's finding
of a violation on that basis deprived the Respond-
ent of its right to due process. Although this is a
sufficient ground to dismiss the complaint, we shall
also consider the merits.
2. The merits
The judge found that on 3 January 1984 the
Union accepted the Respondent's outstanding offer
and the Respondent violated Section 8(a)(5) and (1),
of-the Act by refusing to execute that contract. We
disagree. We find that the parties never reached a
meeting of the minds on the issue of foremen per-
forming bargaining unit work, which is a mandato-
ry bargaining subject,7 on 3 January 1984 or at any
subsequent time. - - -
- The obligation to sign a contract "arises only
after a meeting of the minds on all substantive
issues has 'occurred." Luther Manor Nursing Home,.
270 NLRB 949 fn. 1 (1984). A party'is not required
to sign a contract which contains only those items
to which the:parties have agreed. Good GMC, Inc.,
267 NLRB 583 (1983). -
The Union first raised the issue of the side bar
letter on 6 July 1983 after. the 25 June tentative
agreement had been reached, and declined to sign
the contract because there was no agreement re-
garding supervisors' performing bargaining unit:
work. Subsequent negotiations between the parties
in September pto'duced'no common understanding
on' the issue; and the Regional Director' s dismissal
of each party's unfair labor practice charges on 19
October 1983 recognized the - parties' failure to
agree. . '
During the' 3 January-meeting the parties never
achieved . an agreement as to the meaning of the
contract without the-sidebar letter concerning the
working ,,foremen ' issue . The Respondent believed
that' it meant_ that working foremen would be free
to perform any amount' of bargaining unit work
without limitation, as was the practice before the
'' Crown Cooch 'Corp, 155 NLRB 625,628 (1965)
MAINTENANCE SERVICE CORP.
1980 side bar letter was negotiated, The Union be-
lieved that even without the side bar letter the
foremen could not, because of the past practice the
1980 side bar letter. established, perform unlimited
bargaining unit work., The Union believed that it
could challenge foremen's performing bargaining
unit work on a case-by-case basis through the
grievance procedure if the foremen abused the past
practice the side bar letter established.
The 3 January meeting ended with no resolution
of the problem. The parties understood that no
agreement had been reached, and the Respondent
indicated that it would respond by letter. Contrary
to the judge's finding, the Union did not accept the
tentative agreement in toto, as there was no agree-
ment as to the meaning of the tentative contract.
Later correspondence illustrates the absence of
agreement on the working foremen issue as of 3
January. The Respondent's 4 January letter and-the
Union's 11 January response show an obvious mis-
understanding of the parties' positions. It is clear
that neither party at that point believed that an
agreement had been reached on. 3 January. The Re-
spondent's 4 January letter proposed new language
which the Union rejected 11 January, stating that it
was in complete disagreement with the Respond-
ent's 4 January proposal. The Union's 11 January
letter reiterated its position that supervisors'- per-
forming bargaining unit work would not be tolerat-
ed while employees were on layoff and stated that
it was willing to sign the contract with that under-
standing. The Respondent replied 13 January, stat-
ing that it could not sign the agreement under
those conditions. The Union's 16 January letter ap-
pears to be a reiteration of its 3 January position.
The Respondent's 28 February reply shows that
the Respondent's position was negotiable. Accord-
ing to Urban, the Union's 6 March letter offering
to sign the contract without any conditions was
merely. a restatement of the Union's 3 January posi-
tion. The letter is ambiguous, and Marsek's 9
March reply'. attempted to ascertain the Union's po-
sition. The Union failed to.respond, according to
Urban, because the Respondent had already been
informed of the Union's position on 3 January. On
26 March the Respondent again requested clarifica-.
tion of the Union's position, and again the Union
failed to respond. On-6 April the Union sent,copies
of the agreement to the- Respondent* for signature,
and on 12 April the Respondent again requested
that the Union disclose its understanding of the
effect of a . signed contract. The Union's .30 April
reply plainly demonstrates no agreement at that
point. I - •
There was thus no-agreement on the mandatory.
subject of foremen performing bargaining unit
1427
work. No collective-bargaining agreement there-
fore exists, and the Respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act by, refusing since 3
January ,1.984 to `sign and abide, by a contract .with
the Union. •
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On
an original charge filed by-District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO (the Union), on February 6, 1984, the Region-
al Director for Region 30 of the National Labor Rela-
tions Board issued a complaint on March 26, 1984, which
alleged , in substance , that' the Union and Maintenance
Service Corporation (Respondent) reached full and com-
plete agreement on the terms of a collective- bargaining
agreement on March 6, 1984, and Respondent violated
Section 8(a)(1) and (5) of the National Labor Relation's
Act (the Act) by refusing since March 9, 1984, to exe-
cute such agreement. Respondent filed timely answer de-
nying it had engaged in the-unfair labor-practices alleged
in the complaint.
The case was heard 'in Milwaukee, Wisconsin, on June
13, 1984. All parties appeared and were afforded full op-
portunity to participate in the proceeding Subsequent to
the close of the hearing, the' General Counsel and Re-
spondent filed briefs. On the entire record,' and from my
observation of the demeanor of the witnesses when they
appeared to give testimony, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Wisconsin corporation, maintains an
office and place of business in West Allis, Wisconsin,
where it is engaged in the business of machinery repair.
During the fiscal year ending April 30, 1983, it per-
formed services valued in excess of $50,000 for custom-
ers located outside the State of Wisconsin. It is admitted,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
'A. Facts, .
Respondent . and the Union have been - parties to a
series of collective-bargaining contracts covering Re-
spondent 's production and maintenance employees and
truckdrivers since 1973. The . 1980-1982 contract expired
on December 31, 1982, but that contract was extended
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until noon on February 25, 1983. When the contract ex-
pired, the Union called the employees out on strike.
During the course of the above-described strike, seven
of Respondent's supervisory employees performed bar-
gaining unit work. On June 23, 1983, Respondent, repre-
sented by Richard J. Marsek, and the Union, represented
by Thomas Lesch, met in- attempt to reach accord on a
new collective-bargaining agreement and a strike settle-
ment agreement. Marsek commented during their negoti-
ations that Respondent's supervisors had been working
on a hot job during the strike and indicated Respondent
intended to have them continue to perform bargaining
unit work after the striking employees returned to work.
Lesch, indicated he hoped the problem would disappear
and commented that the performance of-bargaining unit
work by foremen violated the IAM constitution.' The
parties met again on June 25 and reached tentative agree-
ment ' on the collective-bargaining agreement. and a strike
settlement agreement. The tentative agreement was con-
ditioned on ratification of the union membership. The
membership ratified the tentative agreement on June,28,
1983.
By transmittal letter dated -July 6, 1983, Marsek for-
warded the full text of the collective-bargaining agree-
ment, which incorporated the changes agreed on during
negotiations, to the Union for review and signature.
Shortly thereafter, Lesch telephoned Marsek and, after
informing him the contract was basically okay, asked
"What about the side bar agreement?" When Marsek in-
dicated he knew nothing about a side bar agreement,
Lesch explained that the parties had entered a letter
agreement which ran concurrently with the 1980-1982.
contract which regulated the performance" of bargaining
unit work by supervisors. Lesch indicated he would send
Marsek a copy of the side bar'agreement. -
The document referred to by Lesch during his conver-
sation with Marsek was placed in the record as General
Counsel's Exhibit 2. It is entitled "Side Bar Letter." The
body of the document, which was signed by Lesch for
the Union, and Richard V. Marsek for -Respondent, 2' on
"February 28, 1980, states:
The Company' will not employ an -additional
number of foremen, so 'as to increase the number_ of_ _
'foremen in the work force, through December 31,
1982. In the event of layoff of any bargaining unit'
employee, no foreman shall perform bargaining unit
work In the event that -the' shop is not, working
overtime, foremen shall not'-perform bargaining unit
work. .
The parties were signatory to a letter agreement which restricted su-,
pervisors in the performance of bargaining work during the term of the-
1980-1982 contract it is undisputed that no mention was made of the
letter agreement during' negotiations on June 23'aiid 25 Marsek , who tes-
tified he was unaware there,was'a letter agreement , claims he told-Lesch
the supervisors would work "without restrictions" after the strike -Lesch
testified Marsek merely- brushed on the topic of supervisors completing
some bargaining unit work they had started during the strike I do not
credit Marsek's claim that he used the term "without restrictions" during
the negotiations "
2 Richard V' Marsek, Richard J' Marsek's father, was Respondent's
president in 1980-The son had assumed that position before the events in
'the instant case occurred
It is undisputed that during the period extending from
about July 6, 1983, to September 21, 1983, the Union re-
fused to sign the tentative agreement reached on June 25,
1983, because there was no agreement-between the par-
ties with-respect to the performance of bargaining unit
work by supervisors. It is similarly undisputed that Re-
spondent indicated during the period described that it
was willing to sign the tentative agreement which con-
tained no reference to the performance of bargaining unit
work by supervisors. During the period described, the
parties met on two occasions (September 7 and 21) in at-
tempt to resolve the matter, but they failed to reach
agreement. 3
After the parties met on September 21, 1983, both filed
refusal-to-bargain charges against the other with Region
30. By letter dated October 19, 1983, the Region dis-
missed both charges stating: - -
Gentlemen-
The above-captioned case, charging a violation
under Section 8- of the- National Labor Relations
Act, as amended, has been carefully investigated
and considered.
As a result of the investigation , the evidence fails
to establish that the Employer violated Section
8(a)(5) and ( 1) and 8(d) of the Act by failing and re-
fusing to honor the "Side Bar Letter" dated Febru-
ary 28, 1980 concerning supervisors performing bar-
gaining , unit work. The evidence further fails to es-
tablish that the Union violated Section 8(b)(3) and
8(d) of the Act by refusing to execute a collective-
bargaining agreement and/or- bargaining to impasse
over. a- permissive subject of bargaining. Rather, it
appears that'on February 28, 1980, the parties exe-
cuted this "Side Bar Letter" limiting the circum-
stances.when supervisors could perform unit work.
This letter ran currently with the then existing con-
tract and expired on December 31, 1982 At no time
during the negotiations, leading to the strike settle-
ment and the tentative agreement executed on June
25,-.1983 was there any reference to' the "Side Bar
Letter." The Union contends that the language in
the Strike Settlement stating that all items in the ex-
pired agreement "as modified" was intended to in-
clude' the "Side Bar Letter." The Employer asserts
this letter is a separate document and- does not
modify the prior contract. In view of the foregoing,
,I am unable to find that there was a meeting of
minds on the , letter or the' mandatory. subject of
.foremen doing unii work
I am, therefore,- unable to find that a collective-
bargaining, agreement currently exists between the
Employer and Union. Thus, I am unable to find that
the. Employer violated the Act by refusing to honor
On, September 7, 1983, the Union proposed that the parties merely
change the date on , the side bar letter , Respondent rejected the proposal
On September 21, 1983, Respondent proposed language' -which would
permit supervisors to perform unit work 4 hours each day, and explored
the possibility of supervisors joining the Union The Union counterpro-
posed that supervisors be permitted to perform bargaining work 2 hours
each day No agreement was reached
MAINTENANCE SERVICE CORP.
the 1980 "Side Bar Letter" and that the Union vio-
lated the Act by refusing to sign the draft contract
presented by the Employer or by bargaining to im-
passe on the issue of supervisors performing unit
work
Accordingly, further -proceedings are not -war-
ranted, and I am,-therefore, refusing to issue com-
plaints in these cases.
Pursuant to the National Labor Relations Board
Rules and Regulations, Series '8, as amended, you
may wish to obtain a review of this action accord-
ing to the enclosed instructions.
Very.truly yours,
George Squtllacote
Regional Director
It was stipulated that both•parties appealed the dismis-
sal of their charges and that both appeals were denied on
December 8, 1983
On January 3, 1984, the parties met once again in at-
tempt to resolve the above-described issue. Attorney
Robert Gratz acted as the Union's principal spokesman
and Attorney Clifford Buelow was Respondent's princi-
pal spokesman. During the meeting, the parties discussed
Respondent's use of supervisors to perform bargaining'
unit work over the years Respondent's expressed posi-
tion was that it had established a policy of assigning su-
pervisors to perform bargaining unit `work during the 30
years it had been in business Union Counsel Grati indi-
cated that while 'that might'-have been ,the case before
1980, the "Side Bar Letter" broke the practice during
the term of the 1980-1982 contract'•Gratz then indicated
the Union was changing its position and would be will-
ing to sign the June 25 tentative- agreement without
agreement on the side bar letter. He further indicated
that if Respondent continued to 'utilize supervisors to
perform bargaining unit work, the Union would handle
its objection through the grievance procedure' on a case-
by-case basis. Buelow indicated Respondent' would re-
spond to the Union's proposal by letter .
Respondent's president Marsek 'testified that the
Union's indication that it would seek to limit Respond-
ent's right to accomplish bargaining unit work with su-
pervisors through the grievance procedure caused him to
conclude that it was essential that the parties' rights be
spelled out in their collective-bargaining agreement.
Thus, by letter sent on January 4, 1984, but'erroneously
dated January 3, 1984, Respondent proposed that the fol-
lowing language be added to the tentative' agreement as
article II, section 2.' ' '
Foremen may perform work normally performed
by bargaining unit employees except that, in the
event of a layoff of a .bargaining unit employee
from a seniority list, each foreman may perform
work normally performed by. employees within that
seniority list if such work performed by each- indi-
vidual foreman is less than 40 hours per week.
" G C Exh 7 The offer was less generous than ' Res`pondent's Septem-
ber 21 offer that foremen be permitted to work 4 hours each day •
1429
By letter dated January 11, 1984, the Union rejected Re-
spondent's January 4 proposal stating.5
Please be advised that the Union is in complete
disagreement with your letter and language, dated
January 3, 1984. The Union is-willing to sit down
and sign the contract as soon as the Company is
ready.
.It is the, Union's understanding, as explained to
the Company, that supervisors working. doing bar-
gaining unit.work will not be tolerated while em-
ployees are on layoff. With that understanding the
Union will sign the contract Any cases of supervi-
sors 'working will be taken on a one' to one "basis in
the grievance procedure.
If there are any further questions please do not
'hesitate to contact me.
Please contact me for a date to sign the agree-
ment.
By letter dated January 13, 1984, Respondent indicated it
would not sign the agreement under the conditions sug-
gested in the Union's January 11 letter, and it suggested
meeting again , possibly with the.assistance of the Federal
Mediation and Conciliation Service.6 By letter dated
January 16, 1984, sent to Attorney Buelow, the Union
reiterated its proposal stating.
In response to your most recent January 13, 1984
letter, it is the Union's position that they are willing
to sign the contract without language pertaining to
supervisors doing bargaining' unit work. If there is
no one laid off from that seniority list, or to deprive
any employee of any overtime, that, might be a dif-
ferent situation
If this meets your. approval, please contact my
office and set up a date for signing
The record reveals that' from January 13, .1984, for-
ward, Respondent continued to `seek to cause the Union
to meet- with it. ' Business • Representative Urban indicated
during his testimony that the Union refused to meet with
Respondent because (1) All contract' issues except the
working foreman issue were settled; and (2) the Union
felt it was not obligated' to negotiate further with Re-
spondent concerning wages.
On February 6, 1984, the Union filed the charge in the
instant case alleging that Respondent had violated Sec-
tion 8(a)(1) and (5) of the Act by: refusing since January
3, 1984, to' sign the tentative agreement reached on June
25, 1983; ceasing dues deduction; refusing to put a wage
increase into effect; and eliminating the grievance proce-
dure. Thereafter, on March 6, 1984, the Union sent Re-
spondent a letter which stated;' " : -
Be -advised that: the .Union will- sign the. contract
as'negotiated -and ratified, without-any conditions.
'Please 'contact 'my office it, your.'very 'earliest
conveiience to sitytip a date to -sign the agreement.
S G C Exh 10
c G C Exh 9 Respondent indicated to the letter that it desired to dis-
cuss wages as well as the supervisor problem at a^negouatton session
7 R Exh I'
1430 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Marsek testified he did not agree to the Union 's March 6
offer because he did not have the - foggiest idea what
"without conditions" meant . By letter dated March 9, he
responded to the Union 's March letter s'tating:8,
I am extremely disappointed that you unilaterally
cancelled our negotions [sic] meeting scheduled for
March 8 , 1984. The Company would still like-to ne-
gotiate with the Union and requests that a meeting
be scheduled as soon as possible.
In response to your letter of•March 6 ,' I have the
following questions:
1. If the contract is signed, what is the Union 's posi-
tion as to foremen performing' bargaining unit
work?
2. If the contract is signed, will it be retroactive,
particularly, with respect to working foremen?
3. If the contract is signed , will the Union dispute or
file a grievance concerning the work presently
being performed by the foremen? _-
4. If the contract - is signed , will the Union dispute or
file a grievance concerning the. work -performed
by the foremen after the strike. - ' ' -
Urban testified the Union did not respond to -either
Marsek 's questions or his offer to meet because the Com-
pany already knew everything that transpired on January
3, 'and they were fully' informed of the Union 's position.
On March 14 , 1984, the Region dismissed the charge
filed by the Union in Case 30-CA=8213, stating (in rele-
varit part):9 .
As a result of the investigation , the evidence fails
to establish that the above-named Employer violat-
ed Section 8(a)(5) and (1) of the Act by refusing to
sign the tentatively [sic] agreed upon collective-bar-
gainifig agreement . Rather it appears that ,the issue
of foremen performing, bargaining unit work-.was
raised by the Union in June 1983, and , on January
11, 1984 the Union agreed to sign the June 1983
contract but added;
It i's the-Union's understanding , as explained to
the Company, 'that supervisors working doing
bargaining . unit work will not be tolerated-while
employees are on layoff. With ;that understanding
the Union will sign the, contract. Any cases of su-
pervisors working will -be. taken ' on a one to one
basis in the grievance ,procedure. .
Thereafter , by letter dated March 6, 1984, the
Union notified , the Employer that it would sign the
June 1983 agreement "without any conditions." The
Employer on March 9 responded with questions re-
_ garding the Union 's position on the issue of foremen
doing unit work , the' retroactivity of that position
and whether the Union will'filegrievances over the
foremen currently doing unit 'work and/or unit
work performed by foremen after the strike. -
8 G C Exh 12
11 R Exh 5
Although the Union 's March 6 letter raises a
closer legal question , I find that the letter does not
clearly , define . the Union 's position on foremen
doing unit work . Therefore , I am not able , at this
time, to find that the issue of foremen performing
unit work has been resolved , and, I am not able to
find that the Employer violated the Act by refusing
to sign the tentative agreement of June 1983. For
the foregoing reasons, further proceedings are not
warranted at this time , and I am refusing to issue a
complaint in this matter.
On March 21 , 1984, the Regional Director for Region 30
withdrew the above-described dismissal letter because
"this case raises close legal issues ." As noted, supra, the
instant complaint was issued on March 26, 1984.
B. Analysis and Conclusions
While the complaint alleges, and the General Counsel
contends , that Respondent violated Section 8(a)(5) of the
Act by refusing to sign and effectuate the June 1983 ten-
tative agreement after the Union notified it on March' 6,
1984, that it would sign such tentative agreement "as ne-
gotiated and ratified , without any conditions ," I note that
on January 4, 1984 , Respondent proposed that the recog-
nition clause of the collective -bargaining agreement be
amended to set forth express language which would
permit foremen to. perform bargaining unit work . Patent-
ly,_if Respondent had the legal right to make its January
4 proposal , no meeting of the minds occurred as a result
of the Union 's March 6 action , and a finding that Re-
spondent violated the Act as alleged in the complaint
would be unwarranted . The rights of the parties at the
time Respondent made its January 4 , 1984 proposal are
discussed below.
- In Pepsi-Cola Bottling Co. v. NLRB , 10 cited by both
parties in their briefs , the court described the Board's
policy in situations such as the one presented here, stat-
, •ing (at-90-91):
[A] contract offer is not automatically terminated
by the other party 's rejection or counterproposal,
but may be accepted within a reasonable time
unless it was 'expressly withdrawn prior to ac-
ceptance, was expressly made contingent upon
some condition subsequent, or was subject to in-
tervening circumstances " which made it unfair to
hold the offeror to his bargain.
Under this policy , an offer , once made, will remain
on the table . . . unless circumstances arise which
would lead the parties to reasonably believe that the
offer` had been withdrawn. [Footnotes omitted.] i i
Applying the teachings of Pepsi-Cola here, I am com-
pelled to conclude that the tentative agreement remained
a viable Respondent offer through January 3 , 1984, be-
10 659 F 2d 87 (8th Cir 1981), enfg 251 NLRB 187 (1980)
11 See John Morrell & Co, 268 NLRB 304 (i983 ), and Penasquitos Gar-
dens, 236 NLRB 994 (1978), enfd mem 603 F2d 225 (9th Cir 1979),
which are in accord
MAINTENANCE-SERVICE CORP.
cause it is uncontradicted that, during the entire period
extending from July 6, 1983, through January 3, 1984,
Respondent stood ready to sign the tentative agreement
without language which restricted the right of foremen
to perform bargaining unit work, and the record fails to
reveal that the offer was expressly withdrawn by Re-
spondent. As noted, supra, Union Counsel Gratz indicat-
ed during the January 3 bargaining session that the
Union was willing to sign the tentative agreement with-
out agreement on the side bar letter. At the same time,
he indicated that if Respondent continued to utilize su-
pervisors to perform bargaining unit work, the Union
would handle its objection through the grievance proce-
dure on a case-by-case basis. At that point in time, it
would appear that there was a meeting of the minds be-
cause Respondent's consistent position throughout had
been that it wanted to sign the tentative agreement with-
out any restrictive language which would prohibit fore-
men from performing bargaining unit work Respondent
claims there was in fact no meeting of the minds when
Gratz made his statement because to have a meeting of
the minds it was.necessary that Gratz and/or the Union
additionally be of -the opinion that if the Union' signed
the tentative agreement the Company was not restricted
by contract in any manner in .the use of supervisors to.
perform bargaining unit work. I find Respondent's con-
tention and argument to be unpersuasive. I find that by
indicating it would sign the agreement forwarded to -it
by Respondent on, July 6, 1983, in the form in which it
appeared when it was received by the Union, the Union
accepted the tentative agreement in toto. - -
Remaining for consideration- is whether the Union ac
cepted Respondent's offer within a reasonable period of
time and whether any intervening circumstances would
make it unfair to hold Respondent to its bargain.. The
record reveals that while the tentative agreement. re-
quired Respondent to give unit employees.'a 3-percent
across-the-board wage increase on January 1, 1984, Re-
spondent did not implement that wage increase. It would
appear that the wage increase matter is the principal
factor which should be considered to determine whether
the acceptance of the offer was timely and whether hold-
ing Respondent to its bargain would be fair in the cir-
cumstances The record fails-to reveal, when- Respondent
decided it would not give'its employees the January 1,
1984 raise which had been agreed on. on June 25, 1983,
but, assuming the instant Respondent pays its employees
at the end of a pay period for work performed the previ-
ous week or earlier, it would appear that its execution of
the collective-bargaining agreement on January 3, 1984,
would have posed no 'real retroactivity' problem with re-
spect to the wage increase under discussion.- In my -view,
nothing of major import occurred, between July 6, 1983,
the date the agreement was sent to the •Uiiion' for review
and signature, and January 3, 1984, which would justify
a conclusion that the tentative agreement was .not ac-
1431
cepted within a reasonable period of time. or that it
would be unfair to hold Respondent to the bargain it of-
fered on June 25, 1983.
In'sum , I find that the Union accepted Respondent's
June 25, 1983 offer in toto within a reasonable time, and
that no intervening circumstances make it unfair to hold
Respondent to its bargain. Accordingly, I find that by re-
fusing to sign and abide by the agreement it mailed to
the Union for inspection and signature on July 6, 1983,
Respondent has since January 3, 1984, violated Section
8(a)(1) and (5) of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is now, and has been at all times materi-
al, the exclusive bargaining representative of Respond-
ent's employees in the following appropriate bargaining
unit- -
All production and maintenance employees includ-
ing truck drivers, excluding office clerical employ-
ees, professional employees, and guards and supervi-
sors as defined in the Act. -
4. By- refusing to execute the collective-bargaining
agreement reached between it and the Union on January
3, 1984, Respondent violated Section 8(a)(1) and (5) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion-2(6) and (7) of the Act. '
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and that. it take certain affirmative
action to effectuate the policies of the Act
Having found that Respondent unlawfully refused and
continues to refuse to execute a written -contract contain-
ing the terms of the collective-bargaining agreement ac-
cepted by the Union on January 3, 1984, I. shall recom-
mend it be ordered to sign such agreement' and that it
thereafter be required to abide by the terms of such col-
lective-bargaining agreement and make employees whole
for any losses they may' have suffered by reason of its
failure to execute and abide by the aforesaid agreement
with interest thereon to be computed in the manner pre-
scribed in !Florida Steel Corp., 231 NLRB 651 (1977) 12
'[Recommended Order omitted- from- publication ]
12 See generally Isis Plumbing Co 138 NLRB 716 (1962)
1