TNT Skypak, Inc.

National Labor Relations Board - Board Decisions

May 24, 1999

328 N.L.R.B. 468 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468
TNT Skypak, Inc. and Local 851, International
Brotherhood of Teamsters, AFL–CIO. Cases 29–
CA–17875, 29–CA–18051–2, and 29–CA–18507
May 24, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On September 8, 1995, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
Charging Party filed an answering brief, and the General
Counsel filed a brief in support of the judge’s decision.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
AMENDED REMEDY
The judge found, and we agree, that the Respondent
bargained in bad faith in violation of Section 8(a)(5) and
(1) of the Act by reneging on tentative agreements previ-
ously made during the course of negotiations with the
Union. More specifically, the judge found that on Au-
gust 27, 1993, the Respondent withdrew from numerous
tentative agreements with the Union “because it became
apparent that the Union was about to accept virtually all
of the Company’s positions thereby making a contract
inevitable.” 2
In fashioning an appropriate remedy, the judge recog-
nized that it would not be sufficient merely to return the
parties to the bargaining table. Agreeing with the posi-
tion of the General Counsel and the Charging Party, the
judge’s remedy granted the Union the option of accept-
ing or rejecting the Respondent’s contract proposals as
they stood prior to August 27, 1993, the date of the Re-
spondent’s unfair labor practice. Consistent with the
Respondent’s wage proposal, which contemplated a 3-
year contract, the judge further provided that if the Union
accepted the Respondent’s contract proposals, the result-
ing collective-bargaining agreement would be for a 3-
year term. Finally, if the Union elected to accept the
Respondent’s proposals, the judge stated that the collec-
tive-bargaining agreement would be given retroactive
effect, i.e., the commencement date would be September
1, 1993.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We also agree with the judge that in January 1995 the Respondent
withdrew recognition from the Union in violation of Sec. 8(a)(5) and
(1) of the Act. The judge, however, inadvertently failed to provide in
his recommended Order that the Respondent shall cease and desist from
such conduct. We shall modify the recommended Order accordingly.
We shall also modify the recommended Order in accordance with our
decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and
Excel Container, 325 NLRB 17 (1997).
In its exceptions, the Respondent contends, inter alia,
that while the “Board certainly has the authority to re-
store the status quo ante,” and order reinstatement of the
Respondent’s proposals as they existed prior to August
27, 1993, the Board cannot “order retroactivity as a rem-
edy when the terms of all proposals made by the parties
expressly provide for prospective relief.” In this connec-
tion, the Respondent cites to the “Duration” clause,
which states that the agreement shall be effective “from
the date of execution thereof” and to the “Wages” clause,
which provides for a general wage increase “effective on
the signing of an agreement.” The Respondent argues
that the “execution” and “signing” of the agreement can
occur, if at all, only after the issuance of the Board’s de-
cision. Therefore, according to the Respondent, the
judge should have ordered only prospective application
of any contract that results from the Union’s acceptance
of the Respondent’s contract proposals.
In support of its position, the Respondent relies on
Driftwood Convalescent Hospital.3 In that case, the
Board agreed with the judge that as part of the remedy
for the employer’s unlawful withdrawal of its contract
proposals, the employer must be required to reinstate its
final offer and afford the union an opportunity to accept
it. Contrary to the judge, however, the Board held that
any resulting contract would be given only prospective
effect because the employer’s final offer provided that
the duration of the agreement was dependent on the date
of the union’s acceptance. The Board distinguished its
prior decisions in Northwest Pipe & Casing Co., 300
NLRB 726 (1990), and Mead Corp., 256 NLRB 686
(1981), enfd. 697 F.2d 1013 (11th Cir. 1983), on the
ground that the employer proposals in those cases ex-
pressly provided for retroactivity.
In its brief in answer to the Respondent’s exceptions,
the Charging Party contends that Driftwood was wrongly
decided. The Charging Party argues that the remedy
ordered by the Board in Driftwood does not effectuate
the policies of the Act because it has the effect of reward-
ing the employer for its own misconduct and it fails to
compensate the employees for the damage caused by the
unlawful conduct.
After the completion of briefing, the Respondent and
the Union advised the Board of the following post-
hearing developments. In 1995, the Respondent and the
Union resumed negotiations, which culminated in collec-
tive-bargaining agreements effective from November 8,
1995, through August 31, 1996, and September 1, 1996,
3 312 NLRB 247 (1993), enfd. 67 F.3d 307 (9th Cir. 1995).
328 NLRB No. 67
TNT SKYPACK, INC. 469
through August 31, 1999. However, the 1996–1999
agreement was voluntarily terminated by the parties pur-
suant to the terms of a closing agreement, dated Decem-
ber 23, 1997, which set forth the parties’ understandings
and agreements in connection with the Respondent’s
decision to cease operations at its Long Island City, New
York facility.
In the closing agreement, the parties acknowledged
that the Union “is not agreeing to withdraw, resolve or
otherwise dismiss Case No. 29–CA–17875.” However,
the parties agreed that “any liability or obligation arising
as a consequence of 29–CA–17875 should be limited to a
financial liability up to November 8, 1995, which amount
shall be resolved between the parties as provided by law
under the National Labor Relations Act, and specifically
TNT will have no obligation, and Local 851 relinquishes
any obligation, to recognize and bargain with Local 851
as to the unit described in 29–CA–17875, whether by
contract, or by applicable law, including the National
Labor Relations Act on and after December 26, 1997.”4
In light of the closing agreement, the remaining reme-
dial issue before us is whether the judge properly deter-
mined that, if the Union elects to accept the Respon-
dent’s reinstated proposals, the resulting collective-
bargaining agreement will be given retroactive effect. If
the judge’s remedy is correct, then the former unit em-
ployees will be entitled to approximately 2 years’ back-
pay (ending in November 1995). On the other hand, if
the contract must be given prospective effect, no backpay
would be due because the bargaining unit no longer ex-
ists.
For the reasons set forth below, we find, in agreement
with the Charging Party’s contentions, that the remedy
recommended by the judge better effectuates the policies
of the Act than the remedy provided by the Board in
Driftwood. Accordingly, we overrule Driftwood to the
extent it is inconsistent with our decision today.
Having found that the Respondent violated the Act by
reneging on tentative agreements made in the course of
negotiations, we are authorized, under Section 10(c), to
issue an order requiring “such affirmative action includ-
ing . . . backpay, as will effectuate the policies of the
Act.” Our task in applying Section 10(c) is “to take
measures designed to recreate the conditions and rela-
tionships that would have been had there been no unfair
labor practice.” Franks v. Bowman Transportation Co.,
424 U.S. 747, 769 (1975).
In fulfilling that responsibility, we are guided by well-
established precedent involving employer refusals to

4 Pursuant to the closing agreement, the Union has requested with-
drawal of its unfair labor practice charges in Cases 29–CA–18051–2
and 29–CA–18507. The request is granted, the complaint allegations
related thereto are dismissed, and the judge’s Conclusions of Law 3 and
4 are deleted. We shall modify the judge’s recommended Order ac-
cordingly. In light of the closing of the Respondent’s Long Island City
facility, our Order shall provide for mailing of the notice.
execute agreed-upon contracts. In that situation, the
Board, with court approval, has ordered the employer to
execute the agreed-upon contract and give it retroactive
effect. E.g., Gadsden Tool, Inc., 327 NLRB 164 (1998);
Crimptex, Inc., 221 NLRB 595 (1975); Raven Industries,
209 NLRB 335 (1974), enfd. as modified 508 F.2d 1289,
1291–1292 (8th Cir. 1974); Sel-Low Discount, 205
NLRB 449, 452 (1973). Indeed, the Board’s authority to
order such retroactive relief has been upheld by the Su-
preme Court. See NLRB v. Strong Roofing & Insulating
Co., 393 U.S. 357 (1969).
In Crimptex, for example, the Board squarely ad-
dressed the question of whether the collective-bargaining
agreement that the respondent had unlawfully refused to
execute should be given prospective or retroactive effect.
Like the parties’ “Duration” clause in the instant case,
the collective-bargaining agreement in Crimptex pro-
vided that it “shall become effective on the date of its
execution.” 221 NLRB at 595. And like the Respondent
in the case at bar, the employer in Crimptex argued that
the effective date of the collective-bargaining agreement
should be the date of physical execution. The Board,
however, rejected this contention, stating that “it does not
follow that, where Respondent has delayed execution of
the agreement by its unlawful conduct, the date of physi-
cal execution of the agreement is the effective date of
said agreement. Rather, the crucial date here is that ini-
tial date upon which, but for Respondent’s unlawful con-
duct, the agreement would have been executed.” Id.
(Emphasis in original.) The Board concluded that the
effective date of the agreement was the date the Respon-
dent unlawfully refused to execute it. “To allow any
later effective date of the agreement would permit Re-
spondent to benefit from its unlawful conduct.” Id.
Similarly, in the instant case, the delay in executing a
collective-bargaining agreement is attributable to the
Respondent’s own unlawful conduct, i.e., its bad-faith
withdrawal from numerous tentative agreements with the
Union. Therefore, under Crimptex, “it does not follow
that . . . the date of physical execution of the agreement
is the effective date of said agreement. Rather, the cru-
cial date here is that initial date upon which, but for Re-
spondent’s unlawful conduct, the agreement would have
been executed.” Id. Although there is no absolute cer-
tainty that the parties would have immediately reached a
final and complete agreement had the Respondent’s pro-
posal not been unlawfully retracted on August 27, 1993,
the judge specifically found that in the Union’s August 2,
1993 draft contract, the Union had, “in effect, throw[n] in
the towel” and “essentially accepted the Company’s de-
mands.” Based on his careful review of the evidence, the
judge was convinced that had the negotiations stayed on
track, “no reasonable person could doubt that a collective
bargaining agreement would have been reached within a
matter of days.” In short, the judge drew the reasonable
inference, well supported by the record, that, but for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470
Respondent’s unlawful conduct, the parties would have
concluded a collective-bargaining agreement in August
1993.
Furthermore, to the extent there is a lack of certainty
on this point, such uncertainty should be resolved against
the Respondent as the wrongdoer. As the Supreme Court
stated in Bigelow v. RKO Pictures, 327 U.S. 251, 256
(1946), “The most elementary conceptions of justice and
public policy require that the wrongdoer shall bear the
risk of uncertainty which his own wrong has created.”
See Leeds & Northrup Co. v. NLRB, 391 F.2d 874, 880
(3d Cir. 1968) (“While it is true that a retroactive order
might afford the employees a better position than the
union’s bargaining might have achieved, the Board can
hardly be said to be effectuating policies beyond the pur-
poses of the Act by resolving the doubt against the party
who violated the Act.”). Application of the Driftwood
remedy, on the other hand, would not effectuate the poli-
cies of the Act because it would permit the Respondent
to benefit from the delay it caused by its unlawful con-
duct. Indeed, in light of the closing of the Long Island
City facility, to order only prospective application of the
contract in this case would allow the Respondent to es-
cape liability for its unlawful conduct, leaving that con-
duct essentially unremedied.
In sum, because the judge found that, had the Respon-
dent bargained lawfully, in all likelihood the Union
would have accepted the Respondent’s contract propos-
als in late August 1993, and because any uncertainty that
exists on this score must be resolved against the Respon-
dent as the wrongdoer, we hold that any collective-
bargaining agreement that results from the Union’s ac-
ceptance of the Respondent’s reinstated proposals should
be given retroactive effect and commence on August 27,
1993, the date of the Respondent’s unfair labor practice.
Consistent with the terms of the parties’ Closing Agree-
ment, the Respondent’s liability ends on November 8,
1995. Unlike the prospective remedy in Driftwood, this
remedy furthers the policies of the Act because it recre-
ates, as nearly as possible, the circumstances and rela-
tionships that likely would have resulted had the unfair
labor practice in question not occurred. In addition, our
remedy “both compensate[s] the party wronged and
withhold[s] from the wrongdoer the fruits of its viola-
tion.” Electronic Workers IUE v. NLRB, 426 F.2d 1243,
1249 (D.C. Cir. 1970), cert. denied 400 U.S. 950 (1970).
Our decision does not run afoul of the Court’s holding
in H.K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970),
that the Board does not have the statutory authority to
“compel a company or a union to agree to any substan-
tive contractual provision of a collective-bargaining
agreement.” Here, the Respondent voluntarily agreed to
a proposal that provided that the collective-bargaining
agreement would become effective upon “execution.”
Our remedial Order, like the Board’s remedial order in
Crimptex, merely provides that where the Respondent’s
unlawful conduct frustrates the formation of a contract,
the “execution date” is the date the agreement would
have been executed but for the Respondent’s unfair labor
practice. To the extent there is any uncertainty about that
date, the uncertainty is resolved against the Respondent,
under well-established remedial principles.
ORDER
The National Labor Relations Board orders that the
Respondent, TNT Skypack, Inc., Long Island City, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bargaining in bad faith by reneging on tentative
agreements previously reached by the parties with the
intent of avoiding the making of a collective-bargaining
agreement.
(b) Unlawfully withdrawing recognition from Local
851, International Brotherhood of Teamsters, AFL–CIO.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate the proposal for a collective-bargaining
agreement as it existed as of June 29, 1993, and afford
the Union 30 days to accept or reject that proposal. If the
Union accepts the proposal within 30 days, sign a con-
tract containing all of the terms and conditions of em-
ployment of the proposal, give the agreement retroactive
effect from August 27, 1993, until November 8, 1995,
and make unit employees whole for any loss of earnings
and other benefits. Backpay shall be computed in accor-
dance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), and Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Mail, at its own expense, a copy of the attached no-
tice marked “Appendix”5 to all current and former em-
ployees employed by the Respondent at any time since
August 27, 1993. Such notice shall be mailed to the last
known address of each employee. Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of a United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TNT SKYPACK, INC. 471
representative, shall be mailed within 14 days after ser-
vice by the Region.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
mail and abide by this notice.

WE WILL NOT bargain in bad faith by reneging on tenta-
tive agreements previously reached between us and Local
851, International Brotherhood of Teamsters, AFL–CIO,
with the intent of avoiding the making of a collective-
bargaining agreement.
WE WILL NOT unlawfully withdraw recognition from
the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reinstate our proposal for a collective-
bargaining agreement as it existed on June 29, 1993, and
WE WILL afford the Union 30 days to accept or reject that
proposal. If the Union accepts the proposal within 30
days, WE WILL sign a contract containing all of the terms
and conditions of employment of the proposal, WE WILL
give the contract retroactive effect from August 27, 1993,
until November 8, 1995, and WE WILL make unit em-
ployees whole for any loss of earnings and other benefits,
with interest.
TNT SKYPACK, INC.

Saundra B. Rattner, Esq., for the General Counsel.
Clifford Chaiet, Esq. (Kaufman, Naness, Schneider & Rosen-
sweig, P.C.), for the Respondent.
Kyle Flaherty, Esq. (Robinson, Silverman, Pierce, Aronshon &
Berman), for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on April 3 and 4 and May 22
and 23, 1995. The charge in Case 29–CA–17875 was filed on
December 3, 1993, and the first amended charge was filed on
March 8, 1995. The charge in Case 29–CA–18051–2 was filed
on March 11, 1994, and the first amended charge in that case
was filed on March 31, 1994. The charge in Case 29–CA–
18507 was filed on September 6, 1994.
A complaint in 29–CA–17875 was issued on February 15,
1994, and as amended at the hearing, alleged in substance that
(a) the Union, pursuant to an election held on September 6,
1991, was certified on October 1, 1991; (b) that from October
1991 until November 19, 1993, the Union and the Company
engaged in collective bargaining; (c) that on or about August
27, 1993, the Company reneged on various bargaining propos-
als that it had made on May 26, 1993 and June 29, 1993; (d)
that on October 19, and November 19, 1993, the Respondent by
its attorney told the Union’s representatives that it was unwill-
ing to agree to terms that were superior to the terms and condi-
tions of employment of the Company’s unrepresented employ-
ees; (e) that on October 19, 1993, the Respondent’s attorney
told the Union that it had problems with the Union in the past
and preferred not to deal with the Union at all; (f) that on Octo-
ber 19 and November 19, 1993, the Respondent’s attorney told
the Union that its August 27, 1993 contract proposal was its
final offer, that there would be no flexibility in its bargaining
position and that it would not offer anything else to the Union;
(g) that on January 25, 1995, the Respondent withdrew recogni-
tion from the Union; and (h) that by its overall conduct since
June 6, 1993, the Respondent engaged in bad-faith bargaining
for the unit consisting of all full-time and regular part-time
drivers.
On May 27, 1994, the Regional Director issued a complaint
in Case 29–CA–18051–2. This alleged in substance (a) that in
late December 1993, the Respondent promulgated a rule pro-
hibiting its employees at its Long Island facility from reporting
to work at the facility more than 10 minutes before their sched-
uled starting times; (b) that since late December 1993, the Re-
spondent has enforced this rule selectively and disparately by
applying it only to employees who supported the Union; (c)
that in January 1994, the Respondent changed the scheduled
starting time of Jose Vasquez from 8 to 9 a.m.; (d) that in early
February 1994, the Respondent changed the starting time of
Jose Vasquez from 9 to 9:15 a.m.; (e) that on February 24,
1994, John Carreto, the Respondent’s supervisor, promised
employees pay increases and a 4-day week of 10 hours per day,
if they chose to no longer be represented by the Union; (g) that
on March 1, 1994, the Respondent changed the starting time of
Jose Vasquez from 9:15 to 9:30 a.m.; (h) that in March 1994
the Respondent changed the starting time of Michael Yanis,
(the Union’s shop steward), from 8:30 to 9 a.m.; and (i) that on
March 25, 1994, the Respondent prohibited employees Jose
Vasquez and Michael Yanis from talking to each other.
On October 20, 1994, the Regional Director issued a com-
plaint in Case 29–CA–18507 which alleged, (a) that at all times
before March 31, 1994, the Company allowed the employees
the privilege of picking their vacation schedules in order of
seniority; (b) that on March 31, 1994, the Respondent changed
its vacation procedure to eliminate the seniority privilege de-
scribed previously; (c) that this change was done unilaterally
without notice to the Union; and (d) that as a consequence, the
employer violated Section 8(a)(1) and (5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
TNT Worldwide is a Dutch company, which in turn is a divi-
sion of TNT Limited, an Australian corporation. The Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
dent is part of the United States operations of TNT Worldwide
and it has its principle office in Garden City, New Jersey. The
Respondent provides worldwide courier services and the parties
agree that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act. I
also conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On September 6, 1991, the Board’s Regional Office con-
ducted an election in Case 2–RC–7857 that was won by the
Union. As a result, the Union was certified on October 1, 1991,
as the exclusive collective-bargaining representative of all full-
time and regular part-time drivers employed by the Respondent
at its Long Island City, New York facility.
In addition to the present case, the Respondent has been in-
volved in two other cases before the Board. In TNT Skypak,
Inc., 312 NLRB 1009 (1993), the Company was found to have
violated Section 8(a)(1) by interrogating employees about their
union activities and by soliciting employee grievances and
impliedly promising to resolve those grievances if the employ-
ees did not vote for the Union in the election described above.1
In the second case, TNT Skypak, Inc., 317 NLRB 659 (1995),
the Board concluded that the Company, at a different location
and involving a different local of the Teamsters Union, illegally
discharged employee Jose Vasquez, who is also involved in the
present case.
B. The Negotiations
The negotiations between the parties commenced on October
31, 1991. Thereafter, the parties met for a total of 18 times
during the next 2 years. Additionally, there were numerous
letters and telephone calls between the Union’s chief spokes-
man, Robert Archer (then its attorney) and the Company’s at-
torney and spokesman, Clifford Chaiet.
During the negotiations, the Union’s negotiating team con-
sisted of Archer, Adam Heinz, its president, Anthony Farrino
its vice president, Anthony Razzi, its secretary-treasurer, plus
employees Michael Yanis, Jose Vasquez, Martinez, and Iken.
The Respondent was initially represented by its attorney, Clif-
ford Chaiet, its vice president, William Deering, plus Anthony
Ventiera, and Mark Lagaris. At a later point in the negotia-
tions, Robert Newell, Respondent’s in-house counsel joined the
negotiations and Deering dropped out.
Apart from the introduction into evidence of documents con-
sisting of various contract proposals made by either side and
letters written from one to the other, the General Counsel had
Archer testify about the negotiations and his testimony was not
contradicted by the Respondent. Accordingly, while each side
may argue that the facts support their legal conclusions, there is
no dispute about the underlying facts in this case, at least inso-
far as the negotiations are concerned.
The Union sent its initial contract proposal to the Company
on October 31, 1991, and Chaiet tendered the Company’s first
counterproposal at the second meeting held on November 13,
1991. As far as the negotiations were concerned, not much

1 The Board, however, dismissed an allegation that the Employer
violated Sec. 8(a)(3) by discharging an employee because of his union
activity.
happened during the initial phase, albeit on February 25, 1992,
Archer sent Chaiet a revised contract proposal.
On April 27, 1992, Archer wrote a letter to Chaiet requesting
that the Company make a written economic proposal and this
was done on April 30, 1992.
At the seventh meeting held on May 26, 1992, the Union ar-
gued for the superiority of its medical plan and Chaiet said that
the Union’s plan was “do-able.” For its part, the Union said
that it could work within the Company’s existing wage system.
By letter dated June 9, 1992, Chaiet wrote to Archer indicat-
ing that the Company agreed “to provide its employees with
medical insurance coverage through the [Union’s] Group Wel-
fare Fund,” with its contributions being equal to its present cost
of providing medical coverage to the employees.
On July 24, 1992, at the eighth meeting, the Union agreed to
the Company’s proposed starting salaries. At this point the
parties were 25 cents apart on wage increases. From this point
on and until August 27, 1993, the parties started to make more
progress, in the sense that both sides started to drop demands
and tentative agreements on various items began to be forth-
coming.
According to Phil DiNardo, the Company’s vice president of
human resources for the Americas, there was internal discus-
sion within the Company about what to do about lagging prof-
itability during the summer of 1992. He states that this led to a
decision, made in Amsterdam, to have a freeze in merit in-
creases and hiring. (Since everyone in the Company was at that
time, on a merit increase system, this amounted to a total freeze
on all wages.)
On September 8, 1992, the Company instituted a worldwide
freeze on wages and hiring. This was due to its financial situa-
tion, and according to DiNardo, the North American operations
were doing worst of all.
At the 11th meeting held on October 16, 1992, Company
Representative Deering said that the Respondent could not
improve on its wage proposal due to the austerity program, but
that it could be more flexible with respect to benefits if the
Union could be more flexible about part-time employees. (The
parties had discussed the balance between full-time and part-
time employees with the Union wanting most employees to be
full time and the Company wanting flexibility in hiring part-
time employees).
On November 2, 1992, Archer sent another revised contract
proposal to Chaiet and the parties met on November 24, 1992.
At this meeting, the parties discussed the Respondent’s imple-
mentation of the wage freeze through the end of the year and
finalized language regarding medical coverage.
On December 3, 1992, Chaiet sent a letter to Archer stating
that the Company would implement its own medical plan.
Archer protested that this was, in his opinion, a unilateral
change and a violation of the Act. Although not separately
alleged as a violation of the Act, the General Counsel points to
this action as “a harbinger of worse things to come.”
On January 11, 1993, Chaiet, pursuant to the Union’s re-
quest, sent a letter setting forth issues and indicating which
were still open and which had been resolved. In this letter,
Chaiet listed the settled issues as relating to holidays, subcon-
tracting, union security, seniority, shop stewards, protection of
rights, uniforms, labor practices, funeral leave, jury duty,
strikes and lockouts, grievance/arbitration, application of Fed-
eral and state laws, maintenance of standards, a savings clause,
and a nondiscrimination clause. He listed the open issues as
TNT SKYPACK, INC. 473
being wage freeze, guaranteed hours, operations, check-off
clause, health and welfare, pension plan, fringe benefit collec-
tions, pickup and deliveries, sick leave, and company rules.
On February 1, 1993, Archer wrote to Chaiet stating that the
Union would accept the Company’s position regarding wages,
operations, holidays, seniority, check-off clause, pension, pick-
up and delivery, vacations, sick leave, strikes and lockouts,
company rules, attendance, and the application of Federal and
state laws. Archer included with the letter, the Union’s fifth
revised contract proposal.
At the February 4, 1993 meeting, the Company announced
that Deering was no longer involved and Chaiet said that he had
authority, within guidelines, to negotiate a contract. At this
meeting, the Union accepted the Company’s position regarding
wages but questioned the impact of the wage freeze. At this
meeting, the Company asserted that a category of employees
called “walkers” should be specifically excluded from the bar-
gaining unit. At most, there was, at that time, one person who
fit into this category and this was an employee who was sta-
tioned at a location in New York City and who, upon receiving
packages from a TNT driver, would then deliver them to the
client at its office.
On March 5, 1993, Archer sent a letter to Chaiet setting forth
the Union’s positions. Included in that letter was a description
of the concessions that the Union was making. For example,
Archer stated that the Union would accept the employer’s wage
proposals but that it should be amended to include an appropri-
ate wage rate for “walkers.” He also stated that the Union
would accept the Company’s proposed language permitting a
wage freeze in the event that there was a future companywide
freeze, if the Company provided satisfactory documentation of
the fact. As to section 2, hours, Archer stated that the Union
would agree to the Company’s proposal for overtime at 1–1/2
rate for work done after 40 hours in a 7-day week. He also
agreed to delete the Union’s demand that no more than 49 per-
cent of the work force be part-timers in consideration for the
fact that the employer had agreed to put a 25-hour-per-week
cap on part-time employees and had also agreed to language
stating that it would not use part-timers to circumvent full-time
employees. Archer also accepted the Company’s proposal that
there be a 401(k) plan instead of the Union’s requested pension
plan. (These were some but not all of the concessions made by
the Union in Archer’s March 5, 1993 letter.)
A followup letter was sent by Archer to Chaiet on April 8,
1993, further clarifying the Union’s position on several open
issues. Among other things, Archer complained that the em-
ployer had reneged on its previous agreement to participate in
the Union’s welfare plan and complained that Chaiet had not
yet sent him information which had previously been requested.
On April 12, 1993, Chaiet responded to Archer’s April 8 let-
ter and stated:

As to your assertion that the Employer had previously
agreed to participate in the Union’s Welfare Plan, it would
appear, from my review of the written proposals and cor-
respondence . . . that such an agreement was not formally
reached. This point was reiterated in my letter to you of
December 10, 1992 where I further noted the fact that both
parties had reserved the right to modify, amend, add to or
subtract from their proposals.
I have reviewed your position vis a vis the open items
with my client. In order to assist in the resolution of these
items, I would make the following points:
Section 1 Wages. The Union’s counter-proposal re-
garding the walkers is totally unacceptable. I would re-
mind you that at the February 4th session you indicated
that the Union had language in other contracts pertaining
to this classification of employee and that said language
would be presented for review by the Employer. I have
yet to receive the language proposal discussed. Alterna-
tively, you might want to discuss excluding the walker
classification from coverage under the contract.
Section 2 Hours. You correctly note that an open issue
exists on the question of consecutive days off and the right
of the Employer to institute a 4-day 10-hour day work
schedule. I would ask you to further note, regarding the
use of part-time employees, that the employer agreed not
to regularly utilize part-time employees more than 25
hours per week. The point being that the Employer did
not agree to an absolute cap on hours so as to subject itself
to grievances each and every time a part-time employee
exceeded 25 hours in a given week.
Section 3 Operations Covered. Long Island City em-
ployees do not, to my knowledge, regularly make deliver-
ies to the Bronx, Westchester or Connecticut. They do,
however, perform a limited amount of work in New Jer-
sey. The Employer’s position, however, is not affected by
these de minimus excursions outside the 4 boroughs ser-
viced by Long Island City. As to your question about
Newark, I would suggest that the answer will depend upon
the circumstances of such a move. Variables such as the
number of employees transferred and the size of the result-
ing unit raise issues best resolved by the N.L.R.B.
Section 4 Holidays. You have correctly stated that the
Employer will not provide holidays to part-time employ-
ees.
Section 12 Health & Welfare. My earlier comments
deal with the status of this proposal. I have, pursuant to
your request, appended hereto information concerning the
Employer’s present plan.
Section 17. Vacation. The Employer has, in the past,
paid vacation moneys to employees in advance of the ac-
tual vacation. As to your comment about pro-rating vaca-
tion, I would ask that you clarify this. Finally, please be
advised that the Employer does not now, and is not plan-
ning to, provide part-time employees with vacation bene-
fits.
Section 19 Sick Leave. The Union’s counter-proposal
is unacceptable. Part-time employees do not presently en-
joy vacation or sick leave benefits and the Employer has
not agreed to, nor will it agree to provide sick benefits.
Management Rights. The Employer has not modified
its proposed language regarding this provision. The Un-
ion’s counter-proposal is unacceptable.

On May 24, 1993, Chaiet sent another letter to Archer.
Chaiet proposed, among other things, language regarding im-
plementation of future wage freezes, pay rates for “walkers,” a
provision allowing it to utilize a 4-day, 10-hour day work
schedule and a modification of section 2 (hours), to the effect
that the Company would not regularly use part-time employees
more than 25 hours per week. As to medical insurance and its
proposed management-rights clauses, Chaiet wrote:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474

Section 12 Health & Welfare
Modify
(A) The Employer agrees to provide its regular full-
time employees with medical insurance coverage under its
own plan and under the same conditions as said coverage
is provided all other similarly situated employees on a
company-wide basis. The Employer further agrees to pro-
vide the Union with information concerning any changes
or modifications the presently existing plans before im-
plementing same.

Section Management Rights
ADD the language in paragraph 1 of the Employer’s original
written proposal except delete “to promulgate, implement and
enforce work rules which in the Employer’s sole discretion
are necessary and reasonable for the orderly, efficient and
profitable operation of its business; formulate and implement
bonus and incentive programs aimed at increasing or reward-
ing productivity, efficiency and/or attendance.”

At the 16th bargaining session held on May 26, the Union
made further concessions. Among these were acceptance of the
Company’s wage freeze language, acceptance of the Com-
pany’s proposed management-rights clause (as modified in the
May 24 letter), agreement to allow the Company to institute a
4–day week for some or all of the employees at the Company’s
discretion; and agreement to the Company’s health plan for the
first year of any contract. (The Union proposed a reopener
after the first year to discuss health insurance). Given the Un-
ion’s concessions at this and prior meetings and the prior
agreements made by the parties on numerous other items,
Archer asked Chaiet to send him a letter listing the open issues
and what the Company’s position was on them.
Chaiet did so on June 29, 1993, when he wrote:

I am writing to confirm the postponement of our nego-
tiation session scheduled for July 1, 1993 and to respond
to those items left open after our last session on May 26,
1993.
The first issue concerned the effect of a companywide
wage freeze upon the timing of subsequent increases. The
Employer has taken the position, as expressed in my lan-
guage proposal of May 24, 1993, that subsequent increases
will be pushed back for a period of time equal to the
length of the freeze if a similar delay is imposed company-
wide. The position expressed in that letter has not
changed.
The second issue involved the2 use of “walkers.” The
Union proposed a $7.75 per hour rate and rejected the
Employer’s proposal as set forth in my May 24th letter.
The Employer rejects the Union’s proposal and stands by
the proposal contained in my May 24th letter.3 Further, it

2 As noted above, the Union and the Company had already agreed on
nearly all of sec. 1 of the proposed contact dealing with wages. They
had agreed on the starting wage rates and on the amount of increases.
Moreover, the Union had already accepted the idea that the Company
would have the right to freeze wages under the contract in the event
that there was a companywide freeze. The parties had not agreed on
the wages for “walkers” but this was to a large extent a nonissue as
there was at most one person who did this type of work.
3 In his May 24 letter, Chaiet proposed that if the Employer modified
its operations to make more extensive use of walkers in its pick-up and
is the Employer’s position that walkers will not receive
benefits.
The third open issue involved Section 3 Operations
Covered. The language proposed . . . on May 24th stands
as a statement of the Employer’s position.4
Finally, with regard to adding a reopener for the pur-
pose of discussing the Union’s Health Plan, the Employer
will not agree to include such language in the agreement.
I hope this clarifies the Employer’s position regarding
the open issues.

On July 20, 1993, Chaiet sent a letter asking Archer, to pre-
pare a draft contract incorporating the employer’s most recent
language proposals.
On August 2, 1993, Archer sent such a draft to Chaiet. For
the most part, this draft incorporated all of the prior agreements
between the parties, left out all contract proposals withdrawn
by the Union5 and for the most part incorporated, where ac-
cepted by the Union, all company language proposals. Thus, in
relation to Chaiet’s letter of June 29, 1993, Archer’s draft, ex-
cept for walkers, accepted the Company’s proposed revision of
section 1, wages, including the Company’s language for wage
freezes. He also accepted the Company’s language on section 3,
operations covered. Finally, he essentially agreed to the Com-
pany’s health plan and dropped the Union’s demand that the
contract contain a reopener allowing the parties to negotiate on
this issue. As to the walker issue raised by Chaiet in his June 29
letter, although Archer agreed to exclude walkers from the
wage rates and wage increases effecting the other unit employ-
ees and also agreed that any walkers hired by the Company
would not get any contractual fringe benefits, he counter-
proposed that walkers get a starting rate of $6 per hour. He also
rejected the Company’s proposal that if it decided to use walk-
ers more extensively and if that use caused layoff of bargaining
unit employees, such employees would be given the right to
move to walker jobs at walker rates.6
In addition, Archer in his draft agreement made a small
number of counterproposals. For example, in section 2, he
continued to press for a guaranteed workweek of 5 consecutive
days and 40 hours per week with overtime at time and a half for
hours over 40 and on a 6th day and at double time for a 7th
consecutive day worked. At section 13(A), although accepting
the Company’s existing medical plan, Archer proposed that any
additional costs to the employees would have to be negotiated
prior to implementation. This differed from the Employer’s
May 24, 1993 proposal requiring only that the Employer give

delivery operations, they would be hired at a minimum rate of $4.25 per
hour, that they would receive a 25-cents-per-hour increase after their
probationary period and receive further raises of 25 cents per hour per
year. Chaiet also proposed that if the use of walkers resulted in a reduc-
tion in the drivers bargaining unit those people facing layoff would be
offered the opportunity to work as walkers at walker rates of pay.
4 In his May 24 letter, Chaiet proposed to modify sec. 3 of the pro-
posed contract to read at C “in the event the Employer transfers its
operations to Manhattan, Brooklyn, Staten Island, or any other facility
in Queens, the present employees and present contract shall prevail at
the new terminal(s) or locations(s).”
5 For example, this draft agreement omits and withdraws what had
previously been a proposed sec. 14, fringe benefit collections.
6 As there was at most, one person who might have been classified
as a walker and the question of whether the Company would hire walk-
ers in the future was speculative at best, the bargaining over this issue,
strikes me as being a hopeless waste of time and its introduction by the
Employer as a diversion.
TNT SKYPACK, INC. 475
information to the Union regarding any changes in the plan. At
section 17, Archer made some minor modifications in the vaca-
tion clause, in part to provide that vacation pay would be de-
termined by an employee’s weekly rate including premium and
night-shift differentials. At section, 23, although Archer essen-
tially agreed to incorporate the existing company rules into the
contract, he proposed that any disputes concerning the reason-
ableness of rule changes should be subject to the grievance
procedure.
To summarize, what is readily apparent from Archer’s draft
contract of August 2, 1993, is that the Union was, in effect,
throwing in the towel and conceding virtually every important
point in the Employer’s favor. The rejection of the Company’s
“walker” proposals were essentially meaningless as there was,
at the time, either no one or at most one person who might have
fallen into that category and the possible hire of other walkers
was a matter of mere conjecture. To the extent that the Union
made even the most modest counterproposals, one might say
that these were put forward like a fig leaf to cover the fact that
in all significant respects, the Union had announced its surren-
der. On August 3, 1993, Chaiet wrote to Archer acknowledg-
ing receipt of the latter’s draft contract. On August 5, 1993,
Chaiet wrote to Archer suggesting that the next meeting take
place on August 23.
The meeting scheduled for August 23 was postponed and on
August 27, 1993, Chaiet sent the following letter to Archer. As
this is alleged to be the crux of the bad–faith bargaining allega-
tion, it is quoted with my commentary (indicated by the word
note), as follows:

Dear Bob,

Since these negotiations began in October 1991, the
Employer has experienced a number of significant changes
in its management structure. As these changes have oc-
curred, the Employer has reassessed its position vis a vis
the negotiations on a number of occasions, and has modi-
fied its proposals to deal with changed goals and circum-
stances.
A similar reassessment occurred after we received
your most recent draft of the Drivers Agreement. As a re-
sult I have appended hereto a summary of the Employer’s
position with regard to each and every provision of the
Agreement.
SUMMARY OF POSITION7
Section
[Wages]
1(A) The starting minimum for walkers should be $4.25 per
hour.
Delete the last sentence beginning with “After the probation-
ary period.”
(B) Delete entirely and substitute language allowing merit in-
creases based upon individual performance review.
(C) Delete entirely.
(D) Accepted.

7 The numbering in Chaiet’s August 27, 1993 draft corresponds to
the numbering in the draft contract that was sent by Archer on August
2, 1993. It should be noted that in Archer’s draft, he eliminated what
had previously been “Section 14: Fringe Benefits Collections.” There-
fore the paragraphs numbered from 14 on are different from the num-
bering in previous draft contracts.
Note: This proposal reneges on the specified wage increases
that had previously been agreed to including the prior agree-
ment to give employees periodic raises of 25 cents until they
reach the rate of $12.50. The Company’s proposal to substi-
tute a merit increase system, in effect, places the negotiations
regarding wages back to their commencement when the Com-
pany essentially proposed continuance of its existing merit
increase system.

[Hours]
2(A) Delete provision for double time on seventh day. Delete
provision for 8 hour guarantee for 6th and 7th days. Substi-
tute 4 hour guarantee at time and one half rate if employee
exceed 40 hours of work in week. Add language allowing the
Employer to assign overtime work to available employees in
the facility or at work when need arises.
Note that the “two consecutive days off” language applies
only to 4 day scheduling.
(B) Accepted.
(C) Accepted.

[Operations Covered]
3(A) Accepted.
(B) Accepted
(C) Delete from “or transfers work currently performed” to
“New York Metropolitan Area.”

[Holidays]
4(A) Delete “walkers” from eligibility.
(B) Provide for eligibility for floating holidays to be after 90
days, not one year. Clarify that unused floating holidays will
not be paid for.
(C) Accepted
(D) Accepted
(E) Accepted

[Subcontracting].
5. Delete entirely. Substitute language allowing Employer to
subcontract when in its sole discretion, the Employer deter-
mines subcontracting will be economically or operationally
more efficient.

Note: The Company’s proposed subcontracting clause reneges
on a previous agreement whereby the Union had acceded to the
Employer’s counterproposal on subcontracting language. Under
the previously agreed–upon language, the Employer retained
the right to subcontract to the extent that it had normally done
so in the past, but it agreed that it would not otherwise contract
out unit work for the sole purpose of avoiding the contract’s
terms.

[Union security provision]
6(A) Accepted.
(B) Accepted
(C) Delete entirely
(D) Delete entirely and substitute language allowing Em-
ployer to utilize supervisors to perform bargaining unit work
when the Employer determines such utilization is economi-
cally or operationally more efficient.

Note: The Employer’s proposal here constitutes a reneging on
the previous agreement which, to a limited degree restricted the
Employer from using supervisors to do bargaining unit work
where their utilization would result in a permanent diminution
in the size of the bargaining unit.

[Seniority]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
7(A) Delete last sentence of second full paragraph, beginning
“It is understood . . .” Substitute language allowing the Em-
ployer to determine, in its sole discretion, the use of full-time
and part time employees it will utilize.
(B) Accepted
(C) Accepted
(D) Accepted
(E) Accepted

Note: The Employer’s proposal regarding seniority constitutes
a reneging on the previous agreement that when a layoff is
required, part-time employees would be laid off before full–
time employees.

[Checkoff]
8. Accepted

[Stewards]
9. Delete from last sentence of third full paragraph
“productivity not being a factor in this area.”

Note: The Employer’s proposal regarding section 9, constitutes
a reneging of the previous agreement that shop stewards would
have superseniority and would be the last laid off provided that
the person could perform the job irrespective of his productiv-
ity.

[Protection of Rights]
10. Accepted

[Uniforms]
11. Accepted

[Health & Welfare]
12(A) Delete from last sentence “and further agrees...prior to
termination.”
(B) Delete the last sentence.

[Pensions]
13(A) Add “ This shall not be construed as a guarantee that
said Plan will continue to exist or that it will not be modified,
amended or altered. Any such changes as are implemented in
said Plan as it applies to non-union employees shall be effec-
tive as to the employees covered by this Agreement.’’

Note: After dropping its own demands for the union pension
plan and agreeing to have the Company’s 401(k) plan substi-
tuted, the language now proposed by the employer gives it an
absolute right to modify, change or discontinue the plan at its
sole discretion at any time during the life of the contract.

[Pick-Ups and Deliveries]
14(B) Delete the last sentence. Substitute “Employees are
expected to perform their duties.”

[Labor practices]
15 (A) Accepted
(B) Accepted
(C) Accepted
(D) Accepted
(E) Accepted
(F) Accepted
(G) Accepted
(H) Accepted
(I) Accepted
(J) Accepted
(K) Accepted
(L) Delete
(M) Accepted.

Note: The Employer’s proposal regarding section 15, although
a relatively minor change, is nevertheless a reneging on subsec-
tion (L) which required removal of communications and/or
letters from an employee’s personnel file after 12 months.

[Vacations]
16(A) Delete “Walkers”
Provide for vacation time to be accrued on a monthly basis.
(B) Update
(C) Accepted
(D) Accepted
(E) Accepted
(F) Accepted
(I) Accepted
(J) Accepted
(L) Accepted
(G) Add “unless the employee changes the selected vacation
period in which case the Employer will provide vacation pay
before the vacation begins if the employee provided one
month advance notice of new vacation dates.”
(H) Delete “including premium shift and night shift differen-
tial pay.”

[Funeral Leave]
17 Accepted

[Sick Leave]
18. Delete entirely and substitute the following:.... (details
omitted).

Note: The Employer’s August 27, 1993 proposal reneges on
details that had previously been agreed upon and proposes to
substitute an entirely new sick leave provision.

[Jury Duty]
19. Accepted

[No strikes & lockouts and grievance procedure]
20. Accepted

[Federal & State law]
21 (A) accepted
(B) Delete the last full paragraph.
(C) Add to last sentence “unless such refusal is determined by
the Employer to be unjustified.”
(D) Accepted
(E) Accepted

Note: The Employer’s position here amounts to a reneging on
at least one point which was the employer’s prior agreement to
return the body of an employee killed during the course of his
employment and while away from his terminal.

[Armed Forces]
22. Accepted.

[Company Rules]
23. Move comma from after “Employer rule” to after “Ap-
pendix A.”

[Maintenance of Standards]
24. Add “unless specifically modified, amend or otherwise
changed herein.”

[Savings Clause]
25. Accepted.

[Non Discrimination]
TNT SKYPACK, INC. 477
26. Accepted.

[Management Rights]
27. Accepted.

[Duration]
28. Accepted.

Appendix.
A(II)(A)(2) Delete last sentence beginning with “Discipline
issued under this section.”
A(II)(B) Add “10. Failure to maintain acceptable level of
productivity.”

Note: By its August 27 modifications of the appendix that sets
forth company rules, the Company is, in effect, making these
rules more burdensome on the employees than what had previ-
ously been agreed to by the Union.

MISCELLANEOUS
Add section providing for application of Employer’s policy
concerning the Family and Medical Leave Act.
Add section providing for application of Employer’s anti-
nepotism policy.

On August 31, 1993, Archer telephoned Chaiet and charged
that the Respondent was not bargaining in good faith. Archer’s
unrefuted testimony was that Chaiet responded; “This wasn’t
my idea to submit this proposal. I was just following orders.”
The parties met for the 17th time on October 19, 1993. At
this meeting, Archer, after calming down his side, asked Chaiet
what was going on. He states that Chaiet said that he could
only offer the Long Island City employees the same package as
nonbargaining unit employees. Archer states that Chaiet said
that Deering did not have authority to make agreements; that he
(Chaiet), now had different masters with different instructions
and that the latest proposals conformed to the Company’s initial
proposals. Archer testified that when he asserted that this con-
stituted an unfair labor practice, Chaiet responded with a shrug
and said, “what do you want me to say?” Archer states that
Chaiet said that the Company had problems with other locals
and that the Company had nothing further to say or propose.
According to Archer, Chaiet offered no financial or any other
justification for the changes made by Chaiet’s August 27 letter.
The final meeting was held on November 19, 1993. At this
meeting the Union reported that the Company’s last proposal of
August 27 was not acceptable. When the Union asked if me-
diation would be useful, Chaiet said that there was nothing that
the Employer would add; that the Company would only give
unit employees the same package as nonunit employees, except
for a union-security clause and a grievance-arbitration clause.
The Respondent asserts that the change in the Company’s
positions reflected in Chaiet’s August 27, 1993 letter came
about as a result of (a) ongoing adverse economic conditions
within the Company, and particularly its North American Op-
erations, and (b) changes in management personnel. The Re-
spondent asserts that the foregoing factors resulted in a recon-
sideration of the Company’s bargaining posture. “I don’t be-
lieve it.’’
There does not seem to be any dispute that the Company as a
whole and its North American operations was facing a constant
economic drain resulting from competition from companies
such as Federal Express etc. (TNT’s marketing strength, ac-
cording to Phil DiNardo, its vice president of human resources,
is in Europe and Asia. According to his testimony, TNT’s USA
operations are to some extent a loss leader service for the Com-
pany’s European and Asian customers). There is also no dis-
pute over the fact that in the late summer of 1992, the Company
decided to have a 1-year wage and hiring freeze. Such a freeze
was implemented on a worldwide basis on September 8, 1992.
In dealing with this freeze and the possibility that there might
be other freezes in the future, the Company through Chaiet
demanded and received from the union an agreement that future
wage freezes could be implemented by the Company during the
life of the collective-bargaining agreement.
There is also no question but that there were some changes in
the Company’s management. For example, Deering was re-
placed as a negotiator with Newell. Also Tom Cox replaced
John Ovens as the chief executive officer of the Company’s
Americas’ operations. Chaiet, however, remained as the Com-
pany’s chief spokesman and nothing said by him or anyone else
in the Company, suggested that Chaiet did not have authority to
negotiate or the authority to make commitments (even if they
were commitments conditioned upon an overall agreement),
during the bargaining. Prior to August 27, 1993, nothing was
said to the Union by Chaiet or anyone else in the Company
which even hinted that the numerous tentative agreements that
had been forged during the preceding 18 months were in jeop-
ardy or were being reconsidered.
DiNardo testified that the initial freeze was suppose to end in
September or October of 1993. He testified that he received
reports about the negotiations from Newell and Costanza and
that he reported to Tom Cox. DiNardo testified that sometime
during the summer (at some unspecified time), Cox, told him
that Cox had gotten direction from John Fellows, TNT’s world-
wide CEO, not to give special consideration to any group of
employees. (There is, however, nothing in writing to support
this hearsay assertion). According to the Respondent’s Brief,
Fellows determined that the wage freeze would not be lifted in
North America. But DiNardo’s testimony indicated that al-
though there was discussion and argument between Cox and
Fellows during the summer of 1993 about whether to retain the
wage freeze for North America (to which he was a bystander),
DiNardo also testified that the final decision on this was made
in Amsterdam in September 1993. (In other words, after
Chaiet’s August 27 letter.).
In any event, even assuming that the Company was consider-
ing extending the freeze past September 1993, I fail to see how
this, by itself, justified such a drastic shift in the Company’s
bargaining posture vis-a-vis the Union, particularly as the con-
tingency for a wage freeze had already been built into the pro-
spective contract by virtue of a concession on the Union’s part.
Moreover, assuming that the Company was still in financial
distress, there is no evidence that things were significantly
worse than what they had been from the outset of the negotia-
tions. So what’s new? Everybody involved seems to have rec-
ognized from the outset that the Company was having financial
difficulty and this was reflected in the concessions that the
Union made during negotiations.
In my opinion the only significant new event occurring prior
to Chaiet’s August 27 letter, was that there was, from the Com-
pany’s point of view, a danger that the Union would make suf-
ficient concessions so that agreement on a contract would be-
come inevitable. Thus, Chaiet’s June 29 letter made it clear
that there was, from his bargaining perspective, only four open
items. And the Union’s proposed contract draft dated August
2, although raising a few minor issues, essentially accepted the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
Company’s demands. Assuming that the negotiations had con-
tinued on that track, it seems to me that no “reasonable person”
could doubt that a collective-bargaining agreement would have
been reached within a matter of days.
On March 17, 1994, employee Mark Shults filed a decertifi-
cation petition in Case 29–RD–762. This petition was dis-
missed, subject to reinstatement, by the Regional Director on
March 30, 1994, on the grounds that there were pending unre-
solved unfair labor practices. At about the time that Shults
filed the decertification petition, a petition signed by 22 of the
unit employees was tendered to the Company. This petition
stated; “We, the employees of TNT Express Worldwide, no
longer wish to be represented by Local 851.’’
On January 19, 1995, the Union by its new attorney, Kyle
Flaherty, wrote to the Company, offering to resume negotia-
tions. On January 25, 1995, the Company’s attorney, Newell
responded and stated, “until the issue of Local 851’s status as
representative of TNT’s Long Island City drivers is resolved, it
would be inappropriate to resume bargaining over a contract.”
C. Discussion Relating to the Bargaining and the Withdrawal
of Recognition
The crux of the General Counsel’s contention, it seems to
me, is the fact that on August 27, 1993, after an extended pe-
riod of negotiations, the Employer reneged, in a significant and
substantial way on many previous tentative agreements. The
General Counsel and the Charging Party assert that the effect of
this conduct, was to negate the negotiations that had gone on
until that date and that the Respondent was motivated by its
desire to avoid consummating an agreement just when an
agreement was likely. They also argue that the Respondent’s
antiunion animus is demonstrated by virtue of the earlier deci-
sions of the Board reported at 312 NLRB 1009 (1993), and 317
NLRB 659 (1995).
In Atlanta Hilton & Tower, 271 NLRB 1600 (1994), the
Board stated:

Under Section 8(d) of the Act, an employer and its
employees’ representatives are mutually required to “meet
at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment . . . but such obligation does not compel either
party to agree to a proposal or require the making of a
concession.”
. . . .
Although an adamant insistence on a bargaining posi-
tion is not of itself a refusal to bargain in good faith, . . .
other conduct has been held to be indicative of a lack of
good faith. Such conduct includes delaying tactics, unrea-
sonable bargaining demands, unilateral changes in manda-
tory subjects of bargaining, efforts to bypass the union,
failure to designate an agent with sufficient bargaining au-
thority, withdrawal of already agreed-upon provisions, and
arbitrary scheduling of meetings.

In determining whether a party had bargained in good faith
or bad, the Board looks to the totality of the circumstances.
Overnite Transportation Co., 296 NLRB 669 (1989), enfd. 938
F.2d 815 (7th Cir. 1991). Moreover, the burden of proof rests
with the General Counsel. See Altamil Corp., 227 NLRB 770,
790 (1993), and Weather Tec Corp., 238 NLRB 1535, 1561–
1562 (1978). As stated by the administrative law judge in
Weather Tec Corp.:

General Counsel’s burden of proof in these cases re-
quires more than raising mere doubts or suspicious as to
the Company’s motives. Here General Counsel is unaided
by independent evidence of hostility on the part of the Re-
spondent to the Union, of unreasonable counterproposals
that were illegal in their very nature or so indefensible or
lacking in rationality as to warrant inferring bad faith, or
of the Company’s reneging on matters already agreed to
on proposals it had advanced. [Emphasis added.]

Absent full agreement on a full collective–bargaining agree-
ment, either party to the negotiations may add to, alter, modify
,or delete previously made tentative agreements. However, this
rule is qualified by a requirement that such changes may not be
motivated by intent to forestall the making of a contract.
In Hickinbotham Bros. Ltd., 254 NLRB 96, 102–103 (1981),
the administrative law judge stated:

[A]s to the allegation that Respondent has violated
Section 8(a)(5) of the Act by making regressive bargaining
proposals, Respondent and the Union agreed at the first
negotiating session that agreement on individual provi-
sions were not binding until agreement had been reached
on a collective bargaining agreement as a whole. . . .
Here Respondent had made a number of concessions . .
. in order to avoid a strike. It was unsuccessful in this re-
gard and a strike commenced. Nevertheless, these pre-
strike proposals remained outstanding for a month after
the strike commenced. By November 14, it was apparent
to Respondent that it could weather the strike. With this
realization of its economic strength, it dropped some of the
proposals it had made in an effort to avoid a strike. It is
not illegal for an employer who has weathered a strike to
capitalize upon its new found strength to secure contract
terms it desires . . .

In Merrell M. Williams, 279 NLRB 82, 83 (1986), the Board
dismissed the complaint alleging bad-faith bargaining and
stated:

This case presents the question of whether the repudia-
tion of tentative agreements reached in the course of col-
lective bargaining, standing alone, constitutes bad faith
. . . .
Unlike the refusal to execute an agreed-upon contract,
which is a per se violation of Sections 8(a)(5) and (1) of
the Act because it demonstrates a refusal to acknowledge
and abide by the fruits of bargaining, the withdrawal of
tentative agreements reached prior to the formation of a
legally enforceable contract represents only one factor to
be considered in determining good or bad-faith bargaining.
In ruling on an allegation that a party has failed to bargain
in good faith, it is well established that we look to the to-
tality of circumstances reflecting the party’s bargaining
frame of mind.
In this case, the Respondent’s negotiator made an offer
. . . believing he had the authority to do so. When it be-
came clear that the Respondent would not approve the
proposals, the negotiator immediately withdrew from the
agreements, offering a reason for so doing and further of-
fered to immediately resume bargaining. The Union,
which had not yet submitted the proposal to membership
for ratification or taken any action in reliance on the par-
ties’ tentative agreement refused to bargain further. The
TNT SKYPACK, INC. 479
Respondent’s explanation for its retraction of its prior
agreement regarding the two provisions constitutes suffi-
cient good cause to rebut any inference of bad faith argua-
bly arising from that action. Further, the Respondent of-
fered to substantiate its explanation by opening its books
to the Union and to resume bargaining in an effort to reach
agreement.

In Barclay Caterers, 308 NLRB 1038 (1992), the Board held
that absent full agreement, either party is free to withdraw from
tentative proposals as long as withdrawal is not motivated by an
intent to frustrate bargaining or prevent an agreement. The
Board stated:

The General Counsel cites two cases as authority. In
Natico, Inc., 302 NLRB 668 (1991), the agreement in
question was not a tentative agreement on one term of a
multiterm contract that was being negotiated, as here....
Without any valid basis, the Respondent reneged and re-
fused to participate in arranging the referendum by em-
ployees, as it had agreed. . . . Similarly, in Arrow Sash &
Door Co., 281 NLRB 1108 (1986), . . . the employer re-
neged on a series of tentative agreements, without giving
any valid reason. The Board found a violation because the
employer’s pattern of reneging constituted a tactic to stul-
tify bargaining altogether. Here, there was only one act of
reneging on a tentative agreement; not a pattern of such
conduct. Moreover, Respondent did give a reason—it did
not wish to pay such benefits to part-time employees. . . .
Therefore, this case is similar to one that the Board distin-
guished in Arrow; Merrell M. Williams, 279 NLRB 82
(1986). Merrell M. William’s involved, as here, a with-
drawal from a single tentative agreement.

In Arrow Sash & Door Co., 281 NLRB 1108 (1986), the
Board, with Chairman Dotson dissenting, stated at footnote 3,

The Respondent here has failed to demonstrate that it
had good cause for withdrawing from the tentative agree-
ments reached and the concessions made during its prior
bargaining sessions with the Unions. The Respondent as-
serts that it withdrew its concessions and the tentative
agreements because it believed that the Unions had sanc-
tioned or condoned a “sick-out” . . . and had, therefore
breached the no-strike provision of their agreement,
thereby allowing it to withdraw its concessions and from
the tentative agreements. . . However, as the judge cor-
rectly found, the evidence . . . fails to establish the Union’s
either sanctioned, condoned or in any way encouraged the
. . . employees to engage in a “sick-out.” Thus, despite
apparent progress in negotiations toward a new agreement,
the Respondent not only withdrew from all tentative
agreements and concessions of the extension of the exist-
ing contract; cancellation of the next scheduled bargaining
session; unilateral cessation of payments to the pension
and health funds, and unilateral implementation of a new
health plan. Such conduct as a response to the employee
sick-out went far beyond the grounds relied on in Farm
Boy for justifying that employer’s action.

As stated above it is my opinion that when TNT, on August
27, 1993, reneged on the previously made tentative agreements,
it did so because it became apparent that the Union was about
to accept virtually all of the Company’s positions thereby mak-
ing a contract inevitable. In my opinion this conduct was moti-
vated by a desire to avoid reaching any agreement at all and I
conclude that that the Respondent engaged in bad-faith bargain-
ing in violation of Section 8(a)(5) and (1) of the Act.
Inasmuch as I have concluded that the Employer bargained
in bad faith, it follows that the Company may not assert a good-
faith doubt as to the Union’s presumed majority status and may
not withdraw recognition. Thus, in Barclay Caterers, supra at
1025 fn. 2, the Board stated:

[T]he Respondent failed to demonstrate that it had a
good-faith doubt based on objective considerations of the
Union’s continued majority status. The Respondent cited
its current lack of a collective-bargaining agreement . . . ;
the employee turnover in the unit since the expiration of
the contract . . .; the decertification petition filed for the
unit . . . ; and the Union’s failure to produce documentary
evidence of its majority status at the hearing.
None of these factors, individually or in total, estab-
lishes sufficient objective considerations . . . The absence
of a current collective-bargaining agreement merely means
that the contract is not a bar and that the issue of majority
status may be raised. It does not show that majority status
has been lost. Further employee turnover, by itself, cannot
be used as a basis for belief that a union has lost majority
support since it is presumed that in the absence of evi-
dence that would justify a contrary conclusion, new em-
ployees will support the union in the same ratio as those
whom they have replaced. Moreover, this is particularly
true when high turnover is prevalent in the industry in-
volved. . . . Similarly without a showing that a majority of
employees supported it, the decertification petition by it-
self, cannot justly the Respondent’ withdrawal of recogni-
tion. . . . Nor does the Union’s failure to produce docu-
mentary evidence of majority support show loss of that
support. The Union was not required to carry the Respon-
dent’s burden on the issue of good-faith. In addition, even
were some of the documentary evidence available, it
would not necessarily have the evidentiary value the Re-
spondent appears to urge. The Board has long held that
majority support for a union is not to be, for example, con-
fused with majority union membership.
Finally, not only has the Respondent failed to meet its
burden on showing that its asserted good-faith doubt . . .
was based on objective considerations, it also raised that
doubt while engaging in unfair labor practices. It is axio-
matic that a defense of good-faith doubt about a union’s
majority status may only be raised in a context free of un-
fair labor practices. [Citations omitted.]
D. Alleged Changes in Vacation Policy
There is no dispute about the fact that prior to 1994, the
Company had a policy whereby the employees were asked, in
order of seniority, what their vacation preferences were. In
accordance with this policy, John Carreto, the facility’s duty
operations manager, announced in late December 1993 that the
employees would be called into his office to make their picks.
He testified, however, that he thereafter received orders from
his superior, Pete Gagliano, the operations manager of TNT’s
Eastern U.S.A. region, to hold off on vacation selections. Car-
reto testified that he was not told why. As a consequence, it
was shown and the Respondent concedes that for 1994, vaca-
tions were not scheduled in accordance with seniority prefer-
ence as had been the case in the past. Gagliano did not testify
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
in this proceeding and therefore did not offer any explanation
as to why this change was required, desired, or implemented.
Moreover, union witnesses Michael Yanis and Jose Vasquez
testified that people like Shults, Aramis, and Diaz, employees
who were openly opposed to the Union, received their choice of
vacations ahead of employees with higher seniority.
The decision to not follow past practice in 1994 was made
without prior notice to the Union. Moreover, no effort was
made by the Company to bargain with the Union about this
decision or its implementation. The Respondent argues that this
change was not significant or substantial and did not affect any
employee in terms of their pocket book. I do not agree. Vaca-
tions and the selections method by which vacation selections
are made is a condition of employment and therefore is a man-
datory subject of bargaining. Although it may not seem that
much to management and may not have resulted in lost pay, the
choice of vacations is to my mind a significant matter for em-
ployee.
Further, given my conclusion that the Company has engaged
in bad-faith bargaining, the prior Board decisions holding that
the Company violated the Act in other respects (showing a
proclivity to engage in antiunion activity), and the evidence that
employees who were opposed to the Union were given prefer-
ential treatment in selecting their vacations during 1994, I con-
clude that this change in policy was carried out with a discrimi-
natory motive. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Accordingly based on all of the above, I find that the Respon-
dent violated Section 8(a)(1), (3), and (5) in this respect.
E. No Access & No Talking Rules
The General Counsel contends that in November 1994, the
Company promulgated a rule prohibiting employees from en-
tering the facility more than 10 minutes before their starting
times.8 She also alleges that in February 1994, the Company
promulgated a rule prohibiting its employees from talking to
each other while at the facility. She contends that these rules
were promulgated with the intention of preventing union dis-
cussion amongst the employees and that they were enforced in
a discriminatory manner against union supporters. Although
alleged as violations of Section 8(a)(1) and (3) of the Act, this
is not alleged as a violation of Section 8(a)(5) of the Act.
(1) No talking rule
Union witnesses Yanis and Vasquez testified about a single
occasion in March 1994, when they were told by Supervisor
Noonan that they were not supposed to be talking to each other
while working. Neither was disciplined for this incident.
The Company’s witness testified that it always had a rule
prohibiting employees from talking in the work area during
work time and that it applied this rule uniformly to all of its
employees when appropriate.
In my opinion, the evidence proffered by the General Coun-
sel’s witnesses is insufficient to establish that such a rule was
either unlawful or that it was discriminatorily enforced.
(2) No access rule
According to Supervisor Bill Doyle, in November 1994,
Gagliano told him and another supervisor, Sandra Brown, to
announce to the employees that there was a new rule which

8 She contends that in the case of Jose Vasquez, he was told that he
could not enter the premises more than 5 minutes before his start time.
precluded employees from entering the facility more than 10
minutes before their starting times. Doyle explained that the
purpose of the new rule was to prevent entering employees,
who were not yet on the clock, from interfering with the work
of those already at the facility.
The Union’s witnesses testified that prior to this rule, em-
ployees were permitted to enter the facility before their start
times where they could get out of the cold, could talk to each
other and on occasion, hold union meetings on the premises
before work. Employees were not paid for this time and no
contention was made that the new rule was implemented to
avoid Fair Labor Standards Act problems.
As in the case of the vacation issue, the Union’s witnesses
testified that some of the antiunion employees were allowed to
enter the facility before their scheduled start times thereby evi-
dencing a discriminatory application of the rule. On the other
hand, Doyle testified that he enforced the rule against Mark
Shults, Victor Morales, and Stephen De Valle, all of whom
were against the Union.
Although Doyle testified that the purpose of the no access
rule was to prevent incoming employees from interfering with
the work being done by employees who already had started
work, this testimony was not compelling. In this regard, there
was evidence that there was a driver’s room where employees
who were not yet on the clock, or who were on breaks, could
congregate away from the work area. Also undermining this
argument was Doyle’s concession that there was no such rule at
the Company’s JFK facility or, to his knowledge, anywhere
else in the country. (At this time, the Long Island facility was
the only U.S.A. facility where the employees had union repre-
sentation).
In my opinion, the no access rule was put into effect with the
intention of inhibiting union discussion amongst employees at
the Long Island facility during their nonworktime. While it
could be argued that the Company could have promulgated a
no-solicitation rule that would have precluded its employees
from engaging in solicitation during worktime and in work
areas, the rule here had the foreseeable effect of preventing
employees from utilizing nonwork areas (the driver’s room),
on their nonwork times from discussion of the Union or other
matters relating to their terms and conditions of employment. In
my opinion, this rule, although not literally worded as a no-
solicitation rule, nevertheless amounted to an overly broad no-
solicitation rule and violated Section 8(a)(1) of the Act. Our
Way, Inc., 268 NLRB 394 (1984); Southwest Gas Corp., 283
NLRB 543 (1987); Marathon Letourneau Co. v. NLRB, 699
F.2d 248 (5th Cir. 1983).9 Further, in Nashville Plastic Prod-
ucts, 313 NLRB 462 (1983), the Board held that an employer
violated Section 8(a)(1) of the Act by prohibiting off duty em-
ployees from engaging in union solicitation and distribution of
union literature on company property, during nonwork time in
nonwork areas. The Board stated:

9 In accordance with Our Way, Inc., supra, a prohibition on solicita-
tions in the workplace on “work time” would be presumptively legal
whereas such a prohibition during “work hours,” would be presump-
tively illegal. Further, even where a rule is presumptively valid, such a
prohibition will violate the Act where it is directed only against union
solicitations and applied in a discriminatory fashion. Southwest Gas
Corp., supra; Marathon Letourneau Co. v. NLRB, supra; Lawson Co.,
supra.
TNT SKYPACK, INC. 481
Furthermore, an off-duty employee seeking access to his em-
ployer’s property to distribute union handbills, unlike a non
employee union organizer, falls within the scope of Supreme
Court decisions protecting work-place organizing activities.
Thus in Beth Israel Hospital v. NLRB 437 U.S. 483, 491
(1978), the Court stated that “the right of employees to self-
organize and bargain collectively established by Section 7 . . .
necessarily encompasses the right effectively to communicate
with one another regarding self-organization at the jobsite.”
And in Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978), the
Court upheld the Board’s view that the workplace “is a par-
ticularly appropriate place for the distribution of Section 7
material, because it “is the one place where [employees]
clearly share common interests and where they traditionally
seek to persuade fellow workers in matters affecting their un-
ion organizational life.’’ (Quoting Gale Products, 142 NLRB
1246, 1249 (1963).)

Notwithstanding the above conclusion that the implementa-
tion of this new rule violated Section 8(a)(1) of the Act, I think
that the evidence showing discriminatory enforcement of the
access rule was too sketchy and ambiguous to support a finding
that the Company violated Section 8(a)(3) of the Act in this
respect.
F. Alleged Promise of Benefits
Julio Cancel testified that on February 24, 1994, he became
involved in a conversation with Mark Shults, the person who
filed a decertification petition and Fidel Betancourt both of
whom were aware that Cancel was an active union supporter.
He states that Shults asked if he (Cancel), was aware that he
was trying to get rid of the Union. Cancel testified that Shults
asked if he wanted to go speak to Carreto. According to Can-
cel, when they arrived at the office, Betancourt said that they
were looking for some sort of written contract and benefits to
get the Union out, to which Carreto replied that he was listen-
ing. He states that Betancourt said that they were looking for
some sort of written contract setting forth better wages and
benefits, and that Correto responded that it would be against the
law to give a written contract. Cancel asserts that when he
asked how they could be assured of benefits, Carreto stated that
once the Union was out, they would get higher wages and a 4-
day, 10-hour week. According to Cancel, Betancourt said that
the conversation should be kept a secret between the people
involved.
Carreto testified that Betancourt was the person who initiated
the meeting described above. He states that Betancourt said
that they had been talking about a decertification petition and
that Cancel had some questions about it. Carreto states that
Cancel asked if the Company would guarantee raises if the
employees voted the Union out and that he replied, “no.” He
also testified that Cancel asked if people would get fired if the
Union was voted out and also asked that Carreto put something
(he can’t recall what), in writing. Carreto states that he told
Cancel and the other two men that he could not write anything
down, that the Company would not discharge anyone and that
in response to Cancel’s question about raises, stated that the
employees at this facility would be treated the same as any
other TNT employees. Finally, Correto states that Cancel
asked if it was possible to have a 4-day, 10-hour week and, he
responded that this would be something that would have to be
discussed later on. Correto denies that he made any promises at
this meeting and denies saying that if the Union was voted out,
wages would automatically go up or that the Company would
give them a 4-day, 10-hour week.
It appears to me that the gist of this conversation, was that
Cancel, Betancourt, and Shults went to Carreto to discuss what
might happen if a decertification petition was filed and the
Union was voted out. From the testimony of Cancel and Car-
reto, it seems that either Cancel or Betancourt tried to press
Carreto into making a commitment to give raises and other
benefits and tried to get such a commitment in writing. All
agree that Carreto refused to put anything in writing and said
that it would be against the law. My view of the testimony,
taken as a whole, is that Carreto, who more than likely was
aware that Cancel was a prounion supporter, did not make any
promises to these three men and at most, merely stated what the
Company’s prior positions had been regarding wage increases
and the workweek and also stated that the employees at this
location would be treated the same as employees at other facili-
ties.
G. Changes in Starting Times
The complaint alleges that the Respondent, for discrimina-
tory reasons, changed the starting times of Jose Vasquez and
Michael Yanis, two of the most active employees for the Un-
ion. For the reasons stated below, I shall recommend dismissal
of this allegation.
The fact that Vasquez and Yanis had their starting times
changed on various occasions during 1993 and 1994 is not an
experience unique to them. The evidence shows that they along
with many of the other drivers have had their start times al-
tered. The Company is engaged in the delivery and pickup of
parcels within the City of New York and each driver is assigned
to a particular zone. The Company’s raison d’être is fast deliv-
ery and to that end, schedule changes are not unusual. The
starting time changes complained of by the General Counsel
were relatively minor and there is no evidence that these
changes adversely affected the employment conditions of Yanis
or Vasquez or any other employee for that matter.
CONCLUSIONS OF LAW
1. By reneging on tentative agreements previously made dur-
ing the course of negotiations with Local 851, International
Brotherhood of Teamsters, AFL–CIO, the Respondent bar-
gained in bad faith and violated Section 8(a)(1) and (5) of the
Act.
2. By withdrawing recognition from Local 851, International
Brotherhood of Teamsters, AFL–CIO, the Respondent violated
Section 8(a)(1) and (5) of the Act.
3. By promulgating a rule precluding access of off duty em-
ployees in order to prevent them from engaging in union solici-
tation and other protected concerted activity, the Respondent
has violated Section 8(a)(1) of the Act.
4. By unilaterally changing its prior policy and practice re-
garding the use of seniority for selection of vacation prefer-
ences, the Respondent has violated Section 8(a)(1), (3), and (5)
of the Act.
5. The aforesaid unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found herein, the Respondent has
not violated the Act in any other manner alleged in the com-
plaints.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The General Counsel and the Charging Party argue that hav-
ing had the negotiations subverted just at the time when an
agreement was expectant, the Union should be given the oppor-
tunity not merely to resume bargaining but to accept or reject
the Respondent’s penultimate contract proposals prior to the
reneging on August 27, 1993.
In Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir.
1983), the court enforced the Board’s remedy which ordered
the Company to reinstate the contract offer it had made prior to
its retraction. The court stated

In support of its contention that the remedial order is
improper because it compels an agreement, the Company
cites H.K. Porter Co. v. NLRB, 397 U.S. 99, (1970).
However, H.K. Porter Co. is clearly distinguishable from
the case at bar. In H.K. Porter Co., the Board entered a
remedial order “requiring the Company to agree to check
off the [Union] dues of the workers.” The Supreme Court
held that while the Board does have power . . . to require
employers and employees to negotiate, it is without power
to compel a company or a union to agree to any substan-
tive contractual provision of the collective bargaining
agreement . . . .” Unlike the remedial order in H.K. Porter
Co., the remedial order in the case at bar does not compel
an agreement but rather merely requires the Company to
reinstate a proposal it previously voluntarily presented
during negotiations and subsequently withdrew in viola-
tion of the Act.
The Board concluded that simply ordering the Com-
pany to bargain in good faith, without more, would permit
the Company to continue to withhold from future consid-
eration the proposal it unlawfully withdrew. By requiring
the Company to reinstate the August 27, 1979 proposal for
20 consecutive days, the Board was able to restore the
status quo without imposing an undue burden upon the
Company.

Citing Northwest Pipe & Casing Co., 300 NLRB 737 (1990),
the Union argues that it should be given 30 days to accept the
Employer’s last offer and that if does so, the contract which
would come into effect would be for 3 years from September 1,
1993,to August 31, 1996, and that it be given retroactive effect.
See also Driftwood Convalescent Hospital, 312 NLRB 247
(1993), enfd. 67 F.3d 307 (9th Cir. 1995).
I agree that a cease-and-desist order which merely puts the
parties back at the bargaining table would not, in the circum-
stances of this case, be a sufficient remedy. I therefore shall
recommend an Order whereby the Union is given the option
within 30 days to accept or reject the Company’s proposals as
they stood prior to August 27, 1993, and that the Company be
required to enter into a 3-year contract, retroactive to Septem-
ber 1, 1993, if the Union elects to accept the offer. September
1, 1993, is chosen as the date from which the contract, if ac-
cepted, should commence since it is close to August 27, the
date upon which the Respondent’s unfair labor practice was
manifested.
In reaching this conclusion, I am aware that there is no single
document which sets forth the Company’s last offer as it ex-
isted prior to August 27. Nevertheless, there does exist a num-
ber of draft contracts and correspondence from which the Com-
pany’s pre-August offer can be reconstructed. As noted above,
Chaiet by his letter of June 29, 1993, stated that there were only
4 open issues and he set forth the Company’s position on each.
In response to a letter from Chaiet dated July 20, 1993, Archer,
on August 2, forwarded a draft contract which incorporated
most of what the parties had agreed to up to that point. And to
the extent that Archer’s draft incorporated union counter-
proposals, these can be deleted. (Indeed, Archer indicated his
counterproposals by bolding the script where they located).
In the event that the Union does not elect to accept the Com-
pany’s pre-August 1993 contract offer, I shall recommend that
the Respondent resume bargaining with the Union and that the
certification year be extended by 6 months. See Mar-Jac Poul-
try Co., 136 NLRB 785 (1962), and Colfor, Inc., 282 NLRB
1173 (1987).
Finally, because the Respondent has a proclivity for violating
the Act and because of the serious nature of the violations, I
find it necessary to issue a broad Order requiring the Respon-
dent to cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]