Windward Teachers Association

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1148 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 99
1148
Windward Teachers Association, NYSUT, AFT,
AFL–CIO and Windward School. Case 2–CB–
19578
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBER LIEBMAN AND
SCHAUMBER
The sole issue in this case is whether the Respondent
unlawfully failed and refused to sign a successor collec-
tive-bargaining agreement submitted to it by the Charg-
ing Party Windward School (School).1 The judge dis-
missed the allegation, finding that there was no meeting
of the minds between the parties on the terms of a clause
in the bargaining agreement concerning the payment of
bonuses; that the contract was not, therefore, a complete
agreement between the parties regarding terms and con-
ditions of employment; and the Respondent did not,
therefore, violate Section 8(b)(3) of the Act by refusing
to execute the contract.
The School and the General Counsel have filed excep-
tions to the judge’s finding, contending that the parties
agreed on the terms of the bonus clause as these terms
were set forth in the bargaining agreement and that there
was, accordingly, a complete agreement between the
parties regarding terms and conditions of employment.
For the reasons set forth below, we find merit to the ex-
ceptions.2 Accordingly, we reverse the judge’s decision
and find that the Respondent’s refusal to sign the agree-
ment violated Section 8(b)(3).
Facts
Windward School is a private independent school in
White Plains, New York. The Respondent is the collec-
tive-bargaining representative of the School’s teachers,
librarians, and maintenance and custodial employees.

1 On May 13, 2005, Administrative Law Judge Martin J. Linsky is-
sued the attached decision. The General Counsel and the School filed
exceptions and supporting briefs. The Respondent filed an answering
brief and the School filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and record in light of the ex-
ceptions and briefs and has decided to affirm the judge’s rulings, find-
ings, and order only to the extent consistent with this Decision and
Order.
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
Pursuant to Reliant Energy, 339 NLRB 66 (2003), the General
Counsel was permitted to call to the Board's attention its recent deci-
sion in Contek Int., 344 NLRB 879 (2005).
Since 1988, the Respondent and the School have been
parties to a series of collective-bargaining agreements,
the most recent of which was effective from July 1, 1998
to June 30, 2003.3
Throughout the bargaining relationship, the School
maintained a noncontractual practice of granting bonuses
to teachers who volunteered for such extra duties as
grade coordinators, chaperones on field trips, student
theatrical production directors, and homework club
monitors. Also, on one occasion, during Dr. James Van
Amburg’s first year as head of school,4 the School
granted a $2000 bonus to every teacher who returned the
next school year. The School never sought the Respon-
dent’s approval to grant any of these bonuses, nor did the
Respondent ever contest the School’s authority to give
the bonuses.
On May 20, the parties commenced negotiations for a
successor collective-bargaining agreement. Dennis Der-
rick, a labor relations specialist for the New York State
United Teachers Association (NYSUT), led the Respon-
dent’s negotiation team.5 The other seven members of
the Respondent’s team—including the Respondent’s
president, Larry Crosby, and vice president, Kaarina
Bauerle—were bargaining unit teachers. Mark
Brossman, the School’s labor counsel, headed the
School’s negotiating committee, assisted by Assistant
Head of School David Kahn, and the School’s board of
trustees members Leigh Garry and Bill Jacoby.
The parties held eight negotiation sessions. At the
start of bargaining, they agreed that, in addition to eco-
nomics, the major issues should be annual individual
employment contracts for the teachers, union-security
clause, and updating the language of the contract to be
more consistent with the School’s practices.
By the sixth bargaining session, on June 24, the nego-
tiations were deadlocked over some of the major issues.
After caucusing, the School’s lead negotiator, Brossman,
announced, “Well, I think there’s something that we can
all agree upon.” Kahn then stated that the School wanted
its authority to grant bonuses without union approval
codified in the contract. In the ensuing discussion,
members of the Respondent’s negotiating team asked if
the proposal would cover bonuses similar to the $2000
awarded to each teacher at the end of Dr. Van Amburg’s
first year as head of school. Crosby stated that he had no

3 All dates are in 2003, unless otherwise indicated.
4 The record is silent on the exact date of this event.
5 The NYSUT is an umbrella association of 170 local unions in New
York State. Since 1993, Derrick has worked with 14 or 15 NYSUT
locals, including the Respondent, assisting them with contract negotia-
tion and maintenance, training, problem solving, and personnel issues.
There is no evidence on the record to support the judge’s finding that
Derrick is an attorney.
WINDWARD TEACHERS ASSN. 1149
objection to bonuses as long as they were fair and equal
across the board to every teacher. Kahn replied, “Oh,
yes, absolutely,” or “of course” and, together with fellow
school committee member Garry, he emphasized that the
School wanted to retain the “latitude” and “the right to
give extra money as it had done in the past” to the teach-
ers for grade coordination and similar duties. In his con-
temporaneous notes of the bargaining session, the Re-
spondent’s chief negotiator Derrick wrote simply that the
School “Reserve [sic] the right to give bonuses.”
A mediator assisted the parties for their last two bar-
gaining sessions. During the final session, on September
3, Brossman, at the request of the mediator, prepared and
presented a draft stipulation of agreement summarizing
the issues on which the parties had agreed. Article XII of
the draft, an alphabetized list of paragraphs under the
caption “Compensation,” included a statement that “A
new Paragraph K shall be added which shall read as fol-
lows: ‘The School has the right to pay bonuses without
Union approval.’” The mediator reviewed each para-
graph of the stipulation of agreement and for article
XII(K) he stated, “Bonuses, as agreed to by the two par-
ties.” The Respondent specifically requested the addition
of clarifying language to several provisions, but not to
the bonus provision. The parties agreed that Brossman
would revise the stipulation of agreement to reflect the
negotiated changes and fax a copy to the Respondent.
The parties ended the session with congratulatory hand-
shakes and mutual statements of satisfaction about hav-
ing successfully negotiated a successor collective-
bargaining agreement.
On September 5, Brossman faxed a revised stipulation
of agreement embodying the agreed changes to the Re-
spondent. Derrick immediately received and reviewed
the document. He had a couple of telephone conversa-
tions with Brossman in which he pointed out a few typo-
graphical errors in the document and sought clarification
of some concerns he had regarding certain provisions.
Derrick did not mention the bonus provision, the lan-
guage of which appeared unchanged in the new docu-
ment.
Still on September 5, Derrick held a lunchtime meeting
with his other negotiating committee members during
which they reviewed the provisions of the revised stipu-
lation of agreement item by item. Derrick explained that
the bonus provision was “a codification of the School’s
practice,” and that “it wasn’t any new or expanded power
that management had.” He further emphasized that,
“based on his discussions with Brossman,” his “under-
standing of it [the bonus provision] was that it was sim-
ply to do those things referred to earlier about the grade
coordinators and things of that nature.” The committee
endorsed the revised stipulation of agreement and de-
cided to recommend its ratification to the bargaining unit
employees.
On September 8, the Respondent conducted a general
membership meeting, during which Derrick distributed
the revised stipulation of agreement and a 2-page docu-
ment entitled, “Settlement Highlights” that he had pre-
pared listing the major terms of the parties’ agreement.
After a thorough discussion of the contract’s terms, the
Respondent’s negotiating committee recommended rati-
fication. Two days later, the employees voted to ratify
the agreement. Derrick immediately notified Brossman
of that event and, later that same day, Derrick checked
into the hospital for kidney transplant surgery.
On September 17, the School’s board of trustees rati-
fied the stipulation of agreement and the School immedi-
ately implemented the terms and conditions of the
agreement, including pay raises and bonuses. Then,
about the middle of October, Brossman incorporated the
terms of the ratified stipulation of agreement verbatim
into a successor collective-bargaining agreement that had
the effective date from July 1, 2003, to June 30, 2008,
and he sent the latter document to the Respondent for
signature. Crosby received but refused to sign the agree-
ment, according to his testimony, because he “realized”
that the bonus language did not accurately reflect what he
thought the parties had agreed to during the June 24-
bargaining session.6
On October 22, Kahn met with Crosby to discuss the
reason for the Respondent’s delay in executing the col-
lective-bargaining agreement. Crosby pointed to the
bonus clause of the agreement and asked Kahn, “Where’s
the other half of the line that we agreed to? That it be
[sic] ‘fair and equally across the board.’” Kahn denied
that the parties had agreed to the inclusion of that phrase,
adding that the contract had already been ratified by both
the Respondent’s membership and the School’s board of
trustees, and that it had been implemented by the School.
Kahn told Crosby that the School’s proposal to include
its previously unregulated bonus practice in the contract
was aimed at having contractual language to “justify” the
administration’s payment of bonuses for such tasks as

6 Crosby asserted several reasons for his alleged failure “to catch”
the alleged mistake in the bonus clause earlier. First, he denied seeing
the bonus language in the draft stipulation of agreement presented at
the September 3 mediator-assisted bargaining session. Next, he ac-
knowledged attending his committee’s September 5 meeting, receiving
a copy of the stipulation of agreement at that meeting, and that the
committee reviewed every item on the stipulation of agreement. How-
ever, he claimed that he was not in the room when the committee re-
viewed the bonus provision. Further, he admitted attending the Sep-
tember 8 membership meeting, but denied seeing the stipulation of
agreement at that meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150
coordinators. At that point, Crosby stated, “You know,
all we have to do is put it [the bonus clause] on the sti-
pend page. Because that is more appropriate . . . . Work
for a stipend, a specific job, is not a bonus.” Kahn dis-
agreed.
On October 24, Derrick returned to work—after a 6-
week sick-leave absence—and learned of the Respon-
dent’s refusal to sign the collective-bargaining agree-
ment. Derrick telephoned Brossman and stated that “he
[Derrick] was being attacked by [the Respondent’s]
membership, that they wanted change in the language in
the agreement dealing with bonuses,” (emphasis added)
and suggested that the parties add the phrase “consistent
with past practice” to the bonus clause. Brossman stated
to Derrick that the collective-bargaining agreement had
been negotiated and ratified for a month and a half, and
he added that although he would take Derrick’s sugges-
tion to the School, he was concerned about opening the
contract for the renegotiation of certain provisions. Der-
rick urged Brossman, “sort of as a personal favor,” to see
if “this was something that the parties could solve.”7
Thereafter, Brossman reported to Derrick that the School
had refused the proposed change.
On November 3, the School executed the agreement,
and sent it to the Respondent for signature. By letter
dated November 11 and addressed to Kahn, Crosby re-
sponded that “there was a deletion of a line that changed
the whole complexion of the agreement.” The letter con-
tinued, “The line which was agreed upon by both parties
should have read, ‘The Windward School has the right to
give bonuses without Union approval as long as each
teacher is given the same amount of money across the
board.’”
On November 24, Brossman replied that the Respon-
dent’s dispute was over the interpretation of the language
of the bonus provision, and that the collective-bargaining
agreement provided for the resolution of such disputes
through the grievance procedure. Brossman listed the
opportunities that the Respondent had to review, discuss,
and suggest changes to the bonus language but failed to
do so; and he denied, as “completely false,” Crosby’s
claim that a line had been deleted from the agreement.
The Respondent never executed the School’s draft
agreement.
Analysis
It is well settled that Section 8(d)’s obligation to bar-
gain collectively requires either party, upon the request
of the other party, to execute a written contract incorpo-

7 Derrick and Brossman had a good working relationship that dated
back to their participation in the 1988 negotiations for the parties’ first
collective-bargaining agreement.
rating an agreement reached during negotiations. Section
8(b)(3) implements that obligation by making it an unfair
labor practice for a union to refuse an employer’s request
to sign a negotiated agreement. See Graphic Communi-
cations Union District 2 (Riverwood International USA),
318 NLRB 983, 990 (1995), and cases cited therein. Cf.
H. J. Heinz v. NLRB, 311 U.S. 514 (1941). However,
this obligation arises only if the parties had a “meeting of
the minds” on all substantive issues and material terms of
the agreement. See Sunrise Nursing Home, 325 NLRB
380, 389 (1998). The General Counsel bears the burden
of showing not only that the parties had the requisite
“meeting of the minds” on the agreement reached but
also that the document which the respondent refused to
execute accurately reflected that agreement. See Kelly’s
Private Car Service, 289 NLRB 30, 39 (1988), enfd. sub
nom. NLRB v. W.A.D. Rentals Ltd., 919 F.2d 839 (2d
Cir. 1990); Cherry Valley Apartments, 292 NLRB 38, 40
(1988); Paper Mill Workers Local 61 (Groveton Papers
Co.), 144 NLRB 939, 941–942 (1963). If it is deter-
mined that an agreement was reached, a party’s refusal to
execute the agreement is a violation of the Act. See H. J.
Heinz Co., 311 U.S. at 525–526.
The expression “meeting of the minds” is based on the
objective terms of the contract, not on the parties’ subjec-
tive understanding of those terms. See Hempstead Park
Nursing Home, 341 NLRB 321, 323 (2004). It does not
require that both parties have an identical understanding
of the agreed-upon terms. See Ebon Services, 298
NLRB 219, 223 (1990), enfd. mem. 944 F.2d 897 (3d.
Cir. 1991); Longshoremen ILA Local 3033 (Smith Steve-
doring), 286 NLRB 798, 807 (1987). Where the parties
have agreed on the contract’s actual terms, disagreements
over the interpretation of those terms do not provide a
defense to a refusal to sign the contract. See Teamsters
Local 617 (Christian Salvesen), 308 NLRB 601, 603
(1992).
Examined under the foregoing principles, we find, for
the reasons set forth below, that the General Counsel has
established that the parties reached a “meeting of the
minds” on the terms of a contract, including the bonus
clause, and that the document submitted to the Respon-
dent by the School for the Respondent’s signature accu-
rately reflected that agreement. Accordingly, we con-
clude that the Respondent is obligated to execute the
School’s draft successor collective-bargaining agreement
containing the bonus provision.
As an initial matter, it is clear, as the judge found, that
both parties believed they had reached a complete
agreement on a successor contract at the last bargaining
session on September 3. The parties concluded that ses-
sion with handshakes and mutual expressions of satisfac-
WINDWARD TEACHERS ASSN. 1151
tion on their successful negotiation of a contract. Such
conduct is a hallmark indication that a binding agreement
has been reached at the end of negotiations. See Graphic
Communications District 2 (Riverwood International
USA), supra (handshakes to seal the parties’ successful
arrival at agreement); Brooks, Inc. v. International La-
dies’ Garment Workers Union, 835 F.2d 1164, 1169 (6th
Cir. 1987) (“tone and temperament of the parties” at the
end of negotiations signaled agreement).
More importantly, the Respondent reviewed several
versions of the contract without objecting to the terms of
the bonus clause that were identical to the terms that the
Respondent challenged in the draft successor collective-
bargaining agreement language submitted to it October.
The Respondent thereby consented to the integration of
that language into the complete agreement. The bonus
clause provision appeared as article XII(K) in three sepa-
rate documents, including the September 3 draft stipula-
tions of agreement, the September 5 revised stipulation
of agreement, and the successor collective-bargaining
agreement. In the first two documents, the bonus provi-
sion, in plain language, states, “A new Paragraph K shall
be added which shall read as follows: ‘The School has
the right to pay bonuses without Union approval.’” The
Respondent admittedly reviewed that bonus language on
numerous occasions and never once disputed its accu-
racy,8 thereby consenting to the subsequent integration of
the latter part of that provision into the parties’ successor
agreement. The Respondent circulated that same stipula-
tion of agreement to its members, who had the opportu-
nity to read it and vote on it. The membership ratified
the agreement. Pursuant to the stipulation of agreement
and the employees’ and the School’s board of trustees’
ratification of the agreement, the School prepared the
successor contract, which included the same language:
“The School has the right to pay bonuses without Union
approval.”
The judge dismissed the allegation on the basis of his
finding that there was “no meeting of minds between the
parties on the language of the bonus clause.”9 The judge

8 By contrast, during the mediator-assisted final bargaining session
on September 3, the Respondent suggested changes to numerous provi-
sions of the draft stipulation of agreement and, thereafter, submitted
new language to be added to the provisions addressing salary scales for
some teachers and the number of days in the school year. Then, upon
receipt of the September 5 revised stipulation of agreement reflecting
the agreed changes, the Respondent contacted the School to point out
some errors in the document and to seek clarification on certain points.
9 The judge states that the Respondent’s negotiators failed to catch
“missing language that bonuses be fair and equitable and across the
board” in the September 5 stipulation of agreement. Given the judge’s
definite and repeated finding that “there was no meeting of minds be-
tween the employer and the union on the language of the bonus clause,”
we do not interpret this reference as implying that the judge found that
cited three types of evidence in support of this conclu-
sion: first, credited testimony that at the June 24 bargain-
ing session, the Respondent conditioned its acceptance of
the School’s proposal that the successor contract grant it
the right to give bonuses without union approval on the
understanding that bonuses were to be “fair and equitable
and across the board,” an understanding that the final
contract language failed to reflect; second, evidence that
the Respondent’s assent to the bonus language in the
final agreement was based on its good-faith failure to
notice the “problem with the bonus language” until its
members saw the final collective-bargaining agreement
in mid-October; and third evidence that the parties have
subsequently advanced conflicting interpretations of the
meaning of the bonus clause.
Contrary to the judge, this evidence does not support
his ultimate finding that there was no meeting of minds
between the parties on the terms of the bonus clause.
First, regarding the question of whether the final bonus
language failed to reflect understandings reached by the
parties at the June 24 bargaining session, we observe
initially that the judge did not find—and the evidence
does not show—that on that date the parties reached a
meeting of minds regarding the terms of the bonus clause
to be incorporated in the final contract. At most, the
credited evidence shows only that the School orally
agreed to the interpretation of the proposed bonus clause
advanced by the Respondent’s negotiators. There was no
agreement on specific language to be used.10 More fun-
damentally, however, the credited evidence shows that in
September the Respondent received, reviewed, and duly
ratified a final agreement that incorporated the bonus
clause language set forth in the September 3 draft stipu-
lation of agreement, and that this clause did not include
any language reflecting the proviso discussed at the June
24 negotiations. In September, therefore, the parties did
reach a meeting of the minds as to the language of the
bonus clause that was to be included in the final contract.
The Respondent may not, therefore, refuse to execute the
final agreement on the ground that this agreement failed

the parties had agreed on June 24 to include the expression “fair and
equitable and across the board” in the bonus clause.
10 Chairman Battista does not find that the parties agreed that future
bonuses would be awarded in any particular way. He believes that the
written language of the contract is clear and unambiguous, i.e., the
school has authority to give bonuses, without union approval, and there
is no requirement to give bonuses in any particular way. Accordingly,
he does not pass upon the issue of whether parol evidence varied the
terms of the agreement. In any event, that parol evidence is ambiguous.
School agent Kahn arguably agreed that the bonus would be fair and
equal and across the board to every teacher, but School agent Gary then
immediately said that the School retained its “latitude.” Chairman
Battista would not permit the ambiguous parol evidence to vary the
clear terms of the written agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152
to embody the results of the June 24 negotiations. See
Ebon Services, 298 NLRB 219 fn. 2 (1990) (employer
obligated to execute contract that he had reviewed and
agreed to sign notwithstanding alleged discrepancies
between what was discussed in negotiations and terms of
final contract).
Nor does the judge’s apparent finding that the Respon-
dent’s failure to object to the written bonus clause in
September was based on good-faith oversight on its part
excuse the Respondent’s refusal to execute the final
agreement. A contracting party’s error, even if made in
good faith, does not excuse its refusal to execute a collec-
tive-bargaining agreement unless that error constitutes a
legally cognizable mutual or unilateral mistake. There
was no mutual mistake as to the terms of the agreement
because the wording of the bonus clause in the successor
agreement submitted by the School for the Respondent’s
signature was identical to that proposed by the School on
September 3. Any mistake, therefore, can have been
made only by the Respondent. The doctrine of unilateral
mistake is also inapplicable in these circumstances, how-
ever, because “[a] party to a contract cannot avoid it on
the ground that he made a mistake where the other con-
tractor has no notice of such mistake and acts in perfect
good faith.” North Hills Office Services, 344 NLRB 523,
528 (2005). See also Apache Power, 223 NLRB 191
(1976) (rescission based on unilateral mistake should be
a carefully guarded remedy and reserved for those in-
stances where a mistake is so obvious as to put the other
party on notice of the error). Here, as discussed more
fully above, the Respondent reviewed several writings
containing the bonus clause language without objecting
to that language and then refused to sign the successor
agreement on the asserted ground that identical language
contained in that agreement was defective. Even assum-
ing that the Respondent made a bona fide mistake in fail-
ing to object to the bonus clause as written, its mistake
was not so obvious as to put the School on notice that
Respondent’s clearly manifested assent was made in er-
ror. On the contrary, the Respondent’s conduct gave the
School every reason to suppose that the bonus language
reflected the parties’ exact agreement. Accordingly, the
Respondent may not avoid the contract on grounds of
either unilateral or mutual mistake.11
Finally, the evidence that the parties held conflicting
subjective interpretations of the meaning of the bonus-
clause terms that the parties agreed in September to in-
corporate within the final contract does not support the
judge’s conclusion that the parties failed to reach a meet-

11 The Respondent does not claim fraud, bad faith or inequitable
conduct on the part of the School.
ing of minds on the language of the contract. It is well
settled that where parties have reached agreement on the
specific terms of a contract, subsequent disagreement
over the meaning of those terms does not excuse a re-
fusal to execute the agreement. Graphic Communica-
tions District 2, 318 NLRB at 992–993; Teamsters Local
617, 308 NLRB at 603.
In sum, it is clear that the parties agreed on the terms
of the successor collective-bargaining agreement submit-
ted by the School for the Respondent’s signature. The
Respondent's disagreement with the School over the
scope of the bonus clause contained in that agreement is
a dispute over interpretation, which does not justify the
Respondent’s refusal to execute the agreement. Accord-
ingly, the Respondent’s refusal to sign the agreement
violated Section 8(b)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Windward School is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent, Windward Teachers Association,
NYSUT, AFT, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times since 1988, the Respondent has been the
exclusive collective-bargaining representative of the unit
employees and has been recognized as such by the
School in successive collective-bargaining agreements,
the most recent of which was effective by its terms for
the period July 1, 1998, to June 30, 2003.
4. The Respondent and the School reached complete
agreement, on September 3, 2003, concerning terms and
conditions of a successor collective-bargaining agree-
ment.
5. By refusing, since on or about October 22, 2003, to
execute the draft successor collective-bargaining agree-
ment, which embodies the terms of the September 3,
2003 agreement between itself and the School, the Re-
spondent has engaged in acts and conduct violative of
Section 8(b)(3) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
AMENDED REMEDY
Having found that Respondent violated Section 8(b)(3)
of the Act by failing and refusing to execute the agree-
ment reached by it and the School, it shall be ordered to
cease and desist from refusing to sign the agreement and
to take certain affirmative actions designed to effectuate
the policies of the Act.
WINDWARD TEACHERS ASSN. 1153
ORDER
The National Labor Relations Board orders that the
Respondent, Windward Teachers Association, NYSUT,
AFT, AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to execute the successor col-
lective-bargaining agreement that was submitted to it by
the School and which embodies the terms of the agree-
ment reached on September 3, 2003, between itself and
the School.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, forthwith execute the collective-
bargaining agreement that was submitted to it by the
School for signature.
(b) Within 14 days after service by the Region, post at
its office and meeting halls in White Plains, New York,
copies of the attached notice marked “Appendix.”12
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other materials.
(c) 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.
APPENDIX
NOTICE TO MEMBERS
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to sign the collective-
bargaining agreement, which was submitted to us by
Windward School for our signature, and which embodies
the terms of our September 3, 2003 agreement with
Windward School on the terms and conditions of a suc-
cessor collective-bargaining agreement.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed to you
by Section 7 of the Act.
WE WILL, on request, forthwith execute the collective-
bargaining agreement, which was submitted to us by
Windward School for our signature.
WINDWARD TEACHERS ASSOCIATION, NYSUT,
AFT, AFL–CIO
Terry-Ann Cooper, Esq., for the General Counsel.
John L. Schlechty, Esq., of Elmsford, New York, for the Re-
spondent.
Scott A. Gold, Esq. (Schulte, Roth & Zabel, LLP), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Decem-
ber 9, 2003, a charge in Case 2–CB–19578–1 was filed against
the Windward Teachers Association, NYSUT, AFT, AFL–CIO
(the Union or Respondent) by the Windward School (the
Charging Party or Employer or School).
On October 26, 2004, the National Labor Relations Board
(the Board), by the Regional Director for Region 2, issued a
complaint alleging that Respondent violated Section 8(b)(3) of
the National Labor Relations Act (the Act) when it failed and
refused to honor the Employer’s request to execute a written
contract embodying the complete agreement it had reached
with the Employer on the terms and conditions of employment.
Respondent filed an answer in which it denied that it violated
the Act in any way.
A hearing was held before me on February 28 and March 2
and 3, 2005, in New York City.
Upon the entire record in this case, to include posthearing
briefs submitted by counsel for the General Counsel, counsel
for Respondent, and counsel for the Charging Party and giving
due regard to the testimony of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
At all material times, the Charging Party or Employer has
operated a private independent school, located in White Plains,
New York.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1154
Respondent Union admits, and I find, that at all material
times the Charging Party Employer has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
I. THE LABOR ORGANIZATION INVOLVED
Respondent Union admits, and I find, that at all material
times the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Overview
The Windward School is a private independent school lo-
cated in White Plains, New York. The Union has represented a
unit of employees at the school since 1988. The unit of em-
ployees the Union represents is as follows:
All full-time and part-time professional employees, including
the computer teacher and the librarian, and the full-time main-
tenance and custodial employee. Excluded: the Head of
School, Business Manager, Division Heads, clerical employ-
ees, Dean of Student Activities, Guidance Counselor, School
Psychologist, Director of Education, Director of Develop-
ment, Director of Admissions, Director of Communications,
Director of Athletics, Director of Finance and Operations, Di-
rector of Special Services, Speech/Language Therapists and
guards and supervisors as defined in the Act.
The most recent collective-bargaining agreement between
the parties was effective from July 1, 1998, to June 30, 2003.
Beginning in May 2003, the parties began negotiations for a
successor collective-bargaining agreement.
The parties had a total of eight negotiating sessions. The
first session was held on May 20, 2003, and the last session was
held on September 3, 2003.
At the last two negotiating sessions the parties had the assis-
tance of a mediator.
On September 3, 2003, both parties believed that they had
reached a complete agreement on a successor contract. After
ratification by the union membership on September 10, 2003,
and by the board of trustees of the school on September 17,
2003, the Employer implemented the terms and conditions of
employment contained in the agreement which included pay
raises for unit employees.
Counsel for the Employer on November 3, 2003, having ear-
lier sent copies of the collective-bargaining agreement to the
Union, which agreement was to run for a 5-year term from July
1, 2003, to June 30, 2008, requested that the Union sign the
agreement. On or about November 11, 2003, the Union refused
on the grounds that the written agreement did not accurately
reflect the agreement reached by the parties.
The Employer filed a charge with the National Labor Rela-
tions Board, which issued a complaint alleging that the Union
violated Section 8(b)(3) of the Act when it refused to sign the
agreement agreed to by the parties.
Section 8(b)(3) of the Act provides as follows:
It shall be an unfair labor practice for a labor organiza-
tion or its agents to refuse to bargain collectively with an
employer, provided it is the representative of his employ-
ees subject to the provisions of section 9(a).
Section 8(d) of the Act provides, in part, as follows:
(d) [Obligation to bargain collectively] For the pur-
poses of this section, to bargain collectively is the per-
formance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or
the negotiation of an agreement of any question arising
thereunder, and the execution of a written contract incor-
porating any agreement reached if requested by either
party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession.
. . . [Emphasis added.]
The dispute between the parties boils down to a disagree-
ment over a new paragraph 12K of the agreement. The lan-
guage in the contract which the employer claims was agreed to
is as follows: “The School has the right to pay bonuses without
Union approval.” The Union claims that the parties agreed to
that language provided the granting of bonuses was fair and
equitable and across the board. The employer takes the posi-
tion that the language puts no conditions on the employer when
it comes to granting bonuses.
It is my finding that there was no meeting of the minds on
paragraph 12K and, therefore, there was no complete agree-
ment on the terms and conditions of employment and the Union
did not violate Section 8(b)(3) of the Act when it refused to
sign the collective-bargaining agreement. Had there been com-
plete agreement, which there was not, the Union’s refusal to
sign the agreement would be a violation of the Act. See Team-
sters Local 617 (Christian Salvensen), 308 NLRB 601, 602
(1992).
B. Discussion
The parties agree that when negotiations began that in addi-
tion to economics the two major issues were the school’s desire
to have individual employment contracts with its teachers, so
the school would know who would be returning to teach the
following school year and school’s desire to do away with the
union-security clause in the contract, because the school
thought some prospective teachers they may want to hire in the
future would not want to become members of a union. The
school also wanted to clean up some language in the contract to
be more consistent with the practice of the parties.
Suffice it to say the parties reached an agreement on the is-
sue of individual contracts by agreeing to a new article XIX
which provided as follows:
ARTICLE XIX
INDIVIDUAL CONTRACTS
Each non-probationary faculty member covered by this
Agreement shall have an individual employment contract
in the form attached as Exhibit 2. It is understood and
agreed that the intent of this section is to provide the
School with sufficient notice of a faculty member’s deci-
sion not to return for the following school year to enable
WINDWARD TEACHERS ASSN. 1155
the School to competitively participate in the hiring of
prospective new faculty. In return, the School will agree
to employ the faculty member for the following school
year notwithstanding lack of enrollment. Nothing herein
shall supersede Article VI of this Agreement. This section
shall not apply to assistant teachers.
Accordingly the parties have agreed to the following
timetable:
February 15th: the School shall offer a contract for the
following school year to all non-probationary teachers and
to all probationary teachers about whom there is no
evaluative concern under the provisions of the Agreement
and for whom a position is expected to exist.
March 1st: faculty shall return a signed contract or re-
quest an extension in writing. In those cases, the School
shall grant a one (1) month extension.
April 1st: faculty who were granted extensions shall
return a signed contract. If the staff member does not re-
turn a signed contract, the School shall be free to fill the
positions which have not been accepted.
If a teacher has executed an individual employment
contract for the following school year, it shall be a breach
of contract for the teacher to subsequently accept a posi-
tion with an educational institution within a one-hundred
mile radius of the West Red Oak Lane Campus. The
School agrees that it will not pursue legal remedies with
respect to the breach of contract against the individual
teacher.
The old contract (July 1, 1998–June 30, 2003) contained the
following article regarding union security:
ARTICLE II
MEMBERSHIP AND PAYMENT OF DUES
MEMBERSHIP
Windward School and WTA agree that as a condition of em-
ployment all employees within the scope of the bargaining
unit shall become members of WTA within thirty (30) days
after commencing employment.
1. All employees who become members of WTA
shall remain members during the life of the Agree-
ment.
2. Upon receiving a signed statement from WTA in-
dicating that an employee has failed to comply
with the above conditions, said employee’s ser-
vices shall be discontinued within two (2) working
days after receipt of notification. Refusal to join
WTA is recognized as just and reasonable cause
for termination of employment.
3. This provision does not affect employees hired for
summer or after school activities.
MAINTENANCE OF FEES AND ASSESSMENTS
All fees for Union membership, as prescribed in the
constitution and bylaws of WTA shall be deducted in
equal amounts from each payroll check of each member
and remitted promptly to NYSUT by Windward School.
1. The permission to retain the fees and assessments
shall be granted through the signing of agreed
upon authorization cards.
2. The granting of authorization shall indemnify
Windward School against any and all claims or
other forms of liability that may arise out of such
authorization. Further WTA holds Windward
School harmless for any sums so deducted as to
any and all liability as a result thereof.
3. The withdrawal of authorization may be accom-
plished only through the termination of the
Agreement, or through written notification, to both
the Windward School and WTA, of his/her desire
to withdraw such authorization three (3) days prior
to the annual anniversary of the granting of such
authorization. Otherwise, the granting of such au-
thorization shall remain in effect during the life of
this Agreement.
4. The authorization cards shall consist of the follow-
ing form:
Last Name ________ First Initial _________ Initial _______
TO: Windward School
I hereby request and authorize Windward School according to
arrangements agreed upon with WTA to deduct, in equal
amounts from each payroll check, all fees as certified by
WTA to be required by the constitution and bylaws of WTA.
I hereby waive all right and claim for monies so deducted and
transmitted in accordance with the authorization and relieve
Windward School from any liability for said sums. The right
to withdraw this authorization shall exist only during the three
days preceding the anniversary of this authorization through
the use of a written instrument. Otherwise, this authorization
shall be continuous for the duration of the contract.
__________________________ _____________________
Employee Signature Date
The parties reached an agreement to modify the above union-
security clause. The language agreed to by the parties was as
follows:
ARTICLE II
MEMBERSHIP AND PAYMENT OF DUES
MEMBERSHIP
Windward School and WTA agree to an Agency Shop. As a
condition of employment all employees within the scope of
the bargaining unit shall elect within thirty (30) days after
commencing employment either to join the union or to pay to
the WTA its cost of representation (but not costs or fees relat-
ing to the Union’s political and other non-representational ac-
tivities).
1. Only members of the Union or non-members pay-
ing the agency fee may be employed or continue to
be employed. Upon receiving a signed statement
from the WTA indicating that an employee has
failed to comply with the above conditions, said
employee’s services shall be discontinued within
two (2) working days after receipt of notification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1156
2. This provision does not affect employees hired for
summer or after school activities.
3. No member of the faculty shall be discriminated
against because of membership or non-
membership in the Union.
MAINTENANCE AND FEES AND ASSESSMENTS
All fees for Union membership or for non-members paying
the agency fee, as prescribed in the constitution and bylaws of
WTA shall be deducted in equal amounts from each payroll
check of each employee and remitted promptly to WTA by
Windward School.
1. The permission to retain the fees and/or assess-
ments shall be granted through the signing of
agreed upon authorization cards in the form at-
tached hereto as Exhibit 1A (Membership) and 1B
(Non-membership).
2. The granting of authorization shall indemnify
Windward School against any and all claims or
other forms of liability that may arise out of such
authorization. Further WTA holds Windward
School harmless for any sums so deducted as to
any and all liability as a result thereof.
3. The withdrawal of authorization may be accom-
plished only through the termination of the
Agreement, or through the member’s written noti-
fication to both the Windward School and WTA or
his/her desire to change authorization.
EXHIBIT 1A
AUTHORIZATION FOR MEMBERSHIP
Last Name __________ First Name ________ Initial ______
TO: Windward School
I hereby request and authorize Windward School according to
arrangements agreed upon with WTA to deduct, in equal
amounts from each payroll check, all fees as certified by
WTA to be required by the constitution and bylaws of WTA.
I hereby waive all right and claim for monies so deducted and
transmitted in accordance with the authorization and relieve
Windward School from any liability for said sums. The right
to withdraw this authorization shall exist only during the three
days preceding the anniversary of this authorization through
the use of a written instrument. Otherwise, this authorization
shall be continuous for the duration of the contract.
_______________________ _____________________
Employee Signature Date
EXHIBIT 1B
AUTHORIZATION FOR NON-MEMBERSHIP
TO: Windward Teachers Association, NYSUT, AFT, AFL–
CIO
To Whom it May Concern:
Pursuant to Article II of the collective-bargaining
agreement between the Windward School and the Wind-
ward Teachers Association, NYSUT, AFT, AFL–CIO
(“the Union”), the undersigned hereby elects not to be a
member of the Union.
Accordingly, I will only pay the cost of representation
and it is agreed that the Union shall rebate to me all costs
and fees relating to the Union’s political and other non-
representational activities.
Sincerely,
________________
cc: Windward School
The parties reached agreement on these two very contentious
issues, i.e., individual contracts and changing to an agency
shop. The parties, by the end of the last negotiating session,
reached an agreement on economics.
The chief negotiator for the school was Attorney Mark
Brossman. He was assisted by Dr. Daniel Kahn, the assistant
head in charge of planning and resources at the Windward
School and two members of the Windward School’s board of
trustees, Leigh Garry and Bill Jacoby.
The chief negotiator for the Union was Attorney Dennis Der-
rick, a former school teacher who was facing major surgery,
i.e., a kidney transplant, right after the negotiations ended. He
was assisted by Union President Larry Crosby, who is also a
teacher at the school, and several other teachers at the school,
i.e., Lisa Bambino, John Vermette, Mara Cohen, Beth Foltman,
and Kaarina Bauerle.
At the negotiating session on June 24, 2003, Brossman told
the Union that he had a proposal that the parties could agree to
and then Dr. Kahn said that the school wanted the authority to
pay bonuses without union approval if it had extra money.
According to the testimony of Brossman, Kahn, and Garry, the
Union appeared to agree to this proposal, but said nothing one
way or the other and did not condition in any way the school’s
authority to give bonuses. Board of trustees member Bill
Jacoby did not testify. Lisa Bambino, one of the union negoti-
ating committee members, who later quit her leadership posi-
tion in the Union, likewise testified in the General Counsel’s
case that the Union agreed to this proposal and did not condi-
tion the school’s authority to give bonuses in any way.
However, all the other members of the union negotiating
team, i.e, Attorney Dennis Derrick, Larry Crosby, John Ver-
mette, Mara Cohen, Beth Foltman, and Kaarina Bauerle spe-
cifically remember that the Union was agreeing to the school
giving bonuses without union approval if the bonuses were fair
and equitable and across the board. Derrick, Crosby, Vermette,
and Bauerle testified it was Larry Crosby who said the Union
would have no objection to bonuses if fair and equitable and
across the board. Foltman didn’t testify one way or the other as
to who said it, but someone did and Cohen said someone said it
but she wasn’t sure who it was. They all agree that Dr. Kahn
responded by saying “of course” or “absolutely” when Crosby
said ok to bonuses if fair and equitable and across the board.
All the individuals involved in the negotiations on both sides
were aware that some years earlier during the first year that Dr.
James E. Van Amburg was head of school, the school had an
“extra” $100,000 and gave the same amount bonus ($2000) to
each and every member of the unit returning for the new school
WINDWARD TEACHERS ASSN. 1157
year. Accordingly, Crosby’s statement after management said
it wanted authority to pay bonuses without union approval that
the Union would have no objection if the payment of bonuses
was fair and equitable and across the board makes sense.
I found Crosby and Derrick to be very credible. Likewise, I
fully credit the testimony of John Vermette who is still a
teacher at the school, Mara Cohen, who left the Windward
School and now teaches in a public school, Beth Foltman, who
is no longer represented by the Union, because she has been
promoted to the position of assistant principal at the school, and
Kaarina Bauerle, who still teaches at the school and receives
extra compensation because she serves as the coordinator for
the third grade teachers at the Windward School. Bauerle is
now the union vice president since Cohen left the school to
teach in a public school. Crosby has been a teacher at the
school for over 25 years, Vermette has been a teacher at the
school for 16 years, and Cohen had taught at the school for 13
or 14 years before moving on to a public school.
Board of trustee member Leigh Garry testified as follows:
Q. What is your understanding—the bonuses would be
paid without Union approval by the School for what?
A. For whatever the School wanted to pay them for.
Q. In other words they could say “well, you were a
better sixth grade teacher than the other persons; so there-
fore the other person will get what the contract calls for
and you’re going to get what the contract calls for plus a
bonus”?
A. That was certainly never used as an example.
Q. Okay. Is it your understanding that you could not
do that under 12-K?
A. My understanding is that we don’t need to ask the
Union to approve how we compensate our teachers.
Q. Although all salaries are in the contract, aren’t
they?
A. Extra Salary.
Q. But is it extra compensation for extra duties? Or is
it anything the School wants it to be?
A. I think the Administration and the Board wanted to
give our Administration was as much flexibility as possi-
ble.
Q. So that they could give a bonus to a teacher for any
reason they wanted under the sun?
A. Sure.
Dr. Kahn testified before me on the reasons for the School’s
bonus proposal in the 2003 negotiations as follows:
We wanted it I think for two major reasons. (1) We wanted to
make sure that we were going to only pay monies that were
specified within the contract. We didn’t want to pay anything
that was outside of the contract. So we wanted to codify eve-
rything that was in the past. The other reason is we were very
concerned—there is a very competitive market for teachers in
independent schools. It is typical that independent schools
pay bonuses for exceptional performance or effort or some-
thing that’s unusual. We wanted to have that same opportu-
nity so that we could be consistent with our competitors. And
not knowing what that might be from year to year, we didn’t
want to have to go back to the Union every single time that
somebody took on additional responsibilities or did something
additional during the school day. We wanted to be able just to
recognize that within the contract, put it in the contract so it
would be able to be taken care of. We didn’t see this as a big
issue because it’s standard practice in our business. It’s stan-
dard practice. So we wanted it for, I guess the two reasons
that I just explained.
The testimony of Garry and Kahn at the trial before me as to
the meaning of the bonus language was not told to the Union
during bargaining.
Testimony at the hearing referred to the practice that extra
moneys paid to teachers were specified in the contract, e.g.,
teachers working with school clubs, coaching sports, etc. Some
extra money paid to teachers was not specifically covered in the
agreement, i.e., moneys for being class coordinators for chap-
eroning students on out of town trips or overnight sleep overs.
Dennis Derrick and Lisa Bambino thought the proposed bo-
nus language of paragraph 12K was to have in the contract
language authorizing the payment of extra moneys to teachers
for being class coordinators or for doing extra duty like chaper-
oning a class trip to Boston or Washington.
The rest of the union negotiating team thought that the bonus
language of paragraph 12K was to authorize an across-the-
board bonus in the same amount to each member of the unit as
was done during Dr. Van Amburg’s first year as head of school.
Dr. Kahn and Garry gave the bonus language a much broader
meaning, i.e., the school could pay bonuses for any reason it
thought was a good reason.
One thing is clear—there was no meeting of the minds on the
bonus language.
It seems clear that the school wanted the authority to pay bo-
nuses without union approval either consistent with past prac-
tice such as occurred in Dr. Van Amburg’s first year as head of
school or for extra duties not covered in the prior agreement
and also wanted the authority to pay bonuses without union
approval if something came up which management could not
foresee at the time of negotiations, possibly the payment of a
bonus without union approval to keep a prized teacher who was
tempted to leave the Windward School for a higher paying
teaching position elsewhere.
It is also clear that much of the union negotiating team, i.e.,
Crosby, Vermette, Cohen, Foltman, and Bauerle, envisioned
the payment of bonuses without union approval to be fair and
equitable across the board such as was done in Dr. Van Am-
burg’s first year as head of school.
General Counsel’s Exhibits 4 and 6 were received in evi-
dence. General Counsel’s Exhibit 4 is a 5-page document pre-
pared by Mark Brossman, the chief spokesman for the school,
summarizing the Employer’s proposal and entilted “Stipulation
of Agreement.” It contains a statement under article III (com-
pensation) that reads “A new Paragraph K shall be added which
shall read as follows: ‘The School has the right to pay bonuses
without Union approval.’”
Brossman prepared the document prior to the last negotiating
session on September 3, 2003, which was long after the June
24, 2003 meeting where the parties discussed the bonus issue
and appeared to reach agreement on it, but where I find there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1158
was no meeting of the minds. The mediator was not present at
the June 24, 2003 session.
At the September 3, 2003 negotiating session, Brossman
marked up his copy of General Counsel’s Exhibit 4 to reflect
the parties’ “agreement,” and created General Counsel’s Ex-
hibit 6 which purported to be the parties’ agreement. The sec-
tion on article XII, paragraph K, i.e., bonuses, remained the
same as in General Counsel’s Exhibit 4, i.e., “the School has
the right to pay bonuses without Union approval.” When the
mediator went over the stipulation of agreement he said the
bonus clause was as agreed to by the parties.
General Counsel’s Exhibit 6 was sent to the union negotiat-
ing committee who reviewed it on September 5, 2003, without
catching the problem with the new article XII, paragraph K,
i.e., the missing language that bonuses be fair and equitable and
across the board. The union negotiating committee recom-
mended ratification to the membership at a meeting on Septem-
ber 8 and on September 10, 2003, the membership, in a close
vote, voted to ratify the agreement.
Attorney Dennis Derrick prepared a 2-page “Settlement
Highlights” paper to deliver at the union membership meeting
on September 8, 2003, which is in evidence as Respondent’s
Exhibit 6. There is no mention at all of article XII, paragraph
K, i.e., the bonus language.
After ratification the Employer’s lawyer put the collective-
bargaining agreement together and sent it to the Union for sig-
nature. It was at this time that the union members saw the
problem with the bonus language.
Union Attorney Derrick tried without success to get the Em-
ployer to add the language “consistent with past practice” to
paragraph 12K, but the employer would not agree and the Un-
ion refused to sign the agreement. The language “consistent
with past practice” would have covered extra pay for teachers
who served as class coordinators or chaperons and would also
cover a situation where a bonus was given similar to when a
bonus was given during Dr. Van Amburg’s first year as head of
school.
As noted above, the school implemented the contract even
though the Union would not sign it. Accordingly, the unit em-
ployees have received raises, etc.
Since I find there was no meeting of the minds between the
Employer and the Union on the language of the bonus clause, I
must necessarily conclude that the parties did not have a com-
plete agreement on terms and conditions of employment and
that the Union did not violate Section 8(b)(3) of the Act when it
failed and refused to execute the contract sent to it by the em-
ployer. This is not a case where the Union changed its mind,
but is a case of no meeting of the minds.
Ideally the parties should return to the table and reach
agreement on the bonus clause (art. XII, par. K). The school’s
argument that the Union should sign the contract and grieve the
meaning of the language would make sense if the parties had
already signed the agreement and thereafter had a disagreement
on its meaning, but it is not appropriate prior to execution. The
parties should attempt to agree on bonus language. No doubt
the Union should have caught this mistake earlier. This is un-
fortunate, but may be explained by Dennis Derrick’s health
problems. A former school teacher himself he entered the hos-
pital for a kidney transplant on September 10, 2003, and re-
turned to work on October 14, 2003, to learn of the problem
with the bonus clause. He was out of work again for health
reasons from November 19, 2003, to January 2004. Hopefully,
he is fully recovered.
CONCLUSIONS OF LAW
1. The Windward School is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, Windward Teachers Association, NYSUT,
AFT, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the com-
plaint.
[Recommended Order omitted from publication.]