351 NLRB No. 068;12/14/2007;TTS Terminals, Inc.;13-CA-43370

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 violated 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

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not refuse to bargain in good faith with respect to wages, hours, and other terms and conditions of employment by refusing to execute the collective-bargaining agreement agreed upon and provided to us by International Brotherhood of Teamsters, Local Union 705 (the Union) on May 25, 2006. The Union is the exclusive bargaining representative for the following unit:

All full-time and regular part-time gate inspectors employed by us at our facilities currently located at the Burlington Northern Santa Fe rail yards at 7600 Santa Fe Drive, Willow Springs, Illinois and at 5601 W. 26th Street, Cicero, Illinois; but excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will forthwith sign the collective-bargaining agreement agreed upon with the Union and forwarded to us on May 25, 2006.

We will make you whole, with interest, for any loss of earnings and other benefits you may have suffered as a result of our refusal to sign the agreement.

TTS Terminals, Inc.

Jessica Muth, Esq., for the General Counsel.

Maynard A. Buck, Esq. (Benesch, Friedlander, Coplan & Aronoff, LLP), of Cleveland, Ohio, and Alexander Plona, Esq. (Alexander Plona & Associates, LPA), of Independence, Ohio, for the Respondent.

Edward Burke, Esq., of Chicago, Illinois, for the Charging Party.

DECISION

Statement of the Case

John T. Clark, Administrative Law Judge. This case was tried in Chicago, Illinois, on September 14, 2006. The charge was filed May 10, 2006,[4] by the International Brotherhood of Teamsters, Local Union 705 (the Union). The complaint was issued June 28. The complaint alleges that TTS Terminals, Inc. (the Respondent) violated Section 8(a)(5) of the National Labor Relations Act (the Act) by engaging in regressive bargaining and failing to acknowledge, implement, abide by, and execute the parties’ collective-bargaining agreement. The Respondent denies any unlawful conduct.

On the entire record, including my credibility determinations based on the demeanor of the witnesses, as well as my credibility determinations based on the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole and, after considering the briefs filed by the counsel for the General Counsel and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Respondent, an Ohio corporation, with an office and place of business in Chicago, Illinois, has been engaged in the business of providing ramp services to the Burlington Northern Santa Fe railroad. During the 12 months preceding June 28, 2006, the Respondent, in conducting its business operations, has purchased and received at its Chicago, Illinois facility goods valued in excess of $50,000 directly from points outside of the State of Illinois. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practice

A. Background

The parties have no bargaining history. From about 2002 through September 2005, the Union was recognized as the exclusive collective-bargaining representative of the gate inspectors employed by the predecessor employer, Central Intermodal. This recognition was embodied in successive collective-bargaining agreements, the most recent of which was effective from May 2003 thorough May 2005. About December 2005, the Respondent became the successor employer for the unit and recognized the Union as the designated collective-bargaining representative of the unit. Thus, at all material times since at least 2002, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the employees in the unit.

The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time gate inspectors employed by the Employer at its facilities currently located at the Burlington Northern Santa Fe rail yards at 7600 Santa Fe Drive, Willow Springs, Illinois and at 5601 W. 26th Street, Cicero, Illinois; but excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act.

B. The Bargaining Sessions

All the bargaining sessions occurred at a Sleep Inn in Chicago. The initial meeting was on January 20. The representatives for the Respondent at all the bargaining sessions were Attorney Alexander Plona and General Manager Arthur Gneuhs. Attorney Plona was retained by the Respondent as its general counsel and human resources specialist. He has served in those capacities for 15 years. The Union’s spokesperson for all the bargaining sessions was its general counsel, Ned Burke. Burke was accompanied at the meetings by Santos (Sam) Marinez, the union business agent and one or two bargaining unit members. (“Marinez” is the spelling in the transcript. It is also spelled “Marinas” and “Martinez” in other documents. Regardless of the spelling the person is the same individual.)

Burke testified that he told the Respondent’s representatives that while the Union was not ready to discuss terms and conditions it would be seeking a spring 2008 contract expiration date. Burke explained that the Union hoped to use a common expiration date as leverage to obtain a pattern contract with the railroad vendors. The Respondent’s representatives do not recall any mention regarding a common expiration date.

The parties also discussed two approaches that would alleviate the need to negotiate an entirely new agreement. The first was to work from the previous Central Intermodal agreement. The second was to use one of two agreements recently negotiated between the Union and railroad vendors QTS and Pacific Rail Services. Plona asked Burke to provide him with copies of the QTS and Pacific Rail Services agreements. Burke agreed and his notes from the session reflect his agreement. Plona also contends that he asked Burke to get him a signed copy of the Central Intermodal agreement. Burke disputes this contention.

According to Burke, Plona also said that if the Respondent assumed the Central Intermodal agreement it would need new wage and benefits rates. Burke testified that Plona specifically mentioned the 401(k) provision, stating that it “was richer than their company plan.” The parties agreed to meet on February 6. Before then Burke e-mailed the QTS and Pacific Rail Services agreements to Plona.

The same individuals, with the addition of unit member Thomas Brewer, next met on February 6. (Santos (Sam) Martinez is incorrectly identified as Tony Sarwas throughout the transcript, see e.g. Tr. 19).

At the February 6 meeting, Plona stated that although he had made a cursory review of the QTS and Pacific Rail Services agreements he was more interested in assuming the Central Intermodal contract. Burke said, “[T]hat’s fine, we can go in any direction you want to go.” Plona asked the Union if they had a wage proposal. After a caucus the Union orally presented an offer of $12.50 an hour with a 2-year progression. According to Burke, he told Plona that the Union needed to review the Respondent’s 401(k) plan and healthcare plan before it could present an offer on those issues.

Burke testified that during the meeting Plona indicated that he did not have a copy of the Intermodel contract. Burke understood that to mean that Plona did not personally have a copy with him. Burke stated that he assumed that Plona was familiar with the agreement because the Respondent was operating under the Central Intermodal agreement. During rebuttal Burke testified that while he was e-mailing the two contracts to Plona, he looked for, but was unable to locate, the Central Intermodel agreement in his computer. He asked Marinez to give a copy to the Company. Burke further recalled that during this meeting Marinez offered to go to his truck and get a clean copy of the Central Intermodal agreement, but Gneuhs replied that they “already got one.” Gneuhs denied the truthfulness of Burke’s statement regarding the forgoing incident. (Tr. 137–138.)

Burke denies that the Respondent distributed a two-page document (R. Exh. 2). The document is a entitled, “Open Contract Issues” and dated “01–20–06.” Under “Company Proposal” are six separate proposals, addressing “Holidays, Per/Sick, Wages, Health/Welfare, Retirement, Vacations.” In small print on the bottom left of the page is “F:\Comapny Proposal 1–19–06 doc,” Plona testified that was the date the document was prepared and its location on his computer. The second sheet contains two paragraphs and is entitled, “TTS Management Rights.” It has no identifier, nor is there any indication that it is the second page of a two-page document.[5] Plona testified that he prepared the document in anticipation of presenting it to the Union on January 20. He did not do so because the Union was not prepared to discuss substantive issues on January 20.

Plona stated that in response to the Union’s verbal proposal he believes that he offered a verbal counterproposal. Using his notes as a guide he explained that the far left column is, as marked, the current wage rate, next is the Union’s proposal and the last column on the right is the Respondent’s counterproposal. He offered no explanation regarding of the column of numbers between the Union and the Respondent’s proposals underneath “@ 12.00 cap.” He did explain that the notes on the bottom were based on his discussions with Gneuhs and were not part of the negotiations.

The Union caucused and then presented a written proposal. The first sentence states: “Accept Central Intermodal contract with following changes.” Items 1 and 2 reflect the Union’s acceptance of the Respondent’s proposals on health insurance and retirement. Item 3 is requests that Central Intermodal seniority apply for all purposes. Item 4 proposes 4 sick days rather than 2 sick days as proposed by the Respondent. Item 5 proposes that employees currently paid more than the proposed wage scale continued to be paid at that rate. Item 6 is the Union’s counterproposal on wages with a termination date of March 31, 2008. (Tr. 22–24, GC Exh. 3.)

The parties agree that the March 31, 2008 termination date was discussed at this meeting. Burke testified that once again he explained the need for a common expiration date. In response to Plona’s hypothetical question concerning an employer who would not agree to the date, Burke stated that he would address that issue when it arose. He also explained the Union’s internal ratification procedure.

After caucusing, Plona offered a counterproposal regarding the wages. The counterproposal was handwritten on the sheet containing the Union’s proposal. The counterproposal also corrected the $3 figure (erroneously written by Burke) to 3 percent in item 2. (GC Exh. 4.) Plona had to leave after offering the counterproposal. Burke said that he would immediately prepare a counterproposal and e-mail it to Plona. The counterproposal was e-mailed at noon. The first sentence of the counterproposal reiterates, “Accept Central Intermodal contract with following changes”: the changes correct item 2, reiterate items 1 and 3–5 and item 6 is a new wage proposal with the same March 31, 2008 termination date. (GC Exh. 5.)

Plona e-mailed his response on March 31. He accepted items 1–5, and the March 31, 2008 termination date. He offered a counterproposal regarding the wage scale and wrote that the motel room was reserved for the parties’ next meeting. on “Friday 4–21–06 from 9:00 AM to 1:00 PM.” On April 4, Burke acknowledged the e-mail and wrote that he “should have a response soon.” (GC Exh. 7.) Plona replied the same day, writing, “Thanks Ned! Maybe we can execute on 4–21–06.” (GC Exh. 8.)

Plona testified that some time between April 4 and 21 he spoke with the Respondent’s president regarding the negotiations. The president told him that because the Respondent’s revenue was controlled though 2010 labor cost also had to be controlled. Accordingly, the 2008 termination date could place the Respondent in financial jeopardy. Plona accepts responsibility for failing to be aware of the situation.

The parties met on April 21. After an exchange of pleasantries, Burke asked Plona if the Central Intermodal seniority would be used in the wage scale contained in Plona’s last proposal. Plona said it would and Burke replied, “[W]ell, in that case Alex, we unconditionally accept your offer.” Plona attempted to renege on the March 31, 2008 termination date, but Burke stated that they had a deal. Plona suggested meeting on May 18. Burke agreed, but said that he would not negotiate because the deal was complete. The conversation became heated and the parties adjourned.

Burke spoke with Plona on April 22 and asked if he had talked to his client. Plona said that he had and reiterated that the Respondent could not accept a 2008 expiration date, and that the expiration date had to be in 2010. Burke mentioned unfair labor practices and Plona told him not to threaten him and the call ended.

Plona canceled the May meeting because of ill health and suggested a meeting in June. Burke’s response was to e-mail Plona a copy of the final agreement on May 25, with a message stating, “Attached is a copy of the TA [tentative agreement] we intend to vote today at the facilities.” The agreement consists of the six agreed on items incorporated into the Central Intermodal agreement, with an expiration date of March 31, 2008.

Plona responded, “As you well know, the 3–1–08 was not TA’d.” Plona later learned that the agreement was ratified. Shortly thereafter, Burke rejected another offer to meet and the unfair labor practice charge followed.

iii. discussion

It has long been settled that Section 8(d) of the Act requires the parties to a collective-bargaining relationship, once they have reached agreement on the terms of a collective-bargaining agreement, to execute that agreement at the request of either party. H.J. Heinz Co. v. NLRB, 311 U. S. 514 (1941). This obligation attaches only if it has been found that there has been a “meeting of the minds” on all material terms of an agreement. Intermountain Rural Electric Assn., 309 NLRB 1189, 1192 (1992). The General Counsel has the burden of showing not only that the parties have reached the requisite “meeting of the minds” on the agreement reached but also that the document which the respondent refused to execute accurately reflects that agreement. Park Maintenance, 348 NLRB No. 98, slip op. at 9 (2006).

A “meeting of the minds” is determined “not by the parties’ subjective inclinations, but by their intent as objectively manifested in what they said to each other.” MK–Ferguson Co., 296 NLRB 776 fn. 2 (1988). Thus, subjective understandings (or misunderstandings) of the meaning of terms that have been agreed to are irrelevant, provided that the terms themselves are unambiguous when “judged by a reasonable standard.” Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979), enfd. 626 F.2d 119 (9th Cir. 1980).

Based on the principles cited above, I find, for the reasons set forth below, that the General Counsel has established a “meeting of the minds” on the terms of a contract and that the document admitted as General Counsel Exhibit 10, accurately reflects that agreement. Accordingly, the Respondent is obligated to execute the collective-bargaining agreement negotiated between it and the Union.

Counsel for the General Counsel correctly argues, and the record supports, that it was the Respondent that chose to adopt the terms of the old Central Intermodal agreement with some economic modifications. After several meetings, the Union made a comprehensive proposal covering six issues. The initial sentence of the Union’s proposal and in all its subsequent proposals state “Accepts Central Intermodal contract with the following changes:” and the proposal then lists the six modifications. After several exchanges the Respondent agreed to all the numbered proposals as well as the termination date and submitted a counterproposal on wages—the only remaining open item. Burke acknowledged the proposal and said that he would respond shortly. In response Plona exclaims, “Thanks Ned! Maybe we can execute on 4–1–6,” the date of the next meeting.

Counsel for the General Counsel argues that all the objective factors demonstrate that the parties had achieved a meeting of the minds regarding all substantive terms of their collective-bargaining agreement when the Union unconditionally accepted the Respondent’s proposal on April 21.

The Respondent contends, in essence, that things are not always as they appear. For instance when asked if he made reference to Burke’s “statement to accept Intermodal contract with the following changes,” Plona testified that he did not. The reason offered was because “I didn’t go over the language yet with Ned,” and he “still didn’t have a copy of the union’s contract.” (Tr. 91.) His answer does not explain why he did not question Burke as to why Burke wrote what had to be, from Plona’s alleged point of view, totally gratuitous language into his proposal.

Equally puzzling is Plona’s answer to the question whether the Central Intermodal contract was even discussed at the March 16 meeting, answered obliquely, “If we did, I would have told Burke I still don’t have a copy of it.” (Tr. 85.) I find Plona’s failure to inquire about his request—well over a month after it was made—and his lack of recollection on about the issue, belie his contention as to the importance of the Respondent obtaining a copy of the Union’s Central Intermodal contract.

That contention is further diluted by the fact that Plona testified to applying the terms of the Central Intermodal contract to the current work force “for the most part.” Gneuhs talks of two copies of the contract, one that was faxed to him and one that was found in a draw. Both individuals demonstrated their familiarity with the terms of the contract. Thus, Plona told Burke that he needed relief from Central Intermodal’s pension plan because it was too costly. Gneuhs acknowledged differences in pay periods and holidays. In short, I find that the Respondent did not need the Central Intermodal contract. This finding is supported by Burke’s testimony that Gneuhs responded to Marinez’ offer to get him a copy by replying, “[N]o thanks we’ve already got one.” (Tr. 142.)

The Respondent contends that Burke’s testimony regarding that exchange should not be credited over Gneuhs’ denial. The Respondent argues that Burke should have recalled this incident when cross-examined during the General Counsel’s case-in-chief. I disagree. The record supports the General Counsel’s argument that the Respondent’s emphasis on the Union not providing its copy of the Central Intermodal contract is of recent vintage. The documentary evidence contains not a clue suggesting that the absence of the Union’s copy of the Central Intermodal contract was any impediment bargaining. In this regard the most significant document is Plona’s four-page affidavit. The affidavit contains absolutely nothing to suggest that the document had any relevance to negotiations. Accordingly, I find that the exchange between Marinez and Gneuhs was of no moment when it occurred and as such I am unwilling to discredit Burke’s testimony because it was given on rebuttal rather than cross-examination.

I find Burke to be a more credible witness than Plona or Gneuhs. Gneuhs admitted reviewing his testimony with Plona before the hearing. Both men have a motive to disassemble in an effort to negate an agreement that the Respondent’s president considers unsatisfactory. Burke appears to have no such incentive. I also see no reason for the Union not to provide the Respondent with a copy of its Central Intermodal agreement, and none is advanced by the Respondent. Accordingly, I find that the parties agreed to accept the Central Intermodal agreement as modified by the six items in the Union’s proposal of March 16, 2006, as well as the termination date of March 31, 2008. (GC Exh. 3.)

The Respondent additionally contends that it had several outstanding proposals when the Union accepted its final proposal on April 21. The Respondent points to the document entitled “OPEN CONTRACT ISSUES” dated “01–20–06.” Under the date, in bold letters, is “Company Proposal.” (R. Exh. 2.) Plona testified that he prepared this sheet on January 19 but did not give it to the Union on January 20, because the Union was not ready to discuss substantive issues. Conceivably, the heading used by the Respondent is inconsistent with its current position. It appears that “open contract issues” implies not only that there is a contract in being, but also that there are closed, or settled, issues. Regardless, Plona and Gneuhs claim that they handed this document and a two-paragraph sheet entitled “TTS Management Rights” to the union representatives at the February 6 meeting. Burke denies ever seeing the document.

Burke testified that the only substantive discussion that occurred on February 6 was the discussion of the Union’s wage proposal. It is unclear from the testimony of Plona and Gneuhs exactly when during the meeting they allegedly distributed the “Company Proposal.” It is highly unlikely that a veteran negotiator like Plona would have distributed it before receiving the Union’s proposal and thus placing the Respondent in the position of having to negotiate with itself. Burke testified that as soon as the meeting began Plona asked for the Union’s wage proposal. He testified that he wrote the Union’s proposal on the left side of the page to the right of the current wage rates. His notes are consistent with his testimony. He states that he and Gneuhs then caucused and developed a counterproposal, which he wrote on the right side of the page. He believes that he verbally presented the counterproposal to the Union. It is at this juncture that Plona’s notes become problematic. There is an unexplained column of numbers between the Union’s proposal and the Respondent’s. There also appears to be no correlation between the Respondent’s proposal contained in Plona notes (R. Exh. 10), the proposal he contends he distributed to the Union as part of the “Company Proposal sheet” and the Respondent’s proposal contained in the spread sheet dated March 16. (GC Exh. 2.) I find it highly improbable that after receiving the Union’s initial wage proposal the Respondent would then distribute the “Company proposal sheet,” and immediately caucus to formulate another wage proposal that was never presented.

A review of Plona’s affidavit reveals that Plona stated during the February 4 meeting that he “basically reviewed with the Union the Employer’s proposal which was to use the old Central Intermodal contract with some modifications.” (GC Exh. 13 at 2.) I find that statement, combined with Burke’s credited testimony that he never saw the Company’s proposal sheet but did verbally give the Respondent a wage proposal, to be an accurate representation of the February 6 meeting.

Regarding the Respondent’s contention that on February 6 it also presented a sheet entitled, “TTS Management Rights” to the Union, I find not only that the sheet was never distributed but that management rights were never discussed. The writing on the sheet consists of two paragraphs, the first is 11 lines in length. Combined, the contents express what can only be described as an extremely expansive management-rights clause. The Central Intermodal agreement does not contain a management-rights clause. Oftentimes, the introduction of a management-rights clause during bargaining, especially a clause as extensive as this, may create contention among the parties. The record establishes that until the Respondent attempted to renege on its offer the bargaining was conducted in a professional and cordial manner. Moreover, I find it inconceivable that the Respondent presented this management-rights clause and yet it did not merit a pen stroke in either parties’ notes, nor even a mere mention by Plona anywhere in his affidavit. Gneuhs states that in response to the question of “where we stood on the management rights clause,” Burke replied that he had to get it read by other people in his organization. (Tr. 126.) This response, allegedly given almost 2 months after the clause was proposed by an experienced negotiator and attorney, is simply beyond belief, and I so find.

Plona concedes that his use of the word “execute” shortly after presenting what was his last proposal “might not have been the right word.” (Tr. 94.) I find that an incredible understatement. Plona explains:

Obviously I didn’t mean [we’re] going to sign a contract that day. But I thought we could get to a point where he could take it for a vote. I felt there was only a few open issues. If I would get a copy of the contract, I could compare it against the one that was found in a drawer. And if that were true, there were small contract lang [sic] issues that we could handle. There is no reason we couldn’t have gotten that done in four hours. [Tr. 94–95.]

The Respondent, in brief (R. Br. at 12), provides with specificity exactly what remained, if one were to accept Plona’s scenario:

Indeed, of the twenty-six articles in the purported agreement, covering thirty-six (36) pages, the parties actually discussed only wage rates, health coverage, retirement plan coverage, seniority and personal/sick days. There was no substantive discussion whatsoever concerning Scope of the Agreement (Article 1), Recognition and Union Security (Article 2), Hours (Article 4), Guarantees (Article 5), Holidays (Article 6), Vacations (Article 7), Uniforms (Article 9), Workers’ Compensation (Article 10), Stewards (Article 11), Transfers and Subcontracting (Article 12), Safety (Article 13), Protection of Rights (Article 14), Union Inspections (Article 17), Grievance Procedure (Article 18), Time Clocks (Article 19), Veterans (Article 20), Jurisdiction (Article 21), Economic Standards (Article 22), Reopening (Article 23), Government Approval (Article 24), and Separability and Savings Clause (Article 25). (See Purported Agreement, Exhibit GC–10.)

The Respondent’s management-rights clause should also be added to the list.

I find Plona’s scenario incredible and reject it completely. In so doing, I note that this also is not mentioned at all in Plona’s affidavit and is completely at odds with Burke’s forthright and credible testimony.

In agreement with counsel for the General Counsel, I also reject the Respondent’s argument that assuming agreement was reached on April 21 it was not final because the agreement had not been ratified. Counsel for the General Counsel is correct in her assertion that the parties did not discuss or agree to any ground rules requiring ratification by unit members as a condition precedent to a binding agreement. Accordingly, if the Union does have an internal ratification requirement, it has no impact or relevance to the final and binding nature of the agreement reached between the Respondent and the Union.

Based on the foregoing, I find that the Respondent and the Union reached a “meeting of the minds” on all substantive terms of their collective-bargaining agreement when the Union unconditionally accepted the Respondent’s final proposal on April 21, 2006, and that the Respondent thereafter has reneged on the agreement, and failed and refused to execute the agreement when it was forwarded to the Respondent on May 25, 2006. Accordingly, I find that the Respondent, by its conduct set forth above, has violated Section 8(a)(1) and (5) of the Act.

Conclusions of Law

1. The Respondent, TTS Terminals, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union, International Brotherhood of Teamsters, Local Union 705, is a labor organization with the meaning of Section 2(5) of the Act.

3. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

4. At all times material, the Union has been the exclusive collective-bargaining representative of the employees in the unit found appropriate for purposes of collective bargaining within the meaning of Section 9(a) of the Act.

5. By failing and refusing to execute and sign the collective-bargaining agreement agreed to by the Union and the Respondent and forwarded to the Respondent on May 25, 2006, the Respondent has engaged in and is engaging in an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act.

6. The unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in an unfair labor practice, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.

I recommend that the Respondent forthwith sign the collective-bargaining agreement that was forwarded to it by the Union on May 25, 2006. I also recommend that the Respondent make whole its unit employees who may have suffered losses as a result of the Respondent’s failure to sign and abide by the agreement, in a manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the following recommended^{^[6]}

ORDER

The Respondent, TTS Terminals, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain in good faith by refusing to execute the collective-bargaining agreement agreed upon with International Brotherhood of Teamsters, Local Union 705 (the Union) and forwarded to the Respondent on May 25, 2006. The Union is the exclusive collective-bargaining representative of all the employees in the following unit:

(b) In any like or related manner interfering with, restraining, or coercing 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) Forthwith, sign the collective-bargaining agreement agreed upon with the Union and forwarded to the Respondent on May 25, 2006.

(b) Make its unit employees whole, with interest, for any loss of earnings and other benefits they may have suffered by reason of the Respondent’s failure to sign the agreement, as set forth in the remedy section of the decision.

(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(d) Within 14 days after service by the Region, post at its facilities in Willow Springs and Cicero, Illinois, copies of the attached notice marked “Appendix.”^{^[7]}Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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 material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 21, 2006.

(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. April 11, 2007

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 violated 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

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will execute the agreed-upon collective-bargaining agreement, and we will abide by that agreement.

We will make you whole, with interest, for any loss of earnings and other benefits you may have suffered as a result of our refusal to execute the agreement.

TTS Terminals, Inc.

[1] The Respondent has 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.

The judge found that the events discussed in sec. II,B, pars. 10–12 of his decision occurred on February 6, 2006. The General Counsel excepts to that finding, contending that these events actually occurred at the March 16, 2006 bargaining session. In its answering brief, the Respondent stated that it did not dispute that the events occurred on March 16. Accordingly, we find merit in the General Counsel’s exception, and we correct the error.

[2] We find it unnecessary to pass on the General Counsel’s exceptions to the judge’s failure to additionally find that the Respondent violated Sec. 8(a)(5) and (1) by engaging in regressive bargaining and repudiating the agreed-upon collective-bargaining agreement. The judge’s recommended Order substantially remedies all of the allegations in the complaint, and finding those additional violations would not materially affect the remedy.

Chairman Battista agrees that the Respondent violated Sec. 8(a)(5) and (1) by refusing the Union’s demand that it execute the collective-bargaining agreement reached on April 21, 2006. The Chairman notes that, during an early bargaining session, the Union’s negotiator informed the Respondent’s negotiator that the Union had a two-step ratification process requiring the approval of the collective-bargaining agreement by the Union’s membership and its secretary-treasurer. However, at the final bargaining session on April 21, 2006, the Union’s negotiator notified the Respondent’s negotiator that “we unconditionally accept your offer.” By clearly communicating this “unconditional” acceptance of the Respondent’s offer, the Union dispensed with its self-imposed ratification procedure and formed a binding and effective agreement. See Personal Optics, 342 NLRB 958, 958 fn. 2 (2004) (union created binding agreement by accepting employer’s offer after dispensing with self-imposed unit member ratification vote), enfd. 165 Fed. Appx. 1 (D.C. Cir. 2005); Sacramento Union, 296 NLRB 477, 488 (1989) (explaining that a union is at liberty to change its self-imposed position on ratification). Although the Union did obtain ratification of the agreement, it would not have been free to walk away from the agreement following its contract-creating unconditional acceptance even if the membership or the secretary-treasurer had failed to ratify the agreement. Similarly, following the Union’s unconditional acceptance, the Respondent could not lawfully refuse to execute the collective-bargaining agreement. By refusing the Union’s May 25, 2006 execution demand, the Respondent violated Sec. 8(a)(5) and (1).

[3] We shall modify the date in par. 2(d) of the judge’s recommended Order to conform to the date of the unfair labor practice as set forth in par. 5 of the judge’s conclusions of law. We shall also modify the judge’s notice to conform to the recommended Order.

[4] All dates are in 2006 unless otherwise indicated.

^{^[5]}The Respondent correctly notes (R. Br. at 4 fn. 1) that the court reporter erroneously indicates that a duplicate of this exhibit was not submitted to the reporter at the hearing. The Respondent attached copies of the exhibit to the briefs submitted to myself and the counsel for the General Counsel. I note that I am in total agreement with the Respondent’s contention that the exhibit was admitted and submitted to the court reporter. I also observe that the attachment is identical to the document I received at the hearing, and counsel for the General Counsel’s lack of objection. Accordingly, I have requested that the attachment be inserted in its correct place in the Respondent’s exhibit file.

^{^[6]}If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

^{^[7]}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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

Robert J. Battista,	Chairman


Wilma B. Liebman,	Member


Dennis P. Walsh,	Member