Checker Taxi Co.

CHECKER TAXI COMPANY 639 Checker Taxi Company and Taxicab, Bus, Funeral Drivers & Chauffeurs Union Local No. 496, a/w International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America Red Cab Company, Inc. and Taxicab, Bus, Funeral Drivers & Chauffeurs Union Local No. 496, a/w International Brotherhood of Teamsters , Chauff- eurs, Warehousemen and Helpers of America. Cases 1-CA-10597 and 1-CA-10598 March 14, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Warehousemen and Helpers of America (the Union), a consolidated complaint was issued on June 11, 1975, against Checker Taxi Company and Red Cab Company, Inc. (Respondents), alleging violation of Section 8(a)(5) and (1) of the Act' by Respondents' refusal to execute written collective-bargaining agreements in accordance with oral agreements previously reached. Pursuant to due notice, the consolidated case was heard before me in Boston, Massachusetts, on June 22, 1976. All parties were represented by counsel and were afforded full opportunity to present oral and other evidence and to examine and cross-examine witnesses. The parties waived oral argument at the close of the hearing and post-hearing briefs have been filed on behalf of the Respondents and the Union. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: On November 23, 1976, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respon- dent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing her findings. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to charges filed on April 14, 1975, by Taxicab, Bus, Funeral Drivers & Chauffeurs Union Local No. 496, a/w International Brotherhood of Teamsters, Chauffeurs, FINDINGS OF FACT 1. PRELIMINARY FINDINGS Respondents, Massachusetts corporations, with their principal offices and places of business in Boston and Brookline, Massachusetts, are engaged in the operation of taxicab businesses. Each Respondent, in the course of its business, causes large quantities of petroleum products, automobiles, automobile parts, and office supplies used by it in the operation of its taxicab business to be purchased and transported in interstate commerce from and through various States other than the Commonwealth of Massachu- setts. Each Respondent's annual gross of volume of business is in excess of $500,000 and each receives at its Massachusetts location goods valued in excess of $50,000 directly from points outside Massachusetts. Each Respon- dent is, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is, and was at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issue In negotiations for a renewal collective-bargaining agreement, a major issue in dispute was Respondents' demand that they be allowed to "lease" their cabs and the Union's refusal to agree to any such leasing. The Union's bargaining agent volunteered to draft language on the subject that would be mutually satisfactory. After reading the proposed language drafted by the union representative, Respondents' representatives indicated their agreement to the entire contract. The wage and other provisions of the contract were immediately put into effect. When the agreement was later put in writing, Respondents' represen- tatives submitted it to review by counsel. When informed National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq 228 NLRB No. 76 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by counsel that the language proposed by the Union forbade leasing of cabs, Respondents refused to sign the agreement. Respondents maintain that the so-called "leasing" provision as worded by the union representative does not represent the substantive agreement reached by the parties. The Union maintains that, because Respondents' represen- tatives orally agreed to the wording of that provision, they are legally obligated to execute the agreement embodying such language. B. The Facts Respondents and the Union have had collective-bargain- ing relationships for almost 40 years. Their most recent collective-bargaining agreements were to expire on January 31, 1974. Negotiations for renewal agreements began toward the end of 1973 and continued for about a year. Respondent Checker was represented in the negotiations by Howard MacOdrum, its vice president, and Red Cab by Edward McCarty, its president. Both men had represented their Companies in negotiations for around 35 years. In most of the negotiations neither the Union nor the Respondents had been represented by counsel. Thomas Sawyer, president of Checker and principal stockholder in both Companies, had not participated in negotiations directly for at least 20 years, although he is active in the business and retains final authority on all matters. The Union was represented by a committee which included employees of Respondents as well as union agents. However, in the negotiations here involved the Union's spokesman was Luke Kramer. Kramer, executive officer and secretary-treasurer of the Teamsters Milkdrivers Local, has been a union bargaining representative for some 39 years but had never before dealt with the taxi industry. When asked by the International to participate in the Boston taxi negotiations, he agreed only on the condition that he would be in full charge of the negotiations and the only union spokesman vis-a-vis the Employers. There was disagreement as to many matters in the 1974 negotiations. From the very beginning there was a sharp disagreement on the Respondents' demand that it be permitted to lease taxicabs to nonemployees, which the union members opposed. Although the areas of disagree- ment were gradually reduced during the approximately 20 negotiating sessions, the leasing problem remained. At this point, it should be noted that the leasing of cabs was unlawful in Boston.2 However, it is undenied that other taxi companies and cab owners were widely leasing cabs, with the knowledge of, but no restrictive action by, the authorities. For some time Sawyer, as president of the Boston Taxicab Association as well as Respondents' principal, had been trying to have cab leasing legalized in Boston. His efforts in this direction proceeded at the same time as the contract negotiations. As set forth below, he met success about the same time the contract negotiations with the Union ended. On numerous occasions the parties caucused, with MacOdrum and McCarty, Respondents' representatives, leaving the conference room and standing in the hallway outside. Frequently Kramer also left the conference room, purportedly for the dual purpose of going to the restroom and permitting the union committee to caucus on its own. On such occasions, he spoke privately with MacOdrum and McCarty. Union Business Agent Donald Mullin confirmed the fact that on occasions during the sessions Kramer left the room with McCarty and MacOdrum. McCarty further testified that whenever leasing was mentioned in the negotiations the discussion became heated, whereupon Kramer calmed things down and took McCarty and MacOdrum out of the room. MacOdrum and McCarty credibly testified that Kramer told them that he preferred not to discuss the matter in the presence of the other union committeemen because "leasing was a red flag, was an emotional issue." MacOd- rum and McCarty credibly testified that Kramer said Respondents were "entitled to leasing" and he would see to it that a final contract was reached that did not prevent leasing cabs. Kramer said, however, that the words " lease" or "leasing" could not be used since they were "inflamma- tory" to the union members and representatives. In July 1974, with the leasing issue as well as some others still unresolved, Kramer invited Sawyer to lunch. They had lunch together twice. On both occasions leasing was discussed. Sawyer explained at length that Respondents' inability to lease put them at a great competitive disadvan- tage vis-a-vis other taxi companies, which were engaged in broad-scale leasing despite its illegality in Boston. Briefly stated, as explained by both Sawyer and MacOdrum in testifying, lessees pay $20 or $25 per day for cab rental and assume no other expenses except for gasoline , the lessor providing operating authority, insurance, and mainte- nance. Additionally, lessees are not restricted in the hours they can work, as employees are by the collective-bargain- ing agreement (presumably by the prohibitive cost of overtime pay). And lessees also can sublease, thereby utilizing the cabs virtually full time. Sawyer testified that lessees can earn up to $400 per week. Accordingly, because the rewards of individual initiative are greater, Respon- dents maintain they are unable to obtain enough drivers, resulting in underutilization of their vehicles, with perhaps up to half of Checker's fleet being idle much of the time. When Kramer indicated that some of the union members believed that leasing was a technique for breaking the Union, Sawyer assured him that it was not so intended and would not be so used. Sawyer said that Respondents would require membership in the Union as a condition to leasing a cab. According to Sawyer, Kramer acknowledged the validity of Sawyer's position and repeatedly assured Sawyer that Respondents were "entitled to leasing" and Kramer would make sure that they would get a contract which did not prohibit it. However, Kramer said that the words "lease" or "leasing" could not appear in the agreement because they would be a "red flag" to the union members and representatives. Kramer maintained that he had told Sawyer that there was no reason at that time to have any leasing provision in 2 There is nothing in the record concerning the legal situation in said that Red Cab did not intend to lease cabs. However, negotiations with Brookline, the suburb of Boston in which Red Cab's facilities are located . At the two Respondents are always conducted together and result in identical one point Kramer, the Union's bargaining agent, quoted McCarty as having contracts. CHECKER TAXI COMPANY 641 the contract because of the illegality of leasing. He said that he told Sawyer the matter could be brought up again in the next negotiations (which would be 3 years later). However, Kramer also testified that he told Sawyer "that he never could get a contract with a leasing arrangement, definitely not." Kramer also said that Sawyer was sophisticated enough to know that if he wanted to lease cabs he could do so through a newly organized separate company. According to Kramer, Sawyer replied by saying that he could not do that because he would be accused of "circumventing" the collective-bargaining agreement. On cross-examination Kramer acknowledged that if Sawyer formed another corporation it could not lease vehicles or medallions (i.e., operating authority) belonging to Respondents .3 In these luncheon meetings Kramer was at great pains to win Sawyer's trust. He did so by, inter alia, flattering Sawyer's business acumen and his prolabor sympathies, on which Sawyer prides himself.4 After the second lunch, on July 29, they went to Sawyer's office. On his own initiative, Kramer dictated to Sawyer's secretary a document, which, when typed, was signed by both men. That document contains no preamble or other introductory recital, but simply lists three numbered items. The first reads: "Withdrawal of leasing proposition." The second and third numbered items, concerning commission rates and employer contributions to the retirement fund, were liberally increased benefits designed as incentives to increase utilization of Respondents' vehicles. Sawyer testified that he volunteered them, without demand by the Union, as "sweetening" in view of his obtaining permission to lease cabs.5 Sawyer testified repeatedly and unequivo- cally that he signed the document prepared by Kramer solely on the strength of Kramer's repeated and unequivo- cal assurances that Respondents would receive the Union's approval of the leasing of cabs. Kramer on the other hand testified: "As far as the leasing it was definitely understood that the entire proposition that had been advanced so assiduously by the company had to be withdrawn in order to get a contract." I credit Sawyer's version of the incident. First, the written document is ambiguous . Although signed by both men, it does not expressly purport to be an agreement; for all that appears in the document itself it might be merely a summary of the subjects the two men discussed. Addition- ally, the critical first item is unintelligible. Since it appears that neither Respondent nor the Union had presented any written proposal concerning leasing, it is impossible to say what "leasing proposal" was subject to "withdrawal." At that time Respondents were demanding some provision expressly granting the right to lease, while the union representatives in negotiations were calling for an express prohibition. Since Kramer had drafted the document, it 3 Kramer's testimony was: 'As far as I was concerned if he wanted to lease cabs I was sure he could set up a corporation and buy cabs. His problem then would be to get medallions for those cabs in order to lease them The medallions was all I was concerned with, not the cabs. As long as the medallions didn't follow the cabs whatever he had was his problem " Kramer apparently was not so expansive in talking to Sawyer. 4 Representative of Sawyer's testimony about his meeting with Kramer is the following: "[Kramer said] ' I think you are sympathetic with labor. And you have the interest of your drivers at heart because of your early must be construed strictly against him. Further, since the two remaining articles covered increased benefits to the employees, it is more reasonable to infer that withdrawal of the Union's demanded prohibition of leasing constituted the quid pro quo in a mutual understanding. As Sawyer indicated, the second and third items were offered as "sweetening" in exchange for leasing authority. At most it is possible that Sawyer was "withdrawing" Respondents' "proposal" for express approval of leasing in favor of a more tactful provision, as recommended by Kramer. Having carefully observed the witnesses and analyzed the evidence as a whole, I credit Sawyer's testimony that he signed the July 29 document because he "trusted" Kramer and "took the man's word." I believe that Kramer sought out Sawyer, i.e., went over the head of Respondents' designated bargaining agents, and intentionally drafted the ambiguous document of July 29 as a potential tool for taking unfair advantage in subsequent negotiations. This conclusion finds added support in the fact that, although he affirmatively solicited a signed document from Sawyer in July, he did not insist on a signed contract at the end of the negotiations in December because, in his words, "If I don't trust [a man's] word, I can't trust his signature and know what he writes." As previously stated, negotiations continued through the summer of 1975. In November Respondents offered a total contract. The union membership rejected the Companies' proposal and voted strike authorization, the date of the strike to be determined later. Thereafter, on December 6, a negotiating session was held. At the outset of the meeting, the union representa- tives asked McCarty and MacOdrum if they had full authority to reach a final agreement and they answered in the affirmative. At that time leasing was one of several unresolved issues. Pursuant to his earlier commitments to devise mutually acceptable "non-inflammatory" language on the subject, Kramer proposed the following: No medallion or vehicle owned by the Company may be operated by other than a member of the Barg ;'ring Unit under the terms contained in the Bargaining Agreement. This language was drafted by Kramer alone and had not previously been seen by either the Union's or Respondents' representatives. According to Union Business Agent Donald Mullin, the union committee caucused and then announced its acceptance of the language. Mullin also testified that Respondents' representatives said "the com- pany could live with that clause." Both MacOdrum and McCarty denied that any such statement was made. McCarty testified that he expressed "reservations" about the language and said that he wanted to have it reviewed by counsel. MacOdrum testified that he said he wanted to antecedents and beginning,' and he was very complimentary to me. And I regarded him as a friend, and one who was really a constructive labor leader who wanted to see Checker survive." 5 Kramer apparently agreed that these proposals were generous, testifying: "We went into the other two areas, one the contribution and the third was the utilization of taxicabs In fact , it was his percentage of taxicab utilization that I accepted which would have been, as I pointed out 'o him, more generous than I would have settled for." 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the language to Sawyer for review. Mullin maintained that nothing was said about review but he did concede that, as is customary in all negotiations , MacOdrum and McCarty on several occasions indicated that any agree- ment reached at the bargaining table had to be "ratified" by management, i.e., by Sawyer. It appears that Respondents' representatives did raise a question about the Union's insistence on retaining in the agreement the following provision from prior contracts: No agreement shall be made between drivers individually or collectively and the coANY which shall conflict with the terms and conditions of the Agreement. However, the evidence tends to establish that Respondents' representatives did not press the issue and appeared to acquiesce in Kramer's proposal. Another negotiating session was held the next day, December 7. Apparently the leasing issue was not dis- cussed, but the Union again sought assurance that MacOdrum and McCarty had authority to reach final agreement. No complete agreement on a contract was reached. Thereupon the Union scheduled a membership meeting for the afternoon of Sunday , December 15, when a date was to be set for the commencement of the strike previously authorized. Respondents then sought a negotiating session, which was held on the morning of December 15. At the December 15 meeting a final contract was agreed to, subject to ratification by the union membership . However, at that time the entire contract had not been reduced to writing so there was no signed agreement. At the union membership meeting on the afternoon of December 15 the terms of the contract, including the "leasing" provision, were explained by Mullin and, apparently, by Kramer. The union membership was informed that the contract would not permit leasing. The membership ratified the agreement . When informed of this fact, Respondents' representatives expressed great pleasure and relief that the threat of a strike had ended. Respon- dents forthwith put the terms of the agreement into effect. However, they have not as yet engaged in leasing. At this point it is appropriate to review the history of the legalization of leasing. During the summer of 1974 Sawyer, on behalf of the taxicab association and the Respondents, had continued his campaign for legalization . To this end he had numerous meetings with the mayor of Boston . Sawyer testified that sometime around the end of July the mayor offered him the following "package deal": If the Compa- nies agreed to give a 20-percent rate discount to the elderly, they would be granted a rate increase and the right to lease cabs. Sawyer testified that, with that agreement made between him and the mayor, there was only the "formality" of a public hearing before the police commissioner, who technically had sole regulatory jurisdiction over the taxi industry. Such public hearing was held by the commission- er on December 9. Representatives of the Union appeared and spoke against the rate increase and the leasing authorization. They maintained that, as Kramer had earlier said to Sawyer, leasing of cabs was a device to break the Union. Sawyer gave his assurance that he had no such intention and that he would lease only to union members. In response to the police commissioner's request for written assurance, Sawyer sent him a letter saying, in part: At the meeting I made certain commitments for Checker Taxi Company, as follows : # 1. Leasing would not be compulsory. #2. Membership in good standing of Local 496 will be a condition for leasing from Checker Taxi Company of Boston . #3. A contribution of $1.00 will be paid into the treasury of the Checker Taxi drivers pension fund daily for each lease or rental. The letter then assured "that these commitments will be carried out as agreed." The Union was sent copies of that letter. Thereupon, on December 9, 1974, or within a few days thereafter, cab leasing was officially legalized in Boston. In January 1975 the Union sent Respondents a typewrit- ten full contract for signature. Also in January Respon- dents prepared a typewritten copy of the entire agreement but did not send it to the Union . A copy of Respondents' version was sent to Sawyer, who by that time had left for his annual winter sojourn in Florida. A copy was also sent to David G. Hanrahan, Respondents' counsel. However, Hanrahan was unable to give his immediate attention to the matter because he was engaged in a murder trial, which did not end until around the end of March. Under date of January 29 the Union wrote to Respon- dents expressing the belief "that management does not want to live up to [the] agreement" reached in December. The Union demanded a signed contract by February 14. None was forthcoming. The Union made several oral requests without success . On April 4 the Union wrote to Respondents repeating its request for a signed contract, to be executed by April 11. On April 9 McCarty informed the Union that "the matter has been referred to legal counsel and is currently having our attention." Then, on April 11, Attorney Hanrahan wrote to the Union. In his letter Hanrahan stated that he understood that on December 15 "it was agreed that both groups would report to their respective constituents." Hanrahan further stated that he understood that it had been agreed on December 15 that the Union would not interfere with Respondents' leasing cabs and that Kramer had promised that result if Respondents accepted his proposed language. The letter concluded : "Therefore, the company insists that this point be clarified in the contract so that the document will fully represent the intention of both parties on the question of leasing before the document is executed ." This was the first indication of disagreement as to the final contract. The Union filed its charge on April 14. Counsel for the parties discussed the matter in June or July, when they were negotiating a collective -bargaining agreement covering inside help, a bargaining unit separate CHECKER TAXI COMPANY from the drivers. At that time Respondents produced their typewritten version of the agreements However, at the hearing, union counsel stipulated that, although Respon- dents' version contained the Kramer language, Respon- dents expressly preserved their contention that no agree- ment had been reached that Respondents could not lease cabs. C. Discussion and Conclusions In its brief the Union argues at some length that MacOdrum and McCarty had authority to enter into the contract in December 1974 without obtaining further approval from Sawyer or from counsel. While there is a conflict of evidence as to whether they expressed any intention or need to have the contract reviewed, it will here be assumed that they were fully empowered to make a final agreement in December. However, their authority to bind Respondents is not a decisive, nor even a very relevant, issue. The real question is what agreement, if any, they actually did reach on behalf of Respondents. There is no room for doubt that the collective-bargaining agreement with Kramer's "leasing" language would pro- hibit Respondents' leasing cabs. The recognition clause defines the unit as "all of the co>.wANY's employees who are engaged as Taxicab Drivers." And Kramer's proposed language prohibits the operation of Respondents' vehicles or medallions "by other than a member of the Bargaining Unit under the terms contained in the Bargaining Agree- ment." Thus it is clear that under that language no lessee, i.e., no nonemployee, could operate the cabs. This result is reinforced by the provision forbidding agreements between the Company and drivers "which shall conflict with the terms and conditions of the Agreement." While the language is clear when carefully read, it would be possible for a nonlawyer, on a superficial reading, to understand it as meaning that only union members would be permitted to drive Respondents' cabs. Indeed, Sawyer indicated that he so understood it. When asked if he objected to the language, he replied: "I don't have any objection, `no medallion or vehicle owned by the company may be operated by other than a member of the bargaining unit,' which is the union." Respondents had from the beginning voluntarily agreed that cabs would be leased only to members of the Union. Sawyer and McCarty apparently had doubts about the added phrase "under the terms contained in the Bargaining Agreement." Their doubts were sufficient to prevent signing the written agreement without review by counsel. In view of Kramer's repeated assurances to MacOdrum, McCarty, and Sawyer that he would produce "non-inflam- matory" language which would not prohibit leasing and Respondents' granting of substantial concessions in return, they cannot be seriously faulted for failing immediately to recognize the true purport of the language. This observa- tion is particularly valid when it is recalled that the agreement was reached under the threat of an imminent strike, which had already been authorized by the union membership. 6 There were some differences between the Union 's and Respondents' written versions However, such variations are not now in dispute , and in its 643 In its brief the Union states that "the finally accepted language did indeed represent a compromise from the Union's demand for even stronger language." While more direct and readily understandable language could have been written, it is difficult to conceive of any "stronger" language for effectuating the Union's desire. Even more significant, however, is the indisputable fact that Respon- dents had no need or desire for weak or tactful language. Bowdlerization would be required only to conceal the true purport of the agreement from the employees or from the Employers. Respondents had no aversion to or anxiety concerning the word "leasing." It was only to the Union that "leasing" was an emotionally charged concept. If Respondents had agreed to substance to a contractual prohibition of leasing, there would have been no reason for any circumlocution. In his dealings with Sawyer, MacOdrum, and McCarty, Kramer had indicated that he would, in effect, "slip" leasing authority by the employees, without using the specific word "leasing," which would be an immediate irritant to the employees. It could not reasonably be argued that Respondents are somehow estopped because they joined Kramer in a plan to deceive the union membership. Respondents did not stand in a fiduciary relationship to the employees. It was clearly understood that the contract was subject to ratification by the union membership and Respondents could reasonably rely on Kramer, as the Union's bargaining agent, not to mislead the membership. Respondents had reason to believe that the union member- ship were averse only to "compulsory" leasing. Since Respondents did not want to abolish employment in favor of leasing but only to supplement its employed personnel, they could reasonably hope that Kramer could obtain employee acceptance of a provision satisfactory to Respon- dents. His skill at winning people's trust had been amply demonstrated. The fact is that Kramer, in his zeal for success in obtaining a contract, was playing a duplicitous game. While informing the union membership that the contract forbade leasing, he knowingly led Respondents to believe the contrary. There is not a shred of evidence that he ever had reason to believe Respondents had retreated from their substantive demand. The Union's brief contains no serious argument that Kramer was not guilty of active misrepresentation. Rather, the major burden of its argument is: More significantly, the Union submits that even if the Company were sincerely under the misconception that the provision in question would still allow it to lease, the fact that there is no dispute as to the specific language involved precludes a Board finding that there was no valid agreement. This contention, placing a "pound-of-flesh" technicality above justice and equity, has been soundly rejected by the Board, which recognizes the statutory obligation of mutual good faith as a cornerstone of labor-management relations. In Industrial Engineering Co., Inc., 173 NLRB 77 (1968), brief the Union says that it "has at all times stood willing to sign the Company draft." 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Engineering, a building contractor, had for some time executed association collective-bargaining agree- ments, although it was not a member of the association. At one time the contractor had also signed agreements not to subcontract to nonunion employers but had thereafter refused to enter any such subcontracting agreement. One year, when negotiations with the association were very extended, the union demanded that individual contractors sign interim agreements to avoid being picketed. Under this pressure the company signed an interim agreement committing itself to adopt any contract later reached by the union with the association. The subsequent association agreement contained a subcontracting clause. When the employer refused to execute the association agreement because of the subcontracting clause, a complaint was issued alleging violation of Section 8(aX5) and seeking to have the company ordered to sign the final agreement. The Board adopted the decision of Trial Examiner Vose dismissing the complaint. The rationale of that Decision is so clearly apropos to the present case as to warrant the following extensive quotation (173 NLRB at 81): In my opinion, the Board should stay its hand in this case. While the General Counsel regards that portion of Section 8(d) of the Act requiring the "execution of a written contract incorporating any agreement reached" as compelling a finding of a refusal to bargain in this case, I do not regard it as necessarily being applicable to the instant situation. For this provision .. . contemplates a consciously arrived at understanding and a refusal thereafter to reduce it to writing. That plainly is not the situation here. President Davis obviously had no idea that the A.G.C. and the Union, contrary to past practice, would seek to incorporate in the regular 3-year trade agreement the subcontracting provisions which were already in effect by virtue of the July 6, 1966, supplemental agreement . While Davis may not have exercised the best judgment in signing an agreement which was susceptible of being construed as a wide-open commitment to sign whatever agreement was reached between the Union and the A.G.C., there can be no doubt that Davis in signing the Interim Agreement did not contemplate agreeing to limiting subcontracting to union subcontractors. The Union knew that Davis had repeatedly refused to agree to such a subcontracting provision previously, and had refused even when faced with the threat of picketing .... Thus the Union had ampl[e] basis for anticipat- ing that Davis would not have signed the Interim Agreement if the possibility of including a subcontract- ing clause in the final agreement had been broached at the time the Interim Agreement was signed. Plainly there was no meeting of the minds between the Union and the Respondent on the subcontracting issue at the time the Interim Agreement was signed. The Union's effort to use the Interim Agreement which Davis had unwittingly signed as the means of obtaining the one provision which the Union knew the Respon- dent had steadfastly refused to grant to it in collective bargaining in the past hardly reflects the good faith which the Act requires of parties to the collective- bargaining process. It should be noted that we are not concerned here with a recalcitrant employer who is acting in bad faith but one who through the years has bargained in good faith with the Union as the exclusive representative of its carpenters and apprentices, and which stands ready today to fulfill the commitment which it thought it was making when it signed the Interim Agreement, that is by signing the A.G.C.- Union agreement, omitting only ... the provision limiting subcontracting to union subcontractors. s s • s I conclude that the Board should not permit its processes to be utilized by the Union to enable it to saddle the Respondent with a contract provision limiting its choice of subcontractors in a way which the Respondent sincerely believes will put it out of business. To do so, in my opinion, would subvert rather than effectuate the policies of the Act. The rationale of Industrial Engineering is a fortiori applicable to the present case, where it has been found that the Employers' misunderstanding was induced by active misrepresentation by the union representative . And the result is not affected by the fact that they may have been guilty of negligence or poor judgment in accepting Kramer's language without minute analysis. Cf. United States Postal Service, 204 NLRB 292, 294 (1973). The result would be the same even if Kramer had not been guilty of conscious misrepresentation. See K Jacobson & R Haberman d/b/a J-H Electric, 178 NLRB 690 (1969), affd. sub nom. International Brotherhood of Electrical Workers, Local Union No. 68, AFL-CIO v. N.L.RB., 448 F.2d 1127 (C.A.D.C., 1971). In that case the employer had signed a letter of assent to be bound by an association contract to be negotiated . The Board held that, notwith- standing the letter of assent, it was understood that, following past custom, a separate agreement would be negotiated for the respondent and other employers in the same area. Accordingly, the Board dismissed a complaint seeking to compel the employer to sign the association contract. The Board's decision was based on its finding (178 NLRB at 691 ) that "the Union had no reason to believe that Respondent Company intended to abandon its prior practice of bargaining separately with the Union regarding wage rates in Weld County." In affirming, the court of appeals said (448 F.2d at 1140), "the question is not what the Letter of Assent itself said, but what the Union understood . . . the Union did not understand the situation to be controlled by the literal wording of the Letter of Assent ...: . Similarly, in the present case the question is not what the oral agreement said but rather what Respondents understood. Kramer certainly under- stood that they were insisting on the right to lease cabs. Respondents cannot be made to bear the burden of Kramer's conduct in misleading the union membership. It may also be noted that the union members have not actually suffered any detriment. Respondents have put all the other terms of the contract into effect and have not as yet embarked on leasing cabs. In their brief they argue only that "the parties should be sent back to the bargaining CHECKER TAXI COMPANY 645 table so that the question can be decided through the open, give and take of collective bargaining." It would serve no useful purpose to analyze the authorities cited by the Union.? They all involve, in one way or another, actual or claimed agreement on substan- tive terms; none of them concerns asserted agreement as to wording without a meeting of the minds as to substance, which is the situation in the present case. Brief notice may be taken of the Union's apparent argument that Respondents must execute the contract and rely on arbitration thereunder to seek relief. Such conten- tion is manifestly untenable. Arbitration is not available to avoid, rescind, or alter an agreement, which is what Respondents would need if they were to sign the agreement in its present form. Cf. Amalgamated Clothing Workers of America (Henry I. Siegel Co. Inc.) v. N.L.R.B., 324 F.2d 2:8 (C.A. 2, 1963), cited by the Union. In that case a union filed a charge alleging that an employer violated Section 8(a)(5) of the Act by refusing to include in its current contract an express provision concerning the existing customary 12-percent incentive factor. The Board dis- missed the complaint, holding that the incentive factor was implicit in the contract as written by the employer. Henry I. Siegel Co. Inc., 140 NLRB 1292 (1963). In reversing, the court of appeals noted, with apparent approval, the union's contention that "if a dispute over new rates should have to be referred to arbitration, there is no assurance, particular- ly in view of the parol evidence rule, that the arbitrator would decide the case by reference to the contemporane- ous oral agreement." A fortiori an arbitrator could not : efer to contract negotiations to alter terms of a contract which, as here, are not on their face reasonably susceptible to more than one interpretation. Cf. Bellacicco & Sons v. r Brief reference should, however, be made to Schlecht v. Hiatt, 271 F.Supp 644 (D.C. Ore, (1967)). The Union fails to note that that decision was reversed on jurisdictional grounds, with the Court of Appeals for the Ninth Circuit expressly declining to pass on the district court's treatment of the merits. 400 F.2d 875 ( 1968). In that case the union sought to enforce a written contract. The district court found that the matters in dispute had not been discussed in detail during the negotiations and the employer was given a full opportunity to read the contract before signing. In holding the employer bound, the court emphasized that the union representatives "did Bakery Workers, 92 LRRM 3694, 3696 (N.Y.Sup.Ct., 1976): "Arbitration cannot, change the written contract ... for in order to do so, it would have to go completely outside the agreement signed by the parties and would be obliged to rely upon oral testimony relating to the prior agreement negotiations and alleged oral `understand- ings.' " See also Couch v. Prescolite Manufacturing Corpo- ration, 191 F.Supp. 737 (D.C.Ark., 1961). On the foregoing considerations, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. Checker Taxi Company and Red Cab Company, Inc., are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (T; of the Act. 2. Taxicab, Bus, Funeral Drivers & Chauffeurs Union Local No. 496, a/w International ;irotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. It has not been established that Respondents have engaged in any unfair labor practices warranting issuance of a remedial order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The consolidated complaint in this matter is dismissed in its entirety. not make any false or misleading statements" and the employer had voluntarily failed to read all the provisions. 8 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.