R & K Caterers, Inc.

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R & K Caterers, Inc. and Local Union 274, a/w Hotel Employees and Restaurant Employees International Union, AFL-CIO. Case 4-CA- 13726 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 April 1984 Administrative Law Judge John H. West issued_ the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed a cross-exception, supporting brief, and response to the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versing the findings The Respondent has excepted to the judge's failure to reach us conten- tion that the recognition clause in the proposed contract was unlawful under Sec 8(e) of the Act In light of our decision to dismiss the com- plaint, we find it unnecessary to pass on the Respondent's cross-excep- tion DECISION JOHN H. WEST, Administrative Law Judge. Upon a charge filed May 19, 1983, against R & K Caterers, Inc. (R & K or Respondent) by Local Union 274, a/w Hotel Employees and Restaurant Employees International Union, AFL-CIO (the Union) a complaint was issued July 15,' alleging that R & K violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by refusing since late April the Union's request to execute a written contract embodying a full and complete agree- ment, with respect to terms and conditions of employ- ' Unless indicated otherwise, all dates are in 1983 On brief, the Gener- al Counsel points out that par 6 of the complaint through inadvertence refers to Respondent rather than the Union as being the exclusive repre- sentative of the unit and moves for an amendment of the complaint to correct this mistake The unopposed motion is granted ment of a described unit, reached about March 15. Re- spondent denies the allegation. , A hearing was held in Philadelphia, Pennsylvania, on December 1. -On the entire record in this case, including my observation of the demeanor of witnesses and consid- eration of the briefs filed in March 1984 by the General Counsel and Respondent,' I make the following FINDINGS OF FACT I JURISDICTION Respondent, a Pennsylvania corporation, is engaged in the business of kosher catering with its principal place of business in Merlon, Pennsylvania. The complaint alleges, Respondent admits, and I find that at' all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also found that the Union has been a labor organization within the meaning of Section 2(5) of the Act II. THE ALLEGED UNFAIR LABOR PRACTICE A The Facts R & K began operating in January 1981 after Rosen- thal & Kaufman ceased doing business The latter was in business for 20 years as a kosher catering partnership. In 1980 it was managed by Kenneth Kaufman who is now president of R & K 2 Since 1955 Rosenthal & Kaufman belonged to an association, along with five other kosher caterers Originally the Union negotiated contracts with the association However, in 1980 the involved caterers contracted separately with the Union even though their contracts were the same. The last agreement between Rosenthal & Kaufman and the Union was effective Janu- ary 15, 1980-January 14, 1983. (G.0 Exh. 2.) As indicat- ed above, in midterm of the contract Rosenthal & Kauf- man ceased doing business. R & K advised the Union of this along with its, R & K's, desire to discuss a contract. Subsequently, a dispute arose between R & K and the Union as to whether the former was an alter ego or suc- cessor to Rosenthal & Kaufman and whether R & K was, therefore, responsible for health and welfare and pension payments. Eventually the matter was settled. In January 1981 Kenneth Kaufman was also president of Warken Caterers, Inc which was the banquet caterer at the Warwick Hotel (Warwick) in Philadelphia. This nonunion caterer was sold by Kenneth Kaufman in Janu- ary 1982 to Hospitality Investments Inc. (Hospitality). Subsequently, when dealing with catered banquets at the Warwick, R & K would send the food, the necessary equipment (i.e., dishes and silverware), and a chef, who would oversee the heating up of the food, to the hotel and all else, including personnel to serve, etc., would be provided by the Warwick or Hospitality. Before Warken was sold, R & K would send the food and equipment to the Warwick and Warken supplied (1) chefs, (2) waiters 2 Rosenthal of Rosenthal & Kaufman was Kenneth Kaufman's grandfa- ther The other partner was Kenneth Kaufman's father, Henry Kaufman Unless indicated otherwise, all references, Infra, to Kaufman will be to Kenneth Kaufman 273 NLRB No. 85 R & K CATERERS-. 601, from its normal, complement (referred to as its "chain gang"),_ and (3) dishwashers. If additional waiters ,,were required by Warken, they were obtained from the Union.. Warken paid the equivalent of union wages to its bar- tenders, waiters, and waitresses but did not have a dues checkoff. After Warken was sold the Union challenged the method utilized at the Warwick for handling catered banquets. Among other things, i.e., filing charges with the National Labor Relations Board, the Union on June 15, 1982, made: a demand for arbitration to R & K alleg- ing that there was "[u]nlawful ,subcontracting of bargain- ing unit work- and breach of recbgnition and successor- ship clauses of the contract through arrangements at the Warwick Hotel." 3 Such demand was resisted . by Ein- horn, who in his June 21, 1982' response to the American Arbitration Association stated that R & .K was' not "a party to any agreement or contract that required it to ar- bitrate alleged claims such as made by [the Union] " (R. Exh. 3(t).) Subsequently, without' waiving R & K's ob- jections to the submission of the claim to arbitration, Einhorn participated in a choice of arbitrators. '(R Exh. 3(bb), dated July 28, 1982, et al.) In early December 1982, while the above-described ar- bitration.matter was still not resolved. Harvey Young of the Philadelphia office of the Federal Mediation and Conciliation Service contacted Kaufman about a meeting the -Union requested with the involved caterers to negoti- ate a contract since the involved catering contracts were expiring on January 14 Kaufman told Young that he had some "personal problems regarding . . . [his] catering at the Warwick" and he did not think that he was goin'g to attend. Kaufman then" spoke with Einhorn who in turn also advised Young that Kaufman would not attend the joint meeling between the involved' caterers (one other caterer did not attend) and the Union. Einhorn testified that after speaking to Young he Went away on vacation "and for reasons unknown to me, Mr Kaufman chose to go down to ihe meeting, as I later found out because he felt it was industry wide bargaining 3 The demand was made of Edgar Einhorn as attorney for R K As pertinent, the above-described agreement between Rosenthal & Kaufman, G C Exh 2, reads as follows ARTICLE I RECOGNITION Section 1 I EMPLOYER recognizes the UNION, Local 274, as the sole and exclusive collective bargaining representative of the Employer's Cooks, Kitchen Employees, Bartenders, Waiters, Wait- resses, Busboys, Captains, Head Walters, working in the establish- ment or on a job hereafter operated or being serviced by the Em- ployer or in any other establishment where the Employer may cater in all matters relating to collective bargaining such as employing em- ployees, wages, hours of work, working conditions and adjustment - of gnevances The designated representatives of the UNION shall constitute the UNION representatives in all negotiations as to mat-, ters of bargaining which shall be-,conducted All clauses of this,, agreement shall, apply to the EMPLOYER and their successors and assigns, partners, supervising employers and associates The word "successors" as above applies only to a successor for the kosher, ca-. tenng business of a caterer to this agreement In the event that a ca- terer sells his business to a _non-kosher caterer then this clause will not apply to the new non-kosher caterer on thel wages"; and that prior to negotiations with the „ Union in December -1982 he advised Kaufman as follows: .1 told Mr. Kaufman that when they get into ne- gotiations on the new contract, that this subcon- . tracting issue had to be resolved in that new con- tract, and I also told him, if he wanted, I would in- volve myself in that portion of the contract to try to negotiate it,. and I told him that it was an abso- lute must, that that issue had to be settled in this new contract. Because if that issue wasn't resolved I knew what , percentage ,of Mr. Kaufman's income came from the - kosher work at the Warwick, and I knew that if it was not resolved, favorably to him, so that he could continue to operate there, as he did in the past, he = probably was going to go out of business. 4 , : . . What I said to him was, that we had to have Ian-. , guage inserted into that contract, that specifically , allowed us to do what we had been doing in the -past. And, that is why I. felt ultimately, that I was going to be involved in drafting the language. . Although he had almost no negotiating experience,, Kaufman decided to attend the joint negotiating sessions at the office of ,the Fecletal , Mediation and. Conciliation Services. With respect to the first session, which was . held late in December 1982, Kaufman testified as fol7 lows: [Young] said to me, I'm surprised to see you here, your attorney said that you were , not going to partake of these joint discussions. I told him that my disputes with the union had to do with a work- ing condition at the Warwick Hotel, and it is some- _ thing that I =felt that 'I could iron out or negotiate with 'them as an individual, but since the wage .. package, whatever was to be arrived at in wages, at these Meetings I would be. forced to take,. because --_-they are not going to give one caterer a lesser price ' than' someone else; and I thought it was to my ad- vantage 'to be here to be part of this wage discus- ] sion.since I . was going to pay it 5 4 'Kaufman' testified that in December 1982 between 20'aild 25 percent of R & K's business involved situations where other employers provided service personnel for functions, that different hotels have different ar- rangements and R & K abides by the wishes of the owner of the hotel, that other kosher caterers used the employees of the hotels to serve, that in many specified cases. in the Philadelphia area the situation was the same,as at the Warwick, namely, the caterer provided the food and the hotel provided the personnel, and that this situation existed for years and was not challenged by the Union until 1982 Jaines Washington, a business agent for the Union who attended this session, testified that Kaufman said that we are not here to negotiate anything with the Warwick Hotel or some words to that effect, but we weren't there for that purpose, and we of course, didn't discuss anything with reference to the Warwick Hotel , ' 1 James Small, president ,of the involved local, also attended this session He testified Before we sat down at the negotiating table, Ken Kaufman said to me, M. front of everybody, that he wanted to make it perfectly clear, Continued „ 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At -- another point, Kaufman testified that he advised Young at the first session that "my Warwick issue was a private issue, and I would get involved in that after we discussed wages." Further,- Kaufinari testified that while everybody else was there 'to try to reach a contract, he believed his opening remarks to Young "eliminated the possibility of [R & K and the Union] reaching 'a contract, at anytime during those negotiations." There were four negOtiation sessions with the last one held on March 3, 1982. Washington, Small, and Kaufman attended all of them. Regarding the sessions, Washington testified that the first was merely a presentation and a review of What the proposals were; that the second ses- sion dealt with a review of-health and welfare, pension, and other economic issues, and the employers offered a counterproposal regarding wages; that at the next session wages and a most favored nations clause was discussed; that at the second or third session it was agreed that the "language remain the same throughout the contract, with the only change being there was wages as far as the numbers was concerned"; that at the fourth session wages were discussed with the employers making a pro- posal, that at that point there were no other outstanding issues, and that at this last session Small adtiised the em- ployers that he would not recommend the final offer but he would take it back to the membership' for ratifica- tion. 8 Kaufman's testimony 'regarding what was dis- cussed'at the negotiation sessions did riot differ material- ly from WaShington's. 7 The former testified that as he left the last session [I]t was . . . [his] understanding, number one, we would find out if the' wage package was accepted, and number two, the union and I would sit down and get the- language straight on my operating in the Warwick and other places. With respect to the above-described recognition clause, Washington testified that it was never discussed during the above-described negotiating sessions; that the issue of what it covered was never raised during the ne- gotiating sessions; and that there -was no change pro- posed in the recognition clause. 8 Kaufman testified that he did not advise the Union before or during negotia- tions that he wanted the above-described recognition clause modified because he did not even know 'that the above-described difference of opinion was based on this before we started any negotiations, wages Was the only thing to be discussed, the Only purpose there was to negotiate a kosher caterers contract That nothing else would' be discussed, no Warwick, no Warwick situation, and whatever 6 Washington's testimony regarding the last negotiating session- was corroborated by Small , • 7 As indicated by the testimony and Kaufman's notes^on the negotia- tions, G C Exh 4, a number of the items included in the proposed agree- ment were discussed 8 Assuming that R & K Was the successor to or the alter ego of Rosen- thal & Kaufman, it was Washington's understanding in 1981 and 1982 that wider the 'above-described recognition clause, "if R & K serviced a kosher luncheon at the Warwick, and the Warwick-and some other em- ployees sd■ied the foCid, that this contract required that those employees that served the food be covered by this contract" Washington was aware of the above-described arbitration matter before negotiatiOns com- menced in December 1982 and he was aware' that R & did not agree with the Union's position regarding the Warwick clause; that snide he did not know what, if any, clause' the Union was relying on in challenging 'the operation at the Warwick, he did not indicate to the Union that the terms of the proposed agreement should be modified to remedy the Warwick situation; and' that he "wanted something added to the contract that said I could contin- ue doing what I have been doing for thirty years." - During the course of the above-described negotiations Kaufman did not request private or side-bar meetings with the Union. Small testified that after the last negotia- tion session and up to the ratification described below (I) neither the Union nor -any of the involved caterers made additional proposals, .and (2) R & K did not notify the: Union that it had a problem with the contract On March 10, the members ratified the agreement. Kaufman was notified of this by Young and Washington. In the beginning of April Washington contacted Kauf- man and brought a typed contract to Kaufman at his office for him to sign. Kaufman told Washington that Kaufman wanted to review it. Washington testified that Kaufman then indicated that (the name typed on thelront cover of the agreement, Rosenthal & Kaufman, was in- correct and it should be R & K Caterers, Inc. 'Washing- ton left the agreement and Kaufman, according to the testimony of Washington, stated that he would "get back. to . .4Washington as to] when . . . [he] could come back to pick it up." Washington also testified that Kauf, man ,indicated that he wanted to have his attorney look at the agreement, which—according to Washington— was a common practice. 8 Kaufman testified that when- WaShington called and said that he wanted to bring the contract out to me to be signed . . . I told him he could bnng it out. I could not sign it at that point, as I wanted to show it to my attorney, as we had some non-wage issues, and I want to go over them with the attorney." Einhorn testified, regarding the agreement, that Kauf- mann - . . . either • . . told me that they settled the wage issue, or he called me when the contract Was deliv- ered to him, and I said you now must settle the problem at the Warwick, and that that contract is not to be signed until the Warwick problem is set- tled. Later in April Washington returned to Kaufman's office with corrected contracts which read "R & K Ca- terers, Inc."_ (G.C. Exh. 3.)" Washington testified `that 9 Small testified that he would not say that as a general rule in negotia- tions in the involved industry both sides traditionally submit drafts of contracts to their attorneys and "[lin this Instance, with the caterers it is surprising because it is the same contract, after contract, after contract" i ° While Kaufman recalled pointing out to Washington that the name of the Company on the cover of the agreement was not correct, Kauf- man believed that he made this observation at the second meeting with Washington later in April but he was not sure At one point Kaufman testified that at this meeting I did was accept the contract, and I told him I would get back to him" " The agreement was already signed by union representatives Wash- ington testified that Kaufman had left a meisage at Washington's office that Kaufman would like to meet with Washington R & K CATERERS 605, to the best of his recollection Kaufman said "that he would only sign this contract if we • would remove ac- tions taken against him with reference to the Warwick Hotel", and that then Washington . [told Kaufman] I couldn't understand what one thing had to do with the other . . . and then I picked up the contracts that I had brought at that time, and I never left them with him. While Washington laid the contracts on Kaufman's desk Washington did not show Kaufman the contract nor, as indicated above, did he leave a Copy with Kaufman. Re- garding the second meeting with Washington, Ka'ufman testified. I think he [Washington] called up a short time, a week or later whatever I don't remember the exact time, and asked me if I was ready to sign the con- tract, and I said I hadn't gotten together with my attorney yet. He called me;again, and I at that time told him he could come out, but I did have some problems with the contract and I would like to dis- cuss them with him • With respect to what was said during his second meeting with Washington, Kaufman testified as follows: I mentioned to him that the word association was. used in the contract, and we are no longer associat- ed. I also mentioned that the contract should be made out to R & K Caterer, not Rosenthal and Kaufman. He said he had no objection to that, he would make that change . . To my knowledge it happened in the second. To be honest, I don't recall if I objected in the first or second meeting. I also said to him that we have an- outstanding issue, in re- gards to the Warwick Hotel, and for the way I am operating there, and I said, I voiced that in the be- ginning of the negotiation. I didn't pursue it further at that time, because I didn't think it was anybody's business, but between the union and I, and I said that I wanted to sit down with the union and our attorney and see if we could iron out the language to finish the contract. He said that he would take, the—You know,—He didn't say no, he said that he would take the information back, speak with Jimmy Small, and speak with Ira Silverstein, and he would get back to me. No one ever got back to me. About a week later, my attorney got a letter from Ira Sil- verstein that if I didn't sign the contract immediate- ly, they were going to start a proceeding with the NLRB. Later Kaufman testified as follows regarding his second meeting with Washington: When I . . . [returned Washington's call], J told him I wanted to see him because I had to go over some things with this contract that—You know, I couldn't sign it, but I would like to meet him, you know, in my office to go over with him why. To my recollection, at that time we talked about the names, but I could have mentioned the name the first time Then I told him, that we still had the open issue regarding operations at the Warwick Hotel, and I told him that this issue should be nego- tiated before we signed this contract, so that we can go on and live with this contract and we should sit- down and have a meeting with the lawyers and settle this point. Finally, Kaufman testified that he would have signed the contract at the second meeting with Washington if they were able to resolve the Warwick Hotel problem at that time. All of the other kosher caterers who participated in the group negotiations signed individual contracts which were the same as that offered to R & K.' 2 Kaufman tes- tified that he thought the recognition clause has been in contracts agreed to by other Philadelphia area kosher ca- tering companies for years, and that other ,caterers in that area handle kosher functions at . hotels where em- ployees of someone other, than .the caterer serve the., food. Einhorn testified as follows about a conversation he had with Silverstein about Kaufman not signing the con- tract: I said to him, let's get the whole problem at the Warwick resolved, both in the past and for the future with the new contract, and will you talk to the union to see if we can't resolve it, because I said I want to .get' rid of the arbitration, and I want to settle the problem for the future with a new con- tract, and he said I will get back to you after I . talk to the union: By letter dated May 13, 1983, Silverstein ,advised Ein- horn: • l• I have reviewed the 274-R & K situation with my client and I have been advised that the negotia- tions between Local 274 and R & K were finalized and an agreement reached and that your client is simply refusing to sign the agreement because of a pending arbitration. My client is unwilling to with- draw the arbitration,and , it is-our position that your client's refusal to sign the contract in this situation is an Unfair Labor Practice We would appreciate your returning to us- a signed. contract within one (1) week or . we shall be forced to proceed with whatever remedies are available- to us before the National Labor Relations Board. Regarding the last sentence of the above-described letter, Einhorn testified that he did not at that time have, in his possession an unsigned copy. of the contract;. and that he "never had the _contract until we got involved in all these proceedings." Subsequently, Einhorn testified; (1) that he remembered Kaufman -telling him "that there " They were as follows Barclay Caterers, Cohen Caterers, and Norm the Caterer While another kosher caterer, Pressman the Caterer, did not attend any of the sessions, he signed the contract And while Betty the Caterer negotiated individually with the Umori, it-was concerned with a pension question 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a problem that they had-the names all .mixed up, that they had the wrong—that they had the association in, and that they had the wrong name for his corporation"; and (2) that he requested a copy. of the contract, which was delivered to Kaufman, and that his "best recollec- tion . . . .[was] that . . [he] got it before Ira Silver- stein's letter to . . . [him], so Ira wrote . [him] in May of this year, and . . [he] would assume that . . [he] got it sometime towards the end of April, beginning of May." & K has honored all of the economic- terms of the contract. B. Contentions _ - On brief, the General Counsel argues that it has long been settled that where an employer and union have reached agreement as,to the terms and conditions of em- ployment either party is required by law, on the request of the other; to sign a .written collective-bargaining agreement embodying such' understanding; that the ques- tion in these types of cases often turns on whether the objective facts indicate that there has been an agreement on the terms of the collective-bargaining agreement; and that either party's good-faith belief that a contract has or has not come into existence is irrelevant. It is the Gener- al Counsel's 'contention that Respondent, by refusing to sign unless the Union withdrew the arbitration demand it had filed against Respondent with respect to Respond- ent's operation at the Warwick,. has conditioned its exe- cution of the contract on a nonmandatory subject of bar- gaining. Assertedly 'Kaufman had earlier, agreed to the contract and specifically stated just before the first nego- tiating session that he was not there to discuss the War- wick situation. It is pointed out by the General Counsel that at no point either before or during the negotiations did Kaufman indicate to the Union that he wanted the recognition clause of the contract changed to accommo- date his ' situation:' Also the General Counsel contends that the fact that Respondent . has honored-all of the eco- nomic terms of the contract 'strongly suggests that Re- spondent believed and- still believes that it has an agree- ment with the Union. Anticipating that Respondent would argue that the in- stant' case is analogous to Checker Taxi Co., 228 NLRB 639 (1977), the General Counsel asserts that that case is distinguishable since in Checker a union representative knowingly misled -respondents there regarding the con- tent of the proposed contract and the Board refused to bind respondents to - the' agreement finding instead that . there is a statutory obligation of mutual good faith. The General Counsel submits that in Checker from the very beginning of the negotiabons there was a sharp disagree- ment on respondents' demand that it-be allowed to lease taxicabs to nonemployees,-' a position which the union members opposed. Here, the .Oeneral Counsel contends, there was no such sharp disagrdement on the recognition claiiie of the contract dining- the involved negotiations, there was an agreement among the parties at the session held in the latter part of January and at the final session that the contract's langnage 'would remain the same, at no point either before -or during the negotiations did Kaufman indicate to the Union that he wanted the rec- ognition clause of the contract changed to accommodate his situation, Kaufman did not request during the course of the negotiations a separate meeting with the Union to negotiate Respondent's problems at the Warwick, and the Union, unlike in Checker, did not at any time mislead Respondent Respondent's argument, 'made at the hearing herein, that it was relieved from executing the contract because it was illegal under Section 8(e) of the Act in that the recognition clause of the contract as it was applied was designed to force Respondent to cease doing business with another employer because that employer was not union, is, according to the General Counsel, without merit and should be rejected for even assuming, ar- guendo, that the clause was an issue in the instant pro- ceeding or that Respondent could properly raise its le- gality as a defense to its refusal to sign, it is clear that the clause does not violate Section 8(e) of the Act be- cause (1) the clause is ambiguous and as such the Board will not presume unlawfulness, (2) .Respondent must come forward, which it -failed to do, with extrinsic evi- dence that the clause was intended to be administered in an unlawful manner, and (3) the clause does not violate Section 8(e) because Respondent is resisting the Union's alleged unlawful, interpretation of the clause. Respondent, on brief, contends that at the first negoti- ating session Kaufman advised the Union that while he would participate in negotiations concerning economic issues that would apply to all caterers, there would remain issues between the -Union and his company that would have to be resolved "before any final agreement could be reached." (R. Br. 16.) Assertedly Kaufman's version of what was said is consistent with the history of parties' positions taken prior to the negotiations and is certainly more probable than the testimony as related by the union negotiators Furthermore, Respondent argues that it is unlikely - that Kaufman would have failed to in- dicate his intent to separately negotiate an unresolved issue that affected a substantial portion of his business partiCulaily after having been instructed to do so by his attorney It is pointed out by Respondent that it is well settled law that where there is no -"meeting of the minds" as to essential terms of an agreement and where ,parties differ as to their understanding of such terms, there is no con- tract which the parties can be directed to sign; and that this principle applies even when the failure to achieve a meeting of the Minds or the misunderstanding , can be traced to an ambiguity for which both parties are equally to blame. Respondent contends that . . . [t]he ambiguity present in the instant case is not only a misunderstanding as to the meaning of the agreement but also the Union's alleged failure to understand that Kaufman intended to continue sepa- rate negotiations with the Union -to resolve this mis- understanding after conditional approval of the wage portion of the agreement was reached in group negotiations [R. Br. 18] Assertedly approval of the agreement even if expressed in an unconditional form does not create an agreement R & K CATERERS 607 when the approval was conditioned in fact or where the party accepting the agreement did so with an under- standing that differed from the understanding • of the party seeking to require execution. Respondent contends that there was no meeting of the minds here since allegedly the Union was 'aware that Re- spondent objected to the Union's interpretation of the agreement as it had attempted to apply the agreement at the Warwick, the Union was told that Kaufman entered the group negotiation for the purpose of discussing eco- nomics only and that he intended to discuss the Warwick problem in separate discussions, the terms of the new agreement as they might relate to outstanding legal issues had been the subject of discussions between the parties' attorneys before negotiations started and the practice of the parties had been to •submit drafts of final agreements for approval by attorneys, and there could have been no meeting of the minds even if a final agreement had been reached at the group negotiations as it is undisputed that the Union attempted to force Respondent to execute a contract that was significantly different from the con- tract it submitted to other caterers for signature and this fact is undisputed as the Union does not deny that it allows other caterers to use customers' employees to serve food but, based on the same language allegedly agreed to at the same negotiations, asserts that the con- tract does not permit Respondent to do so. Industrial Engineering Co., 173 NLRB 77 (1968), is cited by Respondent for the proposition that a union would not be allowed to indirectly force an employer to agree to language for which it knew it had not bar- gained Checker, supra, is cited by Respondent for the proposition that the Board will not allow a union to bind an employer to an agreement despite the employer's mis- conception as to how the union would construe a clause of the agreement, and for the proposition that the argu- ment that the language could be clarified in arbitration is without merit since the function of arbitration is to inter- pret an agreement reached rather than alter, avoid, re- scind, or create an agreement. With respect to the General Counsel's contention at the heiring herein that Respondent had no right to refuse to sign the agreement by insisting on a nonmanda- tory subject of bargaining—the withdrawal of an arbitra- tion case—Respondent asserts that the issue is not this simple since . . the primary reason for the refusal to sign the agreement was not the arbitration !natter itself but rather whether the Union would agree for the future under the new agreement to . permit Kaufman to op- erate as he had in the past and as it permitted all other employers to operate under the same contract language. [R. Br. 24-25.] Assertedly, it was not a nonmandatory ,bargaining demand to request (1) to discuss whether the Union would permit Respondent to sell food without the added requirement that the purchaser's employees be union and be covered under the terms of the agreement, and (2) to ask for an explanation and for relief from an arbitrary position taken by the Union that singled out Respondent as the only employer having a specific burden under the contract when the same language applied to all caterers. Respondent contends that even assuming the Union had no obligation to drop an arbitration case which asserted- ly was initiated in bad faith to exert pressure on a third- party employer, the Union nevertheless was obligated to attempt to address for the future contract the difficulty caused Respondent by the Union's subjecting it to a spe- cial set of rules that admittedly had never applied in the past But, allegedly it was obvious that the Union had no intent to negotiate in good faith on this issue and its fail- ure to do so was the primary reason for the failure to obtain a signed agreement It is submitted by Respondent that the fact remains that Kaufman wanted an agreement under which he could operate as he had in the past and the Union Was unprepared to give him such an agree- ment. Assertedly - it follows that no agreement was reached with Respondent. Finally, Respondent contends that Union Representa- tive Washington admitted that the Union's interpretation of the recognition clause of the agreement required the customer to honor the agreement with respect to the customer's employees; that the language of the clause itself supports such an interpretation; that the law does not permit the parties to enter into an agreement that creates any such obligations; and that, therefore, Re- spondent cannot be found guilty of an unfair labor prac- tice by its failure to commit an unfair labor practice by entering into an illegal agreement. Respondent contends that since the recognition clause in the agreement Re- spondent was asked to sign and the Union's interpreta- tion of that clause was clearly directed to achieve its ob- jectives at the Warwick with respect to employees of an- other employer and were not designed to preserve work for Respondent's employees, the agreement was illegal and Respondent should not be ordered to sign an illegal agreement. Respondent also contends that the Union's ef- forts to force Respondent to sign the agreement and its refusal to modify its arbitrary interpretation of that agreement was a continuation of the Union's illegal ac- tivity found unlawful by the administrative law judge in Cases 4-CP-355, 4-CB-4477, and 4-CB-4478.1 3 " In Hotel ti Restaurant Employees, 269 NLRB 482 (1984), the Board remanded those cases to the administrative law judge for the purpose of considering the effect, if any, of a specified defense of the union As here pertinent, portions of the Board's decision read as follows As found by the judge, Warwick Caterers is a banquet and cater- ing operation owned and operated by ,Hospitality Catering, Inc Warwick Caterers is not a party to any collective-bargaining agreement with the Respondent [Union] On 22 February [1982], the Union filed 8(a)(5), (3), and (1) unfair labor practice charges against Warwick Caterers, Elan, and Hospital- ity Investments, Inc, alleging, in essence, that these employers were successors to, or an alter ego of, R & K Caterers (Kosher Catering) and Warken Banquets, Inc (non-Kosher catering), employers which, prior to the sale of assets to Warwick Caterers, had verbally agreed to pay union wage rates to their employees The Union claimed that Warwick Caterers had a successorship or alter ego duty to recognize It The charge also alleged discriminatory terminations of Warwick employees because of their union affiliation These charges were dismissed by the Regional Director, and the dismissal was later upheld by the General Counsel on appeal In up- holding the dismissal of the complaint, the General Counsel observed that there was no evidence that Warwick Caterers "was an alter ego Continued 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis For the reasons stated below, it is my opinion that Re- spondent did not violate Section 8(a)(1) and (5) of the - Act as alleged. For years, notwithstanding the above-described_recog- nition clause, the Union did not challenge the way serv- ice was provided at the Warwick by Rosenthal & Kauf- man in conjunction with Warken, which, as indicated above, was a nonunion operation. (As noted above, cer- tain of Warken's employees received the equivalent of union wages.) But when Kaufman . sold Warken the Union asserted rights it believed it had in its agreement with Rosenthal and Kaufman and the alleged successor or alter ego, k & K. Long before negotiations began on the involved contract the Union notified R & K's attor- ney in the above-described June 15, 1982 demand for ar- bitration that the Union believed that R & K was breach- ing the "recognition and successorship clauses of the contract through arrangements at the Warwick Hotel." Initially Kaufman refused to participate in the group negotiations between the Union and the other kosher cá- terers because of the pending arbitration matter over Re- spondent's service at the Warwick. When he did appear at the first negotiating session he qualified his participa- tion indicating that he was there to discuss wages only, and that the situation involving R & K at the Warwick would not be a matter which would be dealt with at those group negotiations. Small's testimony that Kauf- man, after stating that he was only there to discuss wages, said "the only purpose there was to negotiate a kosher caterers! contract" is not credited. This might have been Small's purpose but in my opinion Kaufman did not utter these words for they would have contra- dicted his declaration that he was there to discuss wages only. While Kaufman did not explicitly indicate that the resolution of the problem at the Warwick was an issue on which resolution of a collective-bargaining agreement was contingent, and while Kaufman never specifically requested negotiations over the recognition clause inas- much as he did not appreciate the basis of the Union's assertions, Washington testified that when the involved negotiations began he fully understood what was being asserted in the arbitration proceeding. The dispute cen- tered on language in the Rosenthal & Kaufman bargain- ing agreement, which language was also included in the contract being negotiated. Kaufman lacked the sophisti- of any of the parties who might arguably have had a bargaining rela- tionship with the Union" 4 Contemporaneous with the filing of the charge, the Union invoked the arbitration provisions of its collective-bargaining agreement with Elan, "seeking to enforce the contractual obligation of recognition [on Warwick Caterers] as set forth in the collective-bargaining agree- ment [between the Union and Elan] " On 24 February [1982] the Union began picketing which contin- ued until it was enjoined on 14 June [1982] On 13 May [1982] Warwick Caterers filed a charge against the Union alleging violation of 8(b)(7)(C) A complaint issued;- forming the basis for the Instant case Although the Union took the position that it is an incumbent collective- bargaining representative by virtue of the alter ego or single-employer status between Elan and Warwick Caterers, such defense was not consid- ered After overruling the authonty the administrative law judge relied on, the Board, by Order dated March 28, 1984, directed the judge to con- sider the defense cation to fully appreciate his situation. And it is my opin- ion that while at some point Einhorn may have told Kaufman what the mechanics were for remedying the problem with respect to the contract which was being negotiated, either the message was not conveyed before Kaufman attended the first negotiating session or when the message was conveyed Einhorn failed to impress on Kaufman the advisability of explicitly making this known to the Union .at the outset. It would appear that even though Einhorn had notice of the basis of the Union's claim, inasmuch as he refused to acknowledge any bar- gaining relationship between R & K and the Union based on the Rosenthal & Kaufman agreement, and since he did not expect Kaufman to attend the group negotiation (as noted above he learned of Kaufman's participation upon returning from vacation) most likely he did not specifically advise Kaufman about the mechanics before the first negotiating session. In any event, Kaufman did not explicitly state at the first negotiating session that he would seek a modification of what had become a stand- ard contract between the involved entities before he would .sign it. Nonetheless, the assertion that a great deal of R & K's business involves functions at the Warwick was not contradicted. In my opinion the Union fully ap- preciating the situation realized that Kaufman would not wittingly perpetuate the Warwick problem. Consequent- ly, when Kaufman declared that he was there only to discuss wages the Union could not reasonably believe that Kaufman was there , to negotiate a complete con- tract. Notwithstanding assertions to the contrary, it was not demonstrated that Kaufman knowingly exceeded his limitation to discuss only wages during the group negoti- ations. And, in my opinion although Kaufman did not. explicitly state at the outset that the contract was contin- gent on the resolution of the Warwick situations, the Union, under the circumstances, could not have reason- ably understood otherwise. As pointed out in Industrial Engineering Co, supra, the alleged violation contemplates a consciously arrived at understanding and a refusal, as here pertinent, to execute the written agreement. When Kaufman limited his par- ticipating and indicated that while he had problems with the Union regarding operations at the Warwick he would not deal with that matter in group sessions, the Union, which fully appreciated the situation, could not reasonably conclude that there would be a meeting of the minds during the involved negotiation sessions on that language . in the contract being negotiated, which was the basis of the Union's contentions that R & K was acting unlawfully at the Warwick. The General Counsel contends more than once on brief that here, unlike Checker, supra, the Union did not mislead Respondent. As pointed out by Respondent, on brief, however, it was concluded in Checker, supra at 44 that "[t]he result would be the same even if. . . [the Union] had not been guilty of misrepresentation." Two other portions of Checker, supra at 643 and 645, respectively, cited by Respondent, on brief, bear repeat- ing: This contention, placing a "pound-of-flesh" techni- cality-above justice and equity, has been soundly re- • R & K CATERERS 609 jected by the Board, which recognizes the statutory obligation of mutual good faith as a cornerstone of labor-management relations. . . . . Brief notice may be taken of the Union's apparent argument that Respondent must execute the con- tract and rely on arbitration thereunder to seek relief. Such contention is manifestly untenable. Ar- bitration 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. , In view of the above, it is not necessary to deal with the above-described contentions regarding the legality of the contract. The complaint should be dismissed in its entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The complaint is dismissed in its entirety. 14 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"