Taylor Bus Services, Inc.

530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Taylor Bus Services, Inc. and General Truck Driv- ers, Warehousemen, Helpers and Automotive Employees Local 315, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 32-CA-7223 26 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 19 August 1986 Administrative Law Judge Timothy D. Nelson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. 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, fmdings, 1 and conclusions2 as modified and to adopt the recom- mended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Taylor Bus Services, Inc., Concord, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. The Respondent has excepted to some of the judge's credibility find- lungs. 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. 2 The judge found that the Respondent violated Sec. 8(a)(1) of the Act when it told its employees, by letters dated 19 May 1985 and 1 Novem- ber 1985, that there was no current labor agreement with the Union. In adopting this finding, we note, as did the judge, that the complamt did not allege this conduct as an independent 8(a)(1) violation. Our review of the record, however, shows that the facts necessary to this findmg are uncontroverted and were fully litigated at the hearing. In these circum- stances, it is within the Board's authority to remedy the violation to ef- fectuate the purposes of the Act. See, e.g., St. Joseph Hospital East, 236 NLRB 1450 (1978). In this regard, we also note that the Respondent does not except to this finding on the basis that an independent 8(aX1) allega- tion was not alleged in the complaint or otherwise contend that it was prejudiced by the judge's findings. 3 The attached notice corrects the judge's inadvertent reference to the Respondent as Taylor Bus Lines, Inc., rather than Taylor Bus Services, Inc. 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 the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT continue to repudiate the labor agreement we reached with Teamsters Local 315 in June 1984 which, by its terms, was effective and binding from 31 May 1984 to and including 31 August 1986. WE WILL NOT tell you that there was no such agreement. WE WILL NOT refuse to assist the Union in put- ting that agreement in writing and signing it. WE WILL NOT refuse to arbitrate unresolved grievances which arose under that agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on the Union's request, render neces- sary assistance in good faith to put our 1984-1986 agreement in writing and, once that is accom- plished, WE WILL sign it. WE WILL, on the Union's request, bargain collec- tively in good faith with the Union for a new agreement and, if such an agreement is reached, WE WILL put it in writing and sign it. WE WILL honor the arbitration provisions of the 1984-1986 agreement by immediately submitting to arbitration at the Union's request any unresolved grievances which arose under that agreement. TAYLOR BUS SERVICES, INC. Linda Bytof and Barbara Koh, Esqs., for the General Counsel. Paul Johnson, Esq. (Angell, Holmes & Lea), of San Fran- cisco, California, for the Respondent. Priscilla Winslow and Burton Boltuch, Esqs. (Boltuch & Siegel), of Oakland, California, for the Charging Party. 284 NLRB No. 68 TAYLOR BUS SERVICES 531 DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. I heard this 8(a)(5) case during 15 days of trial proceedings held in Oakland, California, between 9 October 1985 and 8 January 1986. 1 The case in its present form traces from a complaint that was issued on 31 July 1985 by the Re- gional Director for Region 32 after he had investigated unfair labor practice charges which Teamsters Local 315 (the Union) and Taylor Bus Services, Inc. (Respondent) had filed against one another on 1 May 1985, each party alleging that the other had violated its statutory duty to bargain collectively in good faith. The Union charged that Respondent had failed over the previous 6 months to "execute the collective-bargaining agreement agreed to by it, and ratified by employees." Respondent claimed, "Since April 03, 1985. . . the union has unlaw- fully refused to bargain collectively." On the same day that he issued the complaint, the Director dismissed Re- spondent's charge, explaining in an institutional "dismis- sal letter" his judgment that the parties were already bound to a labor agreement and that the Union was therefore privileged in refusing to talk further about changes in agreed-on terms and conditions. The original complaint charged that Respondent vio- lated Section 8(a)(5) of the Act in two independent ways: By continuously refusing the Union's demands, first made on 30 October 1984, to "execute" a certain "Agreement" previously reached by the parties on 31 May 1984; and by "repudiating" the "Agreement" on 19 April 1985. Respondent's original answer denied, among other things, that "any 'Agreement' was ever reached between the parties"; it also averred as an affirmative defense, that any "alleged agreement was [subsequently] reopened by the conduct of the parties in meeting, in bargaining on substantial issues, and in making numerous proposals inconsistent with the alleged Agreement." Since the trial record opened the complaint and the General Counsel's underlying theories of violation have undergone a series of mutations. Respondent's original answer likewise bears only superficial resemblance to the positions it now urges.2 These shifts are best understood, Errors in the transcript have been noted and corrected. 2 These evolutions and devolutions in the expressions of the parties' claims and counterclaims have had their own detrimental impact on the orderly progress of the trial and on determinations made at any given moment about what the issues—and the relevant scope of litigation at that moment—might be. That historical evolution includes a certain number of juridical facts that are detailed in appendices, as necessary to explain my ultimate findings, conclusions, and recommended remedy. The General Counsel would argue against any implicit criticism here (and made the point at length on the record) that Respondent's own ex- pressions of defensive position have also slipped around from the point at which Respondent first sought to defend against the Umon's charges and to vindicate its own counterpart charge against the Union. Respondent would insist (and likewise did so on the record) that any such shifts simply reflected Respondent's adjustments to the shifting factual and legal claims made first by the Union, then later by the General Counsel, as her complaint underwent multiple changes. That there have been such shifts by both prosecution and defense will be evident to any student of the transcript and exhibits; they will be only partly revealed in my narration of the material events compnsmg "Phase IV" of the case. Whether those shifts are fully accounted-for in the par- if at all, only after first understanding in overview what brought the parties to trial and what they did after the trial began. I have thoroughly reviewed the transcript, the exhib- its, the parties' posttrial briefs, and the authorities they rely on, as well as other authorities. On the whole record, my assessments of the witnesses as I saw and heard them, and of the inherent probabilities, I make these FINDINGS OF FACT I. INTERMEDIATE ANALYSES A. Background (Aug.-Nov. 1983) Respondent is the largest privately owned schoolbus contractor on the West Coast. It also makes its fleet of buses and its drivers available for private charter and other miscellaneous extra duty. 3 Tom Berthold is Re- spondent's president and a majority owner, directing op- erations from headquarters in the Southern California city of Anaheim. Charles Holmes is a vice president, whose current responsibilities are otherwise indistinct on this record, but who spoke for Respondent in some rele- vant transactions during the background phase of this case. Robert Hopkins is a vice president and general manager in charge of Northern California operations, who figured closely in all events after March 1984. Hop- kins works from a district headquarters in Concord, the largest city in Contra Costa County, near San Francisco. Respondent also maintains at Concord the shop and bus yard facilities out of which it services its mainstay client in the area, the Contra Costa County School District. Respondent activated the Concord operation in late summer 1983 after supplanting ARA Services as the County School District bus operator. Under ARA's op- eration the Union had been recognized as the representa- tive of ARA's drivers and mechanics. But when Re- spondent hired most or all the former ARA drivers and mechanics to staff its own operation, it nevertheless re- fused the Union's demand for recognition. And, on 15 September 1983, Company Vice President Holmes pub- lished a "campaign" letter to Concord employees en- couraging them to resist unionization, stating, among other things, "[W]hen we introduced ourselves this past summer, we clearly stated that we were a non-union company and wished to remain so." Faced with Respondent's refusal of recognition the Union filed unfair labor practice charges in Cases 32- CA-590l and 32-CA-5904. Those charges were disposed of when Respondent signed a settlement agreement, ap- proved by the Regional Director on 30 November 1983, in which it did not admit having committed any unfair labor practices, but agreed to recognize and to bargain collectively with the Union as the exclusive representa- ties' various explanations of record is something I find unnecessary to decide; and, to the extent I find it appropriate at all to trace some of those shifts, such discussions do not purport to answer that question. 3 In the year before the complaint issued, Respondent derived gross revenues in excess of $250,000 from its transportation operations and also purchased more than $50,000 worth of goods or services that originated outside California 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive of all Respondent's "full-time and regular part-time bus drivers, lead drivers, and mechanics employed . . • in Contra Costa County, excluding dispatchers, field co- ordinators, driver trainers, office clerical employees, guards, and supervisors as defined in the Act."4 Throughout the subsequent period addressed by the complaint Respondent has always formally acknowl- edged, indeed it has stipulated in this case, that the Union is the exclusive collective-bargaining representa- tive within the meaning of Section 9(a) of the Act of its employees in the appropriate countywide unit set forth in the settlement agreement, or in an essentially similar bargaining unit.6 Robert Cohen, a Los Angeles-area attorney, represent- ed Respondent during this period and he signed the set- tlement agreement and notice to employees on Respond- ent's behalf. Respondent continued to engage Cohen as its bargaining representative when the Union promptly demanded meetings to negotiate a labor agreement for the countywide unit. B. Overview of Subsequent Events The relationship of the parties after the November 1983 settlement evolved through three more-or-less dis- tinct pretrial phases, which I summarize below. In practi- cal effect the references to "Respondent" during phases I and II are to attorney Cohen, who worked with Vice President Hopkins on pending labor relations matters and who also stayed in regular contact with President Berth- old on those subjects, as Berthold admits; in phase III, however, "Respondent" generally means either Edwin Taylor, the consultant whom Respondent hired after it terminated its arrangement with Cohen, and/or Vice President Hopkins. In the case of references to the "Union," I am referring throughout to actions taken by Ronal Teninty, the business agent who spoke for the Union at all times after January 1984. 6 The record ex- haustively details the bases on which these summaries are constructed. Each party's view of what constitute the significant events will necessarily be slighted in this proc- ess, but these facts found in summary are undisputed, and in my judgment they are nearly enough to dispose of the case. Moreover, I regard such a summary as essential to my subsequent tasks: First to provide context for an in- telligible statement of the issues as they now stand 4 As part of the settlement Respondent also agreed to post a notice to its employees under the Board's imprimatur in which it repeated its com- mitment to recognize and bargain with the Union, and promised not to "inform our employees that we are a non-union employer and want to remain that way at a time when they are entitled to Union representa- tion," and not to "tell employees to stop talking about the Unibn while they are on probation." 5 Anticipating findings made elsewhere below, I note here that the un- derlying agreement that the parties indisputably reached when the Union accepted Respondent's 21 May 1984 "last and final offer" contemplated a recognition clause which describes the unit in slightly different, but not inharmonious, terms. See Jt. Exh. 7, sec. 1,A, containing text that, the parties have stipulated, accurately records the recognition clause contem- plated in the final offer. 6 I credit and rely on Teninty's believably related and probable ac- count of events occurring in phases I and II. Cohen did not testify at all; Hopkins never contradicted these summaries to the extent they rely on Teninty. Other credibility judgments are explained as necessary in my later findings. (rather than as they may have been expressed at various intermediate junctures in this protracted case); second, to detail elsewhere only those additional facts needed to dispose of the current issues. In that latter process I focus mainly on the stipulated facts and on those other relatively luminous clusters of undisputed evidence that appear at intervals within this unruly and detail-en- shrouded record. 1. Phase I (Nov. 1983—June 1984) On 15 June 1984, following a favorable employee rati- fication vote conducted on 31 May and a subsequent process of inhouse review, the Union unreservedly com- municated to Respondent its approval of Respondent's 21 May "last-and-fmal offer" for an agreement to cover the unit. That final offer was itself a product of at least 15 collective-bargaining sessions held by the parties over the previous 7 months, sessions that had intensified by early May, as Respondent made a series of "final" offers culminating in its genuinely "final" offer of 21 May, when Respondent simultaneously declared that the par- ties had reached "impasse." When it notified Respondent on 15 June of its accept- ance of the fmal offer the Union agreed to write up the parties' agreement and Respondent agreed in turn to mail to the Union a packet of mostly company-generated bar- gaining materials for use in drafting the agreement docu- ment. Respondent (Cohen) mailed the Union such a packet (Jt. Exh. 4) on 27 June, saying in a cover letter, "I believe [the packet] represents the final agreement be- tween the Company and the Union," but adding, "please give me a call—I believe there are a number of items which may require clarification." On 1 August the Union mailed Respondent its first drafting effort, and a "proof copy" of this (Jt. Exh. 6) was used by both parties at an important pay rate arbi- tration held on 3 October (their only arbitration to date), even though both parties then acknowledged that the proof copy was flawed or incomplete in certain ways that would be immaterial to the arbitration and that would be corrected when the parties had further oppor- tunity to do so. Indeed, the parties remained after the ar- bitration to discuss some of the needed revisions.7 7 The parties had met before the arbitration session to talk briefly about problems with the text of the Union's 1 August version. Cohen pointed out—and Teninty acknowledged—that Tenuity had omitted two sentences on p. 3 that belonged in a section dealing with "seniority bump- ing rights"; Cohen had prepared a revised p. 3 to correct that omission, but the "proof copy" (Jt. Exh. 6) used at the arbitration does not contain the corrected p. 3. When the arbitration session was concluded the -Parties stayed to talk about further revisions to the "proof copy." They agreed that a reference to "Union employees" in the Private Agreements section should be changed to "bargaining umt employees," and that language regarding caps on benefit contributions should be relocated in a revised version to make it clear that the caps applied to all the benefit programs that Re- spondent had listed in its 21 May final offer. In addition, the parties dis- cussed sympathetically the Union's suggestion that certain "examples" be provided to supplement arguably vague language in the Company's final offer. (Most notably, for ultimate purposes, this was the case with respect to the Company's offer regarding wage increases in the second and third years of the agreement, which themselves were to be based on a certain "weighted average" of the percentage mcreases that Respondent expect- Continued TAYLOR BUS SERVICES 533 Throughout this period until at least December (when Respondent switched representatives) the parties acted as if they were bound to an agreement. The most notable evidence of this, but hardly the only such example, is their submission of the unresolved pay rate grievance to arbitration on 3 October and their stipulations at the arbi- tration that they did, indeed, have an agreement, which the Union claimed Respondent had violated.8 The Union mailed a second agreement instrument to Respondent on 30 October 1984; this document (the much-talked-about Jt. Exh. 7) also proved to be flawed by omissions of language (some of which omissions were latent and yet undetected in even the Union's first "proof copy" version used at the arbitration) and by other plain or arguable errors in setting forth what the Union now acknowledges was the language comprehended by Re- spondent's final offer.° Also (although this feature is more in the nature of a proposed "novation" growing out of the parties' 3 October discussions than it is a "flaw" in the document), the 30 October document in- cluded certain "examples" that the Union had proposed be included in the contract to illustrate how the Compa- ny intended to (or already had) implemented certain pay practices or other programs contemplated in its final offer. On 2 November 1984 the arbitrator issued a written decision (the "Kelly" decision) sustaining the Union's po- sition. She ordered backpay and future pay adjustments for drivers doing charter or "extra work." This was a decision that Respondent saw as economically wounding, but with which it has subsequently complied. Within a week, Respondent asked the Union to negotiate "relief' from the Kelly decision, offering in exchange to recon- sider certain provisions that the Union had sought unsuc- cessfully to extract from the Company during the bar- gaining before 21 May. The Union agreed to hold such contract-modification discussions (which I will call relief-oriented discussions), mentioning its interest in a union-security clause to replace the current maintenance- of-membership clause, its desire to have Respondent sub- scribe to the "Union" health-and-welfare plan, rather than use its current provider, and its wish to eliminate the current two-tier wage rate system. All this happened ed to receive in periodic rate renegotiations with the County School Dis- trict and other customers.) In the cases of such "examples," Cohen invit- ed Teninty to include them for Cohen's "review" in the new "agree- ment" document that the Union would prepare. It is now clear that the parties' 3 October review of the "proof copy" did not unearth many other arguable "errors" or plain omissions of language which, both sides now agree, had been part of Respondent's final offer. 8 For that matter, until 19 April 1985, nothing in the statements or conduct of either party specifically contradicted the supposition that they were bound to an underlying agreement. ° The parties stipulated that there were 11 (or 12, depending how you count) variances between the 30 October dociunent and the terms of Re- spondent's final offer. These are summarized in Appendix 1. Teninty now testifies that all such errors and omissions were inadvertent, the product of his own failure to proofread his secretary's reconstruction of a "whacked-up" preliminary draft that he had given to her for all final work. He also testified that he did not become aware of the fuller range of errors and omissions in the 30 October version until July 1985, during the investigation of this case, when a Board agent—not Teninty—under- took the task of reviewing and comparing original source materials pro- vided by the Union with the 30 October version and then asked him to comment on apparent discrepancies. while the Union's 30 October document was still await- ing a promised thorough review by Respondent's agents, particularly by Attorney Cohen, who was the most con- versant with the bargaining history and who maintained the most complete records of that process. Phase III (Dec. 1984—May 1985) By early December 1984, however, and before the parties had embarked on relief discussions, Respondent had decided to replace Attorney Cohen with Labor Re- lations Consultant Edwin Taylor, whose San Francisco base of operations was nearer to the Concord headquar- ters.' o How did it happen that Cohen stopped representing the Company? This is what Company President Berthold replied, and he is the only witness who gave competent first-hand evidence about this question: . . . his bill had gotten astronomical. . . he had to charge us from the time he left [the Los Angeles area] till the time he came back and he felt he was through negotiating and I think we thought he was through too, that basically there wouldn't be any need and that we should find someone locally that would be in our best economic interest. . . .1 think we both pretty much thought that he was done, and that whatever else there might be in terms of griev- ances and that sort of normal thing, that we would be better served by someone locally. We basically agreed. He didn't quit, I don't know if that's been suggested [In fact, earlier, Hopkins had obliquely suggested just that from the witness stand, but Berthold was under sequestration orders], but he didn't quit under any sort of problem situation at all. . . . it was a result of a few different conversa- tions).11 The Union first learned that Cohen was leaving the scene when Cohen and Teninty talked by telephone in '° In his subsequent dealings with the Union, Taylor used two differ- ent letterheads (either "Free Enterprise Assistance, Ltd.," or "Talisman Employers Assistance"), both carrying the same San Francisco post office box address. " In Respondent's brief, in a section captioned "Respondent's Disad- vantage in Reconstructing Agreements Reached in the 1984 Bargaining," counsel states: In the first place, the only person from Respondent's side with the knowledge and documents necessary to perform that [reconstruction] task adequately was Mr. Cohen, but he suddenly quit at the critical time and would not thereafter lend his assistance further. Respondent apparently relies on Hopkins' suspiciously summary report of a telephone conversation with Cohen to justify its assertion that Cohen "quit." I would not believe Hopkins on the point anyway; I have rarely seen a witness with his tendency to tailor recollections to suit perceived interests of his principal. And whatever else may be said about Respond- ent's "disadvantages," counsel's claim that Cohen "quit" simply cannot be reconciled with what the company president said in the underscored portions of the quote above in main text. And I thus deal no further with any lingering claims that Cohen "quit," much less that he "suddenly quit"; nor with any arguments that flow from such plainly erroneous fac- tual premises. Neither do I find it necessary to determine whether the General Counsel is correct in speculating that Respondent dismissed Cohen out of dissatisfaction with his performance in the Kelly arbitration and/or as part of an intentional switch in its approach to its labor rela- tions obligations. 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "late November or early December." Cohen then ex- plained that it had been agreed between Cohen and Re- spondent that someone in Northern California should take over from Cohen to reduce costs to Respondent, that Vice President Hopkins would handle any griev- ances in the meantime and would also decide whom to hire as Cohen's substitute. Cohen also said that he had by then received the 30 October contract document from Hopkins, that he had reviewed it and had not yet detect- ed any more problems, but that he wanted to go over the document in detail with Company President Berthold and, if possible, with Hopkins as well. Finally, Cohen told Teninty that even if someone else would represent Respondent for future purposes, Cohen would "see to it that the contracts were completed and executed and sent up to reninty]. Or if there were problems, they would get the problems worked out. But . . . that he would follow through on the completion of the agreement in terms of getting [the Union] a signed document." Once Taylor had been hired, he telephoned Teninty to introduce himself and to seek the Union's agreement to postpone until 30 January a meeting that had been previ- ously scheduled for 8 January. Although their accounts differ in certain particulars I rely only on the harmonious features of their recollections to find that Teninty agreed to a postponement and told Taylor that he and Cohen had previously agreed to talk about certain revisions to their agreement in the light of the Kelly decision, that a number of grievances were pending and scheduled for union-management discussion, that the Union had sent a proposed contract for signature on 30 October, and that the 30 October document differed in some ways from the Union's first, prearbitration version, because of discus- sions between Teninty and Cohen at the 3 October arbi- tration. The parties then met four more times between 30 Jan- uary and 4 April 1985, during which they discussed (quite inconclusively) not only possible relief tradeoffs, but a wide variety of additional subjects, including griev- ances and other contract-administration matters, as well as questions about the inclusion of certain categories of employees in the bargaining unit that were not expressly included in the "settlement agreement" unit nor in the "contract" unit (see fn. 5). 12 Repeatedly during this period the Union questioned Respondent about the status of its 30 October document. After several such discus- sions, and after the Union had mailed to Taylor another copy of that document, Taylor promised to come to the 4 April meeting prepared to discuss any and all the Com- pany's problems with that document. As Taylor admits, however, he did not prepare himself by proofreading the 30 October document against underlying bargaining records to identify the problems in that document, rather he claims to have assigned that task to Vice President Hopkins, who had been the one privately, to inform Taylor in the first instance that there were such prob- lems. And it was not until Taylor arrived for the sched- 52 Those unit inclusion questions, involving drivers' aides and employ- ees working out of a separate location m the City of Benicia, are not before the Board to judge or decide in this case, and they were under discussion before Cohen left the scene. In other words, those questions wete not raised as part of any proposed relief tradeoff. uled 4 April meeting that he even conferred with Hop- kins about the problems (and then, only during a 20- or 30-minute interval while they were waiting in the park- ing lot for the Union's committee to arrive at the meet- ing site). And when the parties finally got together on 4 April, and when they finally reached the problems agenda item, the first problem with the 30 October docu- ment invoked by Taylor concerned a certain clause in that document (sec. 1(d)(4)) which, in historical fact, faithfully repeated language that Respondent had itself introduced into the pre-21 May bargaining and that plainly had been contemplated by its final offer. (Indeed, Hopkins had been present at the 1984 bargaining session when the 1(d)(4) language was put on the table.) Hearing this, and believing that Respondent had otherwise been toying with it about a whole series of pending grievance issues and relief tradeoffs, the Union staged a walkout from the meeting. (Minty had primed the employee- members of the Union's negotiating committee for such a possible demonstration during a brief, meeting of the committee before the 4 April sessions began.) As the union group got up to leave, Teninty admittedly said to Taylor, "Let me know when you're tired of fucking around." On 16 April Teninty called Taylor; they discussed two pending grievances, one involving the discharge of em- ployee Colacci. On 19 April, Taylor wrote to Teninty, declaring for the first time, in substance, that Respondent was not bound to any current labor agreement and, therefore, that it was not bound to arbitrate what it now called the complaint (not grievance) involving the dis- charge of Colacci, but was willing and anxious to contin- ue meeting with the Union to discuss Colacers complaint and to pursue ongoing negotiations for a complete agree- ment. Is On 24 April 1985, the parties met again, but when Re- spondent continued to maintain that it was not yet bound to a current agreement the Union refused to discuss relief matters any further. Moreover, in an apparent attempt to avoid any claim that it did not itself believe that there was a binding agreement, the Union formally withdrew another pending grievance when Taylor pointed out that it had not been filed timely under the grievance proce- dure in the supposed agreement. Since 19 April, the parties' relationship has been marked by a series of maneuvers plainly calculated to preserve (or enhance, or modify) legal positions in this, 13 In pertinent part, Taylor stated in this letter (sent via certified mail): This is in response to your letter dated April 16, 1985, asking Taylor Bus Service to arbitrate the complaint of Beatrice Colaci [sic]. This letter is to advise you that Taylor Bus Service shall not arbitrate this matter. As you well know, we have been engaged in collective bargaining for some time now, but a complete agreement has not been reached and there is no contract between the parties. Therefore, we have no contractual or other obligation to submit this matter to arbitration, and we decline to do so. We remain willing, of course, to continue discussions with you on this subject. . Of broader concern is the matter of collective bargaining on con- tract proposals. Although we appear to have reached tentative agreement on some items, the parties have not reached agreement on a complete contract, and there are numerous unresolved proposals that have been submitted by both sides. . . . TAYLOR BUS SERVICES 535 or in related cases." One such maneuver was a letter from Respondent to employees, signed by Hopkins and distributed on 19 May, which stated pertinently: I understand that Ron Teninty of the Teamsters union, recently sent a form letter to some of the em- ployees' homes, telling them that there is a "binding agreement" between the union and Taylor Bus Service governing your job and working conditions. I sincerely regret the inconvenience this invasion of your personal privacy may have caused. The purpose of my letter is to let you know that any claim by the union that there is a "binding agreement" are completely false. There is no cur- rent contract between Taylor Bus Service and the union. If you have any doubts about that, just ask Mr. Teninty to show you a contract signed by Taylor Bus Service. That he cannot do, because no such document exists. The purported "contract" en- closed with his letter is merely the union's latest proposal which they now seek to push down Taylor Bus' throat without its consent and/or agreement. The simple fact of the matter is this: We have been bargaining with the union for several months now, and numerous proposals and counter proposals have gone back and forth. We have reached tenta- tive agreement on some issues, but have not been able to agree on a complete contract, and no con- tract has ever been signed. Until there is complete agreement, there will be no contract at all. More- over, it is the union that is preventing us from reaching a complete agreement, because they have walked out of the bargaining sessions and have re- fused to bargain further on contract issues. We think that this is illegal and have filed an Unfair Labor Charge against the union. In our opinion, everyone would be much better served if the union would return to the bargaining table instead of trying to mislead you with false statements about a non-existent "contract." We repeat: There is no current contract between Taylor Bus Service—Concord Division and the union. And there never will be a contract unless the union re- duns to the bargaining table to squarely face the many unresolved contract issues between us. 14 Respondent and the Union have vaguely made a matter of record that a suit between them is pending in a United States District Court in which the Union seeks to compel Respondent to arbitrate grievances. I have also been advised administratively of the recent dismissal of a cer- tain petition in Case 32-RD-692, filed by a group of Respondent's em- ployees in October 1985, who are represented by independent counsel, seeking an election to determme whether the Union should be decertified. I have been furnished with a copy of the Board's telegraphic order dated 25 March 1986 showing that the Board sustained the Regional Director's dismissal of that petition (Chairman Dotson dissentmg on the use of the procedural device of a "dismissal" of the petition), but providing further that: the decertification petitioner is made a party in interest to the unfair labor practice proceeding [i e., this one], limited solely to receipt of a copy of the order or other document that finally disposes of the pro- ceeding [citing NLRB Case Handling Manual sections]. Warmest personal regards, TAYLOR BUS SERVICE—Concord Division Robert Hopkins, Vice President This staking out and refining of positions was a proc- ess that continued through the parties' pretrial meetings and well into the trial, a period that must be treated as yet another developmental phase in the case, for the General Counsel eventually amended her complaint not only to modify some of her underlying theories, but also to challenge Respondent's actions after the trial record opened as yet additional, discrete, refusals to bargain in violation of Section 8(a)(5). The procedural developments in this fourth phase are the least easy of all to summarize, and a chronological narration of them here would simply distract from an un- derstanding of the relatively straightforward series of extra-record events that I summarize next, involving recent efforts by the Union to present Respondent with a suitable contract for signature.15 In the days immediately preceding and including the first day of trial the Union served two more contract specimens on Respondent (Jt. Exhs. 66 and 68)-; each of those specimens purported to correct (in slightly differ- ent ways) the (roughly 11) specific problems with the 30 October document that the parties had by then identified during pretrial discussions held in an effort to streamline litigation of the question whether Respondent owed a duty to sign the 30 October document." Respondent has refused to sign either of those recent documents. On 1 November Respondent explained its re- fusal to sign even a corrected version in a letter to the Union, and in a separate letter to its employees, by claiming for the first time, in substance, that no binding agreement had ever been reached between the parties in 1984 because the Union's ratification procedures had been a sham. Thus, writing over Hopkins' signature, Re- spondent said to the Union in pertinent part: This is to advise you that Taylor Bus Company hereby withdraws all contract offers made prior to November of 1984. This action is being taken be- 15 I narrate the more pertinent procedural developments in Appendix 2. It is a close question whether those developments deserve such detail- ing, but I have done so based on two major considerations: First, those developments (most notably the 9 October stipulations and the General Counsel's belated disclaimers on 22 November and 6 December limiting the effective scope of the complaint) have affected my judgment about how many of the facts that the General Counsel has loaded into this record actually need to find their way into this decision. Second, the General Counsel's statement of "The Issues" in her brief has created doubt about whether she is again attempting to revive a theory of viola- tion and remedy that she disclaimed at trial. To that extent these prior procedural developments should be recorded to ensure that there will be no further confusion on this score, and to ensure as well that Respond- ent's right to due process of law is preserved. 16 At the time these stipulations were started and through the point they were received into evidence on 9 October, the General Counsel was contending that Respondent was legally obliged to sign the 30 October document, that its failure to do so constituted the central thrust of her then-outstanding complaint that Respondent had unlawfully refused to execute the "Agreement," and that Respondent must sign that document to remedy that violation. This position did not change untd 22 November (see Appendix 2). 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause circumstances have changed substantially since the time those offers were made. First, the parties agreed that a bonafide employee ratification would be a pre-condition to any effec- tive agreement. However, we have recently learned that the ratification vote conducted by the union in May of 1984 was a sham, and that the employees were deliberately mislead [sic] as to what they were voting on. Therefore, the vote taken at that time was not effective for any purpose, and it certainly did not satisfy the pre-condition agreed upon by the parties. Moreover, when we recently requested that a legitimate ratification vote be conducted, the union adamantly refused to even consider it. There- fore, it is clear that the union has rejected and repu- diated the pre-condition of a bonafide ratification vote, and that action constitutes a rejection of any offer to which that pre-condition was attached. Second, there are a number of significant circum- stances that have changed since the company's offers were originally tendered more than a year ago. The Kelly decision makes it imperative that wage rates and work assignment provisions for charter and extra work be included in any final agreement. In addition, the parties raised numerous issues in the bargaining that occurred in January- March of this year, and the resolution of those issues should also be part of any fmal agreement. Moreover, the union has now insisted that Aides and Benicia drivers be included under any contract, but the company's 1984 offers contemplated neither group. For all these reasons, the company's contract offers tendered prior to November 1, 1984 are hereby withdrawn. However, the company is ready and willing to meet with you to bargain in good faith to reach an acceptable agreement. Please con- tact Ed Taylor as soon as possible to arrange a bar- gaining session for this purpose. Simultaneously, Hopkins wrote to the Concord unit em- ployees in pertinent part as follows: Before you go to the meeting tonight, I want to tell you a few key facts about the case presently before the National Labor Relations Board. Because the issues are so important to all of us, I ask you to read this letter very carefully before you go. First: The issue before the NLRB is quite simple. On October 30, 1984—a year ago this week—the union sent us a version of a contract and demanded that we sign it. We did not sign because in drawing up the document, the union left out or changed twelve major things that had been agreed upon. These were important things, both to you and to the company. When we later sat down with the union to go over these problems, they walked out of the meeting and refused to discuss it with us. For that reason we did not and have not signed. About three weeks ago, the union gave us an- other contract version to sign. This one was the same as the one given to us a year ago, except that the union had put back in or corrected the twelve items they had previously left out or changed. This merely proves our point, that the 1984 version was defective and that we were absolutely correct in re- fusing to sign it. Second: Why have we not signed the union's newly "corrected" version? Because the company and the union agreed in negotiations that there would be no contract without a legitimate employee ratification vote, and that has not taken place. As most of you know, a ratification vote was conduct- ed in May of 1984, but we recently learned that the vote was a sham, because the union deliberately mislead employees into thinking that they were voting on whether or not there would be a union. When we found out about this, we insisted that the union conduct another ratification vote—this time a legitimate one with neutral observers, but the union flatly refused to even consider it. Because the union has refused to conduct an honest ratification vote, we have no obligation to sign their contract docu- ment. Finally: This morning, I personally delivered a letter to the union (copy attached) officially with- drawing our 1984 contract offer. I have taken this action with great reluctance, but I feel that the union's actions have left us with no other choice. I have withdrawn the 1984 offer primarily because the union has gone back on its agreement to con- duct a valid and honest ratification vote and be- cause many things have changed since the offer was originally given sixteen months ago. What does this withdrawal mean to you? The main thing is that it merely requires the parties to continue bargaining so long as the union remains as your collective bargaining agent. [By then a decerti- fication petition had been filed which was later dis- missed, see fn. 14.] In the meantime, it is very im- portant to understand that none of you has anything to fear from the withdrawal of our 1984 offer. Wages and benefits are not being reduced, none of the working conditions we put into effect in May of 1984 are being changed, and no one's job is the least bit in jeopardy. In fact Hopkins was not telling Respondent's employ- ees the whole truth when he said in his 1 November letter, "We did not sign [the 30 October 1984 document] because in drawing up the document the union left out or changed twelve major things that had been agreed upon." Rather, what is clear from Hopkins' and Taylor's various admissions at trial is this: None of Respondent's agents was fully aware of all the discrepancies in the ulti- mately stipulated "list of 11" until 7, 8, and 9 October 1985, when the parties met for the first time since 4 April 1985 specifically to isolate and then to stipulate on the record to the genuine discrepancies between the 30 October docunient and the literal terms of Respondent's final offer. Hopkins admitted on the 6 November trial record, for example, that he was not aware until this trial started that the 30 October document had omitted a second sentence , the maintenance of membership sec- tion that had been part of Respondent's final offer; simi- TAYLOR BUS SERVICES 537 larly, he admitted that he had been unaware until then of at least two more such omissions (isolated sentences in the grievance and arbitration procedure).17 What Taylor and Hopkins admit, moreover, is that, on Taylor's advice, Hopkins refused throughout several months after receiving the 30 October document to sign it on behalf of Respondent because Hopkins was laboring under the (quite erroneous) belief that the Union's lan- guage in certain clauses had not been part of Respond- ent's final offer. Specifically, these are: language in sec- tion 1(d)(4), dealing with "effects bargaining" (the osten- sible problem that Respondent first raised with the Union on 4 April 1985 and that triggered the Union's walkout that day); the incentive bonus program at section 5(A)(7); and the Federal and state laws provision at sec- tion 4(E). Hopkins does not recall having raised the latter issue—only the first two—in his earlier private dis- cussions with Taylor; I resolve this discrepancy against Respondent by fmding that Hopkins had invoked all three of these particular problems (that were not, in fact, problems) as early as December 1984. I also fmd that neither Hopkins nor Taylor ever made any specific effort to determine whether Hopkins' specific doubts about these clauses were well founded. It is therefore reasonably clear that many of the prob- lems supposedly discovered by Hopkins before 7, 8, and 9 October, 1985 were mere phantoms; and that Respond- ent's agents were not aware of many other problems that now appear in the stipulated list until that same October 1985 period. Plainly, therefore, the "twelve major . . . problems" cited in Hopkins' 1 November letter as the reasons why Respondent did not sign the 30 October document, cannot account for Respondent's failure to sign it throughout the 11 months that passed before those "twelve" problems became fully exposed. Just as plainly, Respondent's agents had done no systematic proofread- ing of that document against underlying bargaining mate- rials until shortly before this trial began. The record does not otherwise contradict Hopkins' statement in his 1 November letter that Respondent had not and would not reduce current wages nor otherwise change the working conditions that it had put into effect "in May of 1984" (i.e., on 22 May, when it implemented its final offer while awaiting the ratification vote). The only notable exception to this is its refusal since 19 April 1985 to process and to arbitrate grievances." C. The Current Issues For practical purposes, the complaint now charges Re- spondent with violating Section 8(a)(5) in two independ- ent ways:19 11 Taylor testified that Hopkins had brought these (or some of these) identified omissions to Taylor's attention well before October 1985 I re- solve this inconsistency against Respondent, finding that Hopkins' admis- sions show Taylor to be an improviser. 18 The complaint does not allege, nor does the General Counsel other- wise contend, that Respondent has made any independent unilateral changes since Respondent first implemented its final offer on 22 May 1984.'9 See Appendix 2 for elaboration on this conclusion. 1. By refusing since 30 October 1984 to assist the Union in reducing the 1984 agreement to writing. 2. By announcing and acting since 19 April 1985 as if it were not bound to the .1984 agreement; that is, by "re- pudiating" the 1984 agreement. As to count 1, Respondent now argues, in substance, that even if, arguendo, a binding agreement was formed in phase I, and even if, arguendo, that agreement still bound the parties in phases III and IV, Respondent still did not "fail-to-assist" the Union in reducing that agree- ment to writing. Rather, Respondent argues, it did its best under the circumstances, claiming that any failure on its part to get together with the Union to deal ex- pressly with this subject before the 4 April 1985 meeting (when it became an agreed-on agenda item) was chargea- ble to the Union's own derelictions, particularly the Union's failure to give the "contract-signing" issue any real priority until then Moreover, Respondent argues that the problem throughout was compounded by the al- leged unavailability of Attorney Cohen to help its agents sort out what the underlying 1984 agreement might have actually been, and by the Union's own previous sloppi- ness in putting together a confusing and manifestly inac- curate version of the 1984 agreement (indeed Respondent charges the Union with not mere sloppiness, but deceit- ful intent, particularly in its omissions of certain sen- tences, phrases, or words that would otherwise favor Re- spondent's interests). And Respondent argues that it was the Union's walkout from the 4 April meeting—not its own unwillingness to "assist"—which accounted for the parties' failure that day to make constructive progress on resolving the problems that it claims it had by then de- tected in the Union's 30 October document. Many of these claims are implicitly contradictory of findings made above or below, but I will not dwell on those contradic- tions in the light of my ultimate reasoning with respect to the failure to assist count. How Respondent squares these assertions with its be- havior after 4 April is another question, one which may be explained by what I construe to be the thrust of its arguments against count 2, the "repudiation" count. Re- spondent might again argue in the alternative, to this effect: a. There was never any binding agreement in the first place; or, b. if there was, it no longer existed after the "re- opener" discussions occurring in phase III; c. (therefore) as of 19 April 1985, there was no "agreement" to "repudiate"; or, alternatively; d. if the parties were bound throughout to an un- derlying agreement then what Respondent did on 19 April and thereafter was not "really" a "repudi- ation." In fact, after carefully scrutinizing Respondent's brief, I detect only two narrow arguments that might support proposition a., above—that there was no binding agree- ment in the first place. The first such argument—that the Union conducted a sham ratification proceeding that de- feated a "condition precedent" to reaching binding agreement—is one that I disposed of at trial by striking 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this defense after allowing Respondent to plead it on 4 November and after hearing Respondent's later unper- suasive offer-of-proof. 2° Respondent's counsel requests on brief that I reconsider my ruling striking the ratifica- tion defense and precluding litigation on the matter, citing in support the arguments he made on the trial record. I have reconsidered Respondent's arguments, its offer of proof, and the controlling cases; 21 I adhere to my trial ruling and opinion.22 Respondent's second such argument is an alternative one; that even if the ratification process cannot be chal- lenged, there still was never an agreement because there was never an underlying "meeting of the minds" about an important feature of the wage package; namely, the method of allocating the moneys to be available for second- and third-year pay increases under a "weighted- average" program set forth in Respondent's fmal offer. I deal with this argument in due course, concluding that it is spurious. I cannot detect in Respondent's brief any coherent claim in support of argument b., above—that any agree- ment reached in 1984 was subsequently rendered void by the 1985 relief discussions. Independently I conclude below that the Union did not waive or forfeit the under- lying agreement by meeting to discuss possible modifica- tions of it. Respondent's ultimate fallback on the repudiation count—that even if there was an agreement Respondent did not really repudiate it—is one that will require little supplemental discussion. I likewise find this argument to 2° As a procedural matter I granted Respondent's request on 4 No- vember to amend its answer to aver as an affirmative defense in sub- stance, (a) that the parties had agreed at the start of the bargaining proc- ess that ratification would be a condition precedent to the reaching of any mutually binding agreement, (b) that the Union's 31 May ratification proceeding was defective and therefore a nullity, and (c) accordingly, the Union's purported acceptance of Respondent's 21 May "last and final offer" did not create a legally binding agreement. The prosecuting parties then moved to strike this defense and to preclude litigation of it, a motion that I granted on 20 November after hearing Respondent's formal offer of proof and the parties' well-prepared arguments. (Tr. 901-944.) I as- sumed for motion purposes that ratification had indeed been made a "condition precedent" by the Union to its acceptance of any agreement otherwise reached at the bargaining table. Viewed most favorably to Respondent the facts averred in Respond- ent's offer of proof might enable a judge to find that before the 31 May ratification vote was held the Union's agents disparaged Respondent's final offer and told the members and nonmember employees at the meet- ing that the Union would "walk away" from the Concord unit if they were to ratify it. Respondent concedes in its offer-of-proof that the vote was nevertheless for ratification (a fact that Respondent insists is mean- ingless considering the context; indeed Respondent argues that in the cir- cumstances the ratification vote was really a vote to oust the Union). Re- spondent also concedes, however, that no employee ever voiced any pro- test about the ratification process throughout the following months during which the parties acted for all outward purposes as if they were bound to an agreement. And Respondent further acknowledges in this regard that its own agents did not learn about any alleged irregularities in the ratification process until early October 1985, during the course of its final preparations for this trial, roughly 16 months after the ratification vote. 21 See M & M Oldsmobile, 156 NLRB 903, 906 (1966), and cases cited enfd. 377 F.2d 712 (24 Cir. 1967); Martin J. Barry Co., 241 NLRB 1011 (1979); Felbro, Inc. 274 NLRB 1268 (1985); Childers Products Co., 276 NLRB 709 (1985). 22 See Tr. 944:23-948:8. At Tr. 946:24 the word "not" should be stricken to understand the point and is probably a nnstranscription, given the context. be spurious; and my conclusion in this regard is informed chiefly by the plain messages in Respondent's communi- cations to the Union and to the employees on 19 April, 19 May, and 1 November 1985. It may be seen by now that the question whether the parties reached agreement in the first place is the key to disposition of the remainder of the issues; certainly Re- spondent had no duty to "assist" the Union in reducing the "agreement" to writing if there was never a binding "agreement" to start with; certainly also, there was noth- ing to "repudiate," absent such a binding underlying agreement. I therefore address this central question in some detail, next. II. SUPPLEMENTAL FINDINGS AND CONCLUSIONS A. Did the Parties Become Bound to an Agreement in 1984? The General Counsel blandly states on brief that the parties stipulated that full and complete agreement was reached on 31 May 1984. This misstates the nature of and the limits on the stipulation in question (see Appen- dix 2). I treat the alleged stipulation as nonbinding on this point due to Respondent's simultaneously expressed reservation and in light of other considerations detailed in lengthy colloquy on the 19 November record. Recapitulating and amplifying on earlier summaries, this is what I fmd from the uncontradicted testimony and exhibits about the 1984 agreement: On 3 May 1984 Attorney Cohen, in Vice President Hopkin's presence, tendered a written "Final Economic Proposal," consisting of 6 typewritten pages containing 24 enumerated proposals, the last of which was "Con- tract Duration: Effective date of ratification until August 31, 1986.23 The second-to-last item incorporated by ref- erence "All other language tentatively agreed to." This latter item referred to the process that the parties had previously followed of reaching tentative agreement (called "T-OK-ing" by the parties) on particular clauses contained within one or the other's prior written propos- als. Cohen had maintained a master log of such duly ini- tialed T-OK items. In some cases, Respondent's 3 May final proposals merely incorporated by reference certain prior company proposals (for example, item 20: Mainte- nance of Membership as proposed by the Company"). On 15 May Cohen presented Teninty with a written economic proposal that amended the 3 May final offer in certain particulars, but that stated at its conclusion: All other terms of the Company's fmal proposal dated May 3, 1984 to remain unchanged. At the session on 21 May, Cohen offered a further re- vision of the 3 May offer by agreeing to include some additional language in the "No Strike/No Lockout" clause. Confirming this by writing on a copy of the 15 May amended proposal, Cohen inserted the new lan- 23 The parties have stipulated that the duration clause in Jt. Exh. 7 ac- curately matches the 21 May final offer. There, the termmal date of the agreement is expressed differently (i.e., to and including the . . • 31st day of August 1986. TAYLOR BUS SERVICES 539 guage and he recaptioned the document to read, "Taylor Bus Service Final Economic Proposal May 21, 1984." Teninty made some effort at a counterproposal, but, as Hopkins admitted at trial, Cohen refused this overture, saying, "This is our last and fmal [offer]." Cohen also de- clared that the parties had reached "impasse" and that Respondent would begin implementing its final offer the next day, 22 May. On 22 May Company President Berthold, joined by Hopkins and Cohen, called groups of bargaining unit em- ployees to a hotel where they passed out a "Dear Em- ployee" letter, attached to a nine-page summary cap- tioned "TERMS AND CONDITIONS OF EMPLOY- MENT." (Cohen told Teninty independently—and Hop- kins confirmed from the witness stand—that these print- ed materials did not purport exhaustively to identify every detail which had been incorporated into Respond- ent's fmal offer as made at the bargaining table; neither does anyone contend that these materials contained any- thing not already encompassed in that overall final offer.) The cover letter stated in its introductory paragraph: After several months of meetings, the Company and Union have reached a legal "impasse" in negotia- tions. Under the law, Taylor Bus may now go ahead and implement its last proposal on the bar- gaining table. In the body of the cover letter Respondent "implore[d]" its employees "to attend the Union meetings as scheduled [because of Respondent's] understanding that the Union can call a strike vote at any time—and only those present at the meeting are entitled to vote." And, in the penulti- mate paragraph, the cover letter stated: The Company will continue to recognize the Union—as is our obligation under the law. While negotiations stand suspended during this period of impasse, we once again remain willing to meet with the Union, upon request, to engage in meaningful negotiations. When Teninty communicated his 15 June final accept- ance24 he also volunteered to prepare an integrated con- tract document to reflect the agreement. Cohen promised to send Teninty some materials to help in that process, mailing to Teuinty on 27 June what he called in his cover letter "a packet of negotiations" material which, I believe, represents the final agreement between the Com- pany and the Union, also noting his "belief," however, 24 Arguably the Union's acceptance occurred when, withm 24 hours of the 31 May ratification meeting Teninty telephoned Cohen to inform him that the employees had ratified Respondent's final offer. That ques- tion is clouded by Teninty's simultaneous statement to Cohen that he would also need to get the approval of the Union's executive board be- cause the Union required such special approval when, as in this case, the proposed agreement contained a maintenance of membership clause, rather than a standard union-security clause. It was not until 15 June that Teninty notified Cohen by telephone and by telegram that the agreement had been fully approved by the Union. Everyone appears to agree that the precise date on which acceptance formally occurred does not matter because Respondent's 21 May offer plainly was still outstanding and sus- ceptible of acceptance on 15 June when the Union itself removed the last obstacle to "approval" that "there are a number of items which may require clarification." I think these undisputed facts are enough to establish, prima facie, that the parties intended to and did become bound to a collective-bargaining agreement with the Union effective from ratification (31 May 1984) through 31 August 1986. And ultimately those facts certainly speak more plainly and clearly to the point than do any of the shifting statements variously mouthed or written by Vice President Hopkins or Labor Consultant Taylor since Respondent first announced to employees (nearly a year after the Union had said, "Done") that there was "no current contract" and that "any claim by the Union that there is a 'binding agreement' are completely false." Neither can it be doubted that Respondent intended by its last and final offer to make a comprehensive and un- conditional proposal encompassing all the substantive terms and conditions (and in most cases even the literal language by which these terms and conditions would be expressed) that would govern the labor relationship be- tween the parties for the 3-year period following "ratifi- cation." And see Timber Products Co., 277 NLRB 769, 770-771 (1985), in which the Board recently said in lan- guage quite adaptable to this case: It is also clear that the Respondent thought that it was offering a complete package susceptible of re- sulting in an enforceable contract upon the Union's acceptance, for its final offer contained no contin- gencies. . . . Rather, it is clear that the Respondent contemplated that the Union's acceptance of its fmal offer would result in an immediate contract and end the ongoing strike.25 That Respondent's 21 May written expression of its fmal offer was not presented as a comprehensive integrated document ready for the Union's signature does not make it unusual in modern labor relations, much less does it make that offer something which was too vague to be susceptible of any effective "acceptance" by the Union. Timber Products, supra; see also Georgia Kraft Co., 258 NLRB 908, 912 fn. 10 (1981), enfd. 696 F.2d 931 (11th Cir. 1983); Trojan Steel Corp., 222 NLRB 478 (1976), enfd. 551 F.2d 308 (4th Cir. 1977). This is especially so considering the extensive bargaining history and the ample running documentation maintained by the parties about what they did—and did not—agree on at any given point before 21 May. Indeed, despite all of the proven sloppiness by the Union in preparing its 1 August and 30 October documents, Cohen's 27 June packet con- tained what was necessary to do the exacting, but by no means impossible, job of organizing and preparing a co- herent integrated writing capable of mutual subscrip- tion.2 6 25 This language would literally apply here were it not for the final two words. Here, given Respondent's anxieties over a potential strike, as expressed in its 22 May "Dear Employee" letter, the final phrase could be amended to read ". . . and end the threat of [a] strike." 26 1 find that Cohen's 27 June packet (it. Exli. 4, mailed to the Union as reflecting the "final agreement of the parties"), and some other compa- ny-generated documents (it. Exhs. 1 through 3) fully evidenced, in the Continued 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Clearly Respondent believed that agreement had been reached as of the Union's 15 June acceptance. Cohen un- mistakably acknowledged this when he mailed his 27 June packet to the Union as the "negotiations material which, I believe, represents the final agreement between the Company and the Union." And the point was driven home again in the October 3 arbitration proceedings when the parties submitted, as adequate evidence of their agreement, the socalled "proof copy" (Jt. Exh. 6), even while acknowledging to the arbitrator that this document needed more work before it could be signed by both par- ties. Indeed, there can be no doubt that Respondent be- lieved itself bound to an agreement with the Union as late as December 1984. That notion is explicit in Compa- ny President Berth°ld's explanations for why he chose to dispense with Cohen and to find a local replacement (in substance, negotiations were done with and what was now needed was a local agent to handle grievances and like routine matters of administration). And, although Respondent's agents may have said otherwise at various times (particularly in propaganda distributed to employ- ees on 19 May and 1 November 1985), Respondent's counsel has soundly refrained from directly arguing now that the "errors and omissions" in the Union's various contract documents somehow proved that an underlying agreement had never been reached in the first instance.27 If Respondent still contends—as it did in propaganda on 19 May and 1 November—that the mistakes in the 30 October document somehow prove that there was never a binding agreement in the first place, then such a con- tention is easily disposed of. Respondent would have a point only if the Union had ever insisted that the under- lying agreement consists literally of the words—and only those words—as are to be found in the 30 October docu- ment (or, for that matter, as expressed in either Jt. Exh. 66 or 68). The Union has never even hinted that it was taking such an unyielding position. Teninty has readily acknowledged that the 30 October document contains many omissions and errors;28 he has adequately ex- aggregate, the literal terms of Respondent's "last and final offer." For present purposes it suffices to summarize what those exhibits contain: Cohen's "packet" (Jt. Exh. 4) contained the master record of "T-OK" items together with copies of other company proposals and concurrent written statements to employees of the terms and conditions contemplat- ed in Respondent's offers made in the final bargaining rounds in May 1984 Some of the latter were also received separately as Jt. Exhs. 1 through 3. It. Exh. 1 is Respondent's 3 May "linal" offer. It. Exh. 2 is a double- duty document showing Respondent's 15 May proposal, as modified by Cohen's handwriting on 21 May to reflect further company proposals on that latter date as well as to indicate that it was a "final" proposal. It. Exh. 3 is the cover letter and "Terms and Conditions of Employment" document distributed by Respondent to bargaining unit employees on 22 May. 27 Respondent's bnef seems (correctly in my opinion) to conceptualize the errors and omissions as extenuating factors to be considered in deter- mining whether Respondent was doing its best during phase III to re- spond to the Union's periodic inquiries about getting the agreement signed. In only one case of alleged error (the complicated sec. 6 weight- ed-average example in the Union's 30 October document) does Respond- ent rely on the contents of that error (actually, a proposed addition, for clarity's sake) as proof that the parties operated from ' fundamentally dif- ferent understandings about a material feature of the wage package. 28 Respondent has unpersuasively argued on brief that the 12 errors and omissions were each to Respondent's disadvantage and, therefore, that the Union's mistakes should instead be viewed as cynical attempts to plained why he changed "Union" to "bargaining unit" in the "Private Agreements" section, 29 and why he insert- ed certain "examples," all growing out of his 3 October discussions with Cohen at the arbitration; he had pressed for a meeting with Respondent on 4 April 1985 to try to identify and resolve whatever problems Respondent might be having with the 30 October document; he has made plain in alternate ways (it. Exh. 66 and 68) that he is prepared to subscribe to whatever language will faith- fully record Respondent's 21 May final offer, including by withdrawing "examples" if need be—even by with- drawing the weighted average example, which Teninty and Cohen had seemed to agree by 3 October might be a worthwhile addition, subject to Cohen's later review. In slip something by on Respondent. I do not find any such pattern. Focus- ing on the omissions (which provide the most substance for Respondent's claims here): Many of the sentences, phrases, or words omitted in the 30 October document can be traced to language that the Union itself had introduced into the bargaining process; another omission (seniority bump- ing rights) was one which Teninty acknowledged as a flaw in the proof copy (Jt. Exli 6) when Cohen remarked at its omission on 3 October 1984. It is therefore hard to swallow the notion that the Union would later think that it could slip things like this past Cohen, whose familiarity with the bargaining history and the relevant background documentation made him an unlikely mark for such a clumsy swindle. (It is useful to recall here that when the Union mailed the 30 October document, it had every reason to believe that Cohen would remain as Respondent's repre- sentative and would review the document closely before having it signed. Indeed, Cohen had told Teninty even before the 3 October arbitration that he would do Just that.) Rather, I find that the errors and omissions simply resulted from regrettable carelessness on the Union's part in as- sembling that document (indeed in the creation of even its first try, con- taining latent omissions that were perpetuated in the 30 October effort). And these errors could have derived from any, number of mnocent mis- takes; Teninty may have been careless in the original pasteup process before he gave his "whacked-up document" to his secretary; she, in turn, may have committed typing or other word-processing errors that resulted in loss or transposition of some text; and certainly Teninty was careless in his admitted failure to proofread the finished document against authentic textual source material. But the point is that such drafting errors are facts of life in collective bargaining, especially where, as here, Respondent's final offer was not contained in a single, self-contained document, but re- quired an extraordinary amount of collating and cross-referencing among several different company and union-generated "negotiations' materials" to ensure an accurate, final agreement document. " One of Respondent's many distracting and strained contentions is that by making this change (union employees to bargaining unit employ- ees) the Union was trying to change the parties' intent regarding whom the Company might make private agreements with. The implicit argu- ment here—and it is wholly unsupported by any evidence of record—is that until 30 October, the parties had somehow intended for the contrac- tual ban on such private agreements to apply only to members of the Union. The Company's fmal offer had adopted the Union's own suggest- ed text (union employees), later, on 3 October, Teninty and Cohen had agreed that bargaining unit employees was better, but for a legally irrele- vant reason (Cohen and Tenuity found it significant that the final agree- ment now contemplated a maintenance of membership clause and each party apparently supposed that by saying union employees this would carry the misleading implication that only members of the Union could not be solicited by the company to make private agreements). The 3 Oc- tober discussion conclusively shows that the parties always intended that "Union" and "bargaining unit" would, in this context, be synonymous. There is no independent evidence that the parties had contemplated a "members-only" application of the private agreements section; and such a construction would be statutorily disfavored under Sec. 8(a)(1) and (3), and Sec. 8(b)(1XA) and (2) in any case, as involving invidious distinctions creating contractual rights or vulnerabihties that turn on union member- ship status, rather than on bargaining unit status. Accordingly, I de not find that the substitution of "bargaining unit employees" for "Umcin em- ployees" constituted an attempt to change the parties' underlying agree- ment. TAYLOR BUS SERVICES 541 those circumstances it would plainly be unreasonable to suppose that the mere existence of errors and omissions in the 30 October document somehow make it impossible td find that the parties had reached agreement in 1984 when the Union accepted Respondent's fmal offer. Fash- ion Furniture Mfg., 279 NLRB 705 (1986), citing Ace Ma- chine Co., 249 NLRB 623, 637 (1980); and Trojan Steel, supra. See also Shawn's Lunch Service, 261 NLRB 836, 837 (1982) ("an employer may not lawfully seize upon some inadvertence in a union prepared contract and ada- mantly reject the whole bargaining process because of the existence of that error"). Thus I reach the second of Respondent's claims about why a binding agreement was never created in 1984; that the parties had never reached a meeting of the minds about how a certain weighted-average wage increase contemplated in Respondent's final offer would be allo- cated. To address that defense requires attention to a somewhat complex bargaining background, one which only the General Counsel seemed determined to litigate, based on her erstwhile contention that Respondent was obliged to sign the Union's 30 October document. I have doubts whether Respondent truly preserved this argu- ment, but I think that the General Counsel's own reser- vation in the 9 October stipulation (see Appendix 2) echoed by Respondent in yet another purported stipula- tion, has so clouded the underlying agreement question as to make it prudent to address the weighted-average issue squarely: I start with the literal language contained in the wage section of Respondent's final offer, more specifically what it said about how raises were to be implemented at scheduled intervals in the second and third years of the contract. There, Respondent said: Employer to pass on full percentage increase in all transportation contracts directly to employees. The percentage increase is to be based on weighted-av- erage.30 In the Union's 30 October contract version, however, the Union had deleted this quoted language at Section 6, and had substituted instead a more detailed explanation and an example purporting to show how the weighted- average formula would be implemented. In pertinent part this example stated:31 3° This language (the so-called asterisk paragraph) appears at two points in the never amended portions of the 3 May final offer, in context it refers to the formula by which drivers and mechanics would receiVe future increases over their specified current hourly pay, this to take place on 1 September 1984 and again on 1 September 1985. That asterisk lan- guage was repeated, with inconsequential textual adaptations, in Re- spondent's 22 May "Dear Employee" cover letter attached to its "Terms and Conditions of Employment" document. 31 Distinct from questions raised by Respondent over the Union's in- clusion of a weighted-average example (especially that example) is the fact that the Union's 30 October version used the admittedly "wrong" effective dates in two places in the same section ("Sept. 1, 1983," rather than 1984, over the middle column in sec. 6 depicting the first of such increases; "1/1/84 and 1/1/85" at the bottom of the example, instead of "9/1/84 and 9/1/85." The separate dating mistakes were clearly due to inadvertence. In fact the Union knew that such weighted-average in- creases were due on 1 September of each year; the parties had discussed and written back-and-forth about the increase in the weeks before the first one was due (see, e.g., it. Exh. 25, Hopkins to Teninty, dated 23 The current wage rates . . . shall be increased by the percentage equivalent of the weighted average percentage increase negotiated with the customers by the Company. For example, if the weight [sic] average increase negotiated from the County, Olinda, and Moraga Contracts is 5 percent, all em- ployees shall receive a five percent increase in their individual wage rates. An employee earning $8.03 per hour would receive a 40 cent per hour increase (i.e. $8.43 per hour). Likewise an employee earning $6.00 per hour would receive a 30 cents per hour increase (i.e. $6.30 per hour). Why this example was included should be obvious from my findings above that Cohen and Teninty had agreed on 3 October that Teninty would include such examples for Cohen's review in the new document that Teninty would prepare. Teninty claims, moreover, that the example he used faithfully recorded Cohen's own ex- planation during bargaining on 3 May of how the Com- pany intended to implement its weighted-average formu- la. Whether this is literally true is something I find un- necessary to decide; certainly the 30 October example was never approved in haec verba at any time by the parties; rather, the example was something that Cohen would review when Teninty mailed what proved to be the 30 October document. What I do find, however, is that the parties did have a sufficiently clear understand- ing about how the company's own weighted-average scheme would work in practice, that they reached this understanding in the final rounds of bargaining about 3 May 1984, and that the example used by Teninty in the 30 October document was not inconsistent with the par- ties' 3 May understanding, nor with the way in which Respondent actually first implemented the scheduled 1 September 1984 increase. These summary findings re- quire some backtracking: I rely on Teninty's essentially uncontradicted account to find that the weighted-average formula for deriving wage increases in the second and third years of the con- tract grew out of discussions after Respondent had sub- mitted its "Third Economic Proposal," dated 19 April 1984, the first one to refer to the weighted-average notion. Both parties adopted that approach in followup discussions. In its essence, that approach contemplated that the wage increase would be the same percentage as the weighted-average of the percentage rate increases that Respondent would receive at future intervals from its customers, some of whom were bound to renegotiate such rates at future points." The parties met on 3 May August, pertinently quoted elsewhere below); and, when the erroneous dates in sec. 6 of the 30 October document were finally called to the Union's attention, the Union corrected those dates in it. Exhs. 66 and 68. 32 Because some of Respondent's contracts provided for periodic rate renegotiations but others did not, both sides recognized that a future pay increase could not be linked to the rate increase that Respondent might obtain from any one customer. They also recognized that the percentage gain from a small customer could not be given the same weight as a dif- ferent rate from, say, the Contra Costa County School District, which accounted for roughly 90 percent of all Respondent's revenues from cus- tomers served by employees in the bargaining unit. Accordingly, the par- ties adopted the notion that any such rate increases would be weighed Continued 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in a lengthy session that lasted into the following morn- ing hours; several more proposals were discussed, culmi- nating in the first of Respondent's self-labeled final pro- posals. In the course of this meeting, Teninty pressed Cohen again about how he had envisioned implementa- tion of the weighted-average notion. Hearing Cohen's ex- planation, the Union then caucused and Teninty drafted some notes, which he read aloud substantially verbatim to Cohen when the union group returned to the bargain- ing table, obtaining Cohen's acknowledgement that the Union properly understood the implementation scheme." Cohen also told Teninty, however, that he saw no reason to incorporate Teninty's quoted language into the contract, describing it as wordy and objecting to the reference to a certain article in Respondent's contract with the Contra Costa County School District. After that Cohen made a counterproposal that continued to use the general weighted-average language that everyone agrees was the only language contained in its 21 May fmal offer. When he did so he said words to the effect that this proposal incorporated the parties' prior under- standing as to applicability of the weighted-average con- cept. The asterisk language thus became merged into Re- spondent's 21 May final offer and, when the Union later accepted that final offer, it clearly became part of the agreement. Just as clearly, it was not part of the original agree- ment to include an example, much less the one that Ten- inty used in his 30 October document after Cohen had encouraged him to draft an example for review. But this is not Respondent's point in arguing that there was no meeting of the minds; instead Respondent claims that Teninty's understanding of how the weighted-average scheme was to be implemented (reflected consistently in his 3 May notes and in his 30 October example) was ma- terially different from Respondent's. To make that argu- ment, Respondent relies on portions of Hopkins' testimo- ny, who said that his own understanding was that Re- spondent was not locked-in to any particular method of apportioning weighted-average increases. Hopkins' testi- mony in this regard was not only conclusionary and vague in tone, but it is belied by Respondent's conduct in the period around 1 September 1984, when Respondent implemented the first of the weighted-average increases. This finding requires yet more backtracking: appropriately before being averaged to produce the percentage figure which would yield the pay increase. (Precisely how the weighted-aver- age percentage figure itself was to be derived has never been in dispute; and see Jt Exh. 30, a company-generated document reflecting this deri- vation in more schematic form, showing how Respondent calculated and implemented its first such mcrease on I September 1984—an increase that the Union recognized was consistent with the system contemplated in Respondent's final offer.) S3 These are the pertinent portions of the notes Tenuity used as his text: 2nd and 3rd year wage increases effective 9/1/84 and 9/1/85 based on straight percentage of the mcrease of the weighted average of in- creases of the Taylor contracts covered by this CBU. The weighted average will be based on increases in the daily per pupil charges. Ex. If the weighted average per pupil cost increases 5 percent—all wage rates shall be increased by 5 percent. The formula to be used will be the same formula used in Art. XVIII Adjustment of Rates of the contract between Taylor and the CCC Supt. of Schools. In- creases are to be applied to all B/U ens regardless current rate or classification There was a time before 21 May when the Union had sought to have Respondent allocate the weighted-aver- age increase in a different manner than Cohen had con- templated. In substance the Union had sought to have the total moneys available for a weighted-average in- crease divided equally among the employees, rather than be distributed according to a fixed percentage of each employee's current wage rate." The Union failed to per- suade Respondent that this would be the best way to dole out the available moneys and, clearly, the Union's acceptance of Respondent's final offer entailed the Union's adoption of the Company's declared across-the- board percentage approach. Nevertheless, as the parties neared 1 September 1984, Teninty tried again to persuade Respondent (first, Hop- kins) to implement the raise in the manner that he had unsuccessfully urged before 3 May. This caused Hopkins to reply in writing on 23 August that Teninty's "idea" was "interesting" and that he "was right that the in- crease would equal the same dollars overall," but that to pursue Teninty's suggestion would, in Hopkins' view, "short our most valued and senior drivers." Accordingly, wrote Hopkins, "I will be giving all the drivers and me- chanics the same percentage of increase from their exist- ing [sic] rate." Even after this Teninty tried to enlist C,ohen's support for changing the approach, but Cohen told Teninty after conferring again with Hopkins that the increase would be "applied [as] we outlined it in negotia- tions." In short, given the chance to vary from the 3 May understanding, Respondent insisted on adhering to it; and, in fact, when the raises were implemented on 1 September, they were distributed according to the Com- pany's equal percentage, rather than the Union's equal amount, approach. This alone would appear to give the lie to any claim by Hopkins that the parties had reached no prior meet- ing of the minds on the matter. And, ultimately, Re- spondent relies on only one fact—a self-serving event— as "evidence" that Hopkins properly believed that man- agement retained a free hand insofar as allocation of the increases was concerned. Thus, on 1 September 1985 Hopkins directed a "new" method of allocation; this one, ironically, followed the approach that the Union had rec- ommended—but the Company had rejected—in 1984.35 Of course by 1 September 1985 the parties were highly conscious of this pending litigation. It therefore seems probable that Hopkins was steering a rather careful line in his choice of allocation methods. Indeed, I see in Hop- kins' 1985 actions nothing more than an effort to manu- 34 The difference under the Union's then-preferred approach would be that some lower-rated employees would receive Proportionately greater mcreases than their higher-paid counterparts, a result that the Union found desirable because the parties had otherwise agreed to a two-tier wage system that paid former ARA drivers and mechanics more than their counterparts who had been hared from other sources since Respond- ent's August 1983 acquisition of the Contra Costa County contract. The Union's approach would therefore tend to narrow that gap. By contrast with the Union's equal amount approach, Respondent's approach (as clarified by the parties' 3 May discussions) was to gave all employees an equal percentage increase. 35 Hopkins admitted that this 1985 "straight fixed dollar amount across the board" approach was "consistent with what the Union wanted [the company] to do in 1984. TAYLOR BUS SERVICES 543 facture the very evidence that Repondent now invokes as proof that Hopkins, at least, operated from a different understanding about how such increases were to be allo- cated. What is lacking in Hopkins' own conclusionary testimony, however, is any plain indication how he reached his conclusion that Respondent was not locked- in by agreement to the allocation method that Respond- ent used in 1984. He does not truly contradict Teninty's account of the 3 May 1984 bargaining session wherein Cohen acknowledged that raises would be given on an equal percentage basis, rather than an equal amount basis; he does not truly contradict Teninty's testimony about the events leading to Respndent's decision to adhere to that percentage method in 1984; nor does he contradict Teninty's account of the 3 October 1984 meet- ing wherein Cohen was sympathetic to Temnty's sugges- tion to include in his next contract version an example of the allocation method that Cohen had outlined in negoti- ations the previous May. In such circumstances I have little hesitancy in treating Hopkins' professed belief that the parties had never reached agreement on an allocation method as merely one more example of his own—and Respondent's—tendency to grasp at straws in an effort to rid itself of the agreement that it plainly made in 1984, and that it was content to rely on, until the Kelly deci- sion caused it to conclude that the agreement had been a bad deal. I thus reject this fmal defense to the claim that Re- spondent was bound to an agreement in 1984. That claim is otherwise well supported by the evidence. I fmd that the parties became bound to an underlying agreement when, no later than 15 June 1984, the Union accepted Respondent's fmal offer. I fmd that the agreement became retroactively effective from the 31 May 1984 ratification date to and including 31 August 1986 and that it otherwise consisted of the terms contained in Re- spondent's 21 May final offer, as those terms may be found in Joint Exhibits 1 through 4. Beyond that I fmd that the agreement's terms may be found in the Union's 30 October document except insofar as it contains textual errors, omissions, or "examples" that do not match up with the text in the source docu- ments (Jt. Exhs. 1 through 4).36 B. Did 1984 Agreement Become Void as Result of Parties' 1985 Discussions of Relief Items or Other Possible Alterations to 1984 Agreement? The simple answer is "No." Respondent has not identi- fied any particular conduct or set of transactions in the 1985 discussions that might suggest that the Union had waived or forfeited the protections of the 1984 agree- ment; and I do not fmd it appropriate to detail those ex- tensive and wideranging discussions simply to prove the 36 The exception in this finding encompasses only those 11 variances listed in Appendix 1, which were identified by the parties at trial on 9 October 1985, and that they stipulated were the only variances of any arguable concern between the 30 October document and the terms deriv- able from study of it. Exhs. 1 through 4. Because the General Counsel has abandoned the claim that Respondent had a duty to sign even the purported corrected versions (it Exhs. 66 or 68), I do not decide wheth- er either of those latter versions correctly embodies the 1984 agreement. absence of any such waiver or forfeiture. 37 I simply find, in summary, that the Union did not, by agreeing to ex- plore possible relief tradeoffs, or by exploring those and other questions over the course of four meetings of the parties in 1985, forfeit or relinquish the claim that there was such an underlying agreement. To the contrary, the Union consistently maintained throughout that period that there was such an agreement, that the Union be- lieved (erroneously) that its 30 October document accu- rately reflected that agreement, and that if Respondent had any problems with that document, it should come prepared on 4 April to talk about such problems so that the matter of signing could finally be put to rest." Clearly therefore neither the Union's agreement to talk about Respondent's own relief proposals, nor its partici- pation in such discussions, nor its presentation of its own wish list in 1985, are enough to conclude that the Union somehow vitiated, or tacitly reopened the 1984 agree- ment. See Herman Bros., 273 NLRB 124 fn. 1 (1984), citing Connecticut Light Co., 271 NLRB 766, 767 (1984); see also A & W Foods, 276 NLRB 129 (1985). ("Here, as in Herman Brothers. . . the Union did not tacitly agree to reopen the contract. . simply by agreeing to discuss the Respondent's proposed midterm wage modifica- tions.") C. Did Respondent Repudiate 1984 Agreement by its Actions on and After 19 April 1985? I deal with this arguably "out-of-order" question next because I believe that the answer to this question makes it much simpler to answer the final question that I deal with below. (Did Respondent unlawfully fail to assist the Union in getting the agreement signed?) The simple answer to question 3 is "Yes." The unequivocal evidence of this can be found in the text of Respondent's letters to the Union and/or to its employees on 19 April, 19 May, and 1 November 1985. By those letters Respondent plainly denied that an agreement existed. Moreover this was not merely an abstract declaration of "position"; rather, Respondent's declarations were accompanied from the start by an outright refusal to arbitrate the Co- lacci grievance, a clear repudiation of an important fea- ture of the parties' underlying agreement. In the circumstances, I cannot take seriously counsel's efforts on brief to persuade me that the company did not really repudiate the agreement. Thus, counsel claims first 37 Apparently anticipating a "reopener" defense that Respondent pleaded in its original answer, but that it has now seemingly abandoned, the General Counsel consumed much time in the presentation of her case- in-chief in a relentless exploration of those salient details with various witnesses, all seemingly geared to disprove the existence of such a de- fense even before Respondent had made any effort to prove the reopener defense. I do not feel bound to repeat those details here simply because the General Counsel made a record on the point. 38 Respondent argues (defending against the failure-to-assist count, which I discuss elsewhere below) that the Union did not make contract signing a priority. For present purposes it is sufficient to note that Re- spondent does not deny that the Union did regularly maintain and press its demand to obtain a signed, written expression of the 1984 agreement. Accordingly, I adapt the recent remarks of the Seventh Circuit to find that, even if "the Union's zeal was minimal," it was nevertheless "suffi- cient" to preserve its claim. NLRB v. Ilarvstone Mfg. Corp., 785 Fid 570 (1986), enfg. 272 NLRB 939 (1984) 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that in context Taylor did not really mean it in his 19 April letter when he said, "there is no contract between the parties." Rather, "he was not making a precise legal argument, but was merely stating the fact that the con- tract document had not yet been completed and signed." But the obvious answer here is that even if Taylor were really trying to say that the contract had not been "com- pleted and signed" it is elsewhere clear in the same letter that Taylor was not referring merely to some ministerial process of "completing and signing"; he was claiming that there was a lengthy list of issues growing out of dis- cussions in 1985, which he enumerated specifically in that letter, about which the parties must bargain to agreement before the overall contract would be deemed in Respondent's eyes to be complete. In short, Taylor's claims were merely a variation on the utterly baseless contentions that there had never been a binding agree- ment in the first place or, if so, that the Union had re- opened that 1984 agreement. Regarding Hopkins' 1 November letter to the Union (Respondent's brief ignores the 19 May and 1 November letters to unit employees), Respondent states: That letter was written in the course of this trial only to reserve a specific legal position [i.e., the "sham ratification" defense]. . . . If Respondent's position is not ultimately upheld. . . the November 1 withdrawal [i.e., the withdrawal of Respondent's pre-November 1984 offers] would be of no effect. Therefore the withdrawal cannot be seen as an in- dependent act of repudiation. Here, too, counsel's attempts to explain away what "Hopkins" 39 said in that 1 November letter strike me as post facto rationalizations (and curiously circular ones at that), promulgated at counsel's leisure, and deserving of no weight. Although not specifically pleaded as such in the com- plaint, I also fmd that when Hopkins told employees in his 19 May and 1 November 1985 letters that there was no current labor agreement, Respondent independently violated Section 8(a)(1) of the Act. And I have therefore provided in my recommended order that Respondent cease and desist from falsely telling employees that it was not bound to a labor agreement in the period 31 May 1984 through 31 August 1986. D. Did Respondent Fail to Assist the Union in Reducing the Agreement to Writing? Here again the simple answer is "Yes," particularly if one avoids the temptation to reach that answer by refer- ence to Respondent's behavior in the period before it first plainly repudiated the agreement on 19 April 1985. Rather, by avoiding any more detailed inquiry than I have already made into the complicated series of transac- tions in the period before that 19 April date, and by fo- cusing instead on Respondent's actions on and after that date, it becomes relatively simple to conclude that Re- 39 It is rather clear from Hopkins' testimony that he did not personally author the 1 November letters that bear his signature; at least his testimo- ny is clear that he never personally saw the corrected contract version referred to in his letter to employees on 1 November. spondent has unlawfully failed and refused to assist the Union in reducing their 1984 agreement to writing. Such a conclusion will, in turn, be enough to support an ap- propriate remedial order dealing with that discrete viola- tion.40 Plainly Respondent's repudiation of the agreement, first announced in Taylor's 19 April letter, necessarily implied that Respondent would refuse to assist the Union in reducing to writing an agreement that Respondent claimed did not exist. To that extent Respondent made it a futility for the Union to pursue its outstanding efforts to obtain a signed agreement. And to that same extent a conclusion is warranted that Respondent has unlawfully failed since 19 April 1985 to execute the agreement in the particular sense that it has failed in its statutory duty to assist in reducing the 1984 agreement to writing.4' Moreover, despite the evident futility of doing so, the Union made additional efforts at the start of this trial to revive the execution process by tendering alternative versions of the 1984 agreement for Respondent's signa- ture which reflected the Union's attempts to correct the 11 errors and omissions detected by then by the parties when they met for a different purpose. And, despite Hopkins' admission in his 1 November letter to employ- ees that the Union's recent new version had corrected the "twelve major problems," 42 Respondent has admit- tedly refused to respond to the Union's manifest desire to get the execution process rolling again. In these circum- stances, therefore, it cannot be denied that Respondent has failed, at least since 19 April, to give its necessary assistance in achieving a fully executed agreement. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times since at least 15 June 1984 and continu- ing to date Respondent and the Union have been bound to a collective-bargaining agreement (the Agreement), one which has yet to be accurately reduced to writing and otherwise fully executed, but which consists of all the terms contemplated in Respondent's 21 May 1984 final contract offer, which terms may be themselves ex- trapolated from Joint Exhibits 1 through 4; moreover, those terms are substantially reflected in the Union's 30 October document (Jt. Exh. 7) except in the roughly 11 ways noted in Appendix 1. 4. At all times material the Union has been and is the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act of Respondent's em- 49 As noted already, the General Counsel eventually disclaimed and withdrew any contention that Respondent ever owed or now owes a duty to sign any of the specific contract versions tendered thus far by the Union to Respondent. She now seeks only an order requiring Respondent affirmatively to assist the Union in reducing the 1984 agreement to writ- ing. 41 See generally Georgia Kraft, supra; see also, e.g., Hilton Inn North, 279 NLRB 45 (1986). 42 In his testimony Hopkins stated that the reference to the corrected contract version m his 1 November letter to employees was intended to refer to the first of the two recent versions; that is, to St. Each 66. TAYLOR BUS SERVICES 545 ployees in an appropriate unit consisting generally of Re- spondent's drivers and mechanics employed within Contra Costa County, California, and which is described more particularly in the recognition clause of the agree- ment. 5. Starting about 19 April 1985 and at all times since that date Respondent has repudiated the agreement by proclaiming repeatedly to the Union, to its employees, and to the Board that it was not bound to any agreement with the Union and by refusing the Union's demand, grounded in the agreement, to arbitrate unresolved griev- ances. 6. Starting no later than about 19 April 1985 and at all times since that date Respondent has failed and refused to execute the agreement by failing and refusing to assist the Union in reducing the agreement to writing and sign- ing it. 7. By its actions described in Conclusions of Law 5 and 6, and by each of those actions, Respondent has un- lawfully refused to bargain collectively in good faith with the Union and thereby has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(0(5) and Section 8(d), and, derivatively, of Section 8(a)(1) of the Act, thereby violating Section 8(a)(1) of the Act. 8.By telling bargaining unit employees in letters on 19 May 1984 and 1 November 1985 that Respondent was not bound to a current labor agreement governing their terms and conditions of employment, Respondent inde- pendently interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, thereby violating Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has violated the Act substantially as alleged in the ultimate version of the complaint, I shall provide in my recommended order that Respondent shall cease and desist from repudiating the 1984-1986 agreement, from telling its employees that there was no such agreement, from refusing to honor the arbitration provisions of that agreement, from failing and refusing to aid the Union in putting together and signing a written contract that fully embodies the terms of that agreement, and from in any like or related manner inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Act.43 43 The General Counsel has withdrawn and disavowed any claim that Respondent owes a duty to sign any of the documents tendered to it to date by the Union. This is so even though Respondent appeared to admit in Hopkins' 1 November 1985 letter to employees that the Union's "newly 'corrected' version" (Le, Jt. Exh. 66) had indeed corrected the "twelve items" in the Union's 30 October 1984 document, which consti- tuted the only material variances from the literal terms of Respondent's 21 May 1985 final offer. The General Counsel has not explained why she has abandoned the contention that Jt. Exh. 66, at least, was a fully accu- rate rendition of the parties' 1984-1986 agreement A hint of an explana- tion is found in the General Counsel's brief at 31; there, referring to Jt. Exh. 66, she states vaguely that in this document the Union "acced[ed] to all of Respondent's objections but one" (Emphasis added.) She does not otherwise explam the "but one" reservation (the transcnpt portions that she cites do not explain what she means, either); but she may be referring to the fact that Jt. Exh. 66 contains the words "bargaining unit employ- ees," rather than "Uruon employees" in the private agreements section In the peculiar circumstances, the affirmative require- ment that Respondent be ordered to aid the Union in re- ducing to writing and signing their agreement may prove to be a hollow "remedy"; for, at this writing, only a matter of weeks remain until that agreement is due to expire.44 Accordingly, unless the Union specifically re- quests such action, nothing in this proposed remedy is in- tended to require the parties to go through the conceiv- ably useless ritual of preparing and signing an agreement document that covers a period which, in all probability, will have fully elapsed by the time Respondent under- takes compliance with the Board's order. Should the Union make such a request, however, I find it appropri- ate to require Respondent to aid in preparing and signing an agreement document even if it constitutes nothing more than a historical record. In this regard I fmd it most significant that Respondent has sought to persuade its employees that they have never enjoyed the protec- tions of a labor agreement and has even tauntingly chal- lenged the Union to produce "a contract signed by Taylor Bus Service." This fraud on the employees may best be silenced by the creation of an agreement docu- ment containing Respondent's signature. Moreover, it is customary and useful in negotiations for a successor agreement for the parties to "work from" the document containing their expired agreement. Thus the Union might responsibly determine that negotiations for a future labor agreement would be facilitated by the prepa- ration and signing of even a no longer effective agree- ment document, so that there will be no more mistaking exactly what it was that the parties had agreed to in 1984. Absent such a request from the Union, however, Re- spondent shall be ordered to bargain in good faith with the Union, on request, with respect to the terms and con- ditions of a new contract, and, if an agreement is reached, embody it in a signed document." The General Counsel requests—and Respondent op- poses—the entry of a visitatorial provision as part of the remedial order, authorizing the Board for compliance purposes to obtain discovery from Respondent under the Federal Rules of Civil Procedure under the supervision (see fn. 29 and see Appendix 1, item 11). If so, I have found that although this constituted a variance from the "Union employees" language used in Respondent's final offer, it did not represent a substantive change from the parties' agreement because that language in the final offer was always mterided to be synonymous with "bargaining unit employees," a fact that Cohen implicitly recognized when he agreed to this substitution of lan- guage on 3 October 1984. Whatever the explanation for the General Counsel's abandonment of the claim that Respondent owed a duty to sign Jt. Exh. 66, her disavowals preclude me from ordering Respondent to sign that or any other existing document. See cases cited at Appendix 2, P. 9 44 The agreement does not contain any provision for automatic renew- al and the record does not indicate whether the parties have begun nego- tiations for a successor agreement. 43 See Ben Franklin National Bank, 278 NLRB 986 (1986), citing Wor- rell Newspapers, 232 NLRB 402 (1977); cf. Operating Engineers Locals 30 (Hyatt Management), 280 NLRB 205 (1986), in which the Board rejected the judge's recommendation in comparable circumstances that the under- lying agreement be "extended" for a 3-year term to commence when the respondent executed the underlying agreement which was near to expira- tion. 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the United States Court of Appeals enforcing the order.4 6 The General Counsel now concededly seeks the entry of such visitatorial orders as a matter of routine—this stemming from the Board's experience before the First Circuit in NLRB v. Steinerfilm, 702 F.2d 14 (1983), in which the court panel rebuffed the Board's attempt to obtain precontempt discovery in the absence of an un- derlying decree providing therefor. In so holding, how- ever, the court suggested that "all agencies are free to insert visitatorial clauses in decrees" (supra at 17), thus providing the catalyst for the General Counsel's routine pursuit of such provisions in all remedial orders. Before the General Counsel submitted her brief on 24 March 1986 the Board had already found in at least two cases that visitatorial relief was not "warranted" or was "unnecessary" in the "circumstances" of those cases.47 In at least two more cases since then the Board has held similarly.48 In at least one other case, however, the Board has found that the "circumstances" justified inclu- sion of a visitatorial provision. Hilton Inn North, 279 NLRB 311 (1986), in which the Board said at fn. 1: "We agree with the judge that a `visitatorial clause' is appro- priate, based on the possible complexity of computing the make-whole remedy here and on all the facts of this case." It seems plain from these precedents that the Board is unwilling to give blanket approval, as the General Coun- sel would have it do, to the routine inclusion of visitator- ial provisions in its orders. Therefore, I must reject the General Counsel's claim to the extent it rests on a gener- al desire to obtain such relief in all unfair labor practice cases. Just as clearly, the Board has shown itself sympa- thetic to such visitatorial provisions where, as in Hilton Inn North, supra, the computation of a make-whole remedy would be attended by "possible complexity." I note first that here, unlike in Hilton, there is no warrant for a make-whole remedy; none has been requested by the General Counsel and there is no evidence that em- ployees have been unlawfully deprived of any monetary benefits for which they ought to be made whole. Ac- cordingly, if visitation is required here it must stem from some other unique circumstances comparable to those relied on by the Board in Hilton. The General Counsel has not intelligibly argued why this case involves any such extraordinary circumstances; neither can I inde- pendently discern any. Therefore I will not recommend a visitatorial provision. 46 When the trial started the General Counsel was permitted to amend her complamt to plead specifically for a visitatorial remedy, but she was not then prepared to explain what such a remedy practically entailed, nor whether it contemplated interlocutory discovery rights prior to the time when a court of appeals might otherwise take jurisdiction over the case, nor whether, in any case, Respondent would have parallel rights of dis- covery. When the trial closed nearly 4 months later, she was no better prepared to answer such questions. I therefore requested that she deal with such questions m her brief and made provision to allow Respondent to reply separately to her visitatorial contentions in a supplemental brief. Both parties subsequently briefed this question in considerable detail. 47 0. L Willis, Inc., 278 NLRB 203 (1986); United Cloth Co., 278 NLRB 583 (1986). 48 Teamsters Local 710 (Santa Fe Trail Transportation), 279 NLRB 717 (1986); Pemberton Manor, 279 NLRB No. 112 (Apr. 30, 1986) (not report- ed in Board volume). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed49 ORDER The Respondent, Taylor Bus Lines, Inc., Concord, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Repudiating the 1984-1986 agreement. (b) Telling its employees that there is or was no such agreement. (c) Refusing to honor the arbitration provisions of that agreement during its term. (d) Failing and refusing to aid the Union in putting to- gether and signing a written contract which fully em- bodies the terms of that agreement. (e) In any like or related manner interfering with, re- straining, 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) On the Union's request immediately take steps to render all necessary assistance in good faith to the Union in reducing the 1984-1986 agreement to writing, and promptly sign a document which embodies that agree- ment, or, (b) If the Union requests it, bargain collectively in good faith with the Union, on request, with respect to the terms and conditions of a new contract, and, if an agreement is reached, embody it in a signed document. (c) Give full effect to the arbitration provisions of the 1984-1986 agreement. (d) Post at its facilities in Contra Costa County, copies of the attached notice marked "Appendix 3." 8° Copies of the notice, on forms provided by the Regional Direc- tor for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 46 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 pur- poses. 60 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 Nation- al 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." APPENDIX 1 Summary of textual variances between Joint Exhibits 1 thorugh 4 (containing, among them, the terms contem- TAYLOR BUS SERVICES 547 plated in Respondent's 21 May 1984 fmal offer) and Joint Exhibit 7 (the contract document mailed by the Union to Respondent for signature on 30 October 1984). A. Language Omissions: 1. Maintenance of Membership (it. Exh 7, p. 1, sec. 1B); omits second paragraph of T-OK'd clause contem- plated in fmal offer (see it. Exh. 4, p. 2). The same omis- sion had been latent and undetected in the Union's first, 1 August, version. 2. Seniority (it. Exh. 7, p. 3, sec. 2D); omits two con- secutive sentences contemplated in Respondent's final offer (see it. Exh. 2, p. 1, no. 2; see also, Jt. Exh 3, no. 23, continuing an essentially similar formulation). Re- spondent's agent Cohen had pointed out this "seniority bumping rights" omission at the 3 October 1984 arbitra- tion; the Union nevertheless failed to correct the omis- sion in Joint Exhibit 7. 3. Grievance-Arbitration Procedure, Notice of Em- ployee Discipline (it. Exh. 7, p. 4, sec. 3A, para. 2); omits a phrase from the T-OK'd clause incorporated in the final offer (see it. Exh 4, p. 29). This omission was latent and undetected in the Union's 1 August contract version. 4. Grievance-Arbitration Procedure, Limitation on Ar- bitrator's Authority (Jt. Exh. 7, pp. 4-5, sec. 3A, para. 6); omits a sentence from the T-OK'd clause incorporated in the final offer (see it. Exh. 4, p. 30). This omission was latent and undetected in the Union's 1 August contract version. 5. No Strike/No Lockout Exh 7, p. 5, sec. 3B); omits two consecutive paragraphs from T-OK'd clause incorporated in the final offer (see it. Exh 4, p. 4). This omission was latent and undetected in the Union's 1 August contract version. 6. 1 Subcontracting (Jt. Exh. 7, p. 6, sec. 4B(1)); omits one word ("charters") from T-OK'd clause incorporated in the final offer (see Jt. Exh. 4, p. 4). This omission was introduced for the first time in the Union's 30 October version. B. Language Additions: 7. Wage Increases (Jt. Exli 7, sec. 6, p. 11); contains an example for the computation Of annual wage increases based on "weighted-average" formula set forth in Re- spondent's final offer (see it. Exh. 1, no. 14; see also, it. Exh. 3, no. 2). The "example" is flawed internally by the inclusion of the wrong effective dates (last line should read "9/1/84 and 9/1/85, respectively"). The wage chart is similarly flawed by using a 1983 date at the top of the third column from the left rather than 1984. The incor- poration of an "example" stemmed from the parties' 3 October 1984 discussions wherein Cohen agreed to "review" such examples as the Union might incorporate into its new draft version. 8. Overtime (it. Exh. 7, p. 9, sec. 5A.10(b) and (c)); adds an "example" and paraphrases company handbook, whereas Respondent's final offer contained no example and merely stated, "see handbook for explanation" (see it. Exh. 1, p. 2, items 9(b) and (c)). Respondent's agent Cohen had agreed to the Union's suggestion on 3 Octo- ber 1984 that "examples" be included which paraphrased the company handbook; Cohen agreed only to "review" the Union's proposed examples. The "example" used by the Union in the 30 October document made no internal sense, due to miscomputation; it has not otherwise been "reviewed" by the parties for the adequacy of its para- phrasing of the handbook. 9. Health and Welfare, Plan E (it. Exh. 7, sec. 7, pp. 12-13); the Plan E on p. 13 correctly embodies Respond- ent's final offer (see Jt. Exh. 2, p. 2, plan E). Another "Plan E" appears on p. 12, but also contains five extra lines of text which duplicate the last five lines under the preceding Plan D and which properly belong only under Plan D. The second "Plan E" and its extra five lines are superfluous. C. Miscellaneous: 10. Health and Welfare, Company Contribution (Jt. Exh. 7, sec. 7, p. 13); reflects a revision of the Union's 1 August contract version in that, pursuant to the parties' agreement on 3 October 1984, the employer contribution "cap" language has been relocated at the bottom of the listing of all the plans to signify that the "cap" applies to all plans. So understood, this relocation of "cap" lan- guage correctly embodies the intent of the final offer. 11. Private Agreements (it. Exh. 7, sec. 9, p. 14); refers to "bargaining unit employees," whereas the final offer clause, which traced back originally to language in- troduced by the Union, made reference to "Union em- ployees." (See Jt. Exh 4, p. 16.) The 30 October change in language resulted from specific agreement between the parties on 3 October to make such a change. APPENDIX 2 SUMMARY OF PROCEDURAL DEVELOPMENTS SINCE THE TRIAL RECORD OPENED The complaint has throughout alleged as "back- ground" that the Union was and is the Section 9(a) rep- resentative of a certain appropriate unit of Respondent's employees, that Respondent has so recognized the Union, that such recognition has been "embodied in a collective bargaining agreement, herein called the Agree- ment, which is effective by its terms from May 31, 1984 to August 31, 1986," and that by letter dated 30 October 1984 and by other devices thereafter the Union has "re- quested Respondent to execute the Agreement." Substantively, the original complaint charged Re- spondent with violating Section 8(a)(5) of the Act in two distinct ways: (a) by continuously refusing, since the Union's first demand on 30 October 1984, "to execute the Agreement"; (b) by "repudiat[ing] the Agreement" on or about 19 April 1985. The trial was originally noticed to begin on 7 October 1985, but, following a conference by telephone among myself and counsel for all parties, I granted the parties' 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD request to defer opening of the trial record to 9 October to enable them in the meantime to review proposed ex- hibits and to pursue stipulations. When the trial record opened I received 64 Joint Exhibits and several impor- tant stage-setting stipulations into evidence, among them a mutual acknowledgement by the parties that the 30 Oc- tober document differed textually in roughly 11 specifi- cally enumerated ways from the text contained in com- pany writings (Jt Exhs. 1-4) from which Respondent's 21 May 1984 fma1 offer could be reconstructed.1 1 JUDGE NELSON: Now, I think I understand where the parties stand on the stipulation which was to have been the subject of Jomt Exhibit 12. And I propose at this time to set it out and invite the parties to agree. First the parties agree that the Union accepted the Companies last and final offer, and that that acceptance [occurred] on or about May 31, 1984. Second, with one exception, and I will call it an arguable [exception], the parties agree that Joint Exhibits 1 through 4 contain the terms, which when blended together, would reflect the employers last and final offer. The General Counsel' would contend however that those Exhibits 1 through 4 do not reflect every last element of the parties agreement as of May 31. The General Counsel would seek to prove that an understanding had been reached before May 31, with respect to how the notion of a weighted average raise would actually be implemented in the event that the company achieved an increases in the rates they could charge to their customers Respondent does not [concede] that any such supplemental understanding was reached about implementation of weighted average. Apart from that the parties are agreed that Respondents Exhibits 1 through 4 do, in fact reflect the last offer made by the company. Joint Exhibit 7, as I understand it, is the proposed agreement tendered to the Company in October by the Union. The General Counsel ac- knowledges that there are differences in language between Joint Exhibit 7 and Joint Exhibits I through 4. Parties will stipulate as to what those differences are to aid me in an understanding of the case and also to close the door on other arguable differences which are of no consequence to either party. We'll get to that listing of language differences in a moment. General Counsel. . contends that Jomt Exhibit 7 does [embody] un- derstandings reached by the parties as of May 31, and or subsequent clarifications or understandmgs. General Counsel would argue that per- haps some cases there are language changes which weren't the product of specific discussions between the parties but which changes are inconse- quential as a matter of law in this case. Respondent, if I understand correctly, pitches a substantial part, if not all of it's defense, on the fact of these differences Which [Respondent] would argue are not only material but never [assented] to by the Compa- ny. Have I got it right, subject to the listing of the differences? MS BYTOP I have two additions. One clarification that the Joint Ex- hibit 7 is the agreement tendered by the Union to the Company on Octo- ber of 1984. Since we're now in 1985, that's understood. And also I be- lieve that the agreement is that we both contend that agreement was reached. A full and complete agreement was reached on May 31st. JUDGE NELSON Mr. Johnson? MR. JOHNSON: Yes, so long as it's [understood] that with the one ex- ception that Your Honor mentioned as to section 6— JUDGE NELSON: Is that the weighted average? MR. JOHNSON' The wage section, yes, the weighted average matter. 1 through 4 reflects what the agreement was as of May 31st MS. BYTOP Understood. JUDGE NELSON: I realize that I've made a narrative statement that cov- ered quite a bit of ground, but since this was closely reviewed with Counsel before hand I'm not, I find it appropriate to treat the parties as having stipulated to what I have narrated I emphasize, because this was a concern to the parties, the nature of the disagreement about Joint Ex- hibits 1 through 4 and what those Exhibits signify is very small And the only difference that the parties will be contending on is, the question whether there was before May 31, some supplemental understanding about implementation of weighted averages Beyond that, there's no dis- pute, that 1 through 4 accurately spells out the last and final offer which the Company intended to make. MS. BYTOP: That's understood. When the trial record opened it seemed indisputable that the General Counsel intended to allege that it was Respondent's failure to "sign" the Union's 30 October 1984 contract version that constituted a discrete violation as set forth in the first substantive count in the complaint dealing with Respondent's failure to "execute" the "Agreement" (and that the remedy for this alleged viola- tion must include an order directing Respondent to sign that very document). This was not merely the most likely interpretation of the language used in the com- plaint given the history as just summarized; it was ex- pressly confirmed in the General Counsel's opening statement,2 and was indirectly communicated in a host of other colloquies which punctuate the trial record of ses- sions held before 22 November. Acknowledging (as the parties had by then more specifically stipulated) that the Union's 30 October version was to some extent at vari- ance with the literal terms of Respondent's final offer, the General Counsel explained, General Counsel's contention is . . . that the [30 October] agreement that was drafted by the Union and presented for signature substantially incorpo- rates the terms of the agreement that was reached . . . at the bargaining table. That there [were] some modifications in it per agreement with Mr. Cohen. That other things in the [30 October version of] the agreement are errors or omissions which do not substantially change the intent of the document, or the meeting of the minds. As the General Counsel's discursive opening statement drew to a close, however, it became more and more ap- parent that a fallback theory was germinating beneath her words—that even if the Union's 30 October version were substantially flawed, Respondent still owed (and violated) a duty to "assist" the Union in putting together, and then signing, an integrated writing accurately re- flecting their 1984 agreement. This first broke surface as a mere offshoot of the claim that Respondent has violat- ed a duty to "sign" the 30 October version. Thus, coun- sel first remarked (my emphasis throughout): It's further our contention that the Employer has an obligation to assist the Union . . . [in] identifying any problems in the documents tender[ed] and re- ducing that to writing. And that the party cannot after the fact raise all sorts of errors and omissions in justification for not signing the document. 2 Surnmanzmg her two-count complaint in opening statement, princi- pal counsel for the General Counsel said (my emphasis; my editorial clarifications or corrections of mistranscriptions): [By Ms. Bytof] . . the first allegation is that the Union made sever- al demands, by Setter as well as orally, for the Respondent to sign a document that it [the Union] put together, and which [e]mbodied the terms and conditions that were agreed upon by the parties. And that the Respondent has failed to do so . . . to this date And that's a violation of [8(aX5)] The second . . is in addition to failing and refusing to sign that agreement . . from October 30th through today . [t]hey've not only refused to do it, but affirmatively, on . April 19 of 1985, repu[d]iated the agreement . by telling the Union they had no contract and refusing to arbitrate a dispute. . . TAYLOR BUS SERVICES 549 Even this was apparently not what the General Counsel was really getting at, for what at first had seemed an off- shoot soon showed signs of budding into the quite dis- tinct alternative theory mentioned above. Thus, As a sort of back-up position is that we would con- tend that even if Your Honor felt that the errors and omissions in the document made it a document that the employer couldn't sign, that at the very least the appropriate remedy would be to require the Employer to sign the document with the omissions in it. To sign a document that reflects the precise agreement of the parties without all the errors and omissions of paragraphs left out. Because it is their obligation to help reduce it to writing. So at the very least if you find that they didn't have to sign this document it's our position that they have to sign a [document] that incorporates those errors or omissicms.3 I received these latter remarks with some expressions of doubt about the General Counsel's intentions as to remedy, and which also included the observation that such a "failure-to-assist" theory was not plainly in the complaint. When the record opened the next day the General Counsel formally moved to amend the complaint to in- clude a new substantive paragraph treating Respondent's "fail[ure] and refus[all to assist the union in reducing the agreement. . . to writing" as a distinct alternative viola- tion of Section 8(a)(5) even if Respondent were found to be under no duty to sign the 30 October version.4 Respondent's counsel opposed the amendment, profess- ing surprise over this "entirely different theory" that would require him to prepare witnesses for a different body of proof than that on which he had prepared to meet the claim that Respondent should have signed the 30 October document. (That defense, as I understood it, rested largely on the stipulated fact that the Union's 30 3 I think these remarks are best understood by mentally ignoring the underscored phrases (a difficult editing job to do in "real time" at trial when hearing these and many other of the General Counsel's even more dismayingly prolix expositions of her various positions; (see, e.g. Tr. 2362.6-2365.4). Taking these underscored phrases literally might lead to the interpretation that counsel contended (even in the alternative, "back- up" mode) that Respondent still owed a remedial duty to sign the 30 Oc- tober Version ("the document with the omissions in it [sic]"; or, "a docu- ment . without all the errors and omissions of paragraphs left off [sic]"; or, a document "that incorporates [sic] those errors or omissions"). Ignoring the underscored phrases yields the more sensible interpretation that the General Counsel was referring here to Respondent's remedial duty (under her alternative theory), to sign some hypothetically accurate, yet-to-be-Constructed version of the underlying agreement. 4 That the General Counsel still mtended to claim that Respondent owed a duty to sign the 30 October document seemed at the time to have been made plain by this colloquy, made in the course of arguments about whether the General Counsel ought to be allowed to make an amend- ment St all, and if so, whether an adjournment might be required to enable , Respondent to prepare for what I judged was an essentially "new" allegation. JUDGE NELSON: I'm sure by all of this the General Counsel doesn't want us to get the wrong impression She's not abandoning what she did alle[g]e. Ms. 13YroF. No I'm not. JUDGE NELSON: She's just adding something. She would even dispute that she's adding something But if I got this complaint I wouldn't see in it this [failure-to-assist] theory. October document varied in roughly 11 ways from the terms of Respondent's 21 May final offer.)5 I allowed the General Counsel's amendment over Re- spondent's objections, tre,ating Respondent's claim of sur- prise as one which, although apparently substantial in the circumstances, could be addressed by a rescheduling of further proceedings to enable Respondent to prepare to defend on the alternative theory. In the course of ex- tended colloquy on this point the General Counsel even- tually disclosed more of her intentions: First to call Re- spondent's agents Hopkins and Taylor adversely, as her opening witnesses, to testify about facts relevant to the new refusal-to-assist theory; second, to make yet addi- tional amendments—these to come if Respondent were to fail to sign either of two more recently drafted attempts by the Union to come up with an accurate version of the 1984 agreement.6 In light of all these developments I directed an ad- journment of proceedings until 4 November, entering various orders which the parties declared to be accepta- ble to permit time for the General Counsel to issue new amendments (including those dealing with any new de- velopments) and for Respondent to prepare accordingly. In the meantime, on 16 October, the General Counsel issued formal proposed amendments which, from all ap- pearances to date, were calculated to preserve the origi- nal contention that Respondent violated the law when it failed to "execute" (apparently meaning "sign," for rea- sons which may be apparent by now) either the 30 Octo- ber contract version (or the additional versions, Joint Ex- hibits 66 and 68); but also alleging alternatively that Re- spondent has throughout violated its duty to "assist the Union in reducing the Agreement to writing."7 It was not until 22 November that the complaint began to undergo its final metamorphosis, resulting in the Gen- eral Counsel's fully surrendering on any, claim that Re- 5 From colloquy surrounding the receipt of the introductory stipula- tions it is evident that until the General Counsel made these remarks both Respondent's counsel and I had been assuming that resolution of the fail- ure-to-"execute" count in the complaint would turn on whether the Union's 30 October document did, indeed, "substantially incorporate" Respondent's final offer and was therefore a document that the Board could order Respondent to sign. 6 As the record now shows; "The Union served Respondent with the first of these written efforts (eventually received as Joint Exhibit 66) on 9 October, in the office of Region 32, after the parties had reached pretrial stipulations about the variances between Respondent's 21 May 1984 final offer and the Union's 30 October document; the sebond writing (Jt. Exh. 68) had been prepared even more recently and the General Counsel pro- posed, unsuccessfully, that this trial forum be used as a vehicle to perfect service of that document. Subsequently the parties stipulated that Joint Exhibit 68 Was served on Respondent on 10 October. These deVelopments eventually resulted in a record which now con- tains four textually different attempts by the Union to come up with an accurate version of the 1984 agreement (Jt Exh. 5, mailed to Respondent before the 3 October arbitration; Jomt Exhibit 7, the much-discussed 30 October 1984 document; and Joint Exhibits 66 and 68, representing recent alternative versions, either of them acceptable to the Union, both of which purport to "correct" (in different ways) all of the now-acknowl- edged areas of discrepancy between the 30 October document and the literal terms embraced in Respondent's 21 May 1984 final offer. 7 I received the exhibit containing the written amendments on 4 No- vember with this observation and request: I note that it contains nothing not specifically adverted to in our pre- vious hearing of record. If there's any question about that, I'd appre- ciate that being called to my attention. 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent violated the law by failing to sign any particu- lar contract version which had ever been tendered by the Union. This itself occurred in stages, starting first with a statement of the General Counsel following a trial interruption during which the parties had again unsuc- cessfully discussed settlement. Thus: JUDGE NELSON: On the record. General Counsel wishes to make a statement before we begin. Ms. BrroF: OK, Your Honor, on several differ- ent—both, I think, on-the-record and off-the- record—conversations Your Honor has questioned me very much about General Counsel's apparent contention that the Respondent/Employer was re- quired to sign the document tendered by the Union on October 30, 1984—that's Joint Exhibit 7 in evi- dence. And I've, I think, made a number of differ- ent statements about what General Counsel's intent was and what General Counsel was contending was the violation in this case, and I believe that I may also, during some of those conversations, indicated to the Judge that General Counsel was contending that the Respondent was required to sign the Octo- ber 30th document and that we would ask the Judge to make a finding that they had to sign that October 30th document. And to the extent that I have said that, and to the extent that when I have not said it but have in any way led the Court to be- lieve that that was true, it's my mistake; and it's not General Counsel's contention that they have to sign that document. A further reading of the cases does not indicate, I don't think, any basis for finding that they have to actually sign that particular document. I think that—well, therefore, to the extent that the complaint does allege a requirement for the Em- ployer to sign the October 30th document, I will voluntarily withdraw that portion of the complaint. . . . . JUDGE NELSON: All right, I will treat your re- marks as, in effect, clarifying by narrowing your complaint. Mr. Johnson, you may be heard, if you wish to be. MR. JOHNSON: Well, I understand this to mean, as a practical matter, that what we have here is a voluntary dismissal of the complaint allegations in- sofar as they charge an unfair labor practice in re- fusing to sign the October 30 document. JUDGE NELSON: Has he correctly stated that? MS. BYTOF: Yes, to the extent that the docu- ment—that the amended complaint says that, or can be interpreted to say that, yes. I subsequently questioned whether the General Counsel's remarks likewise were intended to abandon any claim that Respondent owed and violated a duty to sign any of the other documents more recently tendered by the Union (i.e., either Jt. Exh. 66 or 68). After a trial recess the General Counsel stated (emphasis add): [by Ms. Bytof] Yes, I've reviewed the matter and in response to Your Honor's question, General Counsel will withdraw any reference in its com- plaint to allege any unfair labor practice based upon the Employer's failure to actually physically sign any of the documents that have been tendered. [Comments by General Counsel omitted] To the extent the complaint. . . alleges a specif- ic violation based upon the duty to execute those agreements, General Counsel will withdraw those allegations at this time. I have omitted from the General Counsel's quoted state- ments her several digressive comments about her posi- tion—here, in substance, that she had "always . . . con- tended since the beginning of the case that Respondent has failed and refused to aid in reducing the agreement to writing." And elsewhere, opining that the "confusion" may have arisen over the use of the term "execute" in the complaint, she said, "And I think that what the Gen- eral Counsel's been intending to claim all the way through is that they have a duty to execute an agree- ment; and not necessarily to sign that document, even though I may have said that in the past." That all trial participants suffered from "confusion" about these matters cannot be denied, but I think the General Counsel has again missed the point when she implies, in substance, that we should have ignored her own words of "explanation" and divined instead that the word "execute" in the complaint "always" meant some- thing decidedly more subtle than merely "sign." And the General Counsel cannot so glibly escape the fact that her words of "explanation" about her complaint carried at least as much legal weight as did the formal expressions in the written complaint. Indeed the "complaint" must necessarily include the General Counsel's various state- ments about what the written complaint means. Seen that way, it is apparent that the "confusion" stemmed from a "complaint" which originally used "execute" to mean, simply, "sign," but which was later claimed to mean either "sign," or alternatively, "assist," but was finally amended to mean, simply, "assist." And if I were to take seriously the General Counsel's suggestions that she has "always" intended for the term "execute" to mean some- thing more than merely "sign," I would be required once again mentally to edit-out all of the times she has equated "execute" with "sign."8 And I now regret my subsequent direction to the Gen- eral Counsel to conform her written complaint to the re- visions she announced on 22 November, for when she did so at the 6 December trial session she adapted her original pleading style in a way which continued to play with the word "execute," triggering still more disputa- tious colloquy and more "explanatory" comment from the General Counse1.8 Even then I thought the "confu- sion" had been put to rest with this exchange, which fol- lowed many utterly opaque attempts by the General 8 This equation persisted, ironically, even into the General Counsel's remarks quoted immediately above in main text. 9 See generally Tr. 1721-17321. TAYLOR BUS SERVICES 551 Counsel to "make . . . clear" what her now-revised complaint was intended to do: [by Judge Nelson] The General Counsel has not abandoned the contention that the parties reached agreement on May 31. She has abandoned the con- tention that the Union has ever prepared a docu- ment which reflected that agreement and which Re- spondent had a duty to sign. Ms. BYroF: That's true. Doubt remains, nevertheless, in the light of the General Counsel's expression of "The Issues" on brief—a doubt which I hope finally to bury by now setting forth the issues which I deem in genuine controversy and which are the only ones I decide. The General Counsel opens her brief with this state- ment of "The Issues" [Emphasis added]: A. Whether Respondent has violated Section 8(aX5) of the Act by failing and refusing to either (1) execute any contract documents which the Union tendered and believes reflect the agreement reached by the parties or, (2) aid the Union in re- ducing the agreement to writing; B. Whether Respondent, since on or about April 19, 1985 and including November 1, 1985, has repu- diated the. . . agreement; C. Whether the appropriate remedy should in- clude a "visitatorial clause." These comments focus on the General Counsel's "either/or" formulations in A, above: It should by now be obvious why I regard that choice and arrangement of words as uniquely mischievous in the context of this case—particularly at the briefing stage and in the wake of the many "confusions" introduced by the General Counsel prior to this time, all of them traceable to the General Counsel's admittedly varying and equivocal "ex- planations" on the record of what she meant when she used the manifestly slippery term "execute" in various in- carnations of her written complaint. And in the circum- stances I am mystified by the fact that briefing counsel has bothered at all to retain the term "execute" in a formal statement of the issues, especially within a set of "either/or" propositions wherein Respondent's failure-to- "execute" is proposed to be different, somehow, from its failure-to-"aid." If, by her current expression of "The Issues," the Gen- eral Counsel is again attempting to insert into the case a complaint theory that Respondent broke the law when it failed to sign any of the "documents which the Union tendered," then she is proceeding contrary to her dis- claimers at trial; and it would be "unjust" for the Board or me to countenance such a constructive amendment. (Seaward International, 270 NLRB 1034 (1984); see also, e.g., ITT Lighting Fixtures Div., 267 NLRB 709, 710-711 (1983). Because there is little else in the General Coun- sel's brief to suggest that this is what she really means, I must regard it as simply another act of obscurantism that the General Counsel has now expressed as an "either/or" proposition what is, in present juridical reali- ty, a complaint theory which was trimmed by the Gener- al Counsel's statements on 22 November and 6 Decem- ber to, simply, the "or" proposition. Thus, for practical purposes, the complaint now charges Respondent with violating Section 8(a)(5) in two independent ways: 1. By refusing throughout phases III and IV to assist the Union in reducing the 1984 agreement to writing. 2. By announcing and acting since 19 April 1985 as if it were not bound to the 1984 agreement; that is, by "re- pudiating" the 1984 agreement.