Kelly'S Private Car Service

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD W.A.D. Rentals, Limited d/b/a Kelly's Private Car Service and Local 3036, Taxi Drivers and Allied Workers Union, Service Employees International Union, AFL-CIO-CLC. Case 29- CA-11940 June 9, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On April 28, 1987, Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, W.A.D. Rentals, Limited d/b/a Kelly's Private Car Serv- ice, Queens, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. Lyn Neugebauer, Esq., for the General Counsel. Stuart M. Kirshenbaum, Esq. and Sanford E. Pollack, Esq. (Marshall M. Miller Associates, Inc.), of Hewlett, New York, for the Respondent. David Stolow, Esq. (Donald F. Menagh, P.C), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On the basis of a charge filed on 2 July 1985 by Local 3036, Taxi Drivers and Allied Workers Union, Service Em- ployees International Union, AFL-CIO-CLC (Union or Charging Party), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, Brooklyn, New York, issued a complaint and notice of hearing on 16 September 1985, against W.A.D. Rentals, Limited d/b/a Kelly's Private Car Services (Re- spondent) alleging that the Respondent engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). On 26 September 1985 the Respondent duly filed an answer to the complaint, in substance, denying the material allegations. In its answer to the complaint, the Respondent raised the following affirmative defenses. 1. The Complaint fails to state a claim upon which relief can be granted pursuant to any of the provisions of the National Labor Relations Act, as amended. 2. Any claims asserted against the Respondent, ir- respective of their veracity, are in any event time- barred and must be dismissed pursuant to the six (6) month statute of limitations set forth at Section 10(b) of the Act. On 30 December 1985, the Respondent filed a Motion for Summary Judgment alleging that an objective basis existed for the Respondent to believe that the Union no longer had the support of a majority of the employee drivers because there has been several layers of turnover of employees in the past 5 years, and therefore the Re- spondent had no continuing obligation to recognize and bargain with the Union or to execute a wntten collec- tive-bargaining agreement on demand; that the Union had abandoned representation of unit employees; and that the Union did not make a timely demand for bar- gaining. The Respondent sought dismissal of the com- plaint in its entirety. By Decision and Order dated 9 April 1986, the Board denied the Respondent's Motion for Summary Judgment for the reason that "the Re- spondent has not met its burden of demonstrating the ab- sence of a genuine dispute as to the material facts in issue." A hearing was held before me in Brooklyn, New York, on 14, 15, and 24 July 1986.1 All parties were af- forded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. At the opening of the hearing the Respondent renewed its "motion for a sum- mary judgment. Predicated largely on [Section 10(b)]'s statute of limitations [sic] at 6 months imposed under the Act." I reserved decision on this motion. At the close of the General Counsel's case the Respondent renewed its motion to dismiss the complaint for various reasons, 2 i On 24 June 1986 the Respondent filed a petition to quash subpoenas The General Council opposed such petition in writing filed on 10 July 1986 The Respondent also filed a petition to revoke subpoena ad testifi- candum and subpoena duces tecum on 14 July 1986 At the opening of the heanng I denied the Respondent's petitions At the close of the Gen- eral Counsel's case, however, the Respondent amended its answer to admit "commerce jurisdiction," in effect resolving this issue Moreover, on 9 June 1986 the Respondent filed a motion and demand for a bill of particulars The General Counsel filed a reply in part and opposition in part to motion for bill of particulars on 30 June 1986 By letter dated 3 July the Respondent renewed its request for a bill of particulars, asserting that the General Counsel's reply was inadequate The General Counsel thereafter filed an amended reply in part and opposition in part to motion for bill of particulars on 10 July 1986 At the hearing I found that "the information that was supplied to the Respondent's counsel adequately sat- isfies as much of the request for the bill of particulars as is warranted " 2 Briefly, the reasons set forth by the Respondent as the basis for dis- missal of the complaint are That any claim of an unfair labor practice is time-barred by Sec 10(b) of the Act, that the refusal of the Regional Di- rector to issue a complaint in a previous case based on a charge filed by the Union involving the same parties and factual background and consid- ered with any additional facts, the "entirety of those matters are now [Res Judicata] and compose the law of this case with respect to these dealings between the employer and the union", that the Union is guilty of laches since it failed to demand bargaining or execution of a written con- tract for 15 months after the parties allegedly reached agreement on all Continued 289 NLRB No. 9 KELLY'S PRIVATE CAR SERVICE which will be fully discussed. I denied the Respondent's motion to dismiss the complaint. The Respondent again renewed its motion to dismiss the complaint in its entire- ty at the close of the hearing on the same grounds, in substance, as previously asserted. I reserved decision on the motion. Thereafter, the General Counsel, the Re- spondent, and the Union all filed briefs in this case. In its brief the Respondent seeks dismissal of the complaint, "For all the foregoing reasons and those depicted on the evidentiary record." For the reasons set forth, I grant the Respondent's motion to dismiss the complaint in part, and deny its motion to dismiss in other part. On the entire record and the briefs of the parties, and on my observation of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material, has been a New York corporation with its principal office and place of business at 212-35 42d Avenue, Queens, New York, en- gaged in the business of providing private car transporta- tion services. In the course and conduct of its business operations during the preceding 12 months, these oper- ations being representative of its operations at all times material, the Respondent derived gross revenues in excess of $500,000. During the same period of time, the Respondent, in the course and conduct of its business op- erations, purchased and received at its place of business gasoline, automobile parts, and other products, goods, and materials valued in excess of $50,000 from other en- terprises, located within the State of New York, each of which other enterprises had received these products, goods, and materials directly from points outside the State of New York. The complaint alleges, the Respond- ent admitted to the above as fact at the hearing,3 and, therefore, I find that the Respondent is now, and has been at all times material , an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint also alleges, the Respondent admits, and I find that William Kelly, the Respondent's president, at all times material has been, and is now, a supervisor within the meaning of Section 2(11) of the Act, and an agent of the Respondent within the meaning of Section 2(13) of the Act.4 contractual terms, that the Respondent had a good -faith doubt of the Union's majority status at the time it withdrew recognition of the Union, founded on objective considerations, namely, the abandonment of the unit employees and the "several layers of turnover of employees during the almost 5 years since the Union 's narrow 15- 14 election victory in De- cember 1981 ", and the General Counsel's failure of proof in this case a Although the Respondent amended its answer at the hearing to admit the jurisdictional allegations in the complaint as fact, it continued to deny the legal conclusion that the Respondent is an employer within the mean- ing of Sec 2(2), (6), and (7) of the Act 4 The evidence shows that Edward Kelly, son of William Kelly, and the Respondent's vice president, is a part owner of the Respondent and the Respondent's manager, and at all times material has been , and is now, a supervisor within the meaning of Sec 2(11) of the Act, and an agent of the Respondent within the meaning of Sec 2(13) of the Act II. THE LABOR ORGANIZATION INVOLVED 31 The complaint alleges that Local 3036, Taxi Drivers and Allied Workers Union, Service Employees Interna- tional Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. The Re- spondent in its answer denies this allegation on the basis of lack of knowledge and information sufficient to form a belief thereon. On 5 February 1982, the Board certified the Union as the exclusive representative of the Re- spondent's employees in an appropriate unit for the pur- poses of collective bargaining regarding rates of pay, wages, hours of employment, or other conditione of em- ployment, after a union victory in a Board-conducted election. Moreover, the Union has an industrywide col- lective-bargaining agreement with the Medallion Taxicab industry. I therefore find and conclude that Local 3036, Taxi Drivers and Allied Workers Union, Service Em- ployees International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 5 III. THE APPROPRIATE BARGAINING UNIT The complaint alleges that the following employees of the Respondent constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All full-time and regular part-time drivers em- ployed by the Employer at its Queens garage, ex- cluding all office clerical employees, dispatchers, bookkeepers, management personnel , guards and all supervisors as defined in Section 2(11) of the Act. The Respondent denies this allegation. In a Stipulation for Certification upon Consent Election dated 15 Decem- ber 1980, signed by the Respondent and the Union and agreeing to a Board-conducted secret-ballot election of its employees, the Respondent accepted as appropriate for the purposes of collective bargaining this very same unit. The Board certified the Union on 5 February 1982 as the exclusive bargaining representative of the Re- spondent's employees in the same described unit. The Respondent offered no evidence to refute the appropn- ateness of this unit for purposes of collective bargaining. Therefore, I find and conclude that: All full-time and regular part-time drivers em- ployed by the employer at Queens garage, exclud- ing all office clerical employees, dispatchers, book- keepers, management personnel, guards and all su- pervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 5 Photo Drive Up, 267 NLRB 329 (1983), Michigan Bell Co, 182 NLRB 632 (1970) Additionally, the Respondent failed to produce any evidence at the hearing contradicting this or supporting its denial of the Union's status as a labor organization within the meaning of the Act 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that since on or about 13 June 1985, the Respondent has failed and refused, and contin- ues to fail and refuse, to execute a written collective-bar- gaining agreement embodying the terms and conditions of employment agreed on between the Respondent and the Union about 16 January 1984, although requested to do so by the Union; and that about 13 June 1985, the Re- spondent withdrew its recognition of the Union as the exclusive-bargaining representative of its employees in an appropriate unit, and since that date has failed and re- fused, and continues to fail and refuse to recognize and bargain with the Union as the exclusive bargaining repre- sentative of such employees, and by such acts the Re- spondent has interfered with, restrained, and coerced, and continues to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act, and the Respondent has also refused to bargain col- lectively and is refusing to bargain collectively with the Union in violation of Section 8(a)(5) of the Act. The Re- spondent denies these allegations. A. Background The Respondent operates a taxi service whose business mainly consists of providing passenger fare service to and from the Long Island Railroad Station in Bayside, Queens, New York. This is a family-owned business whose owners include William Kelly, his son Edward Kelly, and, at the time of the events, another relative, Carmello Forame. For the past few years and for all in- tents and purposes, Edward Kelly has run and managed the business due to debilitating medical illnesses affecting his father, William Kelly, and uncle, Forame. The Re- spondent's business operation differs from the New York City medallioned taxicab industry in that it is a private car service or livery business, whose drivers may not accept street fares, passengers who hail a cruising cab from the sidewalk for a metered ride. Instead, all riders are obtained either by telephone calls directly from cus- tomers or by picking up passengers at the Long Island Railroad Station in Bayside. Cars are dispatched either from the Respondent's headquarters or by two-way radio communication. Fares are set by the Respondent and are not subject to regulation by the New York City Taxi and Limousine Commission. The Union began its organizing campaign among the Respondent's drivers in 1980. The Respondent and the Union executed a Stipulation for Certification upon Con- sent Election on 15 December 1980, and the ensuing Board-held secret-ballot election on 9 January 1981 re- sulted in a 15 to 14 vote in favor of the Union. The Re- gional Director for Region 29 certified the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit for the purpose of col- lective bargaining on 5 February 1982. Thereafter, and at the Union's request, the parties entered into negotiations for a collective-bargaining agreement. B. The Evidence The record shows that the Respondent and the Union held approximately six or seven negotiation meetings at the Traveller's Inn near LaGuardia Airport in Queens, New York, commencing on 26 April through 3 Novem- ber 1982. At these negotiations, the Respondent was rep- resented by Edward Kelly and Carmello Forame, part- owners, and Brian Tunney, Esq.,6 while the Union rep- resentatives were Gasper Pecorella and Michael Rosen- thal, the Union's vice president and recording secretary, respectively, Stuart Bochner, Esq.,7 and two bargaining unit employees, Milton and Connors. At the first negotiation meeting on 26 April 1982, the Union presented its list of proposals for inclusion in a collective-bargaining agreement and, for use as a guide- line in negotiating the agreement, proffered a copy of an agreement between the Union and the Metropolitan Taxicab Board of Trade, the Union's "master contract."8 Rosenthal testified that with Tunney and Bochner acting as spokesmen for the Respondent and the Union, respec- tively, the parties discussed the following items: dues checkoff, which was proposed by the Union and op- posed by the Respondent; arbitration, the Union seeking the New York State Mediation Board and the Respond- ent asserting the American Arbitration Association as ar- bitrator; union security, the Union requiring a union-se- curity clause and the Respondent rejecting this demand; health, welfare, and pension plans, with the Union offer- ing to include management representatives in the plans, subject to the legality of this arrangement. Although the record is unclear regarding the specifics, the evidence shows that the Respondent and the Union continued to meet and discuss the terms and conditions of a collective-bargaining agreement at several subse- quent negotiation sessions through October 1982. The parties met again on 3 November 1982.9 Rosenthal testi- fied that they reviewed "topics" that had been agreed to at the previous bargaining sessions and negotiated to agreement various other issues such as: some aspects of the driver work shift schedules, vacations, jury duty pay, car wash responsibility, interior car care; breakdown pay, i 0 the noncommissionable portion of the fare rate; i i 6 During these negotiations, the Respondent was represented by the law firm of Putney, Twombly, Hall and Htrson, Esqs, and Tunney was "of counsel." 7 At the time, Bochner was a partner in the law firm of Menagh, Trainor and Bochner, Esqs, which represented the Union in collective- bargaining negotiations 8 While Kelly raised an objection to the use of the master contract as a guide in the negotiations because some of its terms were not applicable to the type of car transportation service operation run by the Respondent, he did, although reluctantly , allow it to be used in such a manner 8 Although Rosenthal testified that Bochner was present at this meet- mg, Tunney disputed this in his testimony Moreover, although Bochner testified as a witness, he neither confirmed nor denied his presence at this meeting. 10 When a car in service becomes disabled, the dnver receives an hourly rate up to 4 hours or, on repair of the automobile, whichever is less I I The Respondent receives an amount that "comes off the top of the fare," which is not subject to driver commissions KELLY'S PRIVATE CAR SERVICE 33 seniority; leaves of absence; bulletin boards; a credit union; and a 3-year contract term. Rosenthal stated that other items discussed, but not fully agreed to, were: driver commissions, gasoline charges, radio charges, union security, dues checkoff, a final driver work shift schedule, and arbitration. Rosenthal recounted that at the negotiations agreement regarding particular issues was signified by Bochner and Tunney stating so, and that there was no initialing or "signing off" of the item in any written proposal, or the master contract or in any notes kept by the parties. Regarding the 3 November 1982 negotiation meeting, Tunney testified that: [I]t was a rocky session as the last session always is; at the conclusion of which, having agreed on such things as commissions and whatever other terms, a great number of terms, the parties shook hands and went off their separate ways. The expec- tation being that a document would be prepared by the Union . . . within a reasonable time ... and the parties would have to work out the language and-and any other miscellaneous terms. . . . I ex- pected a tough drafting session after I got the first draft, that's what I expected as I left the room in November of `82. ... The sense-and what I'm trying to point out is, we-I anticipated a contract to be forthcoming and we would look forward to what kind of language would be worked out in that agreement so that we could say all right yes, that is exactly the agreement. Tunney also testified, however, that not all the issues dis- cussed at this meeting had been resolved. We stated: [T]he master agreement had many many terms, many of which did not apply to us. But we went through each of those terms deleting some of them, talking about others and on some of them, we put a hold. At the time that we concluded our negotia- tions in November of `82, there was still a number of items that was still a hold. Bochner testified, in substance, that by the end of ne- gotiations in November 1982, agreement on a full collec- tive-bargaining contract had been "about 90 percent done." Left "open" for resolution was some aspect of the "commission package" and shift scheduling . Bochner added that, "all of the non economic , non wage related items were fairly well set," most of the "scheduling was agreed to," "hospitalization was taken care of," as well as pension, major medical, and sick days. Moreover, it is uncontested that at the conclusion of this meeting the Union agreed, at the Respondent's re- quest, to prepare a draft collective -bargaining agreement and send it to the Respondent for review. Rosenthal testified that there was no contact between the Respondent and the Union until January 1984 for the reason that starting in October 1982, the Union had been engaged in negotiating a new collective-bargaining agreement with the Metropolitan Taxicab Board of Trade, a new master contract affecting the Medallion Taxi fleets, and that covered the Union's entire member- ship with the exception of Kelly's employees. Rosenthal related, "The entire focus of the Union became an at- tempt to get that contract. It's the only contract we have." While the master contract had expired on 16 No- vember 1982, the parties thereto had agreed to extend it until 10 March 1983 while they met to negotiate a new agreement. However, Rosenthal added that despite the Union's preoccupation with its efforts to negotiate a new master contract, he attempted to contact Tunney by tele- phone "5 to 10 times" during the period from January through March 1983 in order to continue contract nego- tiations, but was unable to reach him, being told that either Tunney was ill, unavailable at the time, or out of the office. Although Rosenthal related that he left mes- sages with Tunney's secretary for Tunney to call him back, Tunney never in fact returned his calls. Rosenthal related that from March through July 1983, the Union was engaged in sporadic selective strikes throughout the taxicab industry that totally absorbed its time and effort. He testified: In July 1983, pretty much everything fell apart. We were just about ready to begin our election period for our union officers who are elected every 3 years, and 6 of our vice presidents decided to run against the incumbent leadership, including Mr. Pe- corella who was the primary person dealing with Kelly's. From July 1983 through November 1983 nothing was accomplished. We had no contract with the Metropolitan Taxicab Board of Trade so we couldn't do anything with them. We were totally immersed in the election and could not do anything else. Rosenthal continued that in and around Thanksgiving 1983, the Union reached agreement with the Metropoli- tan Taxicab Board of Trade on a new bargaining con- tract and that, "The period of December 1983 was taken up with the ratification of the contract." Tunney testified that "after negotiations in November of `82, there was no contact that I recall for a substantial period of time; six months, eight months, nine months." According to Tunney, he then received two or three telephone calls, "all in late `83," presumably from Rosen- thal, who on one occasion told him that the draft of the bargaining agreement was almost complete, and Tunney requested that a copy be sent to him when it was fin- ished. Tunney related that during another of these calls Rosenthal told him that the Union was having an "inter- nal union election problem," a problem with the "Medal- lion Cab Industry" negotiations and a strike, and that he was "sorry it's taking so long; I'll get back to you," with reference to the draft of the collective- bargaining agree- ment. Rosenthal testified that in early January 1984, Bochner contacted Tunney and a meeting was scheduled for 16 January 1984 and held at Bochner's office in Manhattan, New York. 12 Present at this meeting were Bochner and 12 Tunney testified that it was Rosenthal who had scheduled this meet- ing and had asked Tunney to bring his notes, taken at the last negotiating Continued 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rosenthal for the Union, and Tunney on behalf of the Respondent. Neither Kelly nor Forame attended the meeting.' 3 Bochner testified that the purpose of the meeting was "to finalize" all the terms and conditions of employment to be included in the collective-bargaining agreement. His account of what occurred is as follows: We did discuss all of the terms which the Union believed had been agreed to prior to that time, and did discuss the terms that were close to agreement and eventually reached agreement that day. . . . Brian Tunney had made his notes and I made my notes and we went through all the items and then finalized it with a substitute set of notes . . . the notes that I made at the end of the meeting when we finalized everything. . . . Tunney and I agreed that after we had all the items set forth that I would draft a proposed agreement embodying those things for his review. That was the way we left it at that meeting. We didn't sign off on each other's notes or anything like that... . There wasn't any initialling [sic].' 4 Rosenthal testified similarly regarding what had hap- pened at the meeting and added that the meeting closed with handshakes all around, congratulating our- selves for a clean, fair negotiation. Each side felt that they had done the best they could. There was some discussion with regard to which attorney would actually draft the language, but it was clear at the end of the meeting that Mr. Bochner was supposed to draft the language . We left agreeing to contact each other when the language was ready. session on 3 November 1982, since Bochner had not attended that meet- ing and this would perhaps facilitate the negotiations and the preparation of a draft bargaining agreement Although Bochner could not recall if he or Rosenthal had arranged this meeting with Tunney, he did testify that, "for a period prior to January 1984" he had attempted to contact Tunney in order to finalize the agreement but unsuccessfully 13 Although Tunney testified that he had no authority to negotiate a new bargaining agreement without Kelly's presence, Bochner testified that Tunney had told him that he had authority to bind the Respondent in such negotiations and that was also "evident from the prior negotiating sessions, and from the fact that [Tunney] agreed to sit down at the [16 January 1984] meeting and finalize the contract " However, both Bochner and Rosenthal also testified that the issue of Tunney's authority was never raised by them nor did it come up for discussion in any manner during the negotiations or at the 16 January 1984 meeting, al- though at the latter meeting Kelly , for the first time, failed to appear at a negotiation session Moreover, on cross-examination, Bochner stated that Tunney had in effect made representations regarding his authority since "[Tunney] was their spokesman and there were Kelly's present when he said we have agreement on those points and no people who I knew to be Kelly's had contradicted him " Rosenthal also testified that throughout the negotiations it was Tunney who spoke in authority for the Respondent at all times 14 According to the testimony of Bochner and Rosenthal the parties reached agreement on the previously unresolved issues and reviewed those items previously agreed to including shift scheduling , medical ben- efits, vacations, an agency shop clause, no payroll dues deduction, the American Arbitration Association as arbitrator, a 41-percent commission for drivers, a 40-cent noncommissionable amount, and no driver gas or radio use charges, jury duty pay, no driver carwash charges; and the Union withdrew its demands for pension , major medical coverage, and sick leave days Tunney's recollection of the 16 January 1984 meeting was that its primary purpose was to update Bochner re- garding what had been agreed to between the parties so that Bochner could prepare a written draft of the pro- posed collective-bargaining agreement, since he had not attended the last negotiation meeting in November 1982. Tunney stated that they discussed the terms of the pro- posed contract, "such things as the commission rates, the three year agreement, the many other terms that had been spoken about, many of which had in fact been agreed to during the `82 negotiations." Tunney main- tained that this meeting was not a negotiating session be- cause he would not conduct any negotiations without his client, Kelly, being present at the meeting. Tunney added: As we concluded what at best could be described as an attempt at a drafting session, it lasted less than an hour, Mr. Rosenthal, whom I have affection for, in truth . . . said to me, "Brian, when we get the agreement to you, do you think you'll have any problem having Kelly sign it?" And I said, "Mike look, it's been 14 months, please get the agreement to me and we'll see what happens," and I left it at that. 15 Kelly testified that he was unaware of the 16 January 1984 meeting at Bochner's office because Tunney had not advised him about it, nor did Tunney apprise him of what had occurred at the meeting or discuss this with him. Kelly stated that he had attended all the prior nego- tiating sessions through November 1982. He added that although he had never told Tunney that Tunney could not negotiate on the Respondent's behalf without Kelly being present also, they in fact had never discussed this at all. Moreover, Kelly denied that the parties had reached agreement to most or all the items to be includ- 15 Tunney testified that the proposed draft bargaining agreement was expected to contain the items agreed on during the negotiations and those items left on "hold" to which agreement between the parties had not yet been reached The Respondent and the Union would then sit down and discuss the acceptability of the language regarding the terms already agreed to and "further talk" about those provisions about which final agreement had not been reached so that a complete agreement could then be signed He stated In my lexicon, there is no agreement [until there is] full agreement I don't think on the economic side, while we talked about ev- erything, and we were real close there were still many questions about how that would be phrased on the economic side. On the [non]economic side of things, there were many open gaps So was there complete, full, final binding agreement ? No Had the parties had a meeting of the mind on many terms? Yes Moreover, on cross-examination, Tunney was referred to the parties "last negotiating session" and asked if agreement had been reached on specific contract terms We acknowledged that the parties had reached agreement on the amount of driver commissions, welfare and hospitalization benefits for employees, but not for dependents thereof, breakdown pay, call-in pay, jury duty pay, vacation pay, carwash charges, arbitration and griev- ance procedure, union security, and a "sense of an agreement " regarding driver work schedules He continued that no agreement had been reached on the inclusion of a credit union provision , no agreement on dependent coverage under the health and welfare benefits programs, no agreement for the Respondent to provide an electric dryer for the drivers or bullet proof partitions in the motor vehicles used , and no agreement on the con- tracts effective dates although the parties had agreed to a 3-year contract term KELLY'S PRIVATE CAR SERVICE 35 ed in the bargaining contract, and maintained that the last negotiation session between the Respondent and the Union occurred in November 1982. On 5 February 1984, by letter to the Respondent's unit employees, Rosenthal notified the employees that negoti- ations between the Respondent and the Union had been concluded with "many new benefits and improvements contained in the proposed contract." The employees were advised that a draft agreement was being prepared and that a copy would "be given to the workers for their approval."18 Thereafter, by letter dated 8 March 1984 Bochner notified Tunney that he had finished drafting a collective-bargaining agreement embodying "all of the terms agreed to at our meeting of January 16, 1984 at our office," and requested a meeting "to go over the Agreement and have it executed by our clients." Bochner testified that he never received a written re- sponse from Tunney regarding his letter and when he telephoned Tunney's office thereafter he was advised that Tunney was ill. Bochner related that he also sought Rosenthal's assistance in contacting Tunney in an effort to have the parties review and execute the bargaining contract. Rosenthal testified that from March through June 1984, he telephoned Tunney's office between 10-20 times but was unsuccessful in reaching him, Rosenthal leaving messages for Tunney, "saying that we were ready to sit down and put our signatures on the contract and could we set up a meeting date," to which Tunney never re- sponded nor contacted Rosenthal. By letter dated 12 June 1984 Rosenthal advised the Respondent that a draft of a proposed bargaining agreement was completed, and that the Union had been unable to reach Tunney to ar- range a meeting; he requested that the Respondent con- tact the Union within 10 days to do so or the Union would "refer this matter to the National Labor Relations Board." Rosenthal added that on 27 June 1984 he tele- phoned Edward Kelly and was informed by Kelly that Tunney had left Putney, Twombly, Hall and Hirson, Esqs., and that the Respondent intended to obtain new legal counsel-17 After Rosenthal advised Kelly that if this matter was not "resolved very soon" the Union would file a charge with the Board, Kelly hung up on him. On 17 July 1984, the Union filed an unfair labor prac- tice charge against the Respondent with the Board alleg- ing that the Respondent had refused to bargain with the Union as the "certified bargaining representative of the Respondent's employees" by refusing to sign a collec- tive-bargaining agreement with the Union.18 During the investigatory stage of the charge, the Union, by mail- gram dated 14 September 1984, sent to the Respondent, demanded "immediate negotiations to complete the col- lective bargaining agreement." 19 In a letter to Rosenthal dated 25 September 1984, Tunney requested that the Union "forward to me for review, whatever draft you may have prepared in connection with our negotiations." By letter dated 8 October 1984, Rosenthal informed Tunney that Bochner was on vacation at that time and, on his return, the Union would forward the proposed bargaining agreement to him. On 12 October 1984 the Regional Director for Region 29 notified the Union by letter that he had refused to issue a complaint in this matter because an investigation of the charge had shown that the parties agreed in Janu- ary 1984 that the Union would draft and present to the Respondent a written contract for the Respondent's sig- nature, but that the Union had failed to do so at the time of the dismissal of the charge in October 1984.20 Bochner left the law firm representing the Union on 17 January 1985. Although Bochner maintained that he had drafted and completed a proposed collective-bar- gaining agreement based on the negotiations between the Respondent and the Union, he did not recall whether it had been typed or remained in longhand, or whether it had been misplaced, lost, or somehow inadvertently de- stroyed, since it was never located despite a search for the document engaged in both by Bochncr himself and David Stolow, Esq., another attorney at the Menagh law firm, who replaced Bochner regarding representing the Union in this matter. Be that as it may, no copy of Bochner's proposed draft agreement was ever sent to or was received by the Respondent. Stolow testified that after he "inherited" the Kelly Pri- vate Car Service file in mid-January 1985, Bochner told him that although he had prepared a draft bargaining agreement previously, it could not now be located nor had a copy been sent to the Respondent, therefore Bochner and Tunney had never had the opportunity to review the draft. Stolow stated that he then attempted to contact Tunney "about three or four times" in late Janu- ary or early February 1985, but unsuccessfully. Stolow continued that finally in late February 1985, he was able to reach Tunney, and Stolow advised Tunney that Bochner had left the Menagh law firm, that he was now handling the matter between the parties, and that he would attempt to prepare a draft agreement based on Bochner's notes, if this was acceptable with Tunney. Stolow recounted: 16 The Union used the Excelsior list (election eligibility list) prepared in December 1980 in the representation proceeding (Case 29-RC-5223), in which the Union won certification, to establish the names and address- es of the Respondent's employees to whom such notices were sent 17 Tunney testified that he became associated with the law firm of Putney, Twombly, Hall and Hirson, Esqs, in May 1976 until February 1984 He stated that "From February of '84 through May of '85, I was a part-time consultant for the firm " 18 Case 29-CA-11312 The Union notified the Respondent's employees by letter dated 24 July 1984 that it was filing a charge against the Re- spondent with the Board because the Respondent had refused to meet with the Union to sign the collective-bargaining agreement 19 Rosenthal explained that what he meant by "immediate negotiations to complete the collective bargaining agreement," was that the Respond- ent should "sit down and sign a contract " When asked why he had not used the latter language in his mailgram instead of "immediate negotia- tions to complete," Rosenthal replied , "Because I knew what I meant and I assumed Mr Tunney would Maybe I was mistaken " 20 The Union also notified the Respondent's employees by letter dated 17 October 1984 of the Region's dismissal of its charge and promised to "explore further action" to compel "Kelly to live up to the agreement he agreed to " Again, by letter dated 20 December 1984, the Union advised the employees that there were "no new developments in our dispute with your employer " 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mr. Tunney said that he was waiting and that I should put a draft together and send it to him and he'd go over it with his client. I asked Mr. Tunney to be patient in that I was going to have to now piece together an agreement that I was not privy to the negotiation of . .. I'd have to recreate what had happened and get that down on paper and if I left anything out or added something in that Mr. Tunney didn't think was correct, he should just let me know and we would straighten it out and he said that was okay-that's where he and I left it. Stolow related that, thereafter, on 18 March 1985 he met with Rosenthal and, using Bochner's notes of the 16 January 1984 meeting, Rosenthal's recollection of the ne- gotiations based on his notes and remembrances, a copy of the "industry-wide agreement" with Bochner's nota- tions and markings, and a letter from Bochner to Board Agent Kevin Kitchen in the fall of 1984 that set forth what Bochner alleged was the agreement between the Respondent and the Union reached on 16 January 1984, Stolow began to prepare a draft of a collective-bargain- ing agreement.2 i On 17 April 1985 Stolow forwarded a draft of a bargaining agreement to Tunney for review. Stolow stated that after being apprised by Rosenthal a few days later that there were two errors in the draft agreement, he notified Tunney of the proposed correc- tions by letter dated 22 April 1985.22 Also by letter dated 22 April 1985, the Union notified the Respondent's employees that a draft bargaining agreement had been forwarded to the Respondent and that the employees should, "Demand that Kelly sign the contract now." Stolow recounted that failing to hear from Tunney re- garding the draft agreement, he attempted unsuccessfully to contact Tunney, "once or twice" in late April or early May 1985. Stolow wrote to Tunney on 16 May 1985 re- questing a meeting "to finalize the written memorializa- tion of its Collective Bargaining Agreement with Kelly's Private Car Service." By letter dated 21 May 1985 Tunney responded to Stolow's letter advising Stolow that he had reviewed the draft agreement , would shortly meet with the Respondent concerning it, and would con- tact Stolow "shortly thereafter regarding same." Stolow continued that he telephoned Tunney on 3 June 1985 and Tunney advised him that he had discussed the draft agreement with the Respondent and that the draft was basically correct, it was accurate, there were one or two things he thought had to be added to it.... We said I had gotten most of it- that it was pretty good. . . . My response to that was since I in fact was coming into this as I was that that would probably prove to be the case and we discussed actually sitting down so that we could 21 Stolow testified I thought I understood what had been agreed to and that I would then draft using language from the industry-wide agreement to the extent that either it had been agreed to or just as a practical matter where there had been no specific language referred to but some con- cept agreed to make it look like a taxi industry contract and I would get that draft to Mr Tenney and Mr Rosenthal 22 These changes involved jury duty pay and the address of the credit union get into a room with the draft-that would just end the proceedings then and there because if there was something left out Tunney would point it out and we'd have a contract. Stolow suggested that the parties meet including Tunney and "some principal from Kelly's" and Stolow and Rosenthal for the Union and "put the finishing touches on this thing and get a signed contract." Tunney agreed and a meeting was scheduled for 10 June 1985 at the Traveller's Inn for 10 a.m. On the following day, 4 June 1985, Tunney contacted Stolow and the meeting was re- scheduled for 13 June 1985. Stolow continued that when he and Rosenthal arrived at the Traveller's Inn on 13 June 1985 only Edward Kelly appeared for the Respond- ent, and Kelly advised them that Tunney was no longer the Respondent's attorney and that Kelly "couldn't meet with us or sign anything without an attorney." Rosenthal then told Kelly that the Union would wait 2 weeks for Kelly to obtain a new attorney and "then get back to Mr. Kelly to see where we go from here.1123 Tunney testified that on receipt of Stolow's draft bar- gaining contract in "April of '85," he reviewed the docu- ment "page by page, line by line," comparing its provi- sions with "my notes, the master agreement, whatever else," and "marked up (the agreement) in great detail as to any terms that were incorrect or that I didn't like or question marks or whatever else," and that these nota- tions were substantial. Tunney related that some of the contract language did not reflect what had been agreed to on particular issues, and that other provisions included had never been discussed or agreed to at all and had "no place in this document in terms of our agreement." He testified: Some items in here were hold, meaning the par- ties have never concluded negotiations. Some items that are in here, the parties explicitly had agreement to delete and they're back in here. It's a whole spectrum of reasons why many parts of this docu- ment are not in fact the agreement arrived at .. . between the parties in November of '82. . . . We're talking of a document that finally arrives two and a half years later. I frankly wouldn't know what to do with some of the terms that are now in the agreement.24 22 Rosenthal testified similarly 24 Regarding the proposed draft agreement sent to him by the Union in Apnl 1985, Tunney testified that , the recognition and union-security clauses were accurate, while there was agreement on a bulletin board provision, this was not accurately reflected in the proposed contract, the "cooperation" section does not conform to what was agreed to, the com- mission and surcharge provision needs clarification regarding the 25-cent noncommissionable amount to the employer , art. 7, sec 2(B),VI is not ap- plicable to tile Respondent 's operation; the vacation clause was accurate, the jury duty clause was amended by the Union by letter dated 22 April 1985 (Tunney could not recall what the agreement on jury duty pay was), the bereavement clause was accurate, the leave of absence clause was correct except for some minor additions or amendments, the break- down pay amounts in art 12 of the proposed contract were incorrect as to what was agreed to , Tunney could not recall if the call -in pay provi- sion accurately reflects what was agreed to although the parties had agreed "to something", there was agreement on the seniority clause, but Continued KELLY'S PRIVATE CAR SERVICE 37 Tunney related that he sent a copy of the draft agree- ment with his notations thereon to Edward Kelly. By letter dated 21 May 1985 Tunney acknowledged receipt of the draft agreement from Stolow and advised Stolow that he would meet with Kelly and then contact Stolow. Subsequently Tunney met with Kelly to discuss the pro- posed agreement and at this meeting he advised Kelly that he was leaving "Putney, Twombly" and taking a position with the New York City Transit Authority. Tunney stated that he and Kelly "were going to set up another meeting with the union to talk about this draft, but shortly after that, everything fell into place, I was leaving the firm . . . [Kelly] discharged the firm or re- tained other counsel." Thereafter a meeting was ar- ranged between the parties for 13 June 1985 to be held at the Traveller's Inn. Tunney began his employment with the New York City Transit Authority on 17 June 1985.25 Kelly testified that when he received the Union's draft bargaining agreement from Tunney, there were some points that were the same points we had discussed in negotiations but there were some very very critical points that we had discussed and I had taken a negative view on that I did not want in there that were in there and I couldn't be- lieve that they would be in there so it didn't really resemble any kind of document that I was going to sign. 2 6 Kelly denied that agreement had been reached between the Respondent and the Union on work shift schedules, regarding the effective date of the agreement, jury duty pay, and health and welfare benefits for dependents of employees. He stated that the terms of a bargaining agreement negotiated back in 1982 would not all be ac- ceptable in 1984 or 1985 because of "certain changes within my industry and certain economic changes within the country," i.e., a 3-year contract term. He added that the Union's proposed agreement was, "not the agreement that I felt in substance that I had agreed to in `82." Rosenthal testified that on 18 June 1985, in the late morning, he, the Union's president, Goldberg, and Union Business Agent Chyla appeared at the Respondent's place of business and spoke to the Respondent's employ- ees who were "on line waiting for fares at the railroad station." According to Rosenthal, Kelly came out of his Tunney thought that there were some amendments needed in the lan- guage of the draft agreement , art 15, p 23-"Safety and Sanitary Condi- tions"-Tunney acknowledged agreement to sec 1, could not recall if there was agreement to sec 2-7, and denied there was agreement on sec 8 (floor-to-ceiling bullet resistent partitions in cars), there was agreement on radio charges, carwash charges, and gasoline charges although Tunney could not recall "which way it went" on some of these More- over, Tunney stated that the credit union provision in the proposed con- tract was never agreed to, the proposed contract included health and welfare coverage for employee's dependents, which was never agreed to, and a provision to supply an electric dryer for the employees' use, which was never agreed to. 25 Tunney acknowledged that he had never apprised Stolow or the Union of the possibility that he might not be representing the Respondent regarding these negotiations in the near future 28 Kelly testified that he had not compared the draft agreement with the notes he made at the negotiating sessions when he made this assess- ment of the contract office, refused to discuss his efforts regarding a new at- torney or to speak to the union officials at all, and then returned to his office. Rosenthal stated that after they spoke to "five or six drivers" and distributed some union leaflets, the union officials left the premises. Rosenthal related that on 27 June 1985, the same union officials re- turned to the Respondent's business location and again spoke to the drivers present. This time, Forame appeared from out of the office, demanded that they discontinue talking to the employees and leave the premises, threat- ened to run them down with his automobile when they refused to do so because they were on a public street, and called the police. Rosenthal continued that after the police arrived, a compromise was worked out regarding where the union officials could locate themselves regard- ing speaking with the employees. He added that after the union officials broke for lunch and returned, apparently Forame had directed all drivers to leave the area so that the Union could not communicate with them. The Union then filed a charge with the Forame in the instant case alleging unfair labor practices on the Respondent's part. 2 7 Moreover, Kelly testified that of approximately 20 to 27 employees who had voted in the Board's election back in 1981 only 3 employees remained employed in 1986; William Butler, Charles Walters, and Benjamin Carpino.211 Kelly stated that since the election in 1981 and until the Respondent had received a copy of the draft bargaining agreement from the Union, in 1985 there had been an employee turnover rate of "over 500 per- cent." He acknowledged, however, that such a high turnover of employees was "characteristic of the indus- try in general" since most people "don't want to drive a taxi for the rest of their life." Additionally, Kelly testified that "in the course of events after, lets say 1982," a majority of the Respond- ent's employees had indicated that they did not support the Union. He stated: My office is a small office and all employees sometime in the course of the day see me and speak to me and in that long span of time, numerous occa- sions, drivers would come and speak to me about, you know, whatever happened to the union? .. . Because there are so many people that are working for me that have no idea that a union election was held in `81 and what the results of those elections would have brought. They just had no idea that there was-as far as they were concerned, there was no union in my office. . . . I see every employ- ee . . . . And on numerous occasions, someone would bring up a union non-related to 3036 and someone would get on the topic of the three mem- bers-three people still working for me that were 27 By letter dated 1 July 1985 the Union advised the employees of this incident of some of the bargaining agreement terms and of the charge filed with the Board in this case Additional letters were sent to the em- ployees on 18 December 1985 and 26 February 1986 regarding the status of the case 28 Kelly also testified that as of 1984, "four or five" of the employees who had participated in the Board's election in 1981 were still in the Re- spondent's employ 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on the Excelsior list, something-some joke would be brought up about the taxi union or whatever, about them not being there. So I know that when someone would say "What union, what are you talking about?" that they knew nothing of a union being in my office. C. Analysis and Conclusions 1. The 10(b) period Section 10(b) of the Act provides "That no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... Section 10(b) is a statute of limitations and is not jurisdictional in nature. It is an affirmative defense that must be pleaded and, if not timely raised, is waived.29 The Respondent has timely raised such a defense con- tending in its brief: In November, 1982, the parties scheduled a nego- tiating session wherein many of the parties' con- cerns seemed largely resolved. . . . Rosenthal prom- ised to provide a draft agreement to Kelly's. He never did so. . . . In calendar 1983, the parties had no further negotiating sessions whatsoever. The union and its attorneys absolutely failed to forward a draft agreement at any time in 1983. . . . In Janu- ary, 1984, the union apparently asked for a meeting in Stuart Bochner's office to review what had been discussed in November, 1982, some fourteen (14) months earlier. . . . Utilizing either one of the two pivotal dates, the unfair labor practice complaint must be dismissed as time-barred under the six month limitations period congressionally imposed under the Act. . . . Even assuming arguendo that this later point is utilized as a predicate, the union's failure to proffer a writing embodying a collective bargaining agreement until some fifteen (15) months later in April, 1985 further depicts that the union's claims are time-barred under the Act. I do not agree. In Machinists Local 1424 v. NLRB, 362 U.S. 411 (1960), the Supreme Court of the United States held that when occurrences within the 6-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices, earlier events may be uti- lized to shed light on the true character of matters oc- curring within the limitations period.30 The Supreme Court further held at 417 and 422: [W]here conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor 29 Federal Management Co, 264 NLRB 107 (1982), McKesson Drug Co, 257 NLRB 468 fn 1 (1981), Penn Corp , 239 NLRB 45 ( 1978). More- over, the burden of proving such an affirmative defense rests squarely on the Respondent 30 The Supreme Court stated , supra at 416, "[Flor that purpose Sec- tion 10(b) ordinarily does not bar such evidentiary use of anterior events " practice . . . the use of the earlier unfair labor prac- tice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor prac- tice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a com- plaint based upon that earlier event is time-barred, to permit the event itself to be used in effect results in reviving a legally defunct unfair labor prac- tice... . [A] finding of violation which is inescapable grounded on events predating the limitations period is directly at odds with the purposes of the Section 10(b) proviso.31 The Union's charge in this case, filed with the Board on 2 July 1985, alleges that since on or about 17 April 1985, the Respondent has unlawfully "refused to bargain collectively with the certified representative of its em- ployees by": [F]ailing and refusing to bargain in good faith over the terms and conditions of employment of employ- ees; by failing and refusing to bargain in good faith over the language to be included in a written con- tract setting forth agreements previously reached between the parties and by failing and refusing to execute such a written contract. Since the Union's unfair labor practice charge allegations are based on events which occurred subsequent to its forwarding a copy of a draft collective-bargaining agree- ment to the Respondent on 17 April 1985, albeit events arising prior thereto were used "to shed light on the true character of matters occurring within the limitations period,"32 the charge was timely filed-33 When an em- ployer's obligation to bargain arose before the 10(b) period, but the refusal to bargain occurred during the 10(b) period, a complaint is not time barred. Also, both the courts and the Board have held that the 6-month limitations period does not begin to run until the aggrieved party has received actual or constructive notice of the conduct constituting the alleged unfair labor practice.34 Moreover, as the Board stated in Strick Corp., 241 NLRB 210 fn. 1 (1979), "[N]otice, whether actual or constructive, must be clear and unequivocal, and that the burden of showing such notice is on the party raising the affirmative defense of Sec. 10(b)." Given the facts of this case, especially because of the Re- spondent's continued willingness to meet with the Union and to accept and to review a proposed collective-bar- gaining agreement until the events of 13 June 1985 and 31 The Supreme Court noted in Machinists Local 1424 v. NLRB, supra at 419, that the policies underlying Sec 10(b) "are to bar litigation over past events 'after records have been destroyed , witnesses have gone else- where, and recollections of the events in question have become dim and confused,' and of course to stabilize existing bargaining relationships " 32 Machinists Local 1424 v. NLRB, supra, Pulitzer Publishing Co, 242 NLRB 35 (1979) 33 J. Ray McDermott & Co , 227 NLRB 1347 (1977) 34 American Distributing Co v. NLRB, 715 F 2d 446 (9th Cir. 1983), Metromedia, Inc Y NLRB, 586 F 2d 1182 (8th Cir 1978), Pinter Bros, 263 NLRB 723 (1982), Florida Steel Corp, 235 NLRB 1010 (1978) KELLY'S PRIVATE CAR SERVICE 39 thereafter, despite the substantial passage of time since the date of the Union's certification, it would be unrea- sonable to assume, nor has the Respondent shown, that the Union knew or could have known of the Respond- ent's refusal to bargain.35 The allegations in the com- plaint are not barred by Section 10(b) for this additional reason.36 Because of all the above, I find and conclude that the Respondent has failed to sustain its burden of showing that Section 10(b) bars consideration of the charges al- leging unlawful conduct on its part and, therefore, I deny the Respondent's motion to dismiss the complaint as being time barred under the Act. 2. Res judicata The Respondent asserts in its brief that: In the summer of 1984, Local 3036 initially filed a Section 8(a)(5) charge against Kelly's alleging the failure to bargain in good faith by reason of Kelly's failure to execute a collective bargaining agreement with the union. The union's filing of the unfair labor practice charge occurred subsequent to both the November, 1982 negotiation and the January, 1984 meeting with Brian Tunney which had been con- ducted in Stuart Bochner's office. Regional Direc- tor Kaynard investigated the charge and found no reason to believe that the Act had been violated. The Regional Director's finding was sustained on appeal. It is clear then that whether the predicate date is November, 1982 (the final negotiating ses- sion) or January, 1984 (the date of the meeting in Mr Bochner's office) the instant Section 8(a)(5) charge is merely a regurgitation of the 1984 charge and is either time-barred under section 10(b) of the Act or is controlled by the Regional Director's de- termination in 1984 not to issue a complaint. previous charge in Case 29-CA- 11312 filed on 17 July 1984 alleged a refusal to bargain because the Respondent "among other things it has refused to sign a collective bargaining agreement containing provisions previously agreed upon." The Regional Director refused to issue a complaint on this charge because the Union had failed to send a draft of an agreement to the Respondent for its approval and signature, although obligated to do so. The Union's charge in the instant case alleges a refusal to bar- gain by the Respondent, "by failing and refusing to bar- gain in good faith over the language to be included in a written contract setting forth agreements previously reached between the parties and by failing and refusing to execute such a written contract." This later charge was filed with the Board on 2 July 1985 after a copy of a draft agreement had been sent to the Respondent in April 1985, and the refusal to execute the contract oc- curred thereafter, in June 1985. Accordingly, from all the above I find and conclude that the Regional Director's prior dismissal of the charge and refusal to issue a complaint does not mandate dismis- sal of the complaint. 3. The Respondent's refusal to sign an alleged agreed on collective-bargaining agreement As set forth in Fred Tuch Buick, 199 NLRB 876, 880 (1972): Section 8(d) of the Act includes among the ele- ments of good-faith bargaining required of repre- sentatives of parties to negotiations "the execution of a written contract incorporating any agreement reached if requested by any party." In contempla- tion of this statutory mandate the refusal to incorpo- rate into a written agreement the terms of a bargain orally reached has consistently been prescribed by the Board" and the courts. t ° I do not agree.37 Res judicata is defined as a [r]ule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subse- quent action involving the same claim, demand or cause of action.38 It is well settled that the dismissal of a prior charge by a Regional Director, even where the identical conduct is involved, does not constitute an adjudication on the merits, and no res judicata effect can be given to these actions.39 Moreover, it should be noted that the Union's 35 The Respondent has failed to sustain its burden of showing any notice on the part of the Union prior to 13 June 1985 36Ibid fn 33 97 The Respondent's 10(b) defense has been discussed, considered, and rejected 38 Black's Law Dictionary, Sixth Edition (1983), also see 46 Am. Jur 2d 558. 39 Pepsi-Cola Bottlers of Atlanta, 267 NLRB 1100 fn 2 (1983), Walter B Cooke, Inc, 262 NLRB 626, 636 (1982), and cases cited therein 9 Truck Drivers Local Union No 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Relay Transport, Inc), 195 NLRB No 115 [and other cases cited therein] 10 H. J. Heinz Co v NLRB, 311 US 514, 523-526 [1941], Huttig Sash & Door Co., 362 F 2d 217 (C A 4) Further, it is well settled that a collective-bargaining agreement arises only after a meeting of the minds on all material terms of the contract .40 That the parties plan later to sign an agreement does not preclude prior forma- tion of the contract by signifying assent to an unsigned paper; the issue is one of intention.4 t The burden of proof on the issue of whether the requisite "meeting of the minds" occurred is on the General Counsel.42 Additionally, as the Ninth Circuit stated in NLRB v. Donkin's Inn, 532 F.2d 138, 141 (9th Cir. 1976): 40 Steelworkers (Porter Co) v. NLRB, 397 U S 99, 102 ( 1970), Roman Iron Works, 282 NLRB 725 (1987), Koenig Iron Works, 282 NLRB 717 (1987) 41 Genesco, Inc v Joint Council 13, United Shoe Workers of America, 341 F 2d 482 (2d Cir 1965) 42 Teamsters Local 287 (Reed & Graham), 272 NLRB 348 (1984) 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the context of labor disputes, and particularly section 8(aX5) violations, however, the technical question of whether a contract was accepted in the traditional sense is perhaps less vital then it other- wise would be. Rather, a more crucial inquiry is whether the two sides have reached an "agreement" even though that "agreement" might fall short of the technical requirements of an accepted con- tract.4S The parties all agree that the Respondent is obligated to execute the draft of a collective-bargaining contract that correctly reflects the agreed-on terms, if complete agreement in fact had been reached, and that the Re- spondent would have violated the Act by not doing so. The General Counsel and the Union both contend that an agreement was reached. The Respondent argues that full agreement regarding all the terms of a bargaining contract was never reached. The record evidence clearly shows that the Respondent and the Union reached agree- ment on a substantial number of bargaining contract terms, apparently extensive enough so that the parties be- lieved that a written draft of a collective- bargaining agreement could be prepared by the Union. In April 1985 the Union sent a draft bargaining agreement to the Respondent for review and consideration. In support of its contention that the parties never reached full agree- ment, the Respondent argues that the "many inaccura- cies" contained in the agreement demonstrate that "no meeting of the minds on all substantive issues" ever oc- curred. Generally, inadvertent errors contained in a written contract do not indicate lack of agreement between the parties and the need for minor alterations and language changes in the agreement does not relieve the parties of the obligation to execute the contract agreed to, particu- larly when the other party indicates a willingness to make such alterations.44 That errors existed in the Union's draft bargaining agreement is conceded by the Union, i.e., the Union's brief states: While errors did exist the Union's representative had at all times expressed a willingness to sit down and correct these errors. In fact, the Union's attor- ney conceded that errors were likely given his lack of familiarity with the bargaining history. In reviewing and considering the behavior of the par- ties during the negotiations, the record evidence, the Union's draft collective-bargaining agreement, and the arguments of the parties, I do not believe that the Gener- al Counsel has sustained her burden of proof in showing that the parties reached full agreement on a bargaining contract. Applicable to the circumstances present in the instant case is the Board's holding in Luther Manor Nurs- ing Home, 270 NLRB 949 fn. 1 (1984), affd. sub nom. Food & Commercial Workers Local 304A v. NLRB, 772 F.2d 421 (8th Cir. 1985): 49 Shawn's Launch Service, 261 NLRB 836 (1982), Penasquitos Gardens, Inc., 236 NLRB 994 (1978), enfd 603 F.2d 225 (9th Cir 1972), Ellis Tacke Co, 229 NLRB 1296 (1977). 44 Fashion Furniture Mfg., 279 NLRB 705 (1986), Ace Machine Co, 249 NLRB 623 (1980); Trojan Steel Corp., 222 NLRB 478 (1976). As we indicated in Georgia Kraft Co., 258 NLRB 908 (1981), 696 F.2d 931 (11th Cir. 1983), the duty to bargain includes the obligation to assist in reduc- ing an oral agreement to writing. That obligation, however, arises only after a meeting of the minds on all substantive issues has occurred. Here, the parties' disagreement transcended a dispute as to contract language, and involved a disagreement over the substance of certain contract terms. Thus, the requisite meeting of the minds as to all substan- tive matters did not occur.45 In the instant case the Respondent asserts that [T]here were dozens of terms and provisions in this agreement that were never agreed to by the parties. There were terms in the 1985 draft that were neither discussed at all or ever agreed to... . The proposed Taxi and Limousine Commission lan- guage did not apply to Kelly's operations and had not been discussed. Although some of these assertions are not substantiat- ed by the evidence here,46 others are. The Respondent more particularly alleges that the Union's draft agree- ment provided for health plan coverage for employee's eligible dependents, a credit union, and safety floor-to- ceiling bullet resistant partitions in the Respondent's ve- hicles, all of which the Respondent never agreed to. This assertion has merit. In this regard, the Respondent's witnesses, Brian Tunney and Edward Kelly, testified that these contract provisions had either been discussed by the parties and placed on "hold" for final resolution during the parties review of the draft agreement, or had never been dis- cussed and agreed to by the parties at all during the ne- gotiations. The General Counsel's witnesses, Michael Rosenthal and Stuart Bochner, testified that all the items in the draft agreement had been resolved by either the Union's acceptance of the Respondent's proposals there or by "trade-offs" between the various proposals. as Also see Soar v. NFL Player's Assn, 550 F.2d 1287 (1st Cir 1977). 48 For example, the Respondent alleged that agreement between the parties had never been reached on driver's work schedules, radio charges, and jury duty pay Tunney, the Respondent's own witness, how- ever, acknowledged such agreement although he also indicated that "there was some language to be worked out," and that the draft agree- ment did not always reflect accurately what the agreement on that item was The Respondent also alleged that The April, 1985 draft unilaterally proposed a three (3) year term commencing on June 1 , 1985 and terminating on May 31 , 1988. The agreement's effective dates were never discussed in 1982 nor would Kelly's have agreed to a three (3) year agreement in April 1985 The parties had agreed on a 3-year term for the bargaining agreement and had left the start and end dates open. Neither the Union nor the Re- spondent had insisted on these dates as being important or crucial to the negotiations. It appears that Stolow's inclusion of those particular dates were merely for the reason that they coincided with a tune period within which the draft agreement was completed and mailed to the Respondent and within which the Union believed the agreement could be reviewed, discussed, and executed. Moreover, the fact that the substitution of the dates anticipated by the Respondent (November 1982 or January 1984) would have meant that most of the contract 's term had elapsed, it still would not have alleviated the parties' obligations to sign the agreement if such obligation existed Operating Engineers, Local 30 & 30A (Hyatt Man- agement), 280 NLRB 205 (1986) KELLY'S PRIVATE CAR SERVICE In resolving this issue, first I have carefully considered the record evidence and, basing my findings on my ob- servations of the witnesses, the weight of the respective evidence, established and admitted facts, inherent prob- abilities, and reasonable inferences that may be drawn from the record as a whole, I credit Tunney's testimo- ny.47 Tunney testified in a forthright manner48 and, most importantly, his testimony was consistent with other evidence in the record and therefore believable. Moreover, at the time he testified as a witness in this proceeding, Tunney was no longer employed by the law firm that had represented the Respondent during its ne- gotiations with the Union, having left that law firm over a year before, and he would, therefore, have no biased interest in the outcome of this case.49 This is not to say that I disbelieved all the testimony given by Rosenthal and Bochner in this proceeding. In truth, I believed much of what they said except, as in this instance, when it conflicted with the testimony given by Tunney.BO Although I was not unimpressed by their general de- meanor as witnesses, yet I found Rosenthal's testimony at times to be guarded, defensive, and evasive on cross- examination and on occasion not entirely plausible, i.e., Rosenthal's testimony regarding the circumstances sur- rounding Bochncr's alleged preparation of a draft bar- gaining agreement back in 1984 and Rosenthal's seeming indifference to his own lack of awareness thereof, and whether Bochner actually did send a copy of a draft agreement to the Respondent and the reason for his fail- ure to do so. Bochner's testimony regarding his inability to explain what happened to the draft agreement he al- legedly prepared and why another draft agreement was not completed and sent to the Respondent did not ring true; nor was his testimony believable that after prepar- ing the draft agreement he then decided not to send a copy to the Respondent because it was the usual proce- dure in contract negotiations for the Respondent's attor- ney to prepare the draft, especially in light of the fact that the Union had twice agreed to prepare the draft agreement, once by Rosenthal in November 1982 and thereafter by Bochner himself, in January 1984, and he never conveyed his change of mind to Tunney so that Tunney might draft an agreement on the Respondent's behalf, or apparently to Rosenthal, his own client.61 47 Gold Standard Enterprises, 234 NLRB 618 (1978), V & W Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976). 4s Although on occasion Tunney could not recall whether a particular provision of the draft bargaining agreement language-wise reflected accu- rately what the parties had agreed to, to whether full agreement had been reached on a particular provision, it was obvious that his inability to remember the details was due solely to the long passage of time since the events occurred, rather than a deliberate attempt to hide information for an ulterior purpose or in favor of a party Additionally, at times his an- swers seemed to reflect a refreshing candor, because they could be con- strued as being helpful or harmful, alternately, to either side in this pro- ceeding. 49 It should also be remembered that Tunney had not volunteered his testimony; he was a subpoenaed witness, albeit for the Respondent. s° As Judge Learned Hand stated in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, noth- ing is more common in all kinds of judicial decisions than to believe some and not all " a' I am not unaware that prior to his testifying in this matter , Bochner also had left the law firm that represented the Union during the negotia- 41 Second, other evidence in the record supports the Re- spondent's assertion that there was "no meeting of the minds on all substantive issues" of a collective-bargaining agreement. The documents in evidence that Stolow used to prepare the Union's draft agreement sent to the Re- spondent in April 1985 are significant in this regard. The Union's "marked copy" of the collective-bargaining agreement between it and the Metropolitan Taxicab Board of Trade, Inc. (master contract), used as a guide- line by the parties during the negotiations and reviewed at the 16 January 1984 meeting, shows that the provi- sions there entitled "Health and Welfare," "Credit Union," and "Safety and Sanitary Conditions," where section 12 provides for a "floor-to-ceiling bullet resistant partition" in vehicles, were all designated as "hold" items, and this designation was never changed. More- over, Bochner's notes of the 16 January 1984 meeting, in which it is alleged that the parties reached full agree- ment on all the terms of a bargaining contract, is silent regarding any agreement reached on the credit union or safety partitions in the Respondent's vehicles, and while indicating that "Full Hospitalization" was agreed to does not show whether this provision includes employee's de- pendents in the coverage. 52 Bochner's notes do reflect agreement on other substantial contract items such as driver commission rates; the noncommissionable charge; no radio or carwash charges; breakdown, call-in, and jury duty pay; vacations; arbitration; a 3-year contract term; union security; and driver shift schedules. Additionally, when Rosenthal and Bochner were asked both on direct and cross-examination to set forth the var- ious items that had been agreed to by the parties during the negotiations, they never once mentioned dependent coverage under the hospitalization and medical plan, al- though they referred to the health benefit provision and the safety partition provision, and only Rosenthal men- tioned agreement on the credit union. Even after Tunney had testified that no agreement had been reached be- tween the parties on these particular provisions, the Gen- eral Counsel and the Union continued to rely on the gen- eral testimony of Rosenthal and Bochner that all terms of the draft agreement had been resolved. Also, admit- tedly, the draft agreement contained errors both in lan- guage and content. In fact, the Union on its own, amend- ed the draft agreement by letter dated 22 April 1985. As the Board held in Automatic Plastic Molding Co., 234 NLRB 681 (1978): We agree with the Administrative Law Judge that the contract submitted by Martin to Bonnheim tions and currently in this proceeding, and in which he was a partner, as regards his disinterest as a witness. For the reasons stated above , howev- er, I still credit Tunney's testimony over his. Moreover, concerning Edward Kelly, I found his testimony to be less reliable on the whole than the other witnesses who testified. For example, he testified, in substance, that there was very little agreed to between the parties during the negoti- ations. This is contrary to the weight of the credible evidence in the record and conflicts with the testimony of the Respondent's other wit- ness, Tunney 5 2 Bochner testified that his notes, made at the end of the 16 January 1984 meeting, reflected the finalization of the agreement after the parties had gone over all the provisions of the master contract including the hold items 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for signature contained discrepancies. Thus, as set out by the Administrative Law Judge, Martin had added to Respondent's seniority proposal language which seriously altered its meaning. In addition there was a minor discrepancy in the sick leave lan- guage and a possible discrepancy in the shift start- ing time provision. The contract submitted by Martin contained a health and welfare proposal which reads in its entirety, "The Company shall provide each eligible employee coverage for health and welfare at a cost of $30.00 per month to the Employer." Respondent however had not proposed to provide such coverage but one to check with its insurance carrier to see what coverage could be provided at that cost. We agree with the Administrative Law Judge that because of these discrepancies Respondent was not obligated to execute the document submitted by Martin. The issue here, however, is not whether the document submitted by Martin contained discrepan- cies but whether, in fact, an oral understanding was reached. . . . we find that no such agreement was reached. . . . Although which employees would be eligible under the Respondent's proposal could be inferred from the Union's proposal, other aspects could not be so inferred because of the differences in costs. Accordingly, we find that no understand- ing had been reached on health and welfare bene- fits. Health and Welfare benefits constituted a sub- stantial and significant part of the proposed con- tract. . . . As there was no agreement with respect to a substantial provision of the proposed contract, we find that there was no orally agreed-upon col- lective-bargaining contract. Because of all the above and applying the above law to the facts in this case, I find and conclude that there was no orally agreed-on collective-bargaining contract because the requisite meeting of the minds regarding all substantive matters did not occur.53 Accordingly, the 53 Roman Iron Works, supra, Koenig Iron Works, supra, Teamsters Local (Reed Graham), supra, Luther Manor Nursing Home, supra, Automatic Plastic Molding Co, supra, Soar v. NFL Football League Player's Assn , supra Moreover, I do not find the cases cited by the General Counsel and the Union to be persuasive in this matter For example, in Fashion Furniture Mfg supra, the Board held that an employer's refusal to exe- cute a written agreement submitted by a union, which admittedly con- tained inadvertent errors, was unlawful when the refusal to sign the agreement did not hinge either on the inadvertent errors in the written agreement or a purported condition precedent, but rather on the Union's denial of an additional and belated demand for concessions in the agree- ment by the Respondent, especially because of the Union's willingness to correct such inadvertent errors in the agreement In Ace Machine Co, supra, the Board affirmed an administrative law judge's finding that two inadvertent errors in a proposed bargaining agreement submitted to an employer does not excuse a complete refusal to execute the agreement previously reached when the errors could be easily corrected and were admittedly not fatal to the entire agreement, nor did the employer assert that these errors were the cause of the rejection of the agreement In Georgia Kraft, supra, the Board found that the parties had made spe- cific proposals on all the outstanding contractual issues and that these proposals were still viable and available for acceptance when the union agreed to accept the employee's proposals The Board also rejected the employer's argument that resolution of the contractual issues was also made contingent on the resolution of strike-related issues Respondent was not obligated to execute a collective- bargaining agreement, and when it refused to sign the Union's draft agreement, the Respondent did not violate Section 8(a)(5) and (1) of the Act. Therefore, I will rec- ommend the dismissal of that part of the complaint appli- cable there. 4. The withdrawal of recognition The Board's principles concerning an employer's burden of rebutting an incumbent union's presumption of majority status are well settled. A certified union, on ex- piration of the first year following certification, enjoys a rebuttable presumption that its majority representative status continues. An employer may rebut the presump- tion by demonstrating either that the union in fact no longer enjoyed majority status, or that its refusal to bar- gain is predicated on a good-faith and reasonably grounded doubt of the Union's majority status.54 Fur- ther, in order to sustain the second of these defenses, the employer must show that its asserted doubt is based on objective considerations and that it was not advanced for the purpose of gaining time in which to undermine the union.55 Any doubt as to the continuing majority status must rest on a reasonable basis and may not depend on unfounded speculation or a subjective state of mind.56 The Board's decisions, however, do not require an em- ployer to meet a stringent "clear, cogent, and convinc- ing" standard57 in order to rebut the presumption of a union's majority status.58 Moreover, as the Board in Sofco, Inc., 268 NLRB 159 (1983), citing Celanese Corp., 95 NLRB 664 (1951), stated: By its very nature, the issue of whether an em- ployer has questioned a union's majority in good faith cannot be resolved by resort to any simple for- mula. It can only be answered in the light of the to- tality of all the circumstances involved in a particu- lar case. Thus, even when a particular factor considered alone would be insufficient to support a good faith doubt of a union's majority status, the "cumlative force of the combination of factors" may be ade- quate to support such a doubts In this regard, we note that a respondent does not bear the burden of proving that an actual numerical majority opposes In Charles Sportswear Mfg. Co, 231 NLRB 797 (1977), the Board found that complete agreement on the terms of a bargaining contract had been reached by the parties, and that the employer had engaged in a protected period of bad-faith bargaining during the negotiations. It is clear that these cases are all distinguishable in light of the differ- ence in the circumstances present in the instant case 54 American Mirror Co, 277 NLRB 1626 (1986), Terrell Machine Co, 173 NLRB 1480 (1969), enfd 427 F 2d 1088 (4th Cir 1970) ss Ries Vending Service, 272 NLRB 1336 fn 1 ( 1984), Bennington Iron Works, 267 NLRB 1285 (1983), Guerdon Industries, 218 NLRB 658 (1975), Terrell Machine Co , supra 55 Ries Vending Service, supra, NLRB v Gulfmont Hotel Co, 362 F 2d 588 (5th Cir 1966) 5' NLRB v. Pennco, Inc, 684 F 2d 340 (6th Cir 1982), enfg 242 NLRB 467 (1979), cert denied 459 U S 944 (1982), supp dec 250 NLRB 716 (1980), NLRB v Tahoe Nugget, 584 F 2d 293 (9th Cir 1978), cert denied 442 U S 921 (1979) 58 Ries Vending Services, supra KELLY'S PRIVATE CAR SERVICE 43 the union.7 However, it must demonstrate that it had objective reasons for doubting the union's ma- jority status.8 6 Golden State Habilitation Convalescent Center v. NLRB, 566 F.2d 77, 80 (9th Cir. 1977), denying enf. of 224 NLRB 1618 (1976), see also National Cash Register Co v NLRB, 494 F.2d 109 (8th Cir. 1974) 7 Laystrom Mfg. Co, 151 NLRB 1482 (1965), enf. denied on other grounds 359 F.2d 799 (7th Cir. 1966); see also NLRB v. Randle-Eastern Ambulance Service, 584 F 2d 720 (5th Cir. 1978). 9 Laystrom Mfg. Co., supra 09 Additionally, the Respondent must raise such doubt in a context free of unfair labor practices.60 The Respondent contends that its refusal to continue to recognize the Union as the bargaining representative of its employees in an appropriate unit was not in viola- tion of the Act because the Union in fact did not repre- sent a majority of the Respondent's employees at the time it withdrew recognition and/or that the Respondent had a good-faith doubt as to the Union's majority status based on objective considerations. Both the General Counsel and the Union contend that the Respondent's withdrawal of recognition of the Union was unlawful and violated Section 8(a)(5) and (1) of the Act. The Respondent asserts that substantial employee turn- over, a lack of awareness by employees of the Board election, or that the Union represented them for purposes of collective bargaining, the Union's failure to forward a draft of a proposed agreement from November 1982 until April 1985 2-1/2 years later, and the Union's "total inac- tivity and abandonment" of the employees, constitute "unusual circumstances" that relieved the Respondent of "any further obligation to bargain with Local 3036 in 1984, 1985, or 1986," and provides "evidence of a suffi- cient objective basis for reasonably doubting the majority status of Local 3036 years after the certification year had long since expired." I do not agree. The Respondent states in its brief- [B]y 1984-1986 Kelly's had experienced several distinctive layers of employee turnover. . . . [S]ince the January, 1981 election in which Local 3036 had prevailed by a 15-14 vote, Kelly's experienced a 500% rate of employee turnover with only three (3) eligible voters still in its employ in [1985]. That the Respondent experienced a 500 percent rate of turnover during the period 1981-1985, and that its work force at the time of the Respondent's withdrawal of rec- ognition from the Union was completely different except for three employees, is not contested in the record. How- ever, while both the Board and the courts have found employee turnover to be a factor in determining the ex- istence of objective considerations sufficient to justify a withdrawal of recognition, the Board has ruled, with 59 Generally, several indicia of loss of majority support are required, and no one factor (e g , high employer turnover or union dormancy) is determinative Soule Glass & Glazing Co. v. NLRB, 652 F 2d 1055 (1st Cir 1981) 80 Guerdon Industries, supra, Nu-Southern Dyeing & Finishing, 179 NLRB 573 fn 1 ( 1969), enfd. in part 444 F 2d 11 (4th Cir 1971) court approval, that turnover among employees cannot, by itself, be used as a basis for belief that a union has lost majority support since it is presumed that, absent evi- dence that would justify a contrary conclusion, new em- ployees will support the union in the same ratio as those whom they have replaced.61 Moreover, this is particu- larly true when high turnover is prevalent in the industry involved. 62 The next "privotal" factor listed in the Respondent's brief is The Kelly's employees have neither indicated to management they are aware of a 1981 Board elec- tion or that Local 3036 represents them. They indi- cated instead, just the reverse. The Respondent maintains that this indicates a lack of support of the Union by its employees and evidences the Union's "total inactivity and abandonment, by 1984, vir- tually of the Kelly's drivers." In this regard, testimony was adduced from the Respondent's owner and manager Edward Kelly to the effect that he believes a majority of the Respondent's employees no longer support the Union because on "numerous occasions ," drivers asked him, "[W]hatever happened to the Union?" Kelly stated that there were "so many" employees who were unaware that the Union had won a Board election in 1981 that "as far as they were concerned, there was no union in my office." Kelly also testified that on "numerous occasions" employees would "bring up a union non-related to 3036," and that employees "joked" about the Union "not being there." Kelly added that when this occurred, other employees would ask, "What Union are you talking about?", and he therefore knew that these employees "knew nothing of a union being in my office." While it is true that the Board has held that expres- sions of antiunion sentiment can constitute sufficient ob- jective evidence to support a good-faith and reasonably grounded doubt of a union's continued majority status,63 the Board has also held that such statements must convey a clear intention by the employees not to be rep- resented by the Union .64 Clearly, the above statements would not constitute expressions of employee rejection of the Union as their bargaining agent . Additionally, Kelly's testimony about the various employee statements made directly to, or overheard by, him was in large measure speculative, conjectural, and vague, and lacking 81 Lockheed Engineering Co, 271 NLRB 119 fn 2 (1984), Sahara-Tahoe Hotel, 241 NLRB 106 (1979), Club Cal-Neva, 231 NLRB 22 (1977) (the turnover of employees each year during the term of a last agreement had been approximately 500 percent), Whisper Soft Mills, Inc v NLRB 754 F 2d 1381 (9th Cir 1984), Soule Glass & Glazing Co. v NLRB, supra, NLRB v. King Radio Corp, 510 F 2d 1154 ( 10th Cir 1975), cert denied 423 U S 839 (1975) (where the number of employees had risen to 876 from 343, and in a 5-year period since certification, 4214 persons had been hired and 3433 terminated The court held the turnover did not afford reasonable grounds for doubting the union 's majority) 52 Kelly testified that light turnover of employees is "characteristic of the [private car transportation ] industry in general " See NLRB v. A. W Thompson, Inc, 525 F 2d 872 (5th Cir 1976), NLRB v Hondo Drilling Co, 525 F 2d 864 (5th Cir. 1976), cert denied 429 U S 818 (1976) 63 Sofco, inc , supra, NLRB v Middleboro Fire Apparatus, 590 F 2d 4 (1st Cir 1978) 64 Gregory's, Inc, 242 NLRB 644 (1979) 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in specificity regarding the identity of these employees and as to the details and dates of the conversations or occurrences.65 Moreover, much of Kelly's testimony in this connection constituted self-serving, general asser- tions by an employer that in its opinion the employees did not support the Union.66 Importantly, the Respond- ent presented no evidence showing that any employee ever expressed a desire not to be represented by the Union.67 Therefore, the Respondent has presented no adequate evidence to establish that a majority of its em- ployees rejected the Union as their bargaining represent- ative at any time relevant. The Respondent also lists as a factor in its brief: The union abandoned the drivers and totally failed to properly pursue the interests of the drivers by failing to forward to Kelly' s a draft agreement for two and one half (2-1/2) years from November, 1982 until April, 1985. Closely aligned with the preceding point is the notion that under Board law, Local 3036 abandoned any representative interest that it may have had during its certification year in later years by reason of its lathes, its failure to represent the drivers and the 500% employee turnover experienced at Kelly's. The Respondent has sought to characterize the passage of time in this case as a waiver by the Union of its right to bargain, thereby allowing the Respondent to lawfully withdraw its recognition of the Union. Such a waiver, however, may only be proven by a clear and unequivo- cal evidencing of such intent by a labor organization.68 Additionally, although the Board has recognized this cri- terion as one that may help to establish a good-faith doubt of the majority status of a labor organization,69 the mere passage of time, by itself, does not constitute such proof of waiver, nor is it considered to be sufficient evidence of a dissipation of majority status.70 The Act does not impose any time limit on good-faith bargain- ing.7 i In the instant case the record evidence shows that after the Union's certification as the bargaining repre- sentative of the Respondent's employees in an appropri- 85 Robertshaw Controls Co, 263 NLRB 958 (1982), Gregory's Inc, supra, NLRB v. Tahoe Nugget, Inc, supra 86 NLRB v Tahoe Nugget, Inc, supra, Industrial Workers Local 289 v NLRB, 476 F 2d 868 (D C Cir 1973), NLRB Y Little Rock Downtowner, 414 F 2d 1084 (8th Cir 1969) 67 Gregory's, Inc., supra. 88 Soule Glass & Glazing Co. v NLRB , supra, Conkle Funeral Home, 266 NLRB 295, 297-298 (1983) 69 Club Cal-Neva, supra, NLRB v. Tahoe Nugget Inc, supra 70 As stated in Long Island College Hospital, 228 NLRB 83, 86 (1977) Certification is not a license which, upon the mere passage of time, expires as if it were a license to operate a motor vehicle Rather, cer- tification is a key which opens a collective-bargaining relationship That relationship remains viable until some material circumstance arises to place the continued existence of that relationship in ques- tion The passage of time, alone, is, as noted, not such a material cir- cumstance See, for example, Ray Brooks v NL.R B, 348 U S 96, 98 (1954), King Radio Corporation, 208 NLRB 578 (1974), enfd 510 F 2d 1154 (C.A 10, 1975), Laystrom Manufacturing Co, 151 NLRB 1482, 1483 (1965) 71 Lockheed Engineering Co, supra ate unit on 5 February 1982, the Respondent and the Union held six or seven negotiating sessions from 26 April 1982, through 3 November 1982. At the close of the last meeting, the Respondent requested and the Union agreed to prepare a proposed draft collective-bar- gaining agreement to be sent to the Respondent for review. However, due to the Union' s concentrating all its efforts into the renegotiation of its expiring master contract with the Metropolitan Taxicab Board of Trade affecting the Union's entire membership except for the Respondent's employees, and solving its internal union election problems, no further negotiation meetings were held between the parties at the end of 1982 or during the entire year of 1983 nor was a draft of a proposed bar- gaining agreement forwarded to the Respondent during this period. Rosenthal testified that notwithstanding the Union's preoccupation with the master contract negotiations and internal union election problems, he attempted to contact the Respondent's attorney, Tunney, by telephone be- tween 5 and 10 times January through March 1983, but was unable to do so because Tunney was never available and did not return Rosenthal's calls. Bochner testified that he tried calling Tunney "for a period prior to Janu- ary 1984" in order to arrange a meeting to finalize the bargaining agreement but was also unsuccessful in doing so. Tunney, on the other hand, testified that after the last negotiation meeting in November 1982, several months passed before the Union contacted him, and then Rosen- thal called him two or three times in late 1983 to explain the Union's delay in preparing and forwarding a draft bargaining agreement to the Respondent. Tunney's re- sponse each time was to request a copy of the proposed bargaining agreement and Rosenthal promised to "get back to him." Be that as it may,72 either Bochner or Rosenthal did finally reach Tunney in early January 1984, and Tunney agreed to meet with them regarding the status of the negotiations. The parties met to discuss negotiations on 16 January 1984. On 5 February 1984, Rosenthal, using the 1981 "Excelsior list" established for the Board's election in that year, notified the Respondent's employees on that list and still working for the Respondent, regarding the progress of the negotiations. By letter dated 8 March 1984 Bochner notified Tunney that the draft agreement was completed and requested a meeting between the par- ties to review the provisions and to have it signed. Tunney never sent a reply to Bochner's letter, and when Bochner attempted to contact Tunney by telephone, he was advised that Tunney was ill. Rosenthal now testified that from March through June 1984, he unsuccessfully attempted to reach Tunney by telephoning his office be- tween 10 and 20 times, and Tunney never returned his 72 I credit the testimony of Rosenthal and Bochner regarding their un- successful attempts to reach Tunney in 1983 The record indicates that Tunney was, in fact, difficult to reach at the Putney, Twombly law firm, perhaps because of his changing relationship with his employer. Rosen- thal, Bochner, and Stolow all testified regarding their difficulty in reach- ing Tunney, and Tunney's failure to return their calls, and for that matter so did the Respondent's witness Kelly, and Tunney's testimony did not, in substance, contradict or deny this, nor did Tunney offer any explana- tion in regard thereto KELLY'S PRIVATE CAR SERVICE calls although Rosenthal left messages for him to do so. By letter dated 12 June 1984 Rosenthal notified the Re- spondent that the draft bargaining agreement was ready and that, since the Union was experiencing severe diffi- culties in reaching Tunney, if the Respondent failed to contact the Union within 10 days to arrange a meeting to review the agreement, the Union would "refer the matter to the National Labor Relations Board." Not hearing from the Respondent, Rosenthal called Kelly on 27 June and was advised that Tunney had left "Putney Twombly" and the Respondent was seeking new legal counsel, whereupon Rosenthal told Kelly that if the ne- gotiations were not "resolved very soon" the Union would file a charge with the Board. On 17 July 1984 the Union filed an unfair labor prac- tice charge against the Respondent with the Board that was subsequently dismissed by the Regional Director for Region 29 on 12 October 1984, as detailed. The Union, using the same listing as used for its prior communication to the Respondent's employees, notified these employees by letter dated 24 July 1984 about the charge being filed and the reason therefor. During the investigation of the pending charge, the Union sent a mailgram to the Re- spondent dated 14 September 1984 demanding "immedi- ate negotiations to complete the collective bargaining agreement." In response by letter dated 25 September 1984, Tunney requested that the Union send a copy of the proposed draft agreement to him for review. By letter dated 8 October 1984 Rosenthal informed Tunney that Bochner was on vacation and on his return would forward the proposed agreement to him. On Bochner's return, however, the proposed draft agreement that he professed he had completed could not be found in any form and, therefore, nothing was forwarded to the Re- spondent. On 17 October 1984 the Union notified the same employees it had contacted before about the Re- gion's dismissal of the charge and promised to "explore further action" to compel the Respondent to "live up to the agreement." Again on 20 December 1984 the Union advised these employees that there were "no new devel- opments" in the matter. After Bochner left the law firm representing the Union on 17 January 1985, the drafting of the proposed bar- gaining agreement was assigned to another attorney, David Stolow. Stolow related that he attempted to con- tact Tunney "three or four times" in late January or early February 1985, but was unsuccessful in doing so. Stolow testified uncontradictedly that he was finally able to reach Tunney by telephone in late February 1985, and he advised Tunney that he would prepare the proposed draft bargaining agreement based on Bochner's notes, if that was acceptable with Tunney, and Tunney replied that Stolow should send the proposed agreement to him, when completed, for review with his client. On 17 April 1985 Stolow forwarded a copy of the completed pro- posed draft bargaining agreement to Tunney. Corrections to the agreement were sent by Stolow to Tunney on 22 April 1985. Failing to hear from Tunney regarding the proposed agreement and being unsuccessful again in con- tacting Tunney by telephone in late April or early May 1985, Stolow wrote to Tunney on 16 May 1985 request- ing a meeting between the parties "to finalize" the col- 45 lective-bargaining agreement. By letter dated 21 May 1985 Tunney advised Stolow that he had reviewed the agreement and would meet with the Respondent and then contact Stolow "shortly thereafter." On 3 June 1985 Stolow telephoned Tunney and a meeting between the parties was arranged for 10 June 1985. This was rescheduled the next day by Tunney for 13 June 1985. As described in detail above, the parties met only briefly on 13 June 1985 because the Respond- ent had discharged "Putney Twombly" as its legal coun- sel as Tunney had now severed all connection with that law firm, and because Kelly himself had experienced dif- ficulty contacting Tunney directly through that firm. On 18 and 27 June 1985, when union officials appeared at the Respondent's place of business to speak to the Re- spondent's employees, they were rebuffed by the Re- spondent's management representatives as set forth above, evidencing a clear intention by the Respondent not to deal with the Union as its employees' bargaining representative. In applying Board and court law to the facts present in this case, I cannot find nor conclude that the Union "abandoned any representative interest" in the unit em- ployees. Although the Union must accept responsibility for the lack of negotiations during 1983 since it failed to prepare and send a draft bargaining agreement to the Re- spondent, as agreed on in November 1982, its attempts to contact the Respondent's attorney during this period, while unsuccessful and seemingly tentative, perhaps due to the master contract negotiations and internal union problems, was still some evidence of the Union's interest in negotiating a collective-bargaining agreement as the representative of the Respondent's employees, and the Respondent must be perceived as having recognized this continued interest since it agreed to meet with the Union's representatives on 16 January 1984, without then raising any issue regarding the Union's majority status. Moreover, the Union's subsequent actions dispel any notion that the Union abandoned its position as the ex- clusive collective-bargaining representative of the Re- spondent's employees. Frustrated by being unable to reach the Respondent's attorney and to arrange a meet- ing between the parties, the Union filed an unfair labor practice charge with the Board in July 1984. In Septem- ber 1984, the Respondent requested a copy of the pro- posed draft collective-bargaining agreement. The Re- spondent continued to request the draft agreement through March 1985 and did, in fact, review the agree- ment in April or May 1985. Moreover, the Respondent, notwithstanding the long delay in receiving the proposed draft bargaining agreement, agreed to meet with the Union in June 1985, and at no previous time expressed any doubts about the Union's continued majority status. Additionally, the evidence does indicate that the Union also made attempts to maintain contact with the bargain- ing unit employees, although some question can be raised about the effectiveness of the steps it took to accomplish this. In sum, the record evidence indicates that the Union maintained contact with the Respondent, or attempted to do so, and communicated with some bargaining unit em- 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees with varying degrees of success. And although the Respondent may argue that the Union abandoned the employees because it failed to forward a draft of the pro- posed collective-bargaining agreement until April 1985, this argument becomes untenable when reviewed in light of the circumstances, the willingness of the Respondent to meet with the Union, its continuing requests for the proposed bargaining agreement, and its finally reviewing the agreement and acquiescing to meet with the Union for discussions in June 1985. Moreover, the Respondent's actions cannot reasonably be construed as those of an employer who has a good-faith doubt that a union con- tinues to represent a majority of its employees. From all the above I find that the Respondent cannot rely on the Union's inactivity to support a reasonably based doubt of continued majority support nor do I find that the facts support the conclusion that the Union abandoned its representative interest in the unit employ- ees.7 3 73 Lockheed Engineering Co., supra (the union's certification was over 7-1/2 years old, no collective-bargaining agreement had been signed, and there had been no bargaining between the parties for over a year), Club Cal-Neva, supra; Pioneer Inn, 228 NLRB 1263 (1977), Long Island College Hospital, supra; NLRB v. Tahoe Nugget, Inc, supra Additionally the cases cited by the Respondent in support of its above contentions are clearly distinguishable In Whisper Soft Mills v NLRB, supra, the court held that although the presumption that new employees will support the union in the same ratio as those whom they have re- placed, this presumption does not extend to strikers , as were involved in that case. Moreover, the Union throughout the strike demanded that the employer reinstate all the strikers, which would result in a loss of em- ployment for a majority of the new employees Thus it could not be pre- sumed that these employees would support the union in any ratio, and turnover of employees became a significant factor These circumstances are not present in the instant case In Pepe Line Development Co, 272 NLRB 48 (1984), the Board held that the employer's receipt of a petition signed by a majority of unit employees, following expiration of the ex- tended certification year, provided the objective consideration necessary to support a good -faith doubt of the union's majority status There was no employee petition signed by a majority of the unit employees present in the instant case In U-Save Food Warehouse, 271 NLRB 710 (1984), the Board found that management's uncontradicted testimony regarding specifically identi- fied employees disclosed unambiguous statements made at sufficiently identified prerecognition withdrawal periods of time, constituted highly probative evidence, and, along with the inactivity of the union, was suffi- cient evidence to rebut the resumption that new employees will support the union in the same ratio as those whom they replace As indicated, in the instant case the evidence adduced by the Respondent in this regard was nonspecific regarding the identity of employees who made such statements and when and where they were made, and, importantly, the statements did not convey a clear intention by the employees not to be represented by the Union In Industrial Waste Service, 268 NLRB 1180 ( 1984), the employer re- ceived a petition signed by a majority of the employees stating, "We don't want the Union." This was sufficient to give the employer a good- faith doubt of the Union's majority status, again unlike the facts in the instant case In Arkay Packaging Corp, 227 NLRB 397 (1976), the Board found that the employer had a reasonably based doubt of the union's ma- jority status because the employer's communications to the unions in- volved advised that strikers, who were union members, were going to be replaced, that the unions failed to respond to the employer 's letters and, after the replacements were hired, the unions made no effort to contact the employer or to police its collective-bargaining agreement . The Board held that to apply the presumption that new employees will be presumed to support a union in the same ratio as those whom they replace was un- warranted because of the circumstances therein and especially since sink- ers were involved Again, the differences between the instant case and Arkay Packaging is obvious, i e , strikers are not involved and I did not find sufficient evidence to support a conclusion that the Union abandoned its representation of the Respondent's unit employees Last, the Respondent asserts in its brief Moreover, for Kellys to continue to recognize and negotiate with a union which no longer repre- sented an uncoerced majority of its employees would have represented a violation by Kellys of Section 8(a)(2) of the Act. Because of my above findings, I conclude that this asser- tion has no merit. In consideration of all the foregoing74 I fmd and con- clude that the Respondent has totally failed to affirma- tively establish either that the Union actually lost its ma- jority status, or that its alleged good-faith doubt was based on objective considerations and, therefore, when the Respondent withdrew its recognition of the Union, this constituted an unlawful failure and refusal to recog- nize and bargain with the Union as the exclusive bargain- ing representative of the Respondent's employees in the appropriate unit in violation of Section 8(a)(5) and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section IV, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1) and (5) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. I shall recommend that the Respondent be ordered to recognize and, on request, bargain with the Union as the bargaining representative of the em- ployees in the appropriate unit and to post appropriate notices. Additionally, the General Counsel requests in her brief that Finally, in Colonial Manor Convalescent & Nursing Center, 188 NLRB 861 (1971 ), the Board found that the union's failure to attend the last scheduled negotiation session without any notice to the employer, and its failure to do anything for 3 months after it received notice of the dismis- sal of an employee decertification petition, established a reasonable basis for doubting the union's majority status In the instant case, and although there was a lengthy passage of time before a bargaining agreement was drafted and sent, the Union still maintained contact with the Respondent sufficient to evidence its interest in representing the unit employees and it might even be strongly argued that the Respondent, in effect, waived the passage of time as a factor when it agreed to meet with the Union each time it was requested to do so after 3 November 1982 and agreed to review the draft bargaining agreement in April 1985 without raising this as a defense 14 In light of the circumstances discussed, I also do not fmd that the closeness of the Union's victory in the Board election affects my findings and conclusions KELLY'S PRIVATE CAR SERVICE [T]he recommended remedial order include a vi- sitorial [sic] clause, authorizing the Board to engage in discovery under the Federal Rules of Civil Pro- cedure that it will be able to monitor compliance with the Board's order, as enforced by the court of appeals. 2 2 A visttonal [sic] clause permits an agency to examine the books and records of a respondent and to take statements from its officers and employees and others for the purpose of determining or securing compliance with a court's judgment The discovery rules of the Federal Rules of Civil Procedure provide a mechanism for achieving the objectives of a visitonal [sic] clause Under the circumstances of this case, however, I find it unnecessary to include such a clause. Although the Gen- eral Counsel makes a fine and detailed presentation of the historical and legislative background and general jus- tification for such remedial relief, she has failed to dem- onstrate sufficient grounds for the need for a visitatorial clause in this case. Therefore, I deny the General Coun- sel's request for such a clause in the recommended Order.75 CONCLUSIONS OF LAW 1. The Respondent, W.A.D. Rentals, Limited d/b/a Kelly's Private Car Service, is now and has been at all times relevant an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 3036, Taxi Drivers and Allied Workers Union, Service Employees International Union, AFL- CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time drivers employed by the Employer at its Queens, New York garage, ex- cluding all office clerical employees, dispatchers, book- keepers, management personnel, guards, and all supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been and is the exclusive bargaining representative of all the employees within the above-described unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. The Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by failing and refusing to rec- ognize and bargain in good faith with the Union as the exclusive representative of the employees in the appro- priate unit. 6. By failing and refusing to execute a written contract allegedly embodying an agreement reached between the Respondent and the Union with respect to terms and conditions of employment of the Respondent's unit em- ployees, the Respondent has not violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 75 Hohn Industries, 283 NLRB 71 (1987), Nathan's Furniture Store, 278 NLRB 268 (1986) 47 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed76 ORDER The Respondent, W.A.D. Rentals, Limited d/b/a Kelly's Private Car Service, Queens, New York, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to recognize and bargain collec- tively in good faith with the Union as the exclusive rep- resentative of all its employees in the appropriate unit. (b) 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) Recognize and, on request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit regarding rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at at its Queens, New York facility copies of the attached notice marked "Appendix."77 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ? 6 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 77 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 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 or- dered us to post and abide by this notice. WE WILL NOT fail or refuse to recognize and bargain collectively in good faith with Local 3036, Taxi Drivers and Allied Workers Union, Service Employees Interna- 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tional Union, AFL-CIO-CLC as the exclusive represent- ative of all employees in the following appropriate unit: All full-time regular part-time drivers employed by the Employer at it's Queens, New York garage, excluding all office clerical employees, dispatchers, book-keepers, management personnel, guards and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain collec- tively with Local 3036, Taxi Drivers and Allied Workers Union, Service Employees International Union, AFL- CIO-CLC as the exclusive representative of all employ- ees in the appropriate unit rates of pay, hours of employ- ment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. W.A.D. RENTALS, LIMITED D/B/A KELLY'S PRIVATE CAR SERVICE