Cherry Valley Apartments, Inc

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cherry Valley Apartments, Inc and Local 32B-32J, Service Employees International Union, AFL- CIO Case 29-CA-12688 December 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 20, 1988, Administrative Law Judge Steven Davis issued the attached decision The Re spondent filed exceptions and a supporting brief, and the General Counsel filed a brief in response to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by its refusal to execute an agreed-upon collective bargaining agreement reached between itself and the Union The Respondent has excepted to the judge's find ings For the reasons set forth below we reverse and dismiss the complaint The Respondent operates a cooperative residen tial apartment complex 1 On October 8, 1985, the Union was certified as the exclusive collective bar- gaining representative of the Respondent's building service employees, and on December 16, 1985, the Union sent the Respondent a letter requesting that negotiations commence On January 30, 1986, the Union sent the Respondent a letter which stated in pertinent part We are enclosing herewith a set of proposals to cover the building service employees at the above mentioned building We are also enclosing the standard form contracts which we have with various employ- ers These contracts reflect a fully negotiated agreement and do not constitute a proposal Enclosed with this letter was a copy of the Union's standard 1985 Long Island Apartment House Agreement bearing an effective date of June 21, 1985 This contract was thereafter distributed to members of the Respondent's Labor Advisory Committee who participated in the two bargaining sessions which were subsequently held The Re I Member Johansen notes there is insufficient evidence here to make his dissenting view in Imperial House Condominium 279 NLRB 1225 1228 (1986) applicable spondent's attorney, John Spellman, and the chair man of the Union's District 8, Thomas Gray, were the spokesmen for their respective parties At the first meeting, conducted on March 20,2 the parties agreed to negotiate from the aforemen tioned 1985 contract At the end of the meeting, Gray told Spellman that he would be sent another document containing a Long Island wage rider, as the contract that the Union had provided the Re spondent was a general contract On April 18, the Union sent a letter stating the following to the Respondent In accordance with your negotiations with Thomas Gray, Chairman of District #8, we are enclosing a set of contracts with respect to the above mentioned building The enclosed contracts reflect a fully negoti- ated agreement and therefore is [sic] not a pro posal In the event the contracts are unaccept- able to you or your client we reserve the right to resume negotiations based upon our original proposals We request that you respond as soon as pos sible to Thomas Gray, at (516) 579-4020, as to whether the proposed contracts are accepta- ble Enclosed with this letter was a copy of the stand and contract described above but bearing an effec- tive date of January 1, 1986 (the June 21, 1985 date having been excised), with an attached wage rider providing for weekly wages of $270 23, $260 30, and $451 for the classifications of handyperson, porter and superintendent, respectively 3 The parties next met on May 22 According to the testimony of Gray and Union Business Agent Brown, during this negotiating session Spellman agreed to all terms of the proposed contract, which Brown asserts was the "January 1 contract " Spell man testified, by contrast, that there was no agree ment on subcontracting, that a great deal of bar- gaining took place concerning the effective date of the proposed contract, and that the Union made concessions both as to the contract's effective date and the amount of wages 4 Spellman further stated 2 All dates are in 1986 unless otherwise indicated 3 This contract (the January 1 contract ) further provided for salary increases effective June 21 1986 and June 21 1987 as fully set forth in the Judges decision (including effective June 21 1986 $302 23 for handy persons and $290 30 for porters) It should be noted that the standard 1985 Long Island Apartment House Agreement was the contract used by the parties as the base for all contracts involved in this proceeding In other words the January 1 contract and the contract bearing the effective date of June 21 1986 described infra are but modified versions of the standard agreement 4 Spellman s testimony does not describe the terms of the agreed upon concessions 292 NLRB No 5 CHERRY VALLEY APARTMENTS that he requested that these concessions be put into the contract and forwarded to him In response, Gray stated that he would have everything typed, and a written, final contract would be sent to the Respondent for signature On June 17, the Union sent the Respondent a letter which stated in pertinent part In accordance with your negotiations with Tom Gray, Chairman of District 8, we are en closing the proposed contract covering the above mentioned building If this agreement accurately sets forth your understanding, we request that both copies be executed by your client and return them to the undersigned After delivery of the contract to the Respondent in June, Brown telephoned Spellman and inquired as to its status According to Brown's testimony, which was credited over Spellman's denial, Spell man replied that the contract had been agreed upon by the board of directors and it was on the president's desk to be signed Spellman further stated that Brown should have it in a couple of days Sometime thereafter, Union Representative Gray telephoned Spellman and was advised that the old board was out, and a new president was in office to whom the contract would have to be pre- sented The identity of the contract enclosed with the Union's June 17 letter is the subject of dispute Ac cording to Brown's testimony, the contract sent, and thus the contract the Union maintains the Re spondent agreed to, was the same contract the Union had sent the Respondent on April 18 (i e , "the January 1 contract") According to Spellman's testimony, however, the contract sent for approval by the Respondent was a different one, reflecting the concessions made by the Union at the May 22 negotiating session and bearing an effective date of June 21, 1986 (the "June 21 contract") 5 This con tract provided for weekly wages of $268 23, $260 30, and $450 for the classifications of utility/porter No 1, utility/porter No 2, and su- perintendent, respectively 6 Brown, however, testi- fied that the June 21 contract" was sent to the Respondent in March The judge found that the "June 21 contract" was the contract sent to the Re- spondent for approval In finding that the Respondent violated Section 8(a)(5) and (1), the judge, crediting the testimony 5 Spellman testified that there was no agreement between the parties before or after June 17 Although he acknowledged that the June 21 contract accurately represented his understanding of most of the terms to which there was agreement he maintained that the matter of subcon tracting was not resolved by that agreement 6 This contract also provided for salary increases effective June 21 1987 as fully set forth in the judge s decision 39 of Union Representatives Brown and Gray with re spect to the May 22 meeting and their subsequent conversations with Spellman , found that the Union and the Respondent agreed to the complete terms of a collective bargaining agreement and that the Respondent unlawfully refused to execute it Under the judge's analysis for finding the violation, how- ever, the question remained as to which of two dis puted contracts was agreed to by the parties, the "January 1 contract," as claimed by Brown, or the "June 21 contract"-the agreement Spellman testi feed was received by the Respondent from the Union for approval In determining that the "June 21 contract" was the agreement reached, and the one sent by the Union on June 17, the judge con cluded that Brown was mistaken in his assertions that the contract the Respondent refused to sign bore the effective date of January 1 , that this con- tract was sent to the Respondent on April 18 and June 17 and later in June was hand delivered be cause of a problem in delivery , and that the agree ment effective June 21 had been sent to the Re- spondent around the first negotiating session in March but contained incorrect wages owing to the Union's erroneous belief that the Respondent's em ployees were earning more than they actually were The judge reasoned that if Brown's testimo ny were correct, then the wages in the `June 21 contract" should have been higher than the wages set forth in the "January 1 contract ," which Brown testified was the corrected and final agreement The judge observed , however, that the "January 1 contract" contains the higher wages The judge thus concluded that , in reality, the contract initially sent the Respondent was the contract providing for higher wages (January 1 ) and that the corrected contract containing lower, accurate wages (June 21) was sent thereafter on June 17 7 The judge ac- cordingly found , contrary to Brown's specific testi mony, that the "June 21 contract was the agree ment sent to the Respondent for signature and was the agreement that the Respondent unlawfully re fused to execute Contrary to the judge, we find the evidence in this case is insufficient to establish that agreement was reached on all the terms of the contract The judge's finding is undermined by his failure to rec oncile his reliance on part of Brown's testimony to find that agreement was reached in the May 22 bargaining session with his rejection of other testi mony of Brown that it was the `January 1 con tract" to which the parties agreed and which the ' The judge also observed that it is more logical that the June 21 con tract was the final agreement sent to the Respondent because it bore a more current date June 21 rather than January I 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union forwarded the Respondent for execution Only Brown expressly and specifically identified the purported agreement On that score he was as certain that the "January 1 contract" was the par- ties' agreement as he was adamant that the "June 21 contract" was not The judge's rejection of that testimony, therefore, casts doubt not only on which contract was sent or received but also on its terms For acceptance of the judge's divergent treatment of Brown's testimony presents the anomaly that Brown knew that the parties had come to a com- plete understanding on contractual terms but that he did not know what those terms were 8 The judge's finding that there was an agreement on the "June 21 contract" is also put in doubt by Brown's categorical denial that the "June 21 con tract" was the contract sent for approval to the Respondent and by Spellman's equally unequivocal averment that it was the contract proffered by the Union for execution Their disagreement over the identity of the contract sent and received tran- scends the mere issue of which of two contracts memorializes the parties' agreement It indicates in stead that there was a mutual misunderstanding or mistake regarding at least some of the terms of the purportedly agreed-upon contract Besides the of fective dates and the relabeling of handyperson to utility/porter, the only apparent differences be tween the "January 1 contract" and the "June 21 contract" exist in the wage rates listed on their re spective riders for the various corresponding em- ployee classifications Undisputed testimony estab lishes that these contractual wage rates were, for different reasons, of concern to both parties during the negotiations Brown testified that the wages in the June 21 contract" were rejected by the Union because of the Unions mistaken belief as to the actual wages of the unit employees Spellman s tes timony, on the other hand, indicates that the rates of the `January 1 contract were rejected by him on behalf of the Respondent as being too high 9 Consequently, it is improbable that either Brown or Spellman would not have noticed whether the wage rates in any contract presented for execution did not mirror his understanding of the wages agreed to by the parties Thus, Brown's insistence 8 We are therefore not overruling the judge s credibility resolutions In this regard Chairman Stephens notes that when one party contends that no contract exists and the other party contends that a contract exists but identifies a contract that the factfinder determines is not the contract agreed upon there is scant basis for finding a meeting of the minds In the Chairman s view the remedy for the violation found here by the judge would be an order to execute a contract containing terms that each party for different reasons insists were not agreed upon 9 The January 1 contract provides for two wage increases in 1986 one on the first of that year the other on June 21 whereas the June 21 contract granted the employees only one increase in 1986 that being on the effective date of the latter contract Both contracts provide for wage increases in 1987 effective on the 21st of June that the "January 1 contract" contained the parties' agreement firmly demonstrates his understanding of the agreement reached Similarly , Spellman's pres entation of the June 21 contract" to the Respond ent s board of directors without any apparent indi- cation of disagreement with the wage rates demon strates that, insofar as he believed there was agree- ment on contract terms, that contract represented the parties' bargain Although Spellman did not ex pressly state that the "June 21 contract" set forth the agreed upon wage rates, it is unlikely that he would have presented that contract to the Re- spondent's board if he had believed that its terms (excepting the subcontracting provisions) did not accurately reflect the parties' accord 10 Indeed, the likelihood that the parties were oper ating under the illusion that they were agreeing, or had agreed, to the terms of an agreement-each with a separate, different understanding of certain of its terms-is enhanced by the fact that the Union had sent the Respondent a series of agree ments during negotiations all based on one standard agreement but differing with respect to wages and by the fact that with respect to the purported final agreement, the Union made three attempts to make delivery The significance of the attempted deliv eries and the significance of the Union's having sent various but similar contracts to the Respond ent is the possible confusion engendered by the interchange of all these contracts In the absence of firm evidence precisely detailing the parties' agree ment item by item, we cannot rule out the possibili ty that the parties may have negotiated from differ- ent versions of the standard contract, or that one or the other of them used or referred to a different contract from the one it had intended or that the other party was referring to in its communications Accordingly, in light of the doubts raised by the confusion in the record, we find that the General Counsel has failed by a preponderance of the evi dence to establish that there was a meeting of the minds between the Union and the Respondent with respect to all the terms of a collective-bargaining agreement We therefore also find that the Re- spondent did not violate Section 8(a)(5) and (1) of the Act by failing to sign the contract submitted to it by the Union, regardless of which of the two contracts was sent or received 11 10 Spellman s testimony that the parties did not come to a final agree ment on May 22 does not negate this conclusion He also testified that there was general agreement on most contractual terms at the meeting on that date the prime exception being the issue of subcontracting The judge however rejected Spellman s testimony that the Respondent s sub contracting rights were not resolved at the meeting I I In light of this finding we find it unnecessary to pass on any other issues raised by the exceptions of the Respondent such as whether the bargaining representatives have the authority to bind their respective par ties CHERRY VALLEY APARTMENTS 41 ORDER The complaint is dismissed Lynn Neugebauer Esq, for the General Counsel John M Spellman Esq of Mineola New York for the Respondent DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge Based on a charge filed on 20 October 1986 by Local 32B-32J, Service Employees International Union AFL-CIO, Region 29 of the National Labor Relations Board issued a complaint against Cherry Valley Apartments, Inc (Re spondent) on 1 December 1986 The complaint alleges that Respondent failed and re fused to execute an agreed upon contract, in violation of Section 8(a)(5) and (1) of the Act Respondents answer denied the material allegations of the complaint, and on 11 September 1987 this case was heard before me in Brooklyn, New York On the entire record including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION Respondent, a New York corporation, having its prin cipal office and place of business at 288 Old Country Road, Mineola, New York is engaged in the operation of a cooperative residential apartment complex located at 15th Street and Cherry Valley Avenue Garden City, New York During the past year Respondent derived gross annual revenues in excess of $500 000 and pur chased and received fuel oil paint and cleaning supplies valued in excess of $50 000 from other enterprises locat ed in New York State each of which other enterprises had received the goods in interstate commerce directly from States outside New York State Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act Respondent also admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE FACTS John Spellman Respondents attorney represented it in both representation proceedings On 16 December 1985 the Union sent a letter to Re spondent advising it that it had been certified and re questing that collective bargaining negotiations be sched uled On 20 January 1986 i Kathleen Walczuk Respondent s manager, called Thomas Gray the chairman of District 8 of the Union and asked that a Long Island contract be sent to her for review On 30 January, in response to her request, Kevin McCulloch the assistant to the union president sent the following letter We are enclosing herewith a set of proposals to cover the building service employees employed at the above mentioned building We are also enclosing the standard form con tracts which we have with various employers These contracts reflect a fully negotiated agreement and do not constitute a proposal The contract sent the 1985 Long Island Apartment House Agreement had an effective date of 21 June 1985 and provided for the following [see Appendix A] Spellman distributed the contract to the members of the Respondents labor advisory committee The committee consisted of Spellman, Ted Rodis, and Florence Caputo Rodis and Caputo were directors of Respondent, and Rodis served as chairman of the com mittee being appointed as such by Respondents board of directors Two collective bargaining meetings were held One was in March and the other in May 7 Gray and Spellman were the spokesmen for their respective parties A The 20 March Meeting This meeting was attended by union official Gray and Business Agent Charlie Brown Respondents representa tives were Spellman Rodis and Caputo Caputo was present only at the end of the session, however The Union presented a list of proposals and offered to negotiate from the proposals or from the standard con tract previously sent to Respondent Both parties agreed to work from the contract Brown testified that Gray stated that any agreements that were reached would have to be approved by the Union s president and Spellman said that his side would have to go back to the board to discuss it The Union lost a Board conducted election in 1981 On 8 October 1985 pursuant to another petition filed by the Union it won an election and was certified in the following unit All full time and regular part time building service employees, including the superintendent, employed by the Employer at its Cherry Valley Cooperative, excluding all guards and supervisors as defined in Section 2(1) of the Act All subsequent dates are in 1986 unless otherwise stated 2 These are the lowest rates class C being the lowest grades a The minimum wage for the superintendent was left blank 4 These amounts represent a $20 wage raise plus a $2 rate differential 5 Id 6 This amount represents a $21 wage raise plus a $1 rate differential 7 There was some confusion by the General Counsels witnesses about whether the dates were 20 March or 22 March and 20 May or 22 May The dates of the two meetings are not an issue but I will use the dates testified to by Spellman as he appeared certain of them 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gray explained what salaries he sought, and Spellman told the Union what the employees present salaries were 8 At the end of the meeting Gray told Spellman that he would be sent a Long Island wage rider because the con tract he had been provided with was a general contract The General Counsels witnesses testified that the Long Island wage rates were so low compared to Man hattan that in order to raise them during the life of a contract, a catch up, for example of $10 per week would be added to the regular increase of $20 per week Spellman testified that Gray opened the meeting by saying that he was there to bargain but could not bind the Union, and anything agreed to was subject to the ap proval of the Union s officials Spellman then told Gray that his committee was advisory-that they were asked to meet with the Union to learn its demand and to make recommendations to Respondents Board as to what spe cific items the committee believed would be acceptable or unacceptable Spellman added that Gray said nothing in the printed, standard contract would be changed On 18 April, the Union sent the following letter to Spellman In accordance with your negotiations with Thomas Gray, Chairman of District #8 we are en closing a set of contracts with respect to the above mentioned building The enclosed contracts reflect a fully negotiated agreement and therefore is not a proposal In the event the contracts are unacceptable to you or your client we reserve the right to resume negotiations based upon our original proposals We request that you respond as soon as possible to Thomas Gray at (516) 579-4020 as to whether the proposed contracts are acceptable Enclosed was a copy of a standard contract bearing an effective date of 1 January 1986, with an attached wage rider which provided for the following [see Appendix B] C Subcontracting This was the main issue of the bargaining Spellman objected to the contract clause prohibiting subcontracting He explained that Respondent uses sub contractors who perform gardening snow removal, ex termination and minor repair work Such contractors were utilized in order to permit Respondents small three man work force to do other work at the premises According to the General Counsels witnesses, Gray told Spellman that the clause applies to subcontractors doing the work of the unit employees and if the subcon tractors work does not cause a reduction in the unit or in their workhours he had no objection to their use Union Agent Brown also testified that Spellman said that he would have to get back on that There would still seem to be a problem but they would try to resolve it The matter was discussed further and Spellman noted that the use of the subcontractors would help the unit workers because they could not perform all the work particularly the gardening and snow removal, that the contractors did The union agents agreed, and Gray said that because Brown is the agent for the employees he would not complain about the use of subcontractors Ac cording to the General Counsels witnesses the parties agreed that there was no problem regarding subcontract ing, and the contract clause would remain Spellman testified that he told the union agents that Respondents use of subcontractors would not cause a re duction in the size of the unit or affect their job security But Gray refused to amend the printed contract 12 Spell man replied that the would take this issue to Respond ent s board and explain to its members that the commit tee had a working relationship with the union officials and that he may be able to develop something we could live with but it would be up to the aboard He also stated that he told the union agents that although he knew the representatives he was then dealing with there was no guarantee that they would always be there and for that reason he could not sign the contract containing the subcontracting clause without a side letter expressing their understanding that Respondents use of subcontrac tors would be permitted B The 22 May Meeting According to the General Counsels witnesses Spell man agreed to all terms of the contract Specifically, he signified his assent to the term (3 years) wages 9 pension and welfare legal fund holidays i ° and vacation 11 Sub contracting summer help and sale and transfer issues were the subject of greater discussion 8 Gray also said that subcontracting was discussed at this meeting Be cause Brown and Spellman stated that that was spoken about at the next session I find that it was a subject only at the 22 May meeting 8 Spellman testified that the Union made concessions regarding wages and the effective date of the contract to Spellman said that the employees received eight holidays which were too many The contract provided for 10 plus the employees birth day Gray said that they would receive the contractual amount and Spell man did not reply 1' Spellman wanted to reduce the employees vacation from 4 weeks to 3 weeks Gray said that that could not be done Spellman did not reply D Sale and Transfer and Summer Help The contract provides that the seller of the building must require the buyer to adopt the contract Spellman asked if this provision applied to the sale of individual co op apartments Gray applied that it did not that it ap plied only to a rental apartment complex Spellman told the Union that he wanted to have high school students work at the premises for 6 month pert ods Gray replied that he had no objection to that but they would be required to join the Union after 30 days Spellman did not reply Spellman further testified that he and Rodis marked their copy of the contract sent on 30 January 1986, for use dunng the negotiations That marked contract con tarns check marks and ok notations at certain, appar 12 Union Agent Brown conceded that Spellman was told that the printed contract could not be changed CHERRY VALLEY APARTMENTS 43 ently agreed upon clauses and no at other clauses The subcontracting clause s requirement that the employ er shall give 3 weeks notice to the Union of the effec tive date of the contractors services was changed by Spellman and Rodis to 1 week The notation no was marked at that part of the clause that stated that Re spondent is liable with the contractor for unpaid welfare pension and legal fund contributions for Respondent s employees The contract also had no marked next to the clause which stated that the employee is entitled to a paid day off on the employees birthday E The Conclusion of the 22 May Meeting Union Agent Brown testified that at the end of the meeting, Spellman said that he would have to go to the board for approval, but he believed that it would be approved Spellman added that Rodis was stubborn about the matter but he understood what had to be done and [they] would give it to the board for approv al Gray said that he would send everything to the city to union official McCulloch, where it would he typed, and a written, final contract would be sent to Respond ent for signature Spellman said okay Union official Gray testified that Spellman said that what was actually proposed would go back to the board and we would get an answer one way or the other if they re going to go along with it or not Gray told Spellman that he would call within 2 weeks to see how he made out" because the board met only monthly Spellman testified, as set forth above, that he told the union representatives that he could not sign the contract without a side letter representing their agreement permit ting Respondent to subcontract work as it had in the past F Events Subsequent to 22 May On 12 June, Union Agent Brown met with the three unit employees to learn if they accepted or rejected the Respondent s offer They discussed each term of the contract and all three workers agreed to accept the agreement negotiated by the Union 13 On 17 June union official McCulloch sent the follow ing letter to Spellman In accordance with your negotiations with Tom Gray Chairman of District 8 we are enclosing the proposed contract covering the above mentioned building If this agreement accurately sets forth your understanding, we request that both copies be executed by your client and return them to the un dersigned All contracts proposed to the Union are re viewed by the President for approval It is not the intention of the Union to make an unconditional offer but rather a recommendation to the President that the contract be accepted 13 Brown testified that the meeting occurred within days after the May meeting but their written agreement with the negotiated terms is dated 12 June What contract was enclosed with this letter is the sub sect of dispute According to Union Agent Brown, the contract sent was the one effective 1 January 1986 con taming the wage rider-the same contract sent on 18 April According to Spellman , the contract was a different one bearing an effective date of 21 June 1986 and pro viding for the following in a wage rider [see Appendix C] Brown however, stated that that contract, effective 21 June 1986, was sent to Respondent about the time of the first meeting in March and the wages in the rider were incorrect because the Union believed that the employees were earning more than they actually were Brown testified that there was some problem with re ceipt of the contracts , and in June he picked up addition al copies of the contract (the one effective 1 January 1986 which was sent on 18 April) at the Union s office and gave them to unit employee Humenesky with in structions to deliver it to Walczuk , Respondents manag er Humenesky reported that he did so 14 Brown further stated that he phoned Spellman and asked about the contract Spellman replied that the con tract was agreed upon by the board and it was on the presidents desk to be signed , and he would have it in a couple of days In late June, Union Agent Gray called Spellman, who told him that the old board was out, and a new president was in office to whom he (Spellman) would have to present the contract 15 Spellman testified that after that meeting McCulloch called and asked about the status of the contract Spell man replied that he was waiting for documents reflecting what had been negotiated to date and added that he needed relief' on the subcontracting issue and asked that that clause be struck from the contract McCulloch replied that no changes could be made in the printed contract Spellman answered that the Respondent would not accept the subcontracting provision as set forth in the contract According to Spellman he and McCulloch discussed the possibility of a side letter or agreement and he asked McCulloch to send him a proposal which he would take to the board Spellman further testified as set forth above that sub sequently he received the letter dated 17 June and a con tract bearing an effective date of 21 June 1986 He stated that there was no agreement between the parties before 17 June or after that date After he received this con tract, he presented it to the board which did not ap prove it 14 Spellman denied receiving any contract from Walczuk 15 I credit the testimony of Union Agents Brown and Gray as to their conversations with Spellman Both men testified in a straightforward be hevable manner and both had specific recall about the events at issue In addition their versions are similar Brown was told by Spellman that the board approved the contract which was on the presidents desk for sig nature Later Gray was told by Spellman that the old board was out and he had to present the contract to a new president In so saying Spellman did not assert that it had to be presented anew to the the new board for approval Rather he merely said that it had to be delivered to the new president presumably for signature-since it had already been agreed to by the old board 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He then spoke to McCulloch and told him that the contract sent did not accurately represent his understand ing-about most terms they did-but he needed a letter regarding the subcontracting matter and would not permit his client to sign the contract without it In August or September, Spellman told Danielle Sis truck apparently someone from the Union, that he ex pected to receive a letter regarding the contract but did not receive it He conceded that he and McCulloch dis cussed the potential for a side letter but that McCul loch did not promise such a letter Neither McCulloch nor Sistruck testified Regarding his authority, Spellman testified that he was present at all negotiations and during all phone conversa tions as Respondents representative and he made it clear that anything he did was subject to approval by a resolu tion of the board I reject Spellman s testimony that he denied saying that a contract had been approved by the board Spellman further stated that the duty of the labor advisory committee was to meet with the Union to review the proposed contract, and report to the board with some idea as to what the demands were and what Respondents proposed response should be Spellman and Rodis discussed what approach they would take in nego tiating with the Union and making a presentation to the board Analysis and Discussion The basic issues are (a) whether complete agreement was reached on the terms of a contract and (b) what agreement in fact was reached The undisputed testimony from the union agents and Spellman establishes that both parties made clear, at the first meeting that any agreement reached would be sub ject to the approval of the union president and Respond ent s board of directors It is well established that a principal may limit its agent s negotiating authority by affirmative clear and timely notice to the other party that any tenta tive agreement is contingent upon subsequent ratifi cation An agent whose authority depends upon such a contingency may have the apparent au thority however to convey its satisfaction [Cable vision Industries 283 NLRB 22, 18 (1987) ] I find that Spellman had apparent authority to convey to the Union the board s agreement to the contract Ben Franklin National Bank 278 NLRB 986 fn 3 (1986) First, Spellman met with Rodis and Caputo the latter two being members of the board of directors Although Caputo was not present at the final meeting, Rodis was and Spellman said he would present the agreement to the board for approval and he believed that it would be ap proved East Bronx Health Center, 271 NLRB 898 901 (1984) Moreover I credit the testimony of Union Agent Brown as set forth above about his conversations with Spellman After delivery of the contract to Respondent in June Brown called Spellman and inquired about its status Spellman replied that the contract was agreed on by the board and it was on the presidents desk to be signed and he would have it in a couple of days The Board recently found in East Bronx supra On May 20 Erazo reported to Williams that the board had met and approved the contract as negoti ated by him and the Union This statement by Erazo an agent of Respondent constitutes an ad mission against Respondent and establishes, particu larly where no contract testimony was presented that in fact the board of trustees of Respondent did approve the agreement negotiated on its behalf by Erazo I reject Spellman s testimony that subcontracting re mained an open issue about which he and the board did not reach agreement with the Union During negotiations Spellman objected to the inclu sion of the subcontracting clause in the contract because Respondent used subcontractors for gardening snow re moval and other special projects The parties discussed this matter fully, and according to the union agents, they convinced Spellman that (a) the clause only related to circumstances in which the unit employees hours would be reduced, (b) Union Agent Brown would not object to Respondents use of subcontractors and (c) the clause could remain in the contract Even Spellman testified that he told the Union s agents that Respondents use of subcontractors would not reduce the size of the unit or affect their job security and offered to tell the board that the committee had a work ing relationship with the union agents and they may be able to develop something they could live with but that it would be up to the board This is quite different than an outright rejection of the subcontracting clause, as claimed by Spelleman Moreover, in the copy of the contract that they marked Spellman and board member Rodis changed to 1 the number of weeks notice required to be given to the Union when a contractor was used The printed con tract required 3 weeks notice This indicates that Spell man considered the clause as acceptable with that modi fication I do not give great weight to the no marked next to the paragraph providing for Respondents joint liability with the contractor for unpaid contributions for Respondents employees I do not find that that notation means that the entire subcontracting clause was rejected Other paragraphs of that clause were not marked and other contractual items such as paid birthday, was marked no but the parties agreed to that item during negotiations In addition Spellman s actions at the end of the last meeting indicated that there was no dispute as to subcon tracting According to the testimony of the union agents which I credit they told Spellman that a contract would be sent to him and Spellman said that he believed that it would be approved by the board Spellman s uncontradicted conversations with union officials McCulloch and Sistruck even if true, I believe are an afterthought subsequent to the board s approval of the agreement His request for relief' rom the sub contracting clause was even according to his own testi CHERRY VALLEY APARTMENTS 45 mony somewhat unequivocal Thus he stated that he only discussed the possibility or the potential for a side letter permitting the use of subcontractors, and he conceded that McCulloch did not promise that he would provide such a letter Although McCulloch did not promise such a letter, Spellman in August or September, told Sistruck that he expected to receive such a letter Thus, I find that Spellman s objections to the subcon tracting clause, if he had any, arose after he told Brown that the board had approved the contract, and was thus raised to avoid executing the agreement When agreement was reached , there is no question that the board of trustees in existence at that time was authorized to and did in fact approve the terms of the agreement negotiated on Respondents behalf by its negotiator Respondent therefore remained under a duty to sign such contract, notwithstanding the fact that a successor board may have found the agreement not acceptable [East Bronx, supra ] I accordingly find and conclude that Respondent and the Union did agree to the terms of a collective bargain ing agreement It is well settled that an employers failure to execute a contract embodying terms previously agreed on with a union constitutes an unlawful refusal to bargain H J Heinz Co v NLRB 311 U S 514 (1941) Accordingly Respondent has violated Section 8(a)(1) and (5) of the Act by failing and refusing to execute the collective bargaining agreement with the Union the terms of which it had previously agreed on and I so find The final question is what contract was agreed to The Union claims that agreement was reached on the con tract which bore an effective date of 1 January 1986 and contained a rider providing for wages of $270 23 $260 30 and $451 for the handyperson porter and su perintendent respectively as of 1 January 1986 For 21 June 1986 the salaries listed were $302 23 and $290 30 for the handyperson and porter and on 21 June 1987 the wages were $335 23 and $320 30 The superintendent s wages for 21 June 1986 and 1987 were not listed Union Agent Brown claims that that contract was sent to Re spondent on 18 April before the last meeting and again on 17 June and due to some problem in delivery was delivered a third time this time by hand, in June Spellman, on the other hand claims that the final con tract sent on 17 June (he denies receiving a hand deliv ered contract), was the agreement bearing an effective date of 21 June 1986 and providing for the following wages $268 23, $260 30, and $450, for the utility/porter No 1 utility/porter No 2, and superintendent respec tively and effective 21 June 1987, $299 23 and $291 30 for the utility porters Nos 1 and 2 respectively The su perintendent s wage was blank Brown, however asserts that that contract was sent to Respondent at about the time of the first meeting in March He added that the wages set forth in that agree ment were incorrect because the Union believed that the employees were earning more than they actually were If that were true then the wages in the 21 June 1986 contract should have been higher than the wages set forth in a later corrected contract, which according to Brown was the contract bearing an effective date of 1 January 1986 But, in fact that contract which Brown claims was sent later contains higher wages Thus, assuming Brown s testimony , the contract sent first was the one providing for higher wages because of the Union s erroneous belief that the workers were earn ing more than they actually were and the corrected con tract containing lower accurate wages, was sent later That would mean that the contract bearing the effec tive date of 1 January 1986 and listing the higher wages was sent first, and the contract having an effective date of 21 June 1986 and containing lower wage rates was sent last That was what Spellman testified to Spellman testified that the 21 June 1986 contract was the final agreement sent to him It it more logical that as the contract was finalized and presented for signature in June it would have borne a more current date-21 June rather than 1 January I accordingly find and conclude that the contract bear ing an effective date of 21 June 1986 was the one pre sented to Respondent for signature, the document which Spellman reported that the board had approved, and the agreement which Respondent unlawfully refused to exe cute However, because Union Agent Brown denies that that contract was the one which Respondent refused to execute and instead claims that the 1 January 1986 agreement was the contract at issue I will fashion a dif ferent remedy, as follows I will direct Respondent to sign the agreement bearing an effective date of 21 June 1986 at the request of the Union If the Union does not request Respondent to sign that agreement, then Respondent shall, on request bar gain collectively with the Union and if an agreement is reached embody it in a signed agreement I am fashioning this remedy in order to avoid a situa tion in which employees may be prejudiced by the Re spondent s execution of an agreement providing for lower wages than that to which they were entitled, pur suant to the Union s bargaining efforts Worrell Newspa pers 232 NLRB 402 (1977) Zenith Radio Corp 187 NLRB 785 (1971) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 At all times material the Union has been and still is the exclusive collective bargaining representative of Re spondent s employees in the bargaining unit described below within the meaning of Section 9(a) of the Act The appropriate unit is All full time and regular part time building service employees including the superintendent, employed by the Employer at its Cherry Valley Cooperative, 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD excluding all guards and supervisors as defined in Section 2(11) of the Act 4 By refusing to sign and comply with the collective bargaining agreement agreed on between it and the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 5 The above described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has violated Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain action de signed to effectuate the policies of the Act 16 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendement to I shall also recommend that Respondent be ordered on request to execute the collective bargaining agree ment bearing an effective date of 21 June 1986 agreed on with the Union and to comply retroactively to its effec tive date with its terms Additionally, Respondent shall make whole the employees in the bargaining unit for losses, if any, which they may have suffered by Re spondent s refusal to sign the agreement, in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest as computed in New Horizons for the Retard ed 283 NLRB 1173 (1987) "- If the Union does not request Respondent to sign that agreement Respondent shall be ordered to bargain in good faith with the Union and if an agreement is reached, embody it in a signed agreement [Recommended Order omitted from publication ] 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) APPENDIX A Weekly Wage Raise Effective Date Handyperson Superintendent3 6/21/85 4$22 $23 6/21/86 5 22 22 6/21/87 6 22 23 APPENDIX B Weekly Wage Raise Effective Date Handyperson Superintendent Porter 1/1/86 $32 $23 $30 6/21/86 32 22 30 6/21/87 33 23 30 APPENDIX C Effective Date Weekly Wage Raise Utility/porter #1 Superintendent Utility/porter #2 6/21/86 $30 $22 $30 6/21/87 31 23 31 Others Handyperson Others $20 $389 11 $355 11 20 411 11 375 11 21 433 11 396 11 Minimum Wage Minimum Wage2 Handyperson Superintendent Porter $270 23 302 23 335 23 $451 $260 30 290 30 320 30 Minimum Wage Utility/porter #1 Superintendent Utility/porter #2 $268 23 $450 $260 30 299 23 291 30