R & K Caterers, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 602 (N.L.R.B. 1984)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R & K Caterers, Inc. and Local Union 274, a/w
Hotel Employees and Restaurant Employees
International Union, AFL-CIO. Case 4-CA-
13726
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 April 1984 Administrative Law Judge
John H. West issued_ the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed a cross-exception,
supporting brief, and response to the Charging
Party's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) ' We have carefully examined the record and find no basis for re-
versing the findings
The Respondent has excepted to the judge's failure to reach us conten-
tion that the recognition clause in the proposed contract was unlawful
under Sec 8(e) of the Act In light of our decision to dismiss the com-
plaint, we find it unnecessary to pass on the Respondent's cross-excep-
tion
DECISION
JOHN H. WEST, Administrative Law Judge. Upon a
charge filed May 19, 1983, against R & K Caterers, Inc.
(R & K or Respondent) by Local Union 274, a/w Hotel
Employees and Restaurant Employees International
Union, AFL-CIO (the Union) a complaint was issued
July 15,' alleging that R & K violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act) by
refusing since late April the Union's request to execute a
written contract embodying a full and complete agree-
ment, with respect to terms and conditions of employ-
' Unless indicated otherwise, all dates are in 1983 On brief, the Gener-
al Counsel points out that par 6 of the complaint through inadvertence
refers to Respondent rather than the Union as being the exclusive repre-
sentative of the unit and moves for an amendment of the complaint to
correct this mistake The unopposed motion is granted
ment of a described unit, reached about March 15. Re-
spondent denies the allegation.
, A hearing was held in Philadelphia, Pennsylvania, on
December 1. - On the entire record in this case, including
my observation of the demeanor of witnesses and consid-
eration of the briefs filed in March 1984 by the General
Counsel and Respondent,' I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Pennsylvania corporation, is engaged in
the business of kosher catering with its principal place of
business in Merlon, Pennsylvania. The complaint alleges,
Respondent admits, and I find that at' all times material
herein, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It is also found that the Union has been a
labor organization within the meaning of Section 2(5) of
the Act
II. THE ALLEGED UNFAIR LABOR PRACTICE
A The Facts
R & K began operating in January 1981 after Rosen-
thal & Kaufman ceased doing business The latter was in
business for 20 years as a kosher catering partnership. In
1980 it was managed by Kenneth Kaufman who is now
president of R & K 2 Since 1955 Rosenthal & Kaufman
belonged to an association, along with five other kosher
caterers Originally the Union negotiated contracts with
the association However, in 1980 the involved caterers
contracted separately with the Union even though their
contracts were the same. The last agreement between
Rosenthal & Kaufman and the Union was effective Janu-
ary 15, 1980-January 14, 1983. (G.0 Exh. 2.) As indicat-
ed above, in midterm of the contract Rosenthal & Kauf-
man ceased doing business. R & K advised the Union of
this along with its, R & K's, desire to discuss a contract.
Subsequently, a dispute arose between R & K and the
Union as to whether the former was an alter ego or suc-
cessor to Rosenthal & Kaufman and whether R & K
was, therefore, responsible for health and welfare and
pension payments. Eventually the matter was settled.
In January 1981 Kenneth Kaufman was also president
of Warken Caterers, Inc which was the banquet caterer
at the Warwick Hotel (Warwick) in Philadelphia. This
nonunion caterer was sold by Kenneth Kaufman in Janu-
ary 1982 to Hospitality Investments Inc. (Hospitality).
Subsequently, when dealing with catered banquets at the
Warwick, R & K would send the food, the necessary
equipment (i.e., dishes and silverware), and a chef, who
would oversee the heating up of the food, to the hotel
and all else, including personnel to serve, etc., would be
provided by the Warwick or Hospitality. Before Warken
was sold, R & K would send the food and equipment to
the Warwick and Warken supplied (1) chefs, (2) waiters
2 Rosenthal of Rosenthal & Kaufman was Kenneth Kaufman's grandfa-
ther The other partner was Kenneth Kaufman's father, Henry Kaufman
Unless indicated otherwise, all references, Infra, to Kaufman will be to
Kenneth Kaufman
273 NLRB No. 85
R & K CATERERS-. 601,
from its normal, complement (referred to as its "chain
gang"),_ and (3) dishwashers. If additional waiters ,,were
required by Warken, they were obtained from the Union..
Warken paid the equivalent of union wages to its bar-
tenders, waiters, and waitresses but did not have a dues
checkoff.
After Warken was sold the Union challenged the
method utilized at the Warwick for handling catered
banquets. Among other things, i.e., filing charges with
the National Labor Relations Board, the Union on June
15, 1982, made: a demand for arbitration to R & K alleg-
ing that there was "[u]nlawful ,subcontracting of bargain-
ing unit work- and breach of recbgnition and successor-
ship clauses of the contract through arrangements at the
Warwick Hotel." 3 Such demand was resisted . by Ein-
horn, who in his June 21, 1982' response to the American
Arbitration Association stated that R & .K was' not "a
party to any agreement or contract that required it to ar-
bitrate alleged claims such as made by [the Union] " (R.
Exh. 3(t).) Subsequently, without' waiving R & K's ob-
jections to the submission of the claim to arbitration,
Einhorn participated in a choice of arbitrators. '(R Exh.
3(bb), dated July 28, 1982, et al.)
In early December 1982, while the above-described ar-
bitration.matter was still not resolved. Harvey Young of
the Philadelphia office of the Federal Mediation and
Conciliation Service contacted Kaufman about a meeting
the -Union requested with the involved caterers to negoti-
ate a contract since the involved catering contracts were
expiring on January 14 Kaufman told Young that he had
some "personal problems regarding . . . [his] catering at
the Warwick" and he did not think that he was goin'g to
attend. Kaufman then" spoke with Einhorn who in turn
also advised Young that Kaufman would not attend the
joint meeling between the involved' caterers (one other
caterer did not attend) and the Union.
Einhorn testified that after speaking to Young he Went
away on vacation "and for reasons unknown to me, Mr
Kaufman chose to go down to ihe meeting, as I later
found out because he felt it was industry wide bargaining
3 The demand was made of Edgar Einhorn as attorney for R K As
pertinent, the above-described agreement between Rosenthal & Kaufman,
G C Exh 2, reads as follows
ARTICLE I
RECOGNITION
Section 1 I EMPLOYER recognizes the UNION, Local 274, as
the sole and exclusive collective bargaining representative of the
Employer's Cooks, Kitchen Employees, Bartenders, Waiters, Wait-
resses, Busboys, Captains, Head Walters, working in the establish-
ment or on a job hereafter operated or being serviced by the Em-
ployer or in any other establishment where the Employer may cater
in all matters relating to collective bargaining such as employing em-
ployees, wages, hours of work, working conditions and adjustment
- of gnevances The designated representatives of the UNION shall
constitute the UNION representatives in all negotiations as to mat-,
ters of bargaining which shall be-,conducted All clauses of this,,
agreement shall, apply to the EMPLOYER and their successors and
assigns, partners, supervising employers and associates The word
"successors" as above applies only to a successor for the kosher, ca-.
tenng business of a caterer to this agreement In the event that a ca-
terer sells his business to a _non-kosher caterer then this clause will
not apply to the new non-kosher caterer
on thel wages"; and that prior to negotiations with the „
Union in December -1982 he advised Kaufman as follows:
.1 told Mr. Kaufman that when they get into ne-
gotiations on the new contract, that this subcon-
. tracting issue had to be resolved in that new con-
tract, and I also told him, if he wanted, I would in-
volve myself in that portion of the contract to try
to negotiate it,. and I told him that it was an abso-
lute must, that that issue had to be settled in this
new contract.
Because if that issue wasn't resolved I knew what
, percentage ,of Mr. Kaufman's income came from the -
kosher work at the Warwick, and I knew that if it
was not resolved, favorably to him, so that he could
continue to operate there, as he did in the past, he
= probably was going to go out of business. 4 ,
: . .
What I said to him was, that we had to have Ian-.
, guage inserted into that contract, that specifically
, allowed us to do what we had been doing in the
- past. And, that is why I. felt ultimately, that I was
going to be involved in drafting the language. .
Although he had almost no negotiating experience,,
Kaufman decided to attend the joint negotiating sessions
at the office of , the Fecletal , Mediation and. Conciliation
Services. With respect to the first session, which was .
held late in December 1982, Kaufman testified as fol7
lows:
[Young] said to me, I'm surprised to see you
here, your attorney said that you were , not going to
partake of these joint discussions. I told him that
my disputes with the union had to do with a work-
ing condition at the Warwick Hotel, and it is some-
_ thing that I =felt that 'I could iron out or negotiate
with 'them as an individual, but since the wage
.. package, whatever was to be arrived at in wages, at
these Meetings I would be. forced to take,. because
--_-they are not going to give one caterer a lesser price
' than' someone else; and I thought it was to my ad-
vantage 'to be here to be part of this wage discus-
] sion.since I . was going to pay it 5
4 'Kaufman' testified that in December 1982 between 20'aild 25 percent
of R & K's business involved situations where other employers provided
service personnel for functions, that different hotels have different ar-
rangements and R & K abides by the wishes of the owner of the hotel,
that other kosher caterers used the employees of the hotels to serve, that
in many specified cases. in the Philadelphia area the situation was the
same,as at the Warwick, namely, the caterer provided the food and the
hotel provided the personnel, and that this situation existed for years and
was not challenged by the Union until 1982
Jaines Washington, a business agent for the Union who attended this
session, testified that Kaufman said
that we are not here to negotiate anything with the Warwick
Hotel or some words to that effect, but we weren't there for that
purpose, and we of course, didn't discuss anything with reference to
the Warwick Hotel ,
' 1James Small, president ,of the involved local, also attended this session
He testified
Before we sat down at the negotiating table, Ken Kaufman said to
me, M. front of everybody, that he wanted to make it perfectly clear,
Continued„
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At - - another point, Kaufman testified that he advised
Young at the first session that "my Warwick issue was a
private issue, and I would get involved in that after we
discussed wages." Further,- Kaufinari testified that while
everybody else was there 'to try to reach a contract, he
believed his opening remarks to Young "eliminated the
possibility of [R & K and the Union] reaching 'a contract,
at anytime during those negotiations."
There were four negOtiation sessions with the last one
held on March 3, 1982. Washington, Small, and Kaufman
attended all of them. Regarding the sessions, Washington
testified that the first was merely a presentation and a
review of What the proposals were; that the second ses-
sion dealt with a review of-health and welfare, pension,
and other economic issues, and the employers offered a
counterproposal regarding wages; that at the next session
wages and a most favored nations clause was discussed;
that at the second or third session it was agreed that the
"language remain the same throughout the contract, with
the only change being there was wages as far as the
numbers was concerned"; that at the fourth session
wages were discussed with the employers making a pro-
posal, that at that point there were no other outstanding
issues, and that at this last session Small adtiised the em-
ployers that he would not recommend the final offer but
he would take it back to the membership' for ratifica-
tion. 8 Kaufman's testimony 'regarding what was dis-
cussed'at the negotiation sessions did riot differ material-
ly from WaShington's. 7 The former testified that as he
left the last session
[I]t was . . . [his] understanding, number one, we
would find out if the' wage package was accepted,
and number two, the union and I would sit down
and get the- language straight on my operating in
the Warwick and other places.
With respect to the above-described recognition
clause, Washington testified that it was never discussed
during the above-described negotiating sessions; that the
issue of what it covered was never raised during the ne-
gotiating sessions; and that there -was no change pro-
posed in the recognition clause. 8 Kaufman testified that
he did not advise the Union before or during negotia-
tions that he wanted the above-described recognition
clause modified because he did not even know 'that the
above-described difference of opinion was based on this
before we started any negotiations, wages Was the only thing to be
discussed, the Only purpose there was to negotiate a kosher caterers
contract That nothing else would' be discussed, no Warwick, no
Warwick situation, and whatever
6 Washington's testimony regarding the last negotiating session- was
corroborated by Small , •
7 As indicated by the testimony and Kaufman's notes^on the negotia-
tions, G C Exh 4, a number of the items included in the proposed agree-
ment were discussed
8 Assuming that R & K Was the successor to or the alter ego of Rosen-
thal & Kaufman, it was Washington's understanding in 1981 and 1982
that wider the 'above-described recognition clause, "if R & K serviced a
kosher luncheon at the Warwick, and the Warwick-and some other em-
ployees sd■ied the foCid, that this contract required that those employees
that served the food be covered by this contract" Washington was
aware of the above-described arbitration matter before negotiatiOns com-
menced in December 1982 and he was aware' that R & did not agree
with the Union's position regarding the Warwick
clause; that snide he did not know what, if any, clause'
the Union was relying on in challenging 'the operation at
the Warwick, he did not indicate to the Union that the
terms of the proposed agreement should be modified to
remedy the Warwick situation; and' that he "wanted
something added to the contract that said I could contin-
ue doing what I have been doing for thirty years." -
During the course of the above-described negotiations
Kaufman did not request private or side-bar meetings
with the Union. Small testified that after the last negotia-
tion session and up to the ratification described below (I)
neither the Union nor -any of the involved caterers made
additional proposals, .and (2) R & K did not notify the:
Union that it had a problem with the contract
On March 10, the members ratified the agreement.
Kaufman was notified of this by Young and Washington.
In the beginning of April Washington contacted Kauf-
man and brought a typed contract to Kaufman at his
office for him to sign. Kaufman told Washington that
Kaufman wanted to review it. Washington testified that
Kaufman then indicated that (the name typed on thelront
cover of the agreement, Rosenthal & Kaufman, was in-
correct and it should be R & K Caterers, Inc. 'Washing-
ton left the agreement and Kaufman, according to the
testimony of Washington, stated that he would "get back.
to . .4Washington as to] when . . . [he] could come
back to pick it up." Washington also testified that Kauf,
man ,indicated that he wanted to have his attorney look
at the agreement, which—according to Washington—
was a common practice. 8 Kaufman testified that when-
WaShington called and said that he wanted to bring
the contract out to me to be signed . . . I told him
he could bnng it out. I could not sign it at that
point, as I wanted to show it to my attorney, as we
had some non-wage issues, and I want to go over
them with the attorney."
Einhorn testified, regarding the agreement, that Kauf-
mann -
. . . either • . . told me that they settled the wage
issue, or he called me when the contract Was deliv-
ered to him, and I said you now must settle the
problem at the Warwick, and that that contract is
not to be signed until the Warwick problem is set-
tled.
Later in April Washington returned to Kaufman's
office with corrected contracts which read "R & K Ca-
terers, Inc."_ (G.C. Exh. 3.)" Washington testified `that
9 Small testified that he would not say that as a general rule in negotia-
tions in the involved industry both sides traditionally submit drafts of
contracts to their attorneys and "[lin this Instance, with the caterers it is
surprising because it is the same contract, after contract, after contract"
i ° While Kaufman recalled pointing out to Washington that the name
of the Company on the cover of the agreement was not correct, Kauf-
man believed that he made this observation at the second meeting with
Washington later in April but he was not sure At one point Kaufman
testified that at this meeting I did was accept the contract, and I
told him I would get back to him"
" The agreement was already signed by union representatives Wash-
ington testified that Kaufman had left a meisage at Washington's office
that Kaufman would like to meet with Washington
R & K CATERERS 605,
to the best of his recollection Kaufman said "that he
would only sign this contract if we • would remove ac-
tions taken against him with reference to the Warwick
Hotel", and that then Washington
. [told Kaufman] I couldn't understand what one
thing had to do with the other . . . and then I
picked up the contracts that I had brought at that
time, and I never left them with him.
While Washington laid the contracts on Kaufman's desk
Washington did not show Kaufman the contract nor, as
indicated above, did he leave a Copy with Kaufman. Re-
garding the second meeting with Washington, Ka'ufman
testified.
I think he [Washington] called up a short time, a
week or later whatever I don't remember the exact
time, and asked me if I was ready to sign the con-
tract, and I said I hadn't gotten together with my
attorney yet. He called me;again, and I at that time
told him he could come out, but I did have some
problems with the contract and I would like to dis-
cuss them with him •
With respect to what was said during his second meeting
with Washington, Kaufman testified as follows:
I mentioned to him that the word association was.
used in the contract, and we are no longer associat-
ed. I also mentioned that the contract should be
made out to R & K Caterer, not Rosenthal and
Kaufman. He said he had no objection to that, he
would make that change . . To my knowledge it
happened in the second. To be honest, I don't recall
if I objected in the first or second meeting. I also
said to him that we have an- outstanding issue, in re-
gards to the Warwick Hotel, and for the way I am
operating there, and I said, I voiced that in the be-
ginning of the negotiation. I didn't pursue it further
at that time, because I didn't think it was anybody's
business, but between the union and I, and I said
that I wanted to sit down with the union and our
attorney and see if we could iron out the language
to finish the contract. He said that he would take,
the—You know,—He didn't say no, he said that he
would take the information back, speak with Jimmy
Small, and speak with Ira Silverstein, and he would
get back to me. No one ever got back to me. About
a week later, my attorney got a letter from Ira Sil-
verstein that if I didn't sign the contract immediate-
ly, they were going to start a proceeding with the
NLRB.
Later Kaufman testified as follows regarding his second
meeting with Washington:
When I . . . [returned Washington's call], J told
him I wanted to see him because I had to go over
some things with this contract that—You know, I
couldn't sign it, but I would like to meet him, you
know, in my office to go over with him why.
To my recollection, at that time we talked about
the names, but I could have mentioned the name
the first time Then I told him, that we still had the
open issue regarding operations at the Warwick
Hotel, and I told him that this issue should be nego-
tiated before we signed this contract, so that we can
go on and live with this contract and we should sit-
down and have a meeting with the lawyers and
settle this point.
Finally, Kaufman testified that he would have signed the
contract at the second meeting with Washington if they
were able to resolve the Warwick Hotel problem at that
time.
All of the other kosher caterers who participated in
the group negotiations signed individual contracts which
were the same as that offered to R & K.' 2 Kaufman tes-
tified that he thought the recognition clause has been in
contracts agreed to by other Philadelphia area kosher ca-
tering companies for years, and that other ,caterers in
that area handle kosher functions at . hotels where em-
ployees of someone other, than .the caterer serve the.,
food.
Einhorn testified as follows about a conversation he
had with Silverstein about Kaufman not signing the con-
tract:
I said to him, let's get the whole problem at the
Warwick resolved, both in the past and for the
future with the new contract, and will you talk to
the union to see if we can't resolve it, because I said
I want to .get' rid of the arbitration, and I want to
settle the problem for the future with a new con-
tract, and he said I will get back to you after I . talk
to the union:
By letter dated May 13, 1983, Silverstein ,advised Ein-
horn:
• l•
I have reviewed the 274-R & K situation with
my client and I have been advised that the negotia-
tions between Local 274 and R & K were finalized
and an agreement reached and that your client is
simply refusing to sign the agreement because of a
pending arbitration. My client is unwilling to with-
draw the arbitration,and , it is-our position that your
client's refusal to sign the contract in this situation
is an Unfair Labor Practice We would appreciate
your returning to us- a signed. contract within one
(1) week or . we shall be forced to proceed with
whatever remedies are available- to us before the
National Labor Relations Board.
Regarding the last sentence of the above-described
letter, Einhorn testified that he did not at that time have,
in his possession an unsigned copy. of the contract;. and
that he "never had the _contract until we got involved in
all these proceedings." Subsequently, Einhorn testified;
(1) that he remembered Kaufman -telling him "that there
" They were as follows Barclay Caterers, Cohen Caterers, and Norm
the Caterer While another kosher caterer, Pressman the Caterer, did not
attend any of the sessions, he signed the contract And while Betty the
Caterer negotiated individually with the Umori, it-was concerned with a
pension question
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a problem that they had-the names all .mixed up, that
they had the wrong—that they had the association in,
and that they had the wrong name for his corporation";
and (2) that he requested a copy . of the contract, which
was delivered to Kaufman, and that his "best recollec-
tion . . . .[was] that . . [he] got it before Ira Silver-
stein's letter to . . . [him], so Ira wrote . [him] in
May of this year, and . . [he] would assume that . .
[he] got it sometime towards the end of April, beginning
of May."
& K has honored all of the economic- terms of the
contract.
B. Contentions_ -
On brief, the General Counsel argues that it has long
been settled that where an employer and union have
reached agreement as,to the terms and conditions of em-
ployment either party is required by law, on the request
of the other; to sign a .written collective-bargaining
agreement embodying such' understanding; that the ques-
tion in these types of cases often turns on whether the
objective facts indicate that there has been an agreement
on the terms of the collective-bargaining agreement; and
that either party's good-faith belief that a contract has or
has not come into existence is irrelevant. It is the Gener-
al Counsel's 'contention that Respondent, by refusing to
sign unless the Union withdrew the arbitration demand it
had filed against Respondent with respect to Respond-
ent's operation at the Warwick,. has conditioned its exe-
cution of the contract on a nonmandatory subject of bar-
gaining. Assertedly 'Kaufman had earlier, agreed to the
contract and specifically stated just before the first nego-
tiating session that he was not there to discuss the War-
wick situation. It is pointed out by the General Counsel
that at no point either before or during the negotiations
did Kaufman indicate to the Union that he wanted the
recognition clause of the contract changed to accommo-
date his ' situation:' Also the General Counsel contends
that the fact that Respondent . has honored-all of the eco-
nomic terms of the contract 'strongly suggests that Re-
spondent believed and- still believes that it has an agree-
ment with the Union.
Anticipating that Respondent would argue that the in-
stant' case is analogous to Checker Taxi Co., 228 NLRB
639 (1977), the General Counsel asserts that that case is
distinguishable since in Checker a union representative
knowingly misled -respondents there regarding the con-
tent of the proposed contract and the Board refused to
bind respondents to - the' agreement finding instead that
. there is a statutory obligation of mutual good faith. The
General Counsel submits that in Checker from the very
beginning of the negotiabons there was a sharp disagree-
ment on respondents' demand that it-be allowed to lease
taxicabs to nonemployees,-' a position which the union
members opposed. Here, the .Oeneral Counsel contends,
there was no such sharp disagrdement on the recognition
claiiie of the contract dining- the involved negotiations,
there was an agreement among the parties at the session
held in the latter part of January and at the final session
that the contract's langnage 'would remain the same, at
no point either before -or during the negotiations did
Kaufman indicate to the Union that he wanted the rec-
ognition clause of the contract changed to accommodate
his situation, Kaufman did not request during the course
of the negotiations a separate meeting with the Union to
negotiate Respondent's problems at the Warwick, and
the Union, unlike in Checker, did not at any time mislead
Respondent
Respondent's argument, 'made at the hearing herein,
that it was relieved from executing the contract because
it was illegal under Section 8(e) of the Act in that the
recognition clause of the contract as it was applied was
designed to force Respondent to cease doing business
with another employer because that employer was not
union, is, according to the General Counsel, without
merit and should be rejected for even assuming, ar-
guendo, that the clause was an issue in the instant pro-
ceeding or that Respondent could properly raise its le-
gality as a defense to its refusal to sign, it is clear that
the clause does not violate Section 8(e) of the Act be-
cause (1) the clause is ambiguous and as such the Board
will not presume unlawfulness, (2) .Respondent must
come forward, which it -failed to do, with extrinsic evi-
dence that the clause was intended to be administered in
an unlawful manner, and (3) the clause does not violate
Section 8(e) because Respondent is resisting the Union's
alleged unlawful, interpretation of the clause.
Respondent, on brief, contends that at the first negoti-
ating session Kaufman advised the Union that while he
would participate in negotiations concerning economic
issues that would apply to all caterers, there would
remain issues between the -Union and his company that
would have to be resolved "before any final agreement
could be reached." (R. Br. 16.) Assertedly Kaufman's
version of what was said is consistent with the history of
parties' positions taken prior to the negotiations and is
certainly more probable than the testimony as related by
the union negotiators Furthermore, Respondent argues
that it is unlikely - that Kaufman would have failed to in-
dicate his intent to separately negotiate an unresolved
issue that affected a substantial portion of his business
partiCulaily after having been instructed to do so by his
attorney
It is pointed out by Respondent that it is well settled
law that where there is no -"meeting of the minds" as to
essential terms of an agreement and where , parties differ
as to their understanding of such terms, there is no con-
tract which the parties can be directed to sign; and that
this principle applies even when the failure to achieve a
meeting of the Minds or the misunderstanding , can be
traced to an ambiguity for which both parties are equally
to blame. Respondent contends that
. . . [t]he ambiguity present in the instant case is
not only a misunderstanding as to the meaning of
the agreement but also the Union's alleged failure to
understand that Kaufman intended to continue sepa-
rate negotiations with the Union -to resolve this mis-
understanding after conditional approval of the
wage portion of the agreement was reached in
group negotiations [R. Br. 18]
Assertedly approval of the agreement even if expressed
in an unconditional form does not create an agreement
R & K CATERERS

607
when the approval was conditioned in fact or where the
party accepting the agreement did so with an under-
standing that differed from the understanding • of the
party seeking to require execution.
Respondent contends that there was no meeting of the
minds here since allegedly the Union was 'aware that Re-
spondent objected to the Union's interpretation of the
agreement as it had attempted to apply the agreement at
the Warwick, the Union was told that Kaufman entered
the group negotiation for the purpose of discussing eco-
nomics only and that he intended to discuss the Warwick
problem in separate discussions, the terms of the new
agreement as they might relate to outstanding legal issues
had been the subject of discussions between the parties'
attorneys before negotiations started and the practice of
the parties had been to •submit drafts of final agreements
for approval by attorneys, and there could have been no
meeting of the minds even if a final agreement had been
reached at the group negotiations as it is undisputed that
the Union attempted to force Respondent to execute a
contract that was significantly different from the con-
tract it submitted to other caterers for signature and this
fact is undisputed as the Union does not deny that it
allows other caterers to use customers' employees to
serve food but, based on the same language allegedly
agreed to at the same negotiations, asserts that the con-
tract does not permit Respondent to do so.
Industrial Engineering Co., 173 NLRB 77 (1968), is
cited by Respondent for the proposition that a union
would not be allowed to indirectly force an employer to
agree to language for which it knew it had not bar-
gained Checker, supra, is cited by Respondent for the
proposition that the Board will not allow a union to bind
an employer to an agreement despite the employer's mis-
conception as to how the union would construe a clause
of the agreement, and for the proposition that the argu-
ment that the language could be clarified in arbitration is
without merit since the function of arbitration is to inter-
pret an agreement reached rather than alter, avoid, re-
scind, or create an agreement.
With respect to the General Counsel's contention at
the heiring herein that Respondent had no right to
refuse to sign the agreement by insisting on a nonmanda-
tory subject of bargaining—the withdrawal of an arbitra-
tion case—Respondent asserts that the issue is not this
simple since
. . the primary reason for the refusal to sign the
agreement was not the arbitration !natter itself but
rather whether the Union would agree for the future
under the new agreement to . permit Kaufman to op-
erate as he had in the past and as it permitted all
other employers to operate under the same contract
language. [R. Br. 24-25.]
Assertedly, it was not a nonmandatory ,bargaining
demand to request (1) to discuss whether the Union
would permit Respondent to sell food without the added
requirement that the purchaser's employees be union and
be covered under the terms of the agreement, and (2) to
ask for an explanation and for relief from an arbitrary
position taken by the Union that singled out Respondent
as the only employer having a specific burden under the
contract when the same language applied to all caterers.
Respondent contends that even assuming the Union had
no obligation to drop an arbitration case which asserted-
ly was initiated in bad faith to exert pressure on a third-
party employer, the Union nevertheless was obligated to
attempt to address for the future contract the difficulty
caused Respondent by the Union's subjecting it to a spe-
cial set of rules that admittedly had never applied in the
past But, allegedly it was obvious that the Union had no
intent to negotiate in good faith on this issue and its fail-
ure to do so was the primary reason for the failure to
obtain a signed agreement It is submitted by Respondent
that the fact remains that Kaufman wanted an agreement
under which he could operate as he had in the past and
the Union Was unprepared to give him such an agree-
ment. Assertedly - it follows that no agreement was
reached with Respondent.
Finally, Respondent contends that Union Representa-
tive Washington admitted that the Union's interpretation
of the recognition clause of the agreement required the
customer to honor the agreement with respect to the
customer's employees; that the language of the clause
itself supports such an interpretation; that the law does
not permit the parties to enter into an agreement that
creates any such obligations; and that, therefore, Re-
spondent cannot be found guilty of an unfair labor prac-
tice by its failure to commit an unfair labor practice by
entering into an illegal agreement. Respondent contends
that since the recognition clause in the agreement Re-
spondent was asked to sign and the Union's interpreta-
tion of that clause was clearly directed to achieve its ob-
jectives at the Warwick with respect to employees of an-
other employer and were not designed to preserve work
for Respondent's employees, the agreement was illegal
and Respondent should not be ordered to sign an illegal
agreement. Respondent also contends that the Union's ef-
forts to force Respondent to sign the agreement and its
refusal to modify its arbitrary interpretation of that
agreement was a continuation of the Union's illegal ac-
tivity found unlawful by the administrative law judge in
Cases 4-CP-355, 4-CB-4477, and 4-CB-4478.1 3
" In Hotel ti Restaurant Employees, 269 NLRB 482 (1984), the Board
remanded those cases to the administrative law judge for the purpose of
considering the effect, if any, of a specified defense of the union As here
pertinent, portions of the Board's decision read as follows
As found by the judge, Warwick Caterers is a banquet and cater-
ing operation owned and operated by ,Hospitality Catering, Inc
Warwick Caterers is not a party to any collective-bargaining
agreement with the Respondent [Union]
On 22 February [1982], the Union filed 8(a)(5), (3), and (1) unfair
labor practice charges against Warwick Caterers, Elan, and Hospital-
ity Investments, Inc, alleging, in essence, that these employers were
successors to, or an alter ego of, R & K Caterers (Kosher Catering)
and Warken Banquets, Inc (non-Kosher catering), employers which,
prior to the sale of assets to Warwick Caterers, had verbally agreed
to pay union wage rates to their employees The Union claimed that
Warwick Caterers had a successorship or alter ego duty to recognize
It The charge also alleged discriminatory terminations of Warwick
employees because of their union affiliation
These charges were dismissed by the Regional Director, and the
dismissal was later upheld by the General Counsel on appeal In up-
holding the dismissal of the complaint, the General Counsel observed
that there was no evidence that Warwick Caterers "was an alter ego
Continued
608

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Analysis
For the reasons stated below, it is my opinion that Re-
spondent did not violate Section 8(a)(1) and (5) of the -Act as alleged.
For years, notwithstanding the above-described_recog-
nition clause, the Union did not challenge the way serv-
ice was provided at the Warwick by Rosenthal & Kauf-
man in conjunction with Warken, which, as indicated
above, was a nonunion operation. (As noted above, cer-
tain of Warken's employees received the equivalent of
union wages.) But when Kaufman . sold Warken the
Union asserted rights it believed it had in its agreement
with Rosenthal and Kaufman and the alleged successor
or alter ego, k & K. Long before negotiations began on
the involved contract the Union notified R & K's attor-
ney in the above-described June 15, 1982 demand for ar-
bitration that the Union believed that R & K was breach-
ing the "recognition and successorship clauses of the
contract through arrangements at the Warwick Hotel."
Initially Kaufman refused to participate in the group
negotiations between the Union and the other kosher cá-
terers because of the pending arbitration matter over Re-
spondent's service at the Warwick. When he did appear
at the first negotiating session he qualified his participa-
tion indicating that he was there to discuss wages only,
and that the situation involving R & K at the Warwick
would not be a matter which would be dealt with at
those group negotiations. Small's testimony that Kauf-
man, after stating that he was only there to discuss
wages, said "the only purpose there was to negotiate a
kosher caterers! contract" is not credited. This might
have been Small's purpose but in my opinion Kaufman
did not utter these words for they would have contra-
dicted his declaration that he was there to discuss wages
only. While Kaufman did not explicitly indicate that the
resolution of the problem at the Warwick was an issue
on which resolution of a collective-bargaining agreement
was contingent, and while Kaufman never specifically
requested negotiations over the recognition clause inas-
much as he did not appreciate the basis of the Union's
assertions, Washington testified that when the involved
negotiations began he fully understood what was being
asserted in the arbitration proceeding. The dispute cen-
tered on language in the Rosenthal & Kaufman bargain-
ing agreement, which language was also included in the
contract being negotiated. Kaufman lacked the sophisti-
of any of the parties who might arguably have had a bargaining rela-
tionship with the Union" 4
Contemporaneous with the filing of the charge, the Union invoked
the arbitration provisions of its collective-bargaining agreement with
Elan, "seeking to enforce the contractual obligation of recognition
[on Warwick Caterers] as set forth in the collective-bargaining agree-
ment [between the Union and Elan] "
On 24 February [1982] the Union began picketing which contin-
ued until it was enjoined on 14 June [1982]
On 13 May [1982] Warwick Caterers filed a charge against the
Union alleging violation of 8(b)(7)(C) A complaint issued;- forming
the basis for the Instant case
Although the Union took the position that it is an incumbent collective-
bargaining representative by virtue of the alter ego or single-employer
status between Elan and Warwick Caterers, such defense was not consid-
ered After overruling the authonty the administrative law judge relied
on, the Board, by Order dated March 28, 1984, directed the judge to con-
sider the defense
cation to fully appreciate his situation. And it is my opin-
ion that while at some point Einhorn may have told
Kaufman what the mechanics were for remedying the
problem with respect to the contract which was being
negotiated, either the message was not conveyed before
Kaufman attended the first negotiating session or when
the message was conveyed Einhorn failed to impress on
Kaufman the advisability of explicitly making this known
to the Union .at the outset. It would appear that even
though Einhorn had notice of the basis of the Union's
claim, inasmuch as he refused to acknowledge any bar-
gaining relationship between R & K and the Union based
on the Rosenthal & Kaufman agreement, and since he
did not expect Kaufman to attend the group negotiation
(as noted above he learned of Kaufman's participation
upon returning from vacation) most likely he did not
specifically advise Kaufman about the mechanics before
the first negotiating session. In any event, Kaufman did
not explicitly state at the first negotiating session that he
would seek a modification of what had become a stand-
ard contract between the involved entities before he
would .sign it. Nonetheless, the assertion that a great deal
of R & K's business involves functions at the Warwick
was not contradicted. In my opinion the Union fully ap-
preciating the situation realized that Kaufman would not
wittingly perpetuate the Warwick problem. Consequent-
ly, when Kaufman declared that he was there only to
discuss wages the Union could not reasonably believe
that Kaufman was there , to negotiate a complete con-
tract. Notwithstanding assertions to the contrary, it was
not demonstrated that Kaufman knowingly exceeded his
limitation to discuss only wages during the group negoti-
ations. And, in my opinion although Kaufman did not.
explicitly state at the outset that the contract was contin-
gent on the resolution of the Warwick situations, the
Union, under the circumstances, could not have reason-
ably understood otherwise.
As pointed out in Industrial Engineering Co, supra, the
alleged violation contemplates a consciously arrived at
understanding and a refusal, as here pertinent, to execute
the written agreement. When Kaufman limited his par-
ticipating and indicated that while he had problems with
the Union regarding operations at the Warwick he
would not deal with that matter in group sessions, the
Union, which fully appreciated the situation, could not
reasonably conclude that there would be a meeting of
the minds during the involved negotiation sessions on
that language . in the contract being negotiated, which
was the basis of the Union's contentions that R & K was
acting unlawfully at the Warwick. The General Counsel
contends more than once on brief that here, unlike
Checker, supra, the Union did not mislead Respondent.
As pointed out by Respondent, on brief, however, it was
concluded in Checker, supra at 44 that "[t]he result
would be the same even if. . . [the Union] had not been
guilty of misrepresentation."
Two other portions of Checker, supra at 643 and 645,
respectively, cited by Respondent, on brief, bear repeat-
ing:
This contention, placing a "pound-of-flesh" techni-
cality-above justice and equity, has been soundly re-
• R & K CATERERS 609
jected by the Board, which recognizes the statutory
obligation of mutual good faith as a cornerstone of
labor-management relations.
. . . .
Brief notice may be taken of the Union's apparent
argument that Respondent must execute the con-
tract and rely on arbitration thereunder to seek
relief. Such contention is manifestly untenable. Ar-
bitration is not available to avoid, rescind, or alter
an agreement, which is what Respondents would
need if they were to sign the agreement in its
present form.
, In view of the above, it is not necessary to deal with
the above-described contentions regarding the legality of
the contract.
The complaint should be dismissed in its entirety.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The complaint is dismissed in its entirety.
14 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"