YP Midwest Publishing, LLC d/b/a Dex YP

National Labor Relations Board - Administrative Judge Opinions

Jun 18, 2020

07-CA-218455 (N.L.R.B. Jun. 18, 2020)

JD–28–20
Maryland Heights, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
YP MIDWEST PUBLISHING, LLC,
d/b/a DEX YP
and 07–CA–218455
DISTRICT 4, COMMUNICATIONS
WORKERS OF AMERICA (CWA), AFL–CIO
Steven E. Carlson, Esq.,
for the General Counsel.
David L. Zwisler, Esq.,
for the Respondent.
Mr. Matthew R. Harris,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Detroit,
Michigan, on April 23, 2019. District 4, Communications Workers of America (CWA),
AFL–CIO (District 4 or Union or Charging Party), filed the charge in case 07–CA–
218455 on April 13, 2018, alleging that since about October 6, 2017, YP Midwest
Publishing, LLC, d/b/a Dex YP (Respondent) failed to continue in effect all the terms
and conditions of a collective-bargaining agreement by unilaterally changing its
contribution formula to employees’ 401(k) plans from the amount established pursuant
to the agreement. (GC Exh. 1(v).)
The consolidated complaint initially issued in this case on February 28, 2018.
(GC Exh. 1(m).) The General Counsel later issued an order further consolidating cases,
second consolidated complaint, and notice of hearing (complaint) on June 28, 2018.
(GC Exh. 1(x).) The complaint in this matter contained allegations made in charges
filed by Charging Parties Local 4103, Communications Workers of America (CWA),
AFL–CIO (Local 4103), in cases 07–CA–206794 and 07–CA–206810, Local 4034,
JD–28–20
2
Communications Workers of America (CWA), AFL–CIO (Local 4034), in cases
07–CA–207970 and 07–CA–208090, and Local 4100, Communications Workers of
America (CWA), AFL–CIO (Local 4100), in cases 07–CA–216815 and 07–CA–216834
against Respondent. (GC Exh. 1(a), (c), (e), (g), (q), (r).) Two of the charges were
amended prior to the issuance of the complaint. (GC Exh. 1(i), (k).) After a partial 5
settlement of these matters, the General Counsel issued an order severing cases,
approving partial withdrawal request and withdrawing complaint allegations in cases
07–CA–207970 and 07–CA–208090 (Local 4034), and complaint paragraphs 5, 6, and
11 through15, on January 23, 2019. (GC Exh. 1(ee).) This left only allegations from
cases 07–CA–206794, 07–CA–206810, 07–CA–216815, 07–CA–216834, and 07-CA-10
218455 and complaint paragraphs 9 (07–CA–206794), 10 (07–CA–206810), 17 (07–
CA–216815), 16 (07–CA–216834), and 8 (07–CA–218455) remaining. (GC Exh. 1(a),
(c), (i), (q), (r), (v), (ee).)
At the outset of the hearing, the General Counsel, Respondent, and two of the 15
remaining Charging Parties (Locals 4103 and 4100) reached informal settlement
agreements. Therefore, the General Counsel withdrew paragraphs 9, 10, 16, and 17 of
the complaint and cases 07–CA–206974, 07–CA–206810, 07–CA–216815, and 07–
CA–216834. (Tr. 7.) I granted the General Counsel’s motion to sever these allegations
from the complaint and remanded them to the Regional Director for further action. (Tr. 20
7–8.) Thus, the only remaining charge in the case is 07–CA–218455 and only
complaint paragraphs 8 and 19(b) remain.
Specifically, the General Counsel alleges that the parties’ collective-bargaining
agreement contains a provision wherein Respondent matches employee contributions 25
to its 401(k) plans at no less than 100 percent for each employee dollar contributed to
individual accounts, up to 5 percent maximum contribution. The complaint further
alleges that since about October 16, 2017, Respondent failed to continue in effect the
terms and conditions of the agreement . . . by unilaterally changing its contribution
formula to employees’ 401(k) plans from the amount established pursuant to the parties’ 30
collective-bargaining agreement. As set forth fully below, I find that the General
Counsel has not established that Respondent violated Section 8(a)(5) and (1) of the Act
as alleged in the complaint.
The parties were given full opportunity to participate, to introduce relevant evidence, 35
to examine and cross-examine witnesses, and to file briefs. On the entire record,
including my own observation of the demeanor of the witnesses, 1 and after carefully
considering the briefs filed by the parties, I make the following
1 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–28–20
3
FINDINGS OF FACT
I. JURISDICTION
5
YP Midwest Publishing, LLC, d/b/a Dex YP, a corporation, has been engaged in
providing marketing and consulting services, from its facility in Maryland Heights,
Missouri, where it annually performs services valued in excess of $50,000, for various
enterprises located in states other than the State of Missouri. Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), 10
(6), and (7) of the Act. (GC Exh. 1(bb).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and Labor Relations15
On June 30, 2017, Dex Media Holdings, Inc., acquired several entities, including YP
Holdings, LLC, Print Media, LLC, and yellowpages.com. (Tr. 18, 56, 82.) Following the
acquisition, Dex Media Holdings and YP Midwest Publishing became known as Dex YP.
(Tr. 56, 82.) Respondent sells print media, including a telephone directory, and digital 20
media, including online advertising. (Tr. 17.)
Beth Dickson is the Assistant Vice President of Labor Relations for Respondent.
(Tr. 55.) Robert Baker is Respondent’s Human Resources Business Partner, and, prior
to June 30, 2017, his title was Senior Manager, Human Resources. Steve Flagler was 25
previously Respondent’s Senior Manager of Labor and Employee Relations. (Tr. 82.)
Brian Herman was previously a labor and employment attorney at YP; he left shortly
after the company was acquired by Dex. (Tr. 102.) Keith Halpern was previously
Respondent’s Vice President of Labor and had authority to bind the company in contract
negotiations.2 (Tr. 83, 114–115.) Respondent admits, and I find, that Robert Baker is a 30
supervisor of Respondent within the meaning of Section 2(11) of the Act and an agent
of Respondent within the meaning of Section 2(13) of the Act. (GC Exh. 1(bb).) I
further find that Flagler and Halpern, both of whom represented Respondent at the
bargaining table, were agents of Respondent within the meaning of Section 2(13) of the
Act. (Tr. 82.) 35
Teri Pluta served as the full-time Administrative Director to the District 4 Vice
President from August 2015 until her retirement in 2018. (Tr. 131, 157.) Shannon
Kirkland became the Staff Representative for District 4 in August 2016. (Tr. 24.) Pluta
began bargaining with Respondent for a collective-bargaining agreement in June 2016, 40
prior to YP’s acquisition by Dex, and was eventually replaced by Kirkland. (Tr. 134–
135.) Following the acquisition, Respondent assured District 4 that all of its collective-
bargaining agreements remained in place and that its obligation to bargain with the
Union remained unchanged. (GC Exh. 3; Tr. 18.)
2 Halpern, who did not testify at the hearing, was Flagler’s supervisor. (Tr. 83.)
JD–28–20
4
Respondent admits, and I find, that since at least June 30, 2017, the International
Union has represented the following appropriate unit of employees as the exclusive
collective-bargaining representative:
5
All Staff Associates I, Staff Associates II, Staff Associates III, Staff
Associates IV, Service Representatives, Customer Service Specialists,
and Art Technicians employed by Respondent in a work location listed in
Exhibit A of the collective bargaining agreement between Respondent and
the International Union District 4, which is effective for the period of 10
August 14, 2016 to August 10, 2019, excluding supervisory, confidential,
managerial, and professional employees and guards as defined by the
Act.
(GC Exh. 1(bb); Tr. 18.) The bargaining unit is represented by a number of different 15
local unions, including those previously involved in this case. (Tr. 134.) District 4,
representing employees in Illinois, Indiana, Michigan, Ohio, and Wisconsin, has been
the designated servicing representative for a bargaining unit of Respondent’s
employees. (GC Exh. 1(x), 1(bb); Tr. 18, 24, 132–133.) Respondent admits, and I find,
that the International Union and District 4, Communication Workers of America (CWA), 20
AFL–CIO, are labor organizations within the meaning of Section 2(5) of the Act. (GC
Exh. 1(bb).)
B. The Retirement Savings Plans
25
YP Holdings maintained a Retirement Savings Plan program for its employees prior
to its acquisition by Dex Media Holdings. (R. Exh. 3.) The plan, effective August 24,
2015, was a defined contribution plan within the meaning of Section 401(k) of the
Internal Revenue Code of 1986 (2015 Retirement Savings Plan). (R. Exh. 3, p. 1.)
Section 5.2.1 of the 2015 Retirement Savings Plan stated:30
Matching Contributions . . . [T]he Employer will contribute to the Trust on
behalf of each Participant who elected Basic Deferrals during a payroll
period a Matching Contribution determined in accordance with Paragraph
(1) or (2) as applicable.35
(1) Generally. For each pay period, the Employer will contribute to the
Trust on behalf of each Participant who elected Basic Deferrals for
such pay period, other than an Eligible Bargaining Unit Participant,
a Matching Contribution equal to 80% of the Basic Deferrals made 40
on behalf of such Participant for such pay period.
(2) Eligible Bargaining Unit Participants. For each pay period, the
Employer will contribute to the Trust on behalf of each Eligible
Bargaining Unit Participant who elected Basic Deferrals for such 45
pay period a Matching Contribution equal to 67% of the Basic
JD–28–20
5
Deferrals made on behalf of such Eligible Bargaining Unit
Participant for such pay period.
(R. Exh. 3, p. 27.) The Basic Deferral amount was an amount from 0-6% of an
employee’s compensation. (R. Exh. 3, p. 24.) For an employee who was not a member 5
of the bargaining unit who contribute 6% of his or her compensation, this would have
meant a maximum 4.8% match (0.06 x 0.80 = 0.048 or 4.8%). For an employee who
was a member of the bargaining unit, this would have been a maximum 4.02% match
(0.06 x .67 = 0.0402 or 4.02%). (R. Exh. 3.)
10
In 2016, YP Holdings created a new 401(k) program for its employees (2016
Retirement Savings Plan). (R. Exh. 4.) This plan was effective July 1, 2016, prior to YP
Holdings’ acquisition by Dex Media Holdings. Regarding YP Holdings’ matching
contributions, the 2016 Retirement Savings Plan Summary Plan Description (SPD)
stated:15
Company Matching Contributions
When you contribute to the Retirement Savings Plan, YP will match a
percentage of your basic contributions once you satisfy the eligibility 20
requirements described below. These contributions are called “company
matching contributions.”
Eligibility Requirements for Matching Contributions
25
You are eligible to receive company matching contributions immediately if
you are a non-union employee. All union employees will be eligible to
receive company matching contributions after attaining one year of vesting
service . . .
30
Amount of Matching Contributions
The Company will match 80% of your basic contributions for before-tax,
after-tax, and Roth contributions each pay period. This means that you
can choose whether your contributions will be deducted from your base 35
pay on a before-tax or after-tax basis. YP does not match any
supplementary contributions, including catch-up contributions, that you
may make to the Plan.
(R. Exh. 4, p. 12.) Contributions up to 6% of an employee’s compensation were 40
considered basic contributions under the 2016 Retirement Savings Plan. (R. Exh. 4, p.
9.) Thus, at the highest level, an employee contributing 6% of his or her compensation
to this plan would have received an employer match of 4.8% (0.06 x 0.80 = 0.048 or
4.8%).
JD–28–20
6
There is no evidence that YP Holdings ever provided a 5% match of unit employees’
contributions to its 401(k) plan prior to its acquisition by Dex Media Holdings.
Furthermore, since the acquisition, there is no evidence that Respondent ever provided
a 5% match of unit employees’ contributions to its 401(k) plan. (Tr. 63.) According to 5
records submitted by Respondent, the highest match for unit employees by YP Holdings
was 4.8% in 2017.3 (R. Exh. 5.) YP Holdings’ Retirement Savings Plans were not
referenced in any way in the parties’ 2013 contract. (Tr. 171.)
C. Bargaining for 2016 Memorandum of Agreement10
The General Counsel called a single witness during his case-in-chief: Shannon
Kirkland. Kirkland was not at the bargaining table until the very end of negotiations in
2016. (Tr. 39–41.) On rebuttal, the General Counsel called Teri Pluta. Pluta, along
with Greg Spikes, Sean Lockwood, and Danielle Brewer-Collier, represented the Union 15
in bargaining for the Memorandum of Agreement (MOA). (Tr. 90, 157.) Kirkland
eventually replaced Pluta. (Tr. 90, 157.) Steve Flagler, Senior Manager of Labor and
Employee Relations, Keith Halpern, Vice President of Labor, and Robert Baker, Senior
Manager, Human Resources, represented Respondent in bargaining. (Tr. 83.)
20
Beginning in June 2016, the parties met several times over a three-month period to
negotiate for a collective-bargaining agreement. (R. Exh. 6, 8; Tr. 83, 88.) At the
bargaining table, the Union proposed raising the 401(k) match to 6% for unit employees.
(R. Exh. 1; Tr. 89, 165.) This proposal was rejected. (R. Exh. 6; Tr. 89, 165.) The
Union later proposed a 5% 401(k) match for unit employee contributions to the 401(k) 25
plan. (R. Exh. 8; Tr. 92, 165.) The 5% match was also rejected. (R. Exh. 6; Tr. 93,
167.) Respondent did not agree to a 5% match at the bargaining table. (Tr. 177.)
Around September 2016, several important issues remained on the table, including
Respondent’s 401(k) program. (Tr. 139.) According to Pluta, she and Halpern had a 30
“sidebar,” during which they discussed the 401(k) plan. (Tr. 139–140.) Pluta said, “we’ll
have a deal as long as . . . you have language in the contract that guarantees the
401(k).” (Tr. 140.) Halpern agreed, but did not want to work out the language at that
time.4 (Tr. 140.)
35
D. The Parties’ 2016 Memorandum of Agreement and Contract
On September 16, 2016, Respondent and District 4 entered into a Memorandum of
Agreement (MOA). (GC Exh. 2; R. Exh. 2.) The MOA was signed and initialed by Pluta
on behalf of District 4 and Halpern on behalf of Respondent. (R. Exh. 2.) The 2016 40
MOA stated:
3 The General Counsel did not submit any payroll or similar records showing the amount of
Respondent’s match of its employees’ contribution to its 401(k) plan.
4 As Halpern did not testify at the hearing, Pluta’s testimony on this point stands uncontroverted.
JD–28–20
7
. . . the parties have met and engaged in good faith bargaining for the
purpose of arriving at a successor collective bargaining agreement to the
agreement that expired on August 13, 2016. The Union and Employer
collectively have reached agreement and the predecessor agreement
shall only be revised as specifically set forth herein. 5
(R. Exh. 2.)
The version of the MOA physically signed and initialed by Pluta and Halpern
contains the following language concerning the 401(k) plan:10
24. The Company agrees to acknowledge the provision of a 401(k)
benefit to bargaining union [sic] employees in the drafting of the collective
bargaining agreement.
15
(R. Exh. 2, p. 20.) The signatures on the MOA are dated September 16, 2016. (R. Exh.
2, p. 1.)
The MOA went into effect after it was ratified by District 4’s membership and
Respondent’s Board of Directors. (GC Exh. 2.) Halpern and Patrick Moore drafted a 20
memorandum, dated September 22, 2016, summarizing the terms of the MOA for
Respondent’s Board of Directors. (R. Exh. 7.) Flagler and Herman reviewed the
memorandum before it was presented to the board. (Tr. 96.) The 401(k) program was
not mentioned in the memorandum. (R. Exh. 7.) Flagler testified that if the parties had
agreed to a change in the 401(k) program, it would have been mentioned in the 25
memorandum. (Tr. 97.) District 4’s members ratified the MOA in October 2016. (Tr.
26.) The Agreement was to be effective from August 14, 2016 through August 10,
2019. (GC Exh. 2, p. 51.)
On April 10, 2017, Pluta reached out to Brian Herman by way of an email.5 (GC 30
Exh. 8.) In her email, Pluta indicated that she had not yet received a copy of the 2016
MOA to proofread. (GC Exh. 8.) She asked Herman to advise her of the status of the
agreement. (GC Exh. 8.) Herman replied that he would have something for Pluta by
April 21 and thanked her for her patience. (GC Exh. 8.) Herman emailed Pluta a
redlined copy of the agreement on April 21, 2017. (GC Exhs. 7 and 8.) 35
As she had difficulty reading the redlined version of the MOA sent by Herman, Pluta
typed her own version of the MOA without redlining. (GC Exhs. 2; Tr. 107.) Pluta
returned her complete version of the MOA to Flagler attached to an email on September
14, 2017. (GC Exhs. 10, 11.) Appendix C to the complete version of the 2016 MOA 40
contained the following language:
5 Halpern was no longer employed by Respondent at that time. (Tr. 116.)
JD–28–20
8
The benefits set forth in the YP Midwest Publishing LLC Benefits Outline
Summary (“Benefits Summary”) shall remain in effect for bargaining unit
employees through December 31, 2016.
5
. . .
The Company 401K [sic] matching rate for all bargaining unit employees
will be no less than 100% for each employee contributed to individual
accounts up to 5% maximum contribution. If during the term of the 10
Agreement, the Company maximum contribution % is increased for non-
represented, non-bargained [sic] employees, the % shall also be
increased for bargained employees.
(GC Exh. 2, p. 133.) 15
This language appeared in both the redlined copy of the MOA sent by Herman to Pluta
and the version sent by Pluta to Flagler. (GC Exhs. 2 and 7.)
E. The 2018 Grievance20
In October 2017, Kirkland became aware of what he termed a “change”
Respondent’s 401(k) program. (Tr. 28.) Kirkland learned of the change through a
conversation with Jim Simons, the Vice President of Local 4009, in which Simons
informed Kirkland that there were “changes” in Respondent 401(k) program.6 (Tr. 28–25
29.)
On October 19, 2017, Kirkland sent an email to Dickson. (GC Exh. 4.) In his email,
Kirkland stated, “it has been brought to the Union’s attention that Dex/YP is currently
matching employees’ 401K contributions at 80% up to a maximum of 6%. Can you 30
confirm the rate Dex/YP is matching employees’ contributions?” (GC Exh. 4.) Dickson
responded that same day, stating that Flagler would be reaching out to preview the
2018 401(k) program. (GC Exh. 4.) Kirkland advised Simons to file a grievance, which
he did shortly after October 19.7 (Tr. 32.)
35
On October 20, 2017, Flagler sent an email to Pluta and Kirkland. (R. Exh. 9.)
Attached to his email was a copy of Respondent’s “Benefit Grid for 2018.” (R. Exh. 9.)
This benefit grid indicated that the 401(k) program had a 4.8% match for employee
contribution. (R. Exh. 9.)
40
In March 2018, Kirkland received a copy of Respondent’s 2018 version of the 401(k)
plan (2018 Retirement Savings Plan). (Tr. 35.) This plan set forth the following
calculation for Respondent’s matching of its employees’ contributions. (GC Exh. 5, p.
15.) As set forth more succinctly in the Summary Plan Description (SPD):
6 Kirkland did not explain with any specificity what he found out or the exact nature of the change.
7 The grievance was not presented as evidence at the hearing.
JD–28–20
9
The Company will make a matching contribution equal to 100% of the first
3% of eligible pay you contribute to the Plan, plus 60% of the next 3% of
eligible pay you contribute to the Plan.
5
(GC Exh. 6, p. 5). This formula works out to a 4.8% match for employees contributing
6% of their compensation to the 401(k) plan ((1.00 x 0.03) + (0.60 x 0.03) = (0.03 +
0.018 = 0.048 or 4.8%)). The 2018 Retirement Savings Plan became effective January
1, 2018. (GC Exh. 5 and 6.)
10
F. The Board Charge and Complaint
The charge relevant here was filed on April 13, 2018. (GC Exh. 1(v).) The
attachment to the charge alleged as follows, in relevant part:
15
On or about January 1, 2018, the Employer unilaterally modified the
collective bargaining agreement (“CBA”) by implementing a 401(k)
contribution matching structure other than that specifically negotiated and
memorialized in the CBA.
20
The CBA was reduced to writing and signed on or about September 16,
2016. The CBA is effective through August 10, 2019.
The applicable provision of the CBA provides, “The Company 401K
matching rate for all bargaining unit employees will be no less than 100% 25
for each employee dollar contributed to individual accounts up to 5%
maximum contribution. If during the term of the Agreement, the Company
maximum contribution % is increased for non-represented, non-bargained
employees, the % shall also be increased for bargained employees.”
30
On or about January 1, 2018, the Employer distributed a plan document
[GC Exh. 6] . . .
Upon information and belief, the Employer has implemented the terms of
the plan as depicted . . . above.35
The Employer implemented the plan depicted . . . above, without notice to
the Union and without providing it an opportunity to bargain.
The foregoing constitutes a violation of Sections 8(a)(5) and 8(d) of the 40
Act.
(Emphasis added.) (GC Exh. 1(d).)
JD–28–20
10
The complaint in this case alleges, at Paragraph 8:
(a) The collective bargaining agreement . . . contains a provision
wherein Respondent matches employee contributions to 401(k) plans “no 5
less than 100% for each employee dollar contributed to individual
accounts up to 5% maximum contribution.”
(b) Since about October 16, 2017, the Respondent failed to
continue in effect the terms and conditions of the agreement . . . by 10
unilaterally changing its contribution formula to employees’ 401(k) plans
from the amount established pursuant to the parties’ collective bargaining
agreement as referenced above . . .
(c) The terms and conditions of employment described above . . 15
. are mandatory subjects for the purposes of collective bargaining.
(d) Respondent engaged in the conduct described above . . .
without Charging Party District 4’s consent.
20
(GC Exh. 1(x).) Later in the complaint, the General Counsel alleges that Respondent
has been, “failing and refusing to bargain collectively and in good faith with Charging
Party District 4 . . . within the meaning of Section 8(d) of the Act in violation of Section
8(a)(1) and (5) of the Act.” (Id.) The complaint is dated June 28, 2018. (Id.)
25
DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of 30
the witness’ testimony, the witness’ demeanor, the weight of the respective evidence,
established or admitted facts, inherent probabilities and reasonable inferences that may
be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 35
2003). Credibility findings need not be all-or-nothing propositions—indeed, nothing is
more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Some of my credibility findings
are incorporated into the findings of fact set forth above.
40
I found Kirkland to be a credible witness. He appeared forthright and steady while
testifying and his testimony did not waver on cross-examination. However, Kirkland
was not at the bargaining table for most of the negotiations for the 2016 MOA. (Tr. 37.)
He could not recall the Union’s specific proposals regarding Respondent’s 401(k)
match. (Tr. 38.) Additionally, his testimony regarding the changes to Respondent’s 45
401(k) program was vague. However, on the whole, I found Kirkland’s testimony to be
worthy of belief.
JD–28–20
11
I did not find much of Pluta’s testimony credible. Pluta, who was called as a rebuttal
witness, was the head of the Union’s bargaining team during negotiations for the 2016
MOA. She also signed the MOA on behalf of the Union and exchanged versions of the
MOA with Respondent. She sparred with Respondent’s counsel on cross-examination, 5
gave contradictory testimony, and testified in an equivocal manner.
Pluta gave contradictory testimony. For example, she initially testified that when she
received the “redlined” version of the contract from Respondent, it was her,
“understanding that employees got [a] 5 percent [match].” (Tr. 148.) On cross-10
examination, she more forcefully testified that it was her understanding that employees
would be getting a 5 percent match. (Tr. 167.) She later admitted that Respondent
rejected the 5% match at the table. (Tr. 167.) Testimony of other witnesses and
Respondent’s bargaining notes support that Respondent never agreed to a 5% match of
employees’ 401(k) contributions. Pluta herself eventually agreed that Respondent did 15
not agree to a 5% match at the bargaining table. (Tr. 177.)
Pluta further quibbled with Respondent’s counsel. On cross-examination she
engaged in following exchange:
20
Q. But there’s a difference between an acknowledgement of [the 401(k)]
and a 5 percent match, wouldn’t you agree?
A. Not necessarily. If there's language in the contract that says that you
will get something, that's a guarantee you'll get something unless the 25
Employer takes it away arbitrarily and we end up in some kind of litigation
or something. But to me, if there's language in the contract, it's a
guarantee to our members. Just like the general wage increases. If it says
you get a two percent wage increase on October 1st, it's a guarantee to
our members that we get it.30
Q. Can you show me anything where the Company guaranteed to you,
during the process of negotiations, that you would get a 5 percent match?
A. I never said that they did.
35
. . .
Q. So, they didn't guarantee you a 5 percent match, correct?
A. You said can I show you anything that guaranteed.40
Q. So, is the answer yes or no? Can you show me anything that they
guarantee a 5 percent match?
A. I cannot show you anything they guaranteed. They said in writing that 45
they guaranteed us a 5 percent match.
(Tr. 168–169.)
JD–28–20
12
This testimony is directly at odds with her testimony that Respondent rejected the
5% match at the table.
Specifically, I do not accept Pluta’s testimony that Respondent agreed to a 5% 5
match. (Tr. 167.) First, this testimony conflicts with her testimony and credible
evidence that Respondent rejected the proposed 5% match. (R Exh. 6; Tr. 167.) Pluta
further contradicted herself by testifying that the 5% was “not necessarily” what was
agreed to. (Tr. 167.) She finally admitted that Respondent did not agree to a 5% match
at the table. (Tr. 177.) Given her demeanor and conflicting testimony, I reject Pluta’s 10
assertion that Respondent ever agreed to a 5% match. Therefore, I credit Pluta’s
testimony only where it is uncontroverted, is contrary to the Union’s interest, or is
corroborated by other, more reliable testimony, or by credited evidence.
I found Beth Dickson’s testimony credible. She appeared calm and sure while 15
testifying and almost all of her testimony was supported by documentary evidence.
However, I reject her testimony that she “got” the 4.8% match amount from the 2015
Retirement Savings Plan. (Tr. 68.) As set forth in the 2015 Retirement Savings Plan,
bargaining unit employees received only a 4.02% match. (R. Exh. 3.) Moreover, the
4.8% match amount in the 2018 Retirement Savings Plan echoes the 4.8% match 20
amount in the YP Holdings’ 2016 Retirement Savings Plan. Despite this minor misstep,
I otherwise credit Dickson’s testimony, as it is supported by the documentary evidence
presented and otherwise uncontroverted.
Finally, I found Steve Flagler’s testimony credible. Flagler testified in a candid 25
manner. He admitted difficult points on cross-examination. For example, he admitted
that he “missed” the 5% match amount that found its way into the various versions of
the MOA exchanged between himself and Pluta. (Tr. 95.) His testimony was also
supported by other evidence. His testimony regarding Respondent’s rejection of the
Union’s proposed 5% match was corroborated by Baker’s bargaining notes and the 30
testimony of other witnesses. Therefore, I have credited Flagler’s testimony.
B. Respondent did not Violate the Act as Alleged
The agreement signed by the parties following negotiations states as follows 35
regarding Respondent’s 401(k) match:
24. The Company agrees to acknowledge the provision of a 401(k)
benefit to bargaining union [sic] employees in the drafting of the collective
bargaining agreement. 40
(R. Exh. 2, p. 20.) This language was ratified by both the Union’s membership and
Respondent’s Board of Directors.
However, the language that found its way into the final version of the MOA stated as 45
follows:
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The benefits set forth in the YP Midwest Publishing LLC Benefits Outline
Summary (“Benefits Summary”) shall remain in effect for bargaining unit
employees through December 31, 2016.
. . .5
The Company 401K [sic] matching rate for all bargaining unit employees
will be no less than 100% for each employee contributed to individual
accounts up to 5% maximum contribution. If during the term of the
Agreement, the Company maximum contribution % is increased for non-10
represented, non-bargained [sic] employees, the % shall also be
increased for bargained employees.
(GC Exh. 2, p. 133.) The record evidence conclusively established that a 5% match
was never agreed to in bargaining. In fact, the Union’s bargaining team initially 15
proposed a 6% match and later a 5% match. Both of these proposals were rejected by
Respondent’s bargaining team.
During the hearing, the General Counsel maintained a standing objection to parol
evidence. The parol evidence rule requires that when the parties have reached an 20
agreement and have expressed it in writing, to which all parties have assented is a
complete and accurate integration of that contract, parol or other evidence of
antecedent understandings and negotiations will not be admitted for the purpose of
varying or contradicting the writing. Apache Powder Co., 223 NLRB 191, 194 (1976).
However, the parol evidence rule does not operate to exclude testimony offered to 25
establish that no agreement was reached in the first place.8 Apache Powder Co., 223
NLRB at 194; see also, Service Employees International Local 32B-32J, 258 NLRB 530,
433 (1981) (“the parol evidence rule does not operate to exclude testimony offered to
establish that in fact no agreement was reached in the first place.”) The evidence
admitted at the hearing in this case established that the parties never agreed to a 30
specific matching amount for employee contributions to Respondent’s 401(k) plan.
In Apache Powder, the parties agreed to increase pension multipliers, but did not
agree to change a so-called pension break date. 223 NLRB at 191. As in the instant
case, the union in Apache Powder proposed changing the pension break date, but the 35
proposal was rejected by the employer. Id. Thereafter, the parties signed and ratified
an agreement, mistakenly containing a changed pension break date. Id. The
respondent in Apache Powder refused to sign a finalized agreement containing the
changed pension break date but honored the remaining terms of the agreement. Id.
8 The Charging Party’s citation to the NLRB Division of Judges’ Bench Book regarding application
of the parol evidence rule is unavailing. As stated on page i of the Bench Book, “It is not a digest of
substantive law. Nor should it be cited as precedent or considered a substitute for issue-specific research.”
Moreover, I have reviewed the cases cited therein and do not find them controlling in this case.
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14
The judge in Apache Powder, as affirmed by the Board, cited Corbin on Contracts
for the proposition that parol evidence may be introduced for the purpose of
ascertaining the correct interpretation of an agreement, as well as to establish the
nonexistence of an agreement. 223 NLRB 191, 194 fn. 7 (1976), citing 3 Corbin
Contracts § 573, 580. The Board, affirming the judge’s decision, considered parol 5
evidence to establish that no agreement had been reached on the pension break date.
Id. The Board further found that rescission was the proper remedy for such an obvious
mistake.9 Id.
The only agreement reached by the parties at the bargaining table regarding the 10
401(k) benefit was that Respondent would acknowledge its provision to its union-
represented employees in the collective bargaining agreement. No agreement was
reached regarding the amount of Respondent’s match of employee contributions. The
Union twice proposed a specific match percentage and Respondent rejected these
proposals. The Union’s witnesses admit this fact. Therefore, I cannot find that there 15
was any meeting of the minds regarding the amount of Respondent’s match of its
employees’ 401(k) program contributions. Instead, I find that the parties only agreed to
memorialize the existence of Respondent’s 401(k) program in the MOA.
Moreover, evidence regarding prior match amounts shows that Respondent and its 20
predecessor have never matched represented employees’ contributions at 5%. Under
its 2015 Retirement Savings Plan, Respondent’s predecessor, YP Holdings, matched
bargaining unit employee contributions up to 4.02%. Under the 2016 Retirement
Savings Plan, YP Holdings matched employee contributions up to 4.8%. YP Holdings’
401(k) plan was not mentioned in its collective-bargaining agreement with the Union. 25
As found above, after acquiring YP Holdings, Respondent bargained with the Union and
the parties agreed only to memorialize the existence of the 401(k) program in the MOA.
Then, in its 2018 Retirement Savings Plan, Respondent again announced that it would
match employee contributions to the 401(k) program up to 4.8%.
30
Here, the Union and Respondent reached an agreement merely that the MOA would
acknowledge the provision of a 401(k) benefit to employees. No specified amount of
employer match was ever established. When an agreement is drafted after ratification,
courts have held that the agreement reached at the bargaining table controls,
notwithstanding execution of documents that vary from the negotiated agreement. 35
NLRB v. E-Systems, Inc., 103 F.3d 435 (5th Cir. 1997), denying enforcement of 318
NLRB 1009 (1995). Thus, the negotiated agreement that the MOA would contain a
memorialization of the existence of Respondent’s 401(k) program controls. Based on
9 The Board in Apache Powder found that the language in the contract was so palpably at odds with
the pension provisions of the existing contract as to put the Charging Party on notice of an obvious
mistake by the respondent. 233 NLRB at 191. The judge stated, “Whether this situation is viewed, as
contended by the General Counsel, as one of unilateral mistake, or as contended by [r]espondent, as one
of mutual mistake, there was in my view no agreement.” 233 NLRB at 195.
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15
the evidence, I draw the logical inference that the Union must have known that
Respondent matched its employees’ contributions to the 401(k) plan at less than 5%, as
its bargaining team proposed increasing the match amount at least twice during
bargaining. Thus, I find that Respondent was not bound to follow the language in the
contract because does not accurately reflect the agreement of the parties.10 5
I find the cases relied upon by the General Counsel and Charging Party in their
briefs unpersuasive. For example, the General Counsel and Charging Party rely upon
Kal Kan Foods, 288 NLRB 590 (1988), for the proposition that when the parties to a
contract express their agreement in writing, any other expression made prior to or 10
contemporaneous with the writing is inadmissible. (GC Br., p. 14.) In Kal Kan Foods,
the judge, as affirmed by the Board, stated that an attempt to orally modify a fully
integrated contract will not be permitted under the parol evidence rule and a deviation
from those terms will be regarded as a breach of contract. 288 NLRB at 593. However,
in Kal Kan Foods, there was no evidence that the parties never reached agreement on 15
a specific contract term. Instead, the judge considered the respondent’s argument that
the absence of an integration clause (i.e., one which says the contract is the final
expression of the bargain) suggested that the contract was not fully integrated. Id. In
this case, the language contained in the physically signed version of the MOA makes
clear it was an integrated agreement. The version of the MOA signed after negotiations 20
by the parties specifically states, “. . . the parties have met and engaged in good-faith
bargaining for the purpose of arriving at a successor collective-bargaining agreement to
the agreement that expired on August 13, 2016. The Union and Employer collectively
have reached agreement and the predecessor agreement shall only be revised as
specifically set forth herein.” Despite this statement, the final version of the MOA 25
contains different language regarding Respondent’s 401(k) match amount. Thus, I find
that the facts of this case are distinguishable from those in Kal Kan Foods.
The General Counsel further cites Air-Vac Industries, 259 NLRB 336 (1984), for the
proposition that, “in view of meticulous language of supplemental agreement, 30
respondent could not assert that parties intended agreement to be conditioned on the
respondent receiving higher contract rates from a third party.” In Air-Vac Industries, the
judge, affirmed by the Board, stated that, “The Board has consistently applied [the parol
evidence] rule in refusing to permit a party to a collective-bargaining agreement to vary
the terms thereof by proving a contemporaneous or prior oral agreement or 35
undertaking.”11 259 NLRB at 342. In this case, however, there is an actual written and
signed agreement (R. Exh. 2) that contradicts the language of the final version of the
10 The General Counsel submitted a “Track Changes” document purporting to show that Flagler first
inserted the language concerning a 5% match into the MOA. (GC Exh. 9.) However, I afford the
document little weight as it was prepared by the General Counsel with no accompanying testimony as to
its reliability. Regardless of who first inserted the language into the MOA, I find that the language clearly
misstated the agreement of the parties reached during bargaining.
11 Citing Gollin Block & Supply Co., 243 NLRB 350 (1979).
JD–28–20
16
MOA (GC Exh. 2). In Apache Powder, the judge, as affirmed by the Board, found that
the parol evidence rule does not operate to exclude evidence that no agreement ever
existed. 233 NLRB at 194. The evidence in this case establishes exactly that. Thus, I
find Apache Powder controlling. 233 NLRB 191 (1976).
5
The General Counsel also cited Norris Industries, 231 NLRB 50 (1977) and Ebon
Services, 298 NLRB 219 (1990) for the proposition that Respondent should be bound
by the written terms of the MOA. (GC Br., p. 22.) I find both cases distinguishable from
the instant case. In Norris Industries, the Board stated that a party is bound by
language it had the opportunity to review even if the matter was never consciously 10
discussed or explored during bargaining sessions. 231 NLRB at 63. Conversely, in the
instant case, the issue of the 401(k) match was explored, numerous times, during
bargaining sessions. The evidence establishes that the agreement reached by the
parties at the bargaining table differs completely from the language in the final version
of the MOA. In Ebon Services, the Board agreed with the judge that the parties reached 15
a complete meeting of the minds on all substantive terms of a contract when the
employer’s representative read over the union’s proposed contract page-by-page and
agreed to its terms. 298 NLRB at 223. In Ebon Services, the respondent refused to
sign the contract because it could not afford the wage provisions it contained. 298
NLRB at 224. However, in this case, both parties signed and ratified the MOA 20
containing language that the final version of the agreement would contain an
acknowledgement of the provision of a 401(k) benefit to bargaining unit employees in
the drafting of the final agreement. The language contained in the final version of the
MOA contains an erroneous statement regarding what the parties agreed to in
bargaining. Thus, unlike Ebon Services, this case involves a mistake, made by the 25
parties after the initial version of the MOA was both signed and ratified, by the inclusion
of language in the final version of the MOA that directly contradicted the agreement
reached by the parties. Thus, I find that Norris Industries and Ebon Services are
distinguishable from the instant case.
30
Moreover, even if the Board or reviewing court should find that parol evidence
should have been excluded and the 401(k) match amount contained in the MOA should
be enforced, I find that there was no unilateral change or midterm modification. An
employer has a contractual duty to adhere to the terms of an agreement as long it
remains in force. PG Publishing Co., 368 NLRB No. 41, slip op at 3 (2019), citing Des 35
Moines Register & Tribune Co., 339 NLRB 1035, 1036–1037 (2003), review denied sub
nom. Des Moines Mailers Union, Teamsters Local No. 358 v. NLRB, 381 F.3d 767 (8th
Cir. 2004). An allegation that an employer has violated Section 8(a)(5) by unilaterally
changing a term or condition of employment may be defended against on several
grounds, including by denying that it changed a term or condition of employment at all. 40
MV Transportation, Inc., 368 NLRB No. 66, slip op. at 17 (2019).
JD–28–20
17
In the charge filed in this case, the Union alleged that Respondent violated the Act
by implementing a 401(k) contribution matching structure other than that specifically
negotiated and memorialized in the CBA. As found above, Respondent and the Union
negotiated no such 401(k) contribution matching structure. In fact, the evidence shows 5
that Respondent specifically rejected a 5% match amount.
The allegations in the complaint are phrased differently than in the charge. In the
complaint, the General Counsel, who bears the burden of proof, alleged that the
collective-bargaining agreement contained a provision wherein Respondent agreed to 10
match employee contributions to its 401(k) plans at no less than 100% for each
employee dollar contributed to individual accounts up to 5% maximum contribution. The
complaint goes on to allege that since about October 16, 2017, Respondent failed to
continue in effect the terms and conditions of the agreement by unilaterally changing its
contribution formula to employees’ 401(k) plans from the amount established pursuant 15
to the parties’ collective-bargaining agreement. The General Counsel alleges that
Respondent engaged in this conduct regarding a mandatory subject of collective-
bargaining without the Union’s consent. Ultimately, the General Counsel alleged that
Respondent failed and refused to bargain collectively and in good faith with Charging
Party within the meaning of Section 8(d) of the Act and in violation of Section 8(a)(1) 20
and (5) of the Act.”
The General Counsel did not establish that any “change” occurred with regard to the
amount matched by Respondent of employee contributions under the 401(k) plan. In
his case-in-chief, the General Counsel adduced evidence that the post-ratification 25
version of the MOA stated that Respondent would match employee contributions up to a
maximum of 5%, and, that in October 2018 the Union became aware of a “change” in
the matching percentage 401(k) plan. The General Counsel’s evidence only
established that Respondent did not follow the language in the post-ratification version
of the MOA in matching employee contributions. As I have found, however, the 30
language in the post-ratification version of the MOA was not what was agreed to by the
parties during bargaining. Even disregarding that finding, the evidence offered by
Respondent compels me to find that no change occurred. The testimony and exhibits
clearly established that, since 2016, Respondent and its predecessor matched
employee contributions to their various retirement savings plans at a maximum of 4.8%. 35
Thus, the evidence demonstrated that Respondent maintained the same 4.8% 401(k)
match rate for employee contributions in its 2018 Retirement Savings Plan
announcement as its predecessor had in its 2016 Retirement Savings Plan. There was
no evidence that Respondent or its predecessor ever matched employee contributions
to their 401(k) plans at 5%. Instead, Respondent continued the 4.8% match rate, 40
unchanged, from its 2016 Retirement Savings Plan into its 2018 Retirement Savings
Plan.
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18
In sum, I find that the evidence in this case clearly establishes that the parties never
reached an agreement regarding the amount of Respondent’s match of employee
contributions to its 401(k) plan. I further find that the language in the MOA setting forth
a 5% match amount does not accurately reflect the agreement reached, by the parties 5
during bargaining. Finally, I find that even if the evidence concerning the parties lack of
agreement on the 401(k) match amount is disregarded, the evidence establishes that
Respondent did not make any change to its employees’ terms and conditions of
employment by continuing its 4.8% match of employee contributions to its 401(k) plan.
10
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
15
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The General Counsel has not established by a preponderance of the
evidence that Respondent failed to continue in effect all the terms and 20
conditions of a collective-bargaining agreement by unilaterally changing its
contribution formula to employees’ 401(k) plans from the amount established
pursuant to the agreement in violation of Section 8(a)(5) and (1) of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended12
ORDER
The complaint is dismissed.30
Dated, Washington, D.C. June 18, 2020.
35
Melissa M. Olivero
Administrative Law Judge
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
a• •/1/64/Ja