The petitioner-appellant, Van Dorn Plastic Machinery Company (Van Dorn), has appealed a decision and order of the National Labor Relations Board (Board), reported at 286 N.L.R.B. No. 117, 128 L.R. R.M. (BNA) 1265, 1987-
On December 14, 1982, the Board had ordered Van Dorn to bargain with District 54 of the International Association of Machinists and Aerospace Workers (Union) аs the duly elected representative of the majority of Van Dorn’s production and maintenance employees and to desist,
inter alia,
from interrogating employees and informing them that it would not recognize the Union as their bargaining agent in violation of section 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1); from refusing to bargain with the duly certified representative of its production and maintenance employees in violation of section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5); and from unilaterally abolishing a paid lunch period afforded to some thirty-five employees in violation of section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5). On appeal, this court affirmed the Board’s decision on all issues with the exception of
*304
the issue joined in the instant appeal.
Van Dorn Plastic Mach. Co. v. N.L.R.B.,
Upon considering Van Dorn’s justification for unilаterally changing the working conditions here in controversy, ostensibly as a “business necessity,” and the Board’s narrowly interpreted distinction between that stipulated term and the term “compelling economic considerations,” this court on the initial appeal was prompted to remand the case to the Board with the following comments:
Prior to certification but aftеr the election Van Dorn eliminated paid lunch periods for approximately 35 employees without offering to bargain on this issue with the Union. At the initial administrative hearing on the complaint, General Counsel for the Board and Van Dorn’s counsel stipulated in writing that the change was made “due to business necessity.” Van Dorn agrees that its paid lunch policy is “a condition of еmployment” and that it acted unilaterally. However, it takes the position that the stipulation brought it within a recognized exception to the bargaining requirement, which permits unilateral changes based on “compelling economic considerations.” See Mike O’Connor Chevrolet-Buick-GMC Co., Inc.,209 NLRB 701 , 703 (1974), enf. denied on other grounds,512 F.2d 684 (8th Cir.1975). The ALT .construed the stipulated reason for the change in lunch policy — “business necessity” — as the equivalent of “compelling economic considerations.” Thus, he excused Van Dorn from bargaining on the change, while requiring it to bargain on the effects of the change.
The Board found that the stipulation did not satisfy the “compelling economic considerations” exception. On appeal Van Dorn argues that the stipulation was binding, and giving the words their ordinary meaning, clearly brought its aсtion within the exception. It is not clear from this record what the parties intended when they entered into the stipulation. However, a stipulation once entered into should be construed to give it legal effect. National Audubon Society, Inc. v. Watt,678 F.2d 299 , 307 (D.C.Cir.1982). A remand is necessary to determine the correct interpretation of the stipulation. Van Dorn proceeded on the assumption that the stipulatiоn relieved it of the duty to justify its failure to bargain on the change in lunch periods. The AU so construed the stipulation. If the stipulation is found to be ambiguous the Board must consider extrinsic evidence of the intention of the parties in entering into it. If the Board finds from such evidence that no agreement was actually reached and that the stipulation is a nullity, then fairness requires that Van Dorn bе given an opportunity to establish “compelling economic considerations.” In considering this question the Board would be required to categorize the lunch period action within the holding of First Nat’l Maintenance Corp.,452 U.S. 666 ,101 S.Ct. 2573 ,69 L.Ed.2d 318 [ (1981) ] (a decision which is “almost exclusively ‘an aspect of the relationship’ between employer and employee” must be bargained but a decision which only has an “indirect аnd attenuated impact on the relationship” or is- made to preserve the business and involves a fundamental change in scope or directions need not be bargained).
Van Dorn Plastic Mach. Co. v. N.L.R.B.,
The case was submitted for remand disposition by the Board. Van Dorn moved for summary judgment, arguing that the term “business necessity” was the equivalent of “compelling economic considerations” and, aсcordingly, it was entitled to judgment as a matter of law. On January 2, 1987, the Board denied Van Dorn’s motion, and instead concluded that the affidavits submitted by the parties demonstrated that there had been no meeting of the minds between Van Dorn and the General Counsel as to the intended meaning of the term “business necessity.” The Board *305 thereupon referred the matter to an Administrative Law Judge (ALJ) fоr further proceedings, pursuant to this court’s instructions in Van Dorn Plastic Mach. Co., to afford Van Dorn the opportunity to demonstrate that “compelling economic considerations” had justified the unilateral change in the paid lunch policy.
After conducting hearings and considering the evidence presented by the parties, the ALJ determined that Van Dorn had proved no “compelling ecоnomic considerations” which would have justified its decision to eliminate the paid lunch policy of its thirty-five affected employees. The Board adopted the findings of the ALJ and concluded that Van Dorn had violated its duty to bargain by unilaterally altering its paid lunch policy. The Board thereupon entered an order requiring Van Dorn to restore the paid lunch policy upon the Union’s request and to cease and desist from such unfair labor practices. The Board further directed Van Dorn to reimburse the involved thirty-five employees their back wages accrued from October 7, 1976, the date it had implemented the controversial lunch policy, until such time as Van Dorn had bargained in good faith with the union to resolve the issue. The order also rеquired Van Dorn to post an appropriate notice detailing the above described violation.
Van Dorn filed a timely petition for review of the Board’s order; the Board filed a timely cross petition for enforcement of its order.
On appeal, Van Dorn has argued that the Board erred in concluding that the stipulation between Van Dorn and the General Counsel interpreting the term “business necessity” was a nullity because there had been no meeting of the minds. “Interpretation of the stipulation is primarily a matter of ascertaining the intent of the parties. The intent of the parties in turn is a question of fact to be determined by the district court based on the evidence before it.”
WO Co. v. Benjamin Franklin Corp.,
Statements by one party to the other as to the meaning of words or as to the terms of agreement, made in the course of their preliminary negotiation, are relevant and admissible to show what each of them had reason to understand by the words eventually embalmed in the “integration” _ If they show that no common meaning was given to the words ..., the only remedy to be granted is refusal of enforcement....
3 A. Corbin, Corbin on Contracts § 543, at 138 n. 89 (1960); see also 1 id. §§ 106 & 107 (1963).
In the instant case, the NLRB, pursuant to the instructions from this court, considered the affidavits of Van Dorn’s legal counsel and the General Counsel for the NLRB, and concluded that they failed to evidence a meeting of the minds as to the meaning of the stipulation “business necessity,” since the affidavits were in conflict and incapable of interpretation. “The judicial review provisions of the Act ... are explicit and provide that the Board’s faсtual determinations ‘shall be conclusive’ if, upon the entire record they are supported by substantial evidence.”
Union Carbide Corp. v. N.L.R.B.,
Van Dorn has also suggested that the AU erred in refusing to permit Van Dorn, upon remand to the AU from the Board’s January 2, 1987 decision, to introduce additional testimony regarding its understanding as to the meaning of the controversial stipulation. However, the proffered testimony was not probative since it failed to demonstrate the General Counsel’s understanding of the stipulation. Furthermore, because Van Dorn had failed to timely file a motion with the Board for reconsideration of its decision that the stipulation was a nullity, it failed to preserve that issue for appellate judicial review.
[Respondent failed to file a petition for reconsideration as permitted by Board Rules and Regulations, ... that provides that any material error in the Board’s decision may be asserted through a motion for “reconsideration, rehearing or reopening of the record.” Respondent therefore cannot assert its objection on appeal “unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e). Respondent did not suggest any “extraordinary circumstances” [and, accordingly,] [t]he objection therefore may not be considered.
International Ladies’ Garment Workers Union v. Quality Mfg. Co.,
[B]ecause of the availability of a rehearing before the Board, the Board’s sua sponte [determination that the stipulation was a legal nullity] is not a statutory extraordinary circumstance. Although the sua sponte decision did prevent presentation of the objections to the Board before its decision, it did not prevent their presentation to the Board in a petition for rehearing or reconsideration. Had the Company filed a motion for rehearing, we could have reviewed the application of the Board’s expertise to this aspect of the controversy. Because the Company did not so move, we are precluded from considering its objections now.
N.L.R.B. v. Allied Prods. Corp.,
Alternatively, Van Dorn has challenged the Board’s determination that the decision to eliminate the paid lunch policy constituted a mandatory bargaining issue under the terms of the National Labor Relations Act, subject to mandatory negotiation with the union prior to the institution of any modifications. As this court noted in its earlier decision, “[a] unilateral change with respect to a
mandatory
bargaining subject is a violation of section 8(a)(5).”
Van Dorn Plastic Mach. Co.,
In
First Nat’l Maintenance Corp.,
the Supreme Court indiсated that an employer could unilaterally alter the conditions of employment in cases where the decision “involv[ed] a change in the scope and direction of the enterprise, ... akin to the decision whether to be in business at all, [and] ‘not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate employment.’ ”
First Nat’l Maintenance Corp.,
In the instant case, the Board rejected Van Dorn’s argument that its decision to eliminate the paid lunch program constituted a policy decision affecting its basic operations, concluding instead that the basic rationale underlying Van Dorn’s decision to abandon the paid lunch policy did not involve a “change in the scope and direction of the enterprise, ... akin to the decision whether to be in business at all,”
First Nat’l Maintenance Corp.,
Van Dorn has also charged that the Board erroneously concluded that it had failed to satisfy its burden of demonstrating that the elimination of the paid lunch period was excluded from bargaining procedures because the policy was adopted as a result of “compelling economic considerations.”
Van Dorn Plastic Mach. Co.,
It is an accepted proposition of law that “the burden of proof on matters which relate to justification for the employer’s aсtions rests with the employer.”
Wright Tool Co.,
Nor is there any merit to the Respondent’s defense, even if true, that its action was dictated by economic considerations. “The Respondent had a duty to bargain with the employees’ representative, and it could not elect to observe or disregard this duty on the basis of economic expediency, even in good faith.”
Mike O’Connor,
The Board has filed a cross petition, requеsting enforcement of its order. The National Labor Relations Act specifically “charges the Board with the task of devising remedies to effectuate the policies of the Act.”
N.L.R.B. v. Seven-Up Bottling Co.,
Van Dorn has challenged that part of the Board’s order requiring it to compensate the thirty-five employees whose fifteen minute paid lunch period had been unilaterally terminated, from October 7, 1976 until such time as the Company had satisfied its duty to negotiate with the union on the issue, asserting that the thirty-five employees had been not damaged by the termination of the paid lunch policy because they were paid for eight hours of work under both the paid and unpaid lunch policy. This argument ignores the fact that under the
paid
lunch program, the employees were scheduled to be at the plant for eight hours and were paid for eight hours, which included seven and three quarter hours of actual work and one quarter hour of paid lunch break. In contrast, the remaining employees were scheduled to be at their work assignments for eight and one half hours, but were compensated for only eight hours at work. Accordingly, it was within the authority of the Board to order back pay under the circumstances presented by the instant case.
See, e.g., N.L.R.B. v. Master Slack,
The court has considered Van Dorn’s remaining arguments and finds them to be unpersuasive. Accordingly, for the reasons set forth in this opinion, the petition for review is DENIED, and the order of the National Labor Relations Board is ENFORCED.