Chambertin Restaurant

CHAMBERTIN RESTAURANT Chambertin, Inc. d/b/a Chambertin Restaurant and Detroit Local Joint Executive Board , Hotel & Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO. Case 7-CA-7122 June 22, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On February 9, 1970, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended the dismissal of these allegations. Thereafter, Respondent filed excep- tions to the Trial Examiner's Decision and a brief in support thereof. In addition, Respondent filed with the Board a motion to reopen the record, and a supplement thereto, and the General Counsel and the Charging Party filed statements in opposition to Respondent's motion and supplement. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including Respondent's exceptions 'and brief, its motion to reopen the record and the state- ments of the General Counsel and the Charging Party in opposition thereto, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Chambertin, Inc. d/b/a Chambertin Restaurant, Dearborn, Michigan, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. 857 ' Respondent has moved to reopen the record for the purpose of in- troducing into evidence certain exhibits purporting to show that Respon- dent has, since the hearing in this proceeding , established and put into ef- fect the private carrier pension plan it had earlier proposed in bargaining negotiations with the Union , and that this plan has been accepted by the United States Internal Revenue Service as a qualified pension plan Respondent contends that such evidence is material to the issues here because the Trial Examiner 's Decision is premised on the supposition that Respondent 's proposed pension plan did not and would not exist While we agree that the Trial Examiner characterized Respondent 's proposed pen- sion plan as one which was unlikely to ever be enacted , he specifically found that Respondent engaged in bad-faith bargaining by conditioning agreement on a collective -bargaining contract upon the Union's ac- ceptance of a private carrier pension plan which was yet to be formulated In our opinion , none of the evidence proffered by Respondent bears upon the Trial Examiner 's essential finding Accordingly , Respondent's motion to reopen the record is hereby denied and the exhibits proffered by Respondent are hereby rejected on the ground that they are not relevant to the determination of the issues before us TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on January 17, 1969, and a first amended charge duly filed on June 30, 1969, by Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, herein referred to as the Union or Charging Party, the General Counsel of the Na- tional Labor Relations Board, herein referred to as the General Counsel' and the Board, respectively, by the Regional Director for Region 7, Detroit, Michigan, issued its complaint dated June 5, 1969, an amendment to the complaint dated June 20, 1969, and a letter of "probable" amendment dated August 21, 1969,2 against Chambertin, Inc. d/b/a Chambertin Restaurant, herein referred to as the Respondent. ' This term specifically includes the attorney appearing for the General Counsel at the hearing 2 This "probable" amendment was in fact made, and allowed without ob- jection, orally at the hearing Thus the pleadings in the instant case consisted of a complaint of 10 pages, a separate document entitled "Amendment to the Complaint" of 3 pages, and another separate document in letter form of-probable" amend- ment of 2 pages In addition Respondent answered the complaint in one document, answered the amendment to the complaint in another docu- ment, and orally admitted in general the "probable" amendment made at the hearing At the time of the admission of these multitudinous pleadings this Trial Examiner rather forcefully suggested to the General Counsel that his su- periors should be informed that it would be better practice to consolidate all such amendments in one single document for the convenience of all parties concerned This is a crusade this Trial Examiner has been carrying on for many years, throughout the various regions, universally without suc- cess to date The instant hearing, however, proved this Trial Examiner's point, which is why the matter is here mentioned At transcript page 432 on the fourth day of this hearing General Counsel objected to evidence being produced by Respondent's counsel on the grounds that the evidence was not relevant to any issue in the case At transcript page 434. when Respondent's counsel had called attention to paragraph 16 (h) of the "probable" letter amendment of August 21, General Counsel had to withdraw his objection because the issue had been raised by that amendment If all these amendments had been consolidated in one single document, as good practice dictates, this unfortunate episode would not have oc- curred Q E D 183 NLRB No. 80 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint with its various amendments al- leged that Respondent had engaged in and was en- gaging in various unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Labor Manage- ment Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed answers admitting certain allegations of the complaint with its amendments but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held be- fore me in Detroit, Michigan, on September 8-11, 1969. All parties appeared at the hearing, were represented by counsel, and were afforded full op- portunity to be heard, to produce and cross-ex- amine witnesses, and to introduce evidence materi- al and pertinent to the issues. At the conclusion of the hearing oral argument was waived. On November 24, 1966, a brief was received from the attorney for the Charging Party specifically adopt- ing and approving all "positions advanced" by General Counsel. General Counsel filed no brief.3 Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Chambertin, Inc. d/b/a Chambertin Restaurant is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of, the laws of the State of Michigan. At all times material herein Respondent has maintained its only office and place of business at 22900 Michigan Avenue in the city of Dearborn, and State of Michigan, herein called the Restau- rant. Respondent is, and has been at all times material herein, engaged in the business of a restau- rant purveying food and drink. In the course and conduct of its business operations during the fiscal year ending October,l, 1968, the Respondent had a gross revenue in excess of $500,000, and purchased and caused to be transported and delivered at its Dearborn, Michigan, restaurant food, liquors, and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its restaurant in Dearborn, Michigan, directly from points located outside the State of Michigan. Accordingly I find that Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 9 This brings up another of this Trial Examiner's foibles It is my firm conviction that, if the Regional Office considers a case of sufficient im- portance to warrant a 4-day hearing, that case is important enough to require the filing of a brief, particularly when a brief is requested and par- ticularly in a case such as this with its numerous unusual factual and legal issues Lacking a brief, the case is only half tried II. THE LABOR ORGANIZATION INVOLVED Detroit Local Joint Executive Board , Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Prologue The instant case has a 5-year history. Respondent began its restaurant operations in the latter part of 1964. One of Respondent's first acts was to "invite," the word used by Respondent President Constan- tine G. Kokas, the Union in to represent Respon- dent's still unemployed staff of employees. As a result of this "invitation," on November 1, 1964, Respondent and the Union entered into the standard union area agreement, with a few unim- portant variations, for a period of 2 years covering all Respondent's employees. This contract pro- vided, inter alia, (1) recognition of the Union as the exclusive representative of Respondent's em- ployees, (2) a union shop and checkoff of dues, (3) employer contributions to the union health and welfare fund as well as to the union pension fund without contributions from the employees, (4) a 5- day workweek with wages at time and a half for any work performed on the sixth day and double time for the seventh day,' and (5) a 1-dollar bonus for waitresses working split shifts.5 In addition the con- tract provided that no settlement or compromise of claims "for back wages, overtime, or other benefits" should be binding unless approved in writing by authorized representatives of the Union. As at the time of the execution of the contract Respondent had, according to Respondent, em- ployed few, if any, of its employees; the description contained in Respondent's brief of this as being "an entire sweetheart arrangement" appears justified. According to Kokas, the parties operated under this "sweetheart arrangement" without a single de- mand, grievance, or trouble of any sort for at least 2 years at which time the contract automatically renewed by its terms for an additional year to November 1, 1967. This long period of "labor peace" came to an abrupt end with the filing of the following grievances dated May 29, 1967, by the Union: ' One specific exception in this contract was that bartenders could work a 6-day week without premium pay ' A waitress works a "split shift" when she has two periods of duty separated by a nonworking period of time The I-dollar bonus provided for in the contract is supposed to cover her transportation cost required by her free time CHAMBERTIN RESTAURANT re: Grievance and request for information Gentlemen: I am submitting herewith a grievance on behalf of waitresses and former waitresses, in the bar- gaining unit at your establishment. I am prepared to meet at your earliest convenience to discuss and settle this grievance. Pending such meeting, I respectfully request that you provide me with the following infor- mation for the period from November 1, 1964 to date: 1. The dates of all private parties and banquets and the number of guests at each. 2. The names of all waitresses, present and former, serving at private parties and banquets. 3. The total number of hours worked by each waitress, present and former, at such private parties and banquets. 4. The total payment made by each group of guests for such private parties and banquets. 5. The retail value or cost to guests for liquor served at each private party and/or banquet. 6. The total wage, per private party or banquet, paid to each waitress, present and former. I further request that this information be furnished as soon as possible in a form con- venient for you. This information is required by the Union to process the enclosed grievance intelligently, to police and administer its collective bargaining agreement , and to engage in intelligent collec- tive bargaining. This request is not intended to be inclusive, and the Union reserves the right to amend this request or make further requests for informa- tion as the situation may require. This record indicates that, without having given the Union access to its books and records as requested, Respondent on June 29, July 26, and October 13 and 19, 1967, made certain partial of- fers of settlement of the grievance based upon Respondent's estimates of the amounts due and owing to certain waitresses. Without having access to Respondent's books and records the Union was unable to accept or reject such offers. By letter dated September 10, 1967, the Union made demand on Respondent that it immediately 6 At the hearing Kokas was able to give the name of only one such em- ployee At that time this employee was either a supervisor or about to become one 859 discharge certain named employees for nonpay- ment of initiation fees and dues as required by the union-security clause of the existing contract. On September 23, 1967, Respondent paid the initiation fees and dues for 27 named employees. Respon- dent's covering letter contained the following state- ment: The balance of the employees on your list are presently members [of the Union], who have been paying dues, or no longer employed at Chambertin Restaurant. At or about this time the Union filed charges against Respondent in Cases 7-CA-6077 and 6427. With the then collective-bargaining agreement about to expire on November 1 the Respondent on October 31, 1967, addressed a letter to all its em- ployees which contained the following paragraphs. As you know, our contract with the union expires next Tuesday night. Because I have a good faith doubt that a majority of my em- ployees desire to be represented by a union, I have refused to bargain with the union about a new contract. My doubts arose on account of the decertification petition filed by employees. Because of the termination of the contract next Tuesday, some changes will be necessary. In the first place, we will no longer check off union dues and it will no longer be necessary for an employee to be a member of the union in order to work here. Of course, any em- ployee who desires to remain a member of the union, has the legal right to do so. Since there will be no contract with the union beginning November 1, it has become necessary for us to arrange for another in- surance contract for you so that your insurance coverage will continue. We have purchased a group policy from the New England Life In- surance Company, which will be come effec- tive on November 1, 1967. That policy provides hospital, life and sickness and accident benefits which are as identical as possible with the benefits under the union plan. Let me explain one thing about the in- surance. I know from the statements some em- ployees have made at our meetings that many employees would prefer to have Blue Cross- Blue Shield Medical Insurance.6 Because elec- tion petitions have been filed with the Labor Board, it is illegal for me to either change the insurance coverage or to promise you in- creased insurance if you vote against a union. In the event you elect to keep the union, I will give sympathetic consideration to your desires regarding insurance in my dealings with the union, just as I would give sympathetic con- sideration to your desires in my dealings with you if you elect not to have a union. Just as the law does not permit me to promise you improved benefits, it does not require me to penalize you on account of 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either the end of the union contract or the petitions that have been filed with the Board. Let me assure you that you will suffer no decrease in wages or other benefits during the period before the election when there is no union. Let me further assure you that if you elect not to have a union, you will suffer no decrease in wages or benefits afterwards. I have been telling you for many months that I will neither threaten you or promise you benefits in order to persuade you to vote the union out. Since employees first filed a petition with the Board, I have done everything I can to promote an early secret ballot election. During this same period, the union has done everything it could to avoid an election. I want you to know that I will continue to fight for your right to freely and secretly determine whether or not you want the Union . [Emphasis supplied.]7 The collective-bargaining agreement expired as expected on November 1, 1967. Thereafter Respondent discontinued making contributions to the union pension and health and welfare funds. On March 2 , 1968, the Union placed a picket line around Respondent's establishment. On the day before the picket line began Kokas held two meetings with his employees at which he told them he understood the Union would begin a picket line and assured them that the existence of this picket line would give the employees the op- portunity to express their desires for or against the Union , that by coming to work through the picket line the employees would express their desire not to be represented by the Union, and therefore he urged them to come to work through the picket line. On the following day, when the picket line was in existence, Kokas was busy on the telephone urging Respondent's employees to come to work through the picket line and thus express their desire not to be represented by the Union. Other Respondent of- ficials were busy picking up and driving employees to work . According to Respondent 's count, as testified to by Kokas, only three employees of the Respondent honored the picket line so business went on as usual and has continued to do so even though the restaurant is still picketed. Cases 7-CA-6077 and 6427 against Respondent were settled by the parties on April 16, 1968. This settlement was approved in a Decision and Order of the Board dated May 14 , 1968, and subsequently enforced by a consent decree of the Circuit Court of Appeals for the Sixth Circuit . The pertinent parts of the Board's Decision and Order thus issued and enforced were as follows: ORDER Upon the basis of the above findings of fact, the Settlement Stipulation , and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: The Respondent, Chambertin, Inc., d/b/a Chambertin Restaurant , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Taking an active role in the initia- tion and sponsoring of a petition for the withdrawal of union shop authority of the Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bar- tenders International Union , AFL-CIO. (b) Circulating, soliciting support for, or obtaining signatures on, a petition for decertification of the Detroit Local Joint Executive Board, Hotel & Restaurant Em- ployees and Bartenders International Union, AFL-CIO, or for withdrawal of union shop authority of the Detroit Local Joint Executive Board , Hotel & Restau- rant Employees and Bartenders Interna- tional Union, AFL-CIO. * * * * (e) Terminating unilaterally or without prior notice to, or consultation with, the Detroit Local Joint Executive Board, Hotel & Restaurant Employees and 'bar- tenders International Union, AFL-CIO; the contractual health and welfare in- surance program and/or contributions to the employee pension fund or unilaterally instituting a new group insurance program with a different insurer to provide hospital, life, sickness, or accident benefits. * 2. Take the following affirmative action which the Board finds will effectuate the poli- cies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively with the Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive collective-bar- gaining representative of all employees employed at the Dearborn, Michigan, ' It is to be noted that this letter makes no reference to a pension plan CHAMBERTIN RESTAURANT restaurant of the Respondent , excluding office clerical employees, guards, manager, assistant manager, dining room supervisors and other supervisors as defined in the Act, with respect to any proposed changes in group insurance or the method of adjusting grievances, and concerning wages, hours, and any other term or condition of employment. (b) Make, on behalf of its employees, the necessary contributions to the health and welfare insurance and pension funds for the reinstatement of the employees' in- surance and/or pension coverages thereunder. (c) Make whole employees for any loss of insurance and/or pension benefit they may have suffered as a result of the ter- mination of payments to the health and welfare insurance and pension funds. Pursuant to this settlement Respondent and the Union commenced a new round of meetings for the purpose of negotiating a new collective-bargaining agreement . These meetings began on May 2, 1968, when the Union presented Respondent with a copy of its regular 1968 area form agreement and Robert G. Corrigan for the Union explained the new provi- sions contained therein which differed from the 1964 form contract to Kokas and Respondent's at- torney . This was followed with other sessions between these individuals held on May 10 and 20 and June 4 and 17 , 1968. During this series of meetings Respondent made its own demands clear and definite . These demands consisted of: (1) an open shop; ( 2) its own health and welfare insurance with a private carrier in lieu of the union insurance plan; (3 ) its own pension plan handled by private carriers in lieu of the union pension plan; (4) a voluntary 6-day workweek for waitresses with no premium pay for work on the sixth day; and (5) the elimination of the split-shift bonus of $1.8 In the spring of 1968 at or about the time of the settlement agreement in Cases 7-CA-6077 and 6427, Respondent decided to , and did, make available to the Union all Respondent 's books and records which it then said were all it had in its pos- session and could locate . The books and records, however, for 1964 and 1965 were not produced, presumably because they could not be located. After studying the books and records thus made available for a period of approximately 10 weeks, Union Business Agent Krantz produced a com- prehensive report which purported to show the total backpay shortages for waitresses to amount to $10,319.72 for the years 1966 and 1967 . A copy of the Krantz report was handed to Respondent which , in turn , demanded from the Union the original records from which Krantz had made her 861 findings . Respondent was supplied with the original worksheets by Krantz . Thereafter the Krantz report became a subject in the negotiations then under way between Respondent and the Union. Although , as found above , the parties began meeting together over the problems involved on May 2 , 1968, as a result of the settlement agree- ment, Respondent as early as June 25 , 1968, wrote the Union in pertinent part as follows: This will confirm our telephone conversation of June 24 , 1968. You advised that the Union position regarding the various items in dispute, including Union security , pension and in- surance is unchanged, but that the Union is willing to continue to bargain with the Com- pany. I advised that the Company indeed is willing to continue to meet and negotiate with you in an effort to persuade you to accept the Company's position. I advised you that this week the Company is seeking a preliminary actuarial analysis regard- ing its offer for a pension severance plan and that as soon as that analysis is made , I will con- tact you to arrange a meeting at which I hope to persuade you that such a plan is ad- vantageous from the viewpoint of our em- ployees. In view of your position, I advised you that there appeared to be no break in the impasse reached in our negotiations and that, ac- cordingly , the Company will implement its final offer effective July 1, 1968 . This implementa- tion will include both the economic and non- economic aspects of our offer . That offer, as explained yesterday , will include the back funding of our pension obligations under the Union pension plan through July 1, 1968. It will also include the reinstatement of Union in- surance effective July 1, 1968 and the discon- tinuance of such insurance on August 1, 1968 at which time the Company's final offer re- garding insurance would be implemented. This arrangement regarding insurance is made pur- suant to Paragraph 2(b) of our Settlement Stipulation . I reiterate my remarks made to you during our conversation that we are willing to meet with you for the purpose of collective bargaining at such times as you feel such meetings might be useful , and that during our discussion you suggested that we not meet until I had the pension data available. As I in- dicated , your suggestion in this regard is ac- ceptable . [ Emphasis supplied. ] The threatened implementation of Respondent's "final offer" was not carried out at this time for reasons not explained at the hearing. On July 3, 1968 , Respondent received the ac- tuarial report from Wyatt Company, which " For reasons which will become clear I do not deem it necessary to un- duly prolong this Decision by making findings as to the events occurring at each and every meeting between the parties 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD describes itself in its letterhead as "Actuaries and Employee Benefit Consultants." This letter from the Wyatt Company, known in this hearing as the Wyatt Report, was as follows: July 3, 1968 Mr. Robert Rosenfeld 2961 Guardian Building Detroit, Michigan 48226 RE: CHAMBERTIN, INC. Dear Bob: This is to confirm to you the information given over the phone July 3. A 40-cent per day per employee contribution on the part of Cham- bertin could establish a pension and severance program with the following key provisions: 1. Vesting would occur after 5 years of ser- vice. 2. The severance benefit would be $80.00 per year of service limited to a maximum of 20 years of credit. Thus, after 5 years, $400 in cash could be paid to a terminating employee, and an additional $80.00 for each year of ser- vice beyond 5 years. 3. Instead of a severance payment a vested employee would be entitled to an alternative deferred pension benefit payable at age 65 on the basis of $2.00 a month for each year of ser- vice credit, also to a maximum of 20 years of credit. 4. All past service with Chambertin would be counted. However, no service prior to working for Chambertin would be counted regardless of union affiliation. Since the employees at Chambertin do not as yet have more than 4 years of service with the restaurant, the 20 year maximum would have no effect for the next 16 years. We calculated these costs using a high turnover assumption which in effect is equivalent to an annual rate of about 13 % to 14%, which means approximately 100% turnover in 6 or 7 years. If further information is desired, please contact me. [Emphasis supplied.) Respondent gave the Union a copy of this Wyatt Report. This 4-year history is merely history or prologue to the case at hand . Under the Act no unfair labor practices may be found from the facts herein stated although such history is admissible for the purpose of interpreting subsequent events. 2. Facts subsequent to July 17, 1968 So the matter stood in July 1968 with Respon- dent still contributing to the Union 's health and welfare and pension plans when Union Attorney Gregory on July 5 joined Corrigan in further talks with Kokas and Respondent 's attorney , Rosenfeld. By this time all parts of the Union 's proposed con- tract, including the recognition of the Union as the bargaining agent for the employees in the ap- propriate unit, had been agreed on except for the following areas: (1) Union security . Here Respondent insisted on an open shop whereas the Union insisted on some form of union security . Respondent rejected anything but the open shop. (2) Insurance . Here Respondent announced that it was willing to pay the same per hour amount as under the union contract but insisted on its own in- surance plan with a private carrier instead of con- tributing to the union industrywide plan. Although the Union preferred its own plan , it was agreeable to a private carrier plan if the benefits thereunder were equal to or better than the union plan. (3) Pension plan. Here again Respondent said it was willing to pay the same amount per employee as it would have under the union industrywide pen- sion plan but insisted on its own plan covering only its own employees with a private carrier . Again the Union was willing to accept the private carrier plan provided the benefits equalled or bettered the union plan. (4) The 6-day workweek . Respondent insisted on a 6-day workweek without premium pay for the sixth day but was willing to make the sixth day of work optional with the employee . The Union wanted premium pay for the sixth day. (5) Waitresses' pay. Respondent wanted to raise waitresses' pay from the $ 1 per hour under the 1964 contract. Accordingly, Respondent offered $1.125 per hour for the first year of a 2-year collec- tive agreement and $1.15 for the second year. The Union was asking for $1.25. (6) Split-shift bonus. Respondent was insisting on the elimination of the $1 bonus for waitresses working split shifts whereas the Union insisted on the retention of that bonus subject , of course, to a final wage package agreement. Further discussions on these areas of this agree- ment were held by and between the above-named individuals on July 23, September 10, and November 5, 1968 . Additional meetings were held in January, February, and May 1969, at the last of which, upon being informed that Respondent's position had not changed in any regard , Attorney Gregory stated that they were "wasting their time" and with Corrigan walked out of the meeting. There was also considerable correspondence exchanged between the attorneys. Under date of August 20, 1968, the Union detailed for Respondent 's benefit some six areas in which the pension plan suggested by the Wyatt Re- CHAMBERTIN RESTAURANT 863 port would be inferior to the Union's industrywide pension plan. The Union's main criticism of the Wyatt Report plan as expressed in the letter and orally, was the fact that Respondent's plan con- tained no "portability" feature; i.e., the employee earned credits only while employed at Respon- dent's restaurant but earned no credits thereunder if and when employed elsewhere in the industry. Under the union pension plan an employee earned credits while working in any restaurant whose owner contributed to the plan. During the numerous personal meetings above mentioned Respondent kept insisting on an open shop for the reason that Kokas had what he called a "good faith doubt" as to the Union's majority status based, after the settlement agreement, allegedly upon the fact that, according to Respondent's cal- culations, only three of its employees had been honoring the union picket line established on March 2, 1968. So allegedly because of this "good faith" doubt as to the Union's status, Respondent filed RM peti- tions with the Regional Office seeking representa- tion elections among its employees on September 4 and October 29, 1968, and again on January 7, 1969, all of which were dismissed by the Regional Office.9 As noted, Respondent insisted throughout these meetings on having its own insurance and pension plans covering its own employees only and handled by a private carrier. Although preferring its own in- dustrywide plans, the Union agreed that such private plans with private carriers would be ac- ceptable to it if the benefits thereunder were equal to or better than the union plans. Respondent produced the July 3, 1968, letter from the Wyatt Company to Respondent's attorney stating what benefits "could" be available from private carriers, from an actuarial point of view, with the same pay- ments per employee per day as were made to the union plan. The Union continued to point out the defects listed in its August 20, 1968, letter in any such proposed plan and particularly stressed the lack of "portability." Furthermore Respondent never produced any such plan for the Union's perusal for a comparison of benefits throughout these meetings. In fact, according to the testimony of Kokas, the only possible implementation of the Wyatt Report at any time was a " casual " telephone call, Kokas' description, to a Detroit bank concerning a possible meeting with one of its trust officers, which call was made, according to his testimony, approximately 6 weeks before the September 1969 hearing. Also, in answering a leading question by his attorney, Kokas at least implied that Respondent had made pay- ments to a pension escrow fund only a few weeks prior to the hearing but subsequently corrected this implication by testifying that no such escrow fund had been set up and no money segregated for such purpose, although adding that there was sufficient money in Respondent's general business bank ac- count to cover such payments. Hence, although requested to do so, Respondent never furnished the Union any concrete pension plan which could be compared as to benefits with the union pension plan. Nor did Respondent ever provide the Union with a concrete insurance pro- gram to be compared with the union insurance plan. On one occasion at a meeting on September 10, 1968, Rosenfeld for Respondent "indicated" the possibility of a wage rate for waitresses of $1.15 on a 2-year contract provided the split-shift bonus were eliminated. Respondent's only firm wage offer for waitresses was $1.125 for the first year and $1.15 for the second year of a 2-year contract. This was unacceptable to the Union if the $1 split-shift bonus were also eliminated. The Union was waiting for a better wage package before eliminating the split-shift bonus. In addition Respondent and the Union also talked during these rather numerous meetings about the possible methods of settling the grievance filed on May 29, 1967, as previously found. When Respondent originally supplied the Union with the data requested concerning this grievance, the records for the years 1964-65 were missing and, according to Respondent, could not be located. The Krantz report purporting to show some $10,000 unpaid back wages to waitresses was com- piled without that requested data. Respondent made a number of offers of partial settlement of this grievance which the Union refused to accept, the Respondent's and the Union's theories and esti- mates as to the amount due and owing being con- siderably apart. However, Respondent's offers acknowledged that some thousands of dollars were due and owing due to previous underpayments in 1967-68. On January 17, 1969, the Union filed its original charge in the instant matter. Suddenly by letter dated February 12, 1969, Respondent offered to make available to the Union "any and all employment payroll records and banquet records in our possession for the period November 1, 1964" to date. This of course in- cluded some, if not all, of the 1964-65 records which theretofore had been reported as missing. The fact was that these missing 1964-65 records had been uncovered by a field examiner of the Na- tional Labor Relations Board while investigating a charge separate and distinct from that involved in the instant case. So far as this record shows Respondent's offer of February 12, 1969, has never been accepted by the Union. Nor have the parties ever agreed on the amount of unpaid back wages due. e Previously Respondent had filed similar petitions with similar results on August 31, 1967, and March 4, 1968 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under date of May 21, 1969, Respondent wrote the Union as follows: Re: Chambertin, Inc. Gentlemen: We have requested and have agreed to par- ticipate in a collective bargaining session with you next Thursday morning at 10:30 a.m. at the offices of the Michigan Labor Mediation Board . As you know, we have met with your union for the purpose of negotiating an agree- ment regarding employees of Chambertin, Inc. represented by your union whenever requested to do so by you, and on several occasions, requested such meetings on our own initiative. Notwithstanding the several meetings held between us in the last few months, we have been unable to reach agreement with you con- cerning the terms and conditions of a new con- tract. At our last meeting we reiterated our position, and it was not acceptable to you. We take this opportunity to again restate our position and to make to you, with regard to those issues about which we are not yet in agreement, a final offer. With regard to those issues, that offer is as follows: 1. Union Security: Employer proposes an open shop. 2. Pension and Insurance Benefit: Employer proposes an employer plan which will spend the same amount of money as involved in the union pension and insurance proposal. How- ever, the employer' will request the employee who is not already covered under an insurance plan to make a contribution to such plan. See 5 below. It should be noted that there may be a difference in types and coverage of benefits provided between the two plans, however, the employer feels that his plan will be equal if not superior to the union's proposed plan. 3. Shift Proposal: Employer proposes to guarantee each employee who works the lunch hour 3-1/2 hours of employment and for each employee who works the dinner hour a guaran- tee of 4 hours of employment. The only time when such guarantee would not be in effect is when the employee himself requested to leave early. 4. Work Week Overtime: Employer proposes a five day work week. If an employee is requested to work a sixth day, the employee will have the option to decline such assign- ment. However, if the employee agrees to work the sixth day, the sixth day shall be paid at his straight time hourly rate. 5. Wage Rate: Employer proposes a $1.15 wage rate during the term of the agreement, such term to be two years. It should be noted that in connection with the insurance benefit, No. 2 above , that an additional nickel in wages will be given to those employees who are al- ready covered under an insurance plan and for those employees who are not so covered, this additional nickel will then serve as part of the contribution. Unless we are able to reach agreement with you at our meeting on next Thursday10 and thereby break the long standing impasse between us with regard to these issues, we shall put into effect effective June 1 , 1969, our final offer relating both to these issues and to the other is- sues about which we have already reached agreement, except that absent an agreement we cannot and will not unilaterally implement our proposals for a grievance procedure in- cluding arbitration of otherwise unresolved disputes. We have also negotiated with you regarding certain grievances filed by you about two years ago. On the basis of the information presently available to us, our offer for settlement con- cerning employee grievances remains the same as was presented to you before . However, we agreed that prior to next Thursday 's meeting to submit to you in writing a detailed statement listing employee and the amount he would receive and the formula used to determine such amount. Absent agreement with regard to these amounts next Thursday, we shall pay these amounts to the named employees on or about June 1 , 1969. Further accumulation of amounts due them for the period beyond June 1, 1969 is foreclosed by reason of the changes in wages, hours, and working conditions beyond June 1 , making your grievances inap- plicable with respect to the period beginning June 1 , 1969. [Emphasis supplied.] Under date of June 3 , 1969, Respondent again wrote the Union in pertinent part as follows: Gentlemen: Mr. Zameck and I, representing Chambertin, Inc., entered our negotiating session with you regarding Chamberlin, Inc. last Thursday fully prepared to discuss the issues between us in a further effort to persuade you to accept our point of view on those very few issues still in dispute. Your response , you will recall , to our position being as indicated in our letter to you dated May 21 was, "We are wasting our time", whereupon your attorney, Mr. Gregory, im- mediately left the room followed by Mr. Cor- rigan. Your refusal to continue to bargain with re- gard to the issues between us is further evidence of the existence of an impasse in our bargaining 10 Apparently May 29, 1969 CHAMBERTIN RESTAURANT 865 and as well as your rejection of the offer con- tained in our letter of May 21. We are , accordingly , implementing that offer effective June 1 , 1969. We shall pay to your union 's pension fund payments which accrue through May 31 , 1969 in the manner in which we have made pension payments in the past. We initiated discussions with Michigan Hospital Service/Michigan Medical Service looking towards their hospital/medical in- surance for our employees last Thursday after- noon after 'your rejection of our offer .- We then learned it was not possible for the group to be covered by their insurance until July 1, 1969. We intend , therefore , to continue to pay monthly premiums to your union 's insurance program through the period ending June 30, 1969 in the usual manner . My understanding is we have just recently received and paid the in- surance billing for the month of April, 1969. We are required , therefore , to wait until July 1, 1969 to implement our offer with regard to in- surance. This delay , you will recognize, is somewhat similar to the delay about a year ago in reinstating your union 's insurance. We are, meanwhile , prepared to meet with you or your representatives for the purpose of collective bargaining. [Emphasis supplied.] On June 1 , 1969, Respondent implemented the threat contained in the May 21 and June 3, 1969, letters, except that Respondent continued to pay its contributions to the union insurance fund until Au- gust 1 , 1969, because its discussions with Blue Cross-Blue Shield had been instituted at such a late date as to make coverage by Blue Cross-Blue Shield impossible for the months of June and July. Con- tributions to the insurance fund ended August 1. Contributions to the Union 's pension fund had ended June 1 despite the fact that to the date of the hearing Respondent had not implemented the Wyatt Report with any pension plan. Waitresses were paid $ 1.15 per hour . The split-shift bonus was eliminated. In addition Respondent gave checks dated June 25, 1969 , to certain employees allegedly in settlement of that employee 's claim for back wages under the grievance of May 29, 1967, without notice to or approval of the Union. The amounts paid , with one possible exception , were for sums less than the Krantz report indicated was due the employee . At the hearing the Respondent produced certain other checks dated June 25, 1969, for similar settlements which Respondent claimed could not be delivered because the address of the payee was not available to Respondent. B. Conclusions If I may be pardoned a personal remark, I do be- lieve that the instant case is possibly the most unsympathetic one-as regards all parties and in all areas-which this Trial Examiner has ever had the misfortune to hear. To begin with this case stems from an apparently illegal "sweetheart arrangement," neither litigable nor litigated here for obvious sound legal reasons, which was initiated and masterminded by Respon- dent in 1964 but which was also acquiesced in and consented to by the Union , to wit, the execution of the 1964 collective-bargaining agreement by and between Respondent and the Union purporting to establish the wages , hours, and working conditions for a period of 2 years for Respondent 's still unem- ployed staff of employees who necessarily had not then selected the Union as the bargaining agent nor was consulted in regard to the contractual terms agreed on . This was the original sin from which all others flowed . It is not a happy beginning. For a period of nearly 3 years thereafter the "labor peace " thus arranged for in the absence of the employees apparently proved eminently satisfactory to both parties thereto . Respondent operated its restaurant with not too scrupulous re- gard to the terms and conditions contained in the executed agreement and the Union did not seem to care. Respondent was happy and so apparently was the Union. However on May 29, 1967, this serenity was sud- denly and rudely shattered when the Union filed its grievance to the effect that Respondent had failed to pay , or underpaid, its employees from the very beginning of this deal the wages provided for in the executed contract . From the thousands of dollars which the Respondent has offered in settlement of this grievance , even though amounting to a con- siderable lesser amount than has been claimed to be due by the Union , it is apparent both that there was substance to the Union 's grievance and that these under payments, intentional or otherwise, were substantial . The exact amount of the moneys involved has never been definitely ascertained to date because originally Respondent made offers of settlements without allowing the Union any ex- amination of its books and records and then sub- sequently in the summer of 1968 , when Respondent did grant access to the books and records "in the possession " of Respondent, the records for the years 1964-65 allegedly could not be located. As of that time admittedly , as contended by General Counsel , Respondent had failed to produce the records and data requested by the Union for the in- telligent prosecution of the grievance. However, on February 12, 1969 , after the 1964-65 records had been uncovered by pure chance by a Board field examiner while investigating a completely different charge against Respondent , Respondent offered in- spection of these records to the Union for the completion of its investigation of the grievance. It is undisputed in this record that the Union then failed to avail itself of the offer. One of General Counsel 's contentions in the refusal to bargain complaint here is that Respon- dent has failed to produce all the books , records, and data requested by the Union . It is all too clear 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent's production of the requested material was at least painfully slow. In fact the ac- cidental discovery of the missing 1964-65 records by a field examiner would seem to indicate that Respondent's original search for its own records was neither painstaking, thorough, or wholehearted. But the fact remains that, although the Union did not take advantage of Respondent's offer, Respondent did in fact finally offer on February 12, 1969, the Union access to the thereto- fore missing 1964-65 data. There is no showing here that, although belated, Respondent's final offer of the 1964-65 business books and records did not complete the books and records requested by the Union back in 1967. We would know better if the Union had taken advantage of the 1969 offer. Consequently, despite the undue delay, I will have to hold, contrary to the claim of the General Coun- sel, that Respondent did not refuse to supply the Union with the requested books and records and thus did not violate Section 8(a)(5) in this regard. The previous peaceful coexistence at the restau- rant was not only shattered by the May 29, 1967, grievance but also by reason of the fact that the Union filed other charges against Respondent with the Board which developed into Cases 7-CA-6077 and 6427. In April 1968 these cases were voluntari- ly settled by the parties and a consent decree by the United States Court of Appeals for the Sixth Circuit was entered enforcing the Board's Order dated May 14, 1968, based upon the settlement against Respondent which , inter alia , affirmatively ordered that Respondent: 2. Take the following affirmative action which the Board finds will effectuate the poli- cies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively with the Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive collective-bar- gaining representative of all employees employed at the Dearborn, Michigan, restaurant of the Respondent, excluding office clerical employees, guards, manager, assistant manager, dining room supervisors and other supervisors as defined in the Act, with respect to any proposed changes in group insurance or the method of adjusting grievances, and concerning wages, hours, and any other term or condition of employment. The settlement agreement of the parties, the Board Order and this consent decree effectively eliminated not only the question of the appropriate unit but also the question of the Union's majority " It may be of passing interest here that, subsequent to the Board's deci- sion finding a new and separate refusal to bargain, the Board not only brought a contempt of court case based on the same evidence as presented before me but also won that case. See N.L.R B. v Satilla Rural Electric representation therein from the instant case. In addition this decree raises a fundamental question as to whether the allegations of the present complaint create a new and separate refusal to bargain violation of Section 8(a)(5) or, more ap- propriately, constitute a case of contempt of the aforementioned court decree. It appears that the Board has answered the above perplexing question in its decision in Satilla Rural Electric Membership Corporation, 155 NLRB 747. The Satilla case is very similar to the case at bar in that the Circuit Court of Appeals for Fifth Circuit had enforced a Board Order in a prior Board proceeding requiring Satilla to bargain with the recognized bargaining agent. When within 1 year from the date of the entry of the court's decree en- forcing the Board's Order, Satilla again questioned the union's majority status, the General Counsel as here issued a new refusal to bargain complaint against Satilla. After a hearing this Trial Examiner dismissed the complaint against Satilla largely on the ground that the fact that respondent had again questioned the union's majority status within the 1- year period of the entry of the decree constituted a matter of contempt of court rather than a new and separate refusal to bargain. The Board, however, experienced no difficulty in reversing that decision of this Trial Examiner and finding a new and separate refusal to bargain violation on the facts presented. Thus under Board law a respondent can commit a new refusal to bargain violation despite the existence of a court decree ordering that respondent to bargain. That being the existing Board law this Trial Examiner must, and hereby does, find in accord therewith." In its pleadings and in the testimony of Kokas, Respondent claimed that at all times material herein (1) Respondent had a "good-faith doubt" as to the Union's majority status; but at the same time (2) Respondent bargained in good faith with that same Union. By making the first contention Respondent de- nies the representative status of the Union while with the second Respondent admits that representa- tive status. In short the two contentions are mu- tually exclusive. One or the other can exist but not both at the same time. The "good-faith" element of one contention would eliminate the "good faith" of the other. Thus it seems to be appropriate to deter- mine which contention was dominant in Respon- dent's mind. It is quite clear that very soon after the filing of the May 27, 1967, grievance Respondent began to indicate its doubt of the representative capacity of the Union. On August 31, 1967, a decertification petition was filed. According to Kokas, it was the filing of such decertification petitions by employees Membership Corporation, 393 F 2d 134 (C.A 5) Therefore it appears that the Board has concurrent remedies available to it in a situation like the present CHAMBERTIN RESTAURANT 867 which originally created Respondent's "good-faith" doubt,12 this despite the manner in which the 1964 agreement was executed. The alleged doubt con- tinued thereafter, however, but at that time, ac- cording to Kokas, was based on the fact that, ac- cording to his count, only three employees out of Respondent's staff of 100-105 employees honored the picket line established by the Union on March 2, 1968. Supposedly because of this continuing doubt, Respondent filed an RM petition seeking an election among its employees on March 4, 1968, 2 days after the establishment of the picket line.13 Respondent continued to express this doubt as to the Union's representative status by filing other RM petitions for elections on September 4 and! October 29, 1968, and finally on January 7, 1969. Under these facts there is no question but that Respon- dent's doubt as to the Union's majority status con- tinued to persist even after Respondent agreed in the settlement of Cases 7-CA-6077 and 6427, to bargain with the same Union over the bargainable issues here involved. The inconsistency of agreeing to bargain with the Union as the. exclusive representative of its em- ployees while at the same time filing RM petitions for elections did not faze Respondent. It managed to flit from one horn of the dilemma to the other with the greatest of ease. In this regard Respon- dent's only consistency has been its inconsistency. However under the facts here it has to be said that Respondent's alleged doubt of the majority status of the Union has persisted throughout the whole period of this case. Kokas first expressed his deter- mination to secure an election for his employees in his letter to them dated October 31, 1967, and that determination persisted throughout, as he said it would, until his final filing of a petition for election on January 7, 1969. In his testimony Kokas candidly admitted that he personally had "deprived" his employees of the op- portunity of expressing their desires for or against union representation by executing the contract recognizing the Union on November 1, 1964. His sudden desire for an election came into being soon after the May 29, 1967, grievance. He explained this sudden change of heart after May 29, 1967, and his determination thereafter to secure an op- portunity for such employee expression by testify- ing that his "morals improved" after November 1, 1964. Be that as it may, the fact remains that Kokas' "improved morals" just happened to coin- cide exactly with Respondent's newly acquired determination to eliminate the Union and the union contract just as his previously unimproved morals had also just happened to coincide exactly with his determination to arrange a sweetheart deal on November 1, 1964. His "morals" varied with his own aims and objectives. Having thus determined that Respondent did have a doubt as to the representative capacity of the Union, whether a "good faith" doubt or not, throughout this period, consideration must now be given to Respondent's claim that it bargained "in good faith" with the Union as the exclusive representative of those employees from on and after July 17, 1968, despite the other doubt. It must be acknowledged that on many occasions Respondent sat down and discussed all bargainable issues with the Union. In fact agreement on all the terms of a contract was quickly arrived at except in the following areas: union security, insurance plan, pension plan, split-shift bonus, the 6-day workweek, and the wages of the waitresses. Respondent began these so-called negotiations demanding an open shop, its own insurance plan and its own pension plan with private carriers at the exact same monetary cost to Respondent as the eliminated union plans would have cost, the elimination of the split-shift bonus which was one of the bases for the Union's May 29, 1967, grievance, a sixth day of work to be optional with the employee but to be paid for at the regular wage rate. Respondent, recognizing the business necessi- ty for an increase in waitresses' wages, offered $1.125 per hour for the first year and $1.15 for the second year, whereas the Union was demanding $1.25 per hour. When the bargaining ceased in 1969, Respondent's positions in each of these areas remained exactly the same as when negotiations began. The same was true in regard to Respon- dent's offers to settle the May 29, 1967, grievance. Respondent had moved not one iota. Respondent's letter of June 3, 1969, set forth Respondent's idea of bargaining "in good faith" quite accurately in the following statement: Mr. Zameck and I, representing Chambertin, Inc., entered our negotiating session with you regarding Chambertin, Inc. last Thursday fully prepared to discuss the issues between us in a further effort to persuade you to accept our point of view on those very few issues still in dispute. Your response, you will recall, to our position being as indicated in our letter to you dated May 21 was, "We are wasting our time," whereupon your attorney, Mr. Gregory, im- mediately left the room followed by Mr. Cor- rigan. [Emphasis supplied.] Thus Respondent's view of good-faith bargaining was succinctly expressed as Respondent's attempt "to persuade you to accept our point of view on those few issues still in dispute." Respondent's definition so expressed makes good-faith bargaining definitely a one-way street: "You accept our terms and we may have an agreement." It is clear beyond a peradventure of a doubt that acceptance of Respondent's terms constituted a condition 11 It is to be noted that in the settlement agreement of April-May 1968 Respondent agreed to cease initiating and sponsoring or aiding and abetting the filing of such petitions 13 These representation filings, being prior to July 17, 1968, cannot be considered as unfair labor practices here 427-258 O-LT - 74 - 56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precedent to arriving at any collective-bargaining agreement. Without union acceptance of Respon- dent's demands, there would be no contract. This hardly qualifies as bargaining "in good faith." But it was the way Respondent bargained here. Respondent's conditions had been carefully selected. Respondent's demands as to the open shop and as to the economic issues each were con- siderably less favorable for the Union and for the employees than had been provided for in the 1964 agreement. In 1968 the acceptance by a union of retrogressive terms was hardly to be anticipated. Although Respondent said it wanted to increase the wages of the waitresses, at the same time Respon- dent's other conditions would have effectively reduced any such wage increase by eliminating overtime for the sixth day and the split-shift bonus. The elimination of union security also reduced the effectiveness of the Union as the representative of the employees as well as being a further amplifica- tion of its "good faith doubt" theory. Each of these terms was retrogressive from what the Union and the employees already had. Acceptance by the Union of any of all of such terms, particularly in the year of 1968, would have effectively denigrated the Union as their bargaining agent in the eyes of Respondent's employees. These terms appear to have been selected for this purpose by Respondent. Perhaps Respondent's adamant insistence on the acceptance of the economic terms, even to the point of conditioning the execution of any agree- ment on such acceptance, could possibly be at- tributed to hard bargaining. But these arguments fall when Respondent's de- mands regarding insurance and pensions come into consideration. Throughout the numerous meetings Respondent expressed its complete willingness to pay out the same amount of money for insurance and pensions as it had been contributing to the union industrywide plans. But at the same time Respondent adamantly insisted on eliminating the union plan and upon having its own insurance and pension plans with private carriers. Reluctantly the Union agreed to the private carrier plans provided the benefits thereunder were equal to, or better than, those under the union plans. Although requested to do so, Respondent failed to produce a pension plan, or an insurance plan, for purposes of comparison. In fact Respondent's attor- ney by letter dated February 26, 1969, rather plain- tively protested that, "We never stated that we would provide information regarding a pension plan over and above the actuarial report (Wyatt Report) already furnished you. "14 This could only mean that it was incumbent upon the Union to accept Respondent's verbal assurances that its pension plan would be equal to or better than the union plan in order to reach agreement with Respondent. When allegedly because the Union had created an "impasse" by failure to accept Respondent's al- leged pension plan on faith, Respondent on June 1, 1969, unilaterally put its "last offer" into effect at its restaurant. This "last offer," of course, included Respondent's alleged pension plan with a private carrier at an agreed cost of 40 cents per day per employee. At this point what must have been suspected al- ready from Respondent's absolute refusal to produce its private carrier pension plan became a proven fact: There was no private carrier pension plan, there never had been such a plan and, judging from Respondent's efforts since June 1, 1969, to wit, one "casual" telephone call, there will never be any such plan. So all of Respondent's insistence on its own private carrier pension plan over the past many months of so-called negotiations had proved to be nothing more than time consuming conversation, idle chit chat or, in the venacular, "a lot of hot air." Wasting time haggling over "hot air," i.e., nonex- istent, fictitious private carrier pension plans, and indeed making that a sina qua non to agreement, is not bargaining in good faith. It is in fact affirmative- ly bad faith, if not worse. Respondent's insistence on the Union's ac- ceptance, as a condition of agreement, of this al- leged plan without examination and on faith of the oral assurances of this Respondent-after all these years of futile, abortive bargaining-that the benefits of the plan would equal or better the benefits under the union plan equates with being asked to buy a "pig in the poke" sight and unseen from a street peddler. No reasonable man would buy. No reasonable man would expect him to. Accordingly I can only conclude, as I do, that under the circumstances here Respondent made its private carrier pension plan a condition to agree- ment solely as a means whereby Respondent could, and did, assure itself that agreement with the Union would never occur. This is far beyond "hard bar- gaining." The nonexistence and therefore the nonimple- mentation of Respondent's pension plan, in addi- tion to being clear evidence of Respondent's intent that no agreement would be reached, had another result of interest here. On June 1, 1969, Respon- dent raised the hourly rate of its waitresses from $1 to $1.15. Simultaneously Respondent's 40 cents per day per employee contributions to the union pen- sion fund ceased and Respondent's private carrier plan was, of course, being nonexistent, not imple- mented. So the waitresses' 5 cents per hour fringe benefit for pensions was unilaterally taken from them at that same time and began flowing into Respondent's bank account for Respondent's use and benefit. Thus this generous 15-percent wage in- "The Wyatt Report was not a pension plan At best the Wyatt Report was a written confirmation of a telephone conversation that , in the opinion of the Wyatt Company, a pension plan having certain features was feasible from an actuarial point of view The Wyatt Company was not a carrier CHAMBERTIN RESTAURANT crease became a less generous 10-percent increase. The actual increase shrinks even under 10 percent when we subtract the further loss of income to the waitresses caused by Respondent 's simultaneous elimination of split-shift bonus and overtime for the sixth day of work , a reduction which cannot be ascertained in this record. One of the "positions" taken by General Counsel here,15 despite the figures above , was that Respon- dent violated Section 8 (a)(5) by unilaterally in- stituting the $1.15 hourly wage on June 1, 1969, whereas the best wage offered to the Union had been $1 . 125 for the first year and $1.15 for the second year. Although this does appear to have been the best firm offer made to the Union, still Gregory acknowledged that at one time Rosenfeld "intimated " a $1.15 rate if the split-shift bonus were eliminated and Respondent's letter of May 21, 1969, refers to a $1.15 rate . So, although Rosen- feld's "intimation" may not have been a firm offer and the offer in the May 21, 1969, letter may well have been too late , I still cannot find that Respon- dent's $1.15 wage rate put into effect on June 1, 1969 , was greater than the best offer made to the Union and thus a violation of Section 8(a)(5) of the Act. Consequently I must dismiss paragraph 16 (h) of the complaint. Respondent's insurance plan with a private carri- er was almost, but not quite , in the same category. On June 1 , 1969, there , was no insurance plan with a private carrier in existence or arranged for so Respondent decided to continue to contribute that same amount of money to the union insurance fund in order to assure continued coverage . By August 1, however, Respondent had arranged with Blue Cross-Blue Shield for a coverage for those of its employees who agreed to make a certain percent- age contribution thereto . The result has been that instead of having all employees covered under such plan as was done with the union plan, the November report made by Respondent shows that only 36 out of Respondent 's 100-105 employees had agreed to make contributions and thus secure coverage by Blue Cross-Blue Shield. But, regardless of what may have happened to the moneys thus saved by Respondent , an insurance plan did come into existence even though belatedly. Respondent defends against the charge of refus- ing to bargain and justifies its implementation of its so-called "last offer" to the Union on June 1, 1969, on the grounds that the negotiations had reached an "impasse " when Gregory and Corrigan walked out of a meeting on or about May 29, 1969, with the remark , "We are wasting our time" after being informed that Respondent 's position in each of the five disputed areas remained unchanged. Of course Respondent had been claiming that the renewed negotiations had reached that same "impasse" as early as June 25 , 1968, as well as thereafter. The "impasse " Respondent refers to resulted in large 869 measure from the fact that the Union refused to ac- cept Respondent's private carrier pension plan on Respondent's verbal assurances and demanded the right to see the actual terms of such plan which Respondent both refused, and was unable, due to its nonexistence, to produce for purposes of com- parsions. If this private carrier pension plan were not an intentional plan to create an alleged im- passe, a reasonable man would have anticipated that its nonproduction upon request would create such an impasse. Yet Respondent's attorney as early as February 26, 1969, answered another union request for that alleged pension plan by curtly writing: We never stated that we would provide in- formation regarding a pension plan over and above the actuarial report already furnished you. This answer not only indicates the peculiar defini- tion of bargaining in good faith under which Respondent was operating but also conclusively shows that Respondent was intentionally refusing information necessary for true collective bargain- ing. Thus Respondent itself was responsible for whatever impasse existed and hence cannot defend its own actions on that ground. Under all these facts I can only conclude that Respondent entered upon the present negotiations with a mind hermetically sealed against arriving at any agreement with the Union and with plans laid, as in the case of the pension plan, whereby any such agreement could be prevented by Respondent. I further find that throughout these meetings Respondent engaged in nothing but surface bar- gaining, and in mere conversation and "hot air" about nonexistent, fictitious terms of any agree- ment which might be arrived at. From the beginning Respondent has bargained in bad faith. In all these regards I must, and hereby do, find that Respondent refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirmative action designed to " See the letter amendment to paragraph 16(h), mentioned supra 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effectuate the policies of the Act. Having found that Respondent has refused to bargain in good faith with the Union as the exclu- sive representative of Respondent's employees in violation of Section 8(a)(5) and (1) of the Act, I will recommend that, upon request, Respondent bargain collectively in good faith with the Union as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, including the underpayment of Respondent's waitresses and other employees raised in the Union's grievance of May 29, 1967, and, if agreement is reached, embody such un- derstanding in signed agreement. The appropriate unit is: All employees employed at the Dearborn, Michigan, restaurant of Respondent, excluding of- fice clerical employees, guards, manager, assistant manager, dining room supervisors and other super- visors as defined in the Act. In addition as a direct result of Respondent's il- legal refusal to bargain as well as by Rspondent's only partial implementation of its "last offer" on June 1, 1969, Respondent failed and neglected to provide its employees with any pension plan as Respondent had agreed to do. As a result of Respondent's failure in this regard each of Respon- dent's employees was illegally deprived either of credits accruing to him on and after June 1, 1969, under the terms of the union pension plan by reason of Respondent's failure to make the con- tributions to that pension plan, or else that em- ployee suffered a cash loss of 40 cents per day, the agreed on cost of the pension plan purportedly to be in existence on or after June 1, 1969. Instead of thus resulting to the benefit of the aforementioned employees, this sum of 40 cents per day per em- ployee has been diverted by Respondent to its own use and benefit since June 1, 1969. Accordingly, in order to restore the status quo as nearly as possible to that existing prior to Respondent's default on June 1, 1969, I am going to order that Respondent, at the option of the individual employee affected, either (1) Contribute that sum of money due and owing to the union pension fund for work per- formed by the individual employee on and after June 1, 1969, so as to restore that employee's credit in such fund to the status it would have at- tained in the event that there had been no hiatus in Respondent's contributions on behalf of that em- ployee to the fund on and after June 1, 1969; or (2) Pay to the affected individual employee in cash the sum of 40 cents per day for each day said employee has worked at Respondent's restaurant since June 1, 1969, with interest thereon at 6 per- cent per annum. Because of the variety of the unfair labor prac- tices engaged in by Respondent, I sense an opposi- tion by Respondent to the policies of the Act in general and I deem it necessary to order Respon- dent to cease and desist from in any manner in- fringing upon the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of the Act. 2. By refusing on and after July 17, 1968, to bar- gain in good faith with Detroit Local Joint Execu- tive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of the em- ployees in the above-found appropriate unit, Respondent has engaged in and is engaging in un- fair labor practices in violation of Section 8(a)(5) and (1) of the Act. 3. By interfering with, restraining , and coercing its employees in the rights guaranteed them in Sec- tion 7 of the Act, as found above, Respondent has interfered with, restrained, and coerced its em- ployees in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case , it is hereby ordered that Respondent Cham- bertin, Inc. d/b/a Chambertin Restaurant, Dear- born, Michigan, its officers, agents, successors, and assigns, shall: (1) Cease and desist from: (a) Refusing to bargain in good faith with the Union as the exclusive representative of Respon- dent's employees in the appropriate unit which is: All employees employed at the Dearborn, Michigan, restaurant of the Respondent, excluding office clerical employees, guards, manager, assistant manager , dining room supervisors and other supervisors as defined in the Act. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, as the exclusive representative of Respondent's employees in the appropriate unit found above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment including pen- sion plans , insurance plans, and settlement of the grievance filed by the Union on May 29, 1967, and, if an understanding is reached, embody same in a written signed agreement. CHAMBERTIN RESTAURANT 871 (b) Make whole its employees for any loss of in- surance And/or pension benefit they may have suf- fered as a result of the termination of Respondent's payments to the health and welfare insurance and pension plans of the Union in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its Dearborn, Michigan, restaurant copies of the attached notice marked "Appen- dix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 17 IT IS FURTHER ORECOMMENDED that, unless Respondent notify said Regional Director within 20 days from the receipt hereof that it will take the ac- tion here ordered, the Board issue an order direct- ing Respondent to take the action here ordered. 16 In the event that this Recommended Order is adopted by the Board, the.words " a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " 17 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulation- of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Bartenders International Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, in- cluding insurance plans , pension plans , and set- tlement of the grievance filed by the Union on May 29, 1967, and, if an agreement is reached, we will embody the same in a written signed agreement . The appropriate unit is as follows: All employees employed at the Dear- born , Michigan, restaurant of Respondent, excluding office clerical employees, guards , manager, assistant manager, dining room supervisors and other supervisors as defined in the Act. WE WILL make whole each of our employees for any loss of insurance and/or pension benefits each may have suffered as a result of the termination of payments to the health and welfare insurance and pension plans. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exer- cise of their right to self-organization , to form, join, or assist Detroit Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization of our employees' choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection , or to refrain from any such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment , as authorized by Section 8(a)(3) of the Act, as amended. CHAMBERTIN, INC. D/B/A CHAMBERTIN RESTAURANT (Employer) Dated By (Representative ) (Title) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively in good faith with Detroit Local Joint Execu- tive Board, Hotel & Restaurant Employees and This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.