Prestige Bedding Cob., Inc.

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prestige Bedding Company , Inc. and Velma Denton and United Furniture Workers of America, Local 282,AFL-CIO Local 282, United , Furniture , Workers of America, AFL-CIO and United ,Furniture Workers Insurance Fund and Richard A. Brackhahn, Attorney at Law. Cases 26-CA-4516, 26-CA-4517, 26-CB-763-1, and 26-CB-763-2 July 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 4, 1973, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent Employer filed its "Protective Exceptions" and incorporated its brief to the Administrative Law Judge. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent with the Decision herein. We agree with the Administrative Law Judge that the Respondent Employer violated Section 8(a)(l), (2), and (3) of the Act and the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by maintaining a clause in their collective-bargaining agreement which provided hospitalization, medical care, and $1,000 death benefits "for each employee who is a member of the Union and such other employ- ees that the Company may desire to have covered ... ." However, we do not agree with the Adminis- trative Law Judge's failure to provide for a remedy which would dissipate, remove, or avoid the conse- quences of the unfair labor practices of the Employer and the Union. The facts in the instant case, as set forth more fully in the Decision of the Administrative Law Judge here- in, are as follows. Insurance premiums were paid by the Employer to the Respondent Insurance Fund (a separate entity from the Employer and the Union) 1 only for those employees who were members of the 1 Cf J J Hagerty, Inc, 139 NLRB 633 (1962), enfd sub nom Local /38, International Union of Operating Engineers v N L R B 321 F 2d 130 (C A 2, 1963). Union. The fund refused to accept payments on this basis beginning with the Employer's August 13, 1971, remittance. The August payment and all of. the Employer's subsequent uncashed checks were for- warded by the Fund to the Union. This practice was still in effect on June 9, 1972, when the Employer sent a check to the Fund which was payment of the insur- ance premium of employee Velma Denton, a union member. From June 27 until July 7, 1962, Denton was hospitalized. On July 19, 1972, Denton prepared a claim for hospitalization benefits, had it count- ersigned by the Union's president, and sent it to the Fund. On August 10, 1972, the Fund rejected the claim because "the employer has not been paying premiums to the fund in accordance with the provi- sions of the collective bargaining agreement." About the same time, the Union forwarded to the Employer the uncashed premium payments which the Union had received from the Fund and had retained during the past year. Denton's illness was terminal and she died on March 13, 1973. We are aware of the Employer's argument that the insurance clause in question is broad enough to per- mit not only union members, but all unit employees to take advantage of insurance benefits offered by the parties' collective-bargaining agreement. However, we find it necessary to decide whether the wording in the said insurance clause is unlawful, per se, since, in fact, the Employer, by its own admission, unlawfully tendered premium payments to the Fund only for union members. We are also aware of the Respondent Union's argu- ment that it made several attempts to interpret or change the said insurance clause in a manner which would make insurance available to all bargaining unit employees. However, we find no evidence that the Union ever notified employees in the collective-bar- gaining unit that the insurance clause was broad enough to allow nonunion members to participate. Because of this failure on the part of the Union and because the Union's efforts to change the insurance clause were, in fact, unsuccessful, the insurance plan, insofar as unit employees knew, continued to be ad- ministered only for members of the Union. While the employees in the bargaining unit were relying on the existence of the insurance plan which had been negotiated for them by the Union, the Union knew that the insurance plan, in effect, had been canceled because of the Fund's refusal to accept insurance premium payments only for union mem- bers. Yet there is no evidence that any employee was ever informed by the Union of the fact that insurance premium payments were being sent by the Employer, rejected by the Fund, and returned to the Union. Instead of so infornung the employees in the bargain- 212 NLRB No. 104 PRESTIGE BEDDING COMPANY, INC. 691 ing unit, the Union allowed the employees to continue to rely on union membership as a means of obtaining medical care, hospitalization, and death benefits. The fact that the Union's president countersigned Union Member Denton's claim is but another indication that the Union, despite its earlier attempts to include all bargaining unit employees in the insurance plan, con- tinued to participate in the plan which was, in fact, being administered only for union members. Based on the foregoing, we find that the Employer and the Union, by participating in an insurance plan which was available only for union members, thereby restrained unit employees in their right to refrain from becoming a union member. Accordingly, we find that the Employer and the Union violated Section 8(a)(1) and 8(b)(l)(A) of the Act, respectively.2 We further find that the Employer and the Union, by giving more remuneration (in the form of an insurance plan) to union members than to nonunion members for the work which unit employees performed, thereby dis- criminated in regard to a term or condition of employ- ment in a manner which would tend to encourage membership in a labor organization. Therefore, we find that the Employer and the Union violated Sec- tion 8(a)(3) and 8(b)(2) of the Act, respectively. We also find that the Employer, by making payments to the Fund only for union members, compensated em- ployees for union membership, thereby contributing financial support to the Union. Thus, we find that the Employer violated Section 8(a)(2) of the Act. As a remedy for the foregoing violations, we have recommended, in similar cases, that respondents per- mit participation in insurance and other plans by em- ployees who were not allowed to benefit in such plans by reason of the respondents' unfair practices.' How- ever, in the case at bar, such a remedy is not appropri- ate since the Union has been decertified and the insurance plan no longer exists. In any event, our remedies have also provided that employees who are adversely affected by insurance plans which are ad- ministered in a discriminatory manner are entitled to all the interest, emoluments, rights, and privileges in such plans which would have accrued to the employ- ees but for the discrimination.4 In applying the fore- going precedent to the case at bar, we find that it 2 In view of our basis for this finding, we find it unnecessary to rely on a theory of breach of duty of fair representation on the part of the Union as set forth in Miranda Fuel Company, inc, 140 NLRB 181 (1962) 3 Local 138, international Union of Operating Engineers. AFL-CIO. 123 NLRB 1393, 1410-12 (1959), enfd 293 F 2d 187, 199 (CA 2, 1961), Bendix- Westinghouse Automotive Air Brake Company, 185 NLRB 375. 378-379 (1970), enfd 443 F 2d 106 (C A. 6, 1971) Dura Corporation, 156 NLRB 285, 289-290 (1965), enfd 380 F 2d 970 (C A 6, 1967), J J Hagerty, Inc 139 NLRB 633. 639, 643 (1962), enfd rub nom Local 138, International Union of Operating Engineers v N L R B, 321 F 2d 130,137 (C A 2, 1963), Indiana Gas & Chemical Corporation, 130 NLRB 1488, 1491 ( 1961), Northeast Coastal, Inc , 124 NLRB 442. 443, 444 (1959) would effectuate the purposes of the Act to add to the remedy which the Administrative Law Judge has set forth in his Decision a remedy which would require that the Employer and Union herein jointly and sev- erally make whole the estate of Velma Denton for any loss suffered by reason of the fact that she did not receive hospitalization, medical care, or death bene- fits from the Respondent Fund. Such a remedy is justified, in our opinion, because Denton relied, to her detriment, on an insurance provision in a collective- bargaining agreement which had been negotiated for her benefit by the Union and the Employer. More- over, but for the discriminatory administration of the insurance plan by the Employer and the Union, insur- ance payments made on Denton's behalf would have been accepted by the Fund and the negotiated plan would have been in full force and effect during Denton's illness and at the time of her death. In providing the remedy that we do, we are not determining private rights in contract or in tort,' but are merely seeking to provide a remedy which will dissipate, remove, or avoid the consequences of the unfair labor practices which we have found.,' Nor are we condoning the unfair labor practices committed by the Employer and the Union by providing a remedy which allows the estate of Denton, a union member, to obtain benefits from an insurance plan which was administered only for union members. In this regard, we note that the remedy which we provide is no differ- ent, basically, than remedies we have granted in cases which have involved wage increases which have been unlawfully promised or granted to a selected group of employees. In those cases, although we have not con- doned the wage increases which were unlawfully promised or granted by a respondent, we have not required the respondent to revoke, rescind, or discon- tinue the wage increase or other terms or conditions of employment previously promised or granted.' Likewise, in the case at bar, we do not require that the Employer and the Union revoke, rescind, or discon- tinue insurance benefits promised or granted in the collective-bargaining agreement to union members. Instead, we find that it would effectuate the purposes of the Act to order that Velma Denton' s estate be made whole for any financial loss suffered by reason of the Employer's and the Union's failure to provide the insurance coverage and benefits set forth in the 3 See Gediman v A nheuser Busch, Inc, 299 F 2d 537, 541-544 (CA 2, 1962), reversing 193 F Supp 72 (D C N Y , 1961), and Branch v White, 239 F 2d 665, 670, 671 (N J Sup Ct, 1968) 6 See Jacobsen v Luckenbach Steamship Co, 201 F Supp 883 , 888 (D C. Ore, 1961), and cases therein cited r Yale Rubber Manufacturing Company, 193 NLRB 141 ( 1971), Spotlight Company, Inc, 188 NLRB 819, 820 (1971), enfd 462 F 2d 18 (C A 8, 1972); and see Bisso Towboat Company, 192 NLRB 885, 886 ( 1971), wherein the entire collective-bargaining agreement was set aside, but the Respondent was not required to depart from the level of benefits for employees then in effect 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement for Velma Denton at the time of her illness and death.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that: A. The Respondent Employer, Prestige Bedding Company, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Including in its collective-bargaining contracts with the Respondent Union, United Furniture Work- ers of America, Local 282, AFL-CIO, or any other labor organization certified as representative of its employees, any provisions which require membership in such union as a condition for participation in any insurance or other welfare benefits. (b) Unlawfully assisting United Furniture Workers of America, Local 282, AFL-CIO, by including in its collective-bargaining contract with the said Union, or with any other labor organization certified as repre- sentative of its employees, any such provisions as aforesaid. (c) Discriminating against any of its employees by including in its collective-bargaining contract with United Furniture Workers of America, Local 282, AFL-CIO, or with any other labor organization certi- fied as representative of its employees, any provisions which require membership in such union as a condi- tion for participation in insurance benefits or any other welfare benefits. (d) In any other like or related manner interfering with, restraining, or coercing its employees in the ex- ercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Jointly and severally with the above-named Re- 8 Chairman Miller concurs in the result and, while not in basic dis- agreement with the rationale set forth, would add thereto that Velma Denton became the innocent victim on a dispute between the parties which arose solely because of their mutual culpability in having limited insurance cover- age to an improper class But for the dispute thus unlawfully created, it is clear that Denton would have received the benefits , and, in order to restore the status quo which would have otherwise obtained , the remedy herein adopted is, in the Chairman's view , proper Any other member of the bar- gaining unit who can be shown to have suffered losses as a result of the unlawful conduct of the parties is eligible for like consideration as set forth in the test of our remedial order in the interest of, so far as possible , restoring the status quo ante spondent Union, and in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy" make whole any employees who may have suffered a loss of insurance benefits by reason of the discrimination against them. (b) Jointly and severally with the Respondent Union make whole Velma Denton's estate for any loss suffered to Velma Denton or her estate, by reason of the failure of Velma Denton or her estate to receive the coverage and benefits set forth in the insurance clause of the Respondent Employer's and the Respon- dent Union's collective-bargaining agreement, by payment to Velma Denton's estate of a sum of money equal to the amount of insurance benefits Velma Den- ton or her estate would have received but for the unfair labor practices of the Respondent Employer, together with 6-percent interest thereon, in accor- dance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Jointly and severally with the Respondent Union make whole any other employee who was for- merly in the bargaining unit of the Respondent Union or the estate of any other such employee for any loss suffered to such employee or estate by reason of the failure of such employee or estate to receive the cover- age and benefits set forth in the insurance clause of the Respondent Employer's and the Respondent Union's collective-bargaining agreement, by payment to such employee or estate of a sum of money equal to the amount of insurance benefits such employee or such estate would have received but for the unfair labor practices of the Respondent Employer, together with 6-percent interest thereon, in accordance with Isis Plumbing & Heating Co., supra. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, and all reports and records necessary to analyze the amount of insurance payments due under this Order. (e) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix A." 9 Cop- ies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent Employer's representative, shall be post- ed by Respondent Employer immediately upon re- ceipt 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 Respondent Employer to insure that said notices are not altered, defaced, or covered by any other ma- 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PRESTIGE BEDDING COMPANY, INC. 693 terial. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. The Respondent Union, United Furniture Workers of America, Local 282, AFL-CIO, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Including in its collective-bargaining contracts with the Respondent Employer, Prestige Furniture Company, Inc., or with any other employer, any pro- visions which require membership by employees in the Respondent Union as a condition for participa- tion in the insurance and other welfare benefits. (b) Discriminating against any employees of the Respondent Employer, Prestige Bedding Company, Inc., by entering into and maintaining a collective- bargaining agreement containing provisions requiring membership by said employees in the Respondent Union in order to participate in the insurance or other welfare benefits. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Jointly and severally with the above-named Re- spondent Employer, and in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy" make whole any employees who may have suffered loss of insurance payments by reason of the discrimination against them. (b) Jointly and severally with the Respondent Em- ployer make whole Velma Denton's estate for any loss suffered to Velma Denton or her estate, by reason of the failure of Velma Denton or her estate to receive the coverage and benefits set forth in the insurance clause of the Respondent Union's and the Respon- dent Employer's collective-bargaining agreement, by payment to Velma Denton's estate of a sum of money equal to the amount of insurance benefits Velma Den- ton or her estate would have received but for the unfair labor practices of the Respondent Union, to- gether with 6-percent interest thereon, in accordance with Isis Plumbing & Heating Co., supra. (c) Jointly and severally with the Respondent Em- ployer make whole any other employee who was for- merly in the bargaining unit of the Respondent Union or the estate of any such employee for any loss suf- fered to such employee or estate by reason of the failure of such employee or estate to receive the cover- age and benefits set forth in the insurance clause of the Respondent Union's and the Respondent Employer's collective-bargaining agreement , by pay- ment to such employee or estate of a sum of money equal to the amount of insurance benefits such em- ployee or such estate would have received but for the unfair labor practices of the Respondent Union, to- gether with 6-percent interest thereon, in accordance with Isis Plumbing & Heating Co., supra. (d) Post at conspicuous places at all of the Respon- dent Union's business offices and meeting halls copies of the attached notice marked "Appendix B." 10 Cop- ies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receive thereof, and he maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 26, signed copies of the attached notice marked "Appen- dix B," for posting, by the Respondent Employer at its plant in Memphis, Tennessee, in places where no- tices to employees are customarily posted. Copies of said notice, on forms provided by the Regional Direc- tor, shall, after being duly signed by an authorized representative of the Respondent Union, be returned forthwith to the Regional Director for disposition by him. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 10 See In 8 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT include or maintain in any collec- tive-bargaining agreement with United Furniture Workers of America, Local 282, AFL-CIO, or any other labor organization certified as the bar- gaining representative of our employees, any pro- visions which require membership in such union as a condition for participation in insurance or other welfare benefits. WE WILL NOT by such inclusion in any collec- tive-bargaining agreement discriminate against 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of our employees. WE WILL NOT in any other like or related man- ner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist any labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the .purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL NOT unlawfully assist in the organiza- tion of our employees on behalf of United Furni- ture Workers of America, Local 282, AFL-CIO, or any other labor organization, by entering into or maintaining a collective-bargaining agreement with provisions which require membership in such union as a condition for participation in any insurance or other welfare benefits. WE WILL NOT encourage membership in the United Furniture Workers of America, Local 282, AFL-CIO, by discriminating against any employee for not being a member. WE- WILL make whole, jointly - and severally with the aforesaid Union, Velma Denton's estate for any loss suffered to Velma Denton or her estate, by reason of the failure of her or her estate to receive the coverage and benefits set forth in the insurance clause of the collective-bargaining agreement negotiated by us and the aforesaid Union, by payment to the said estate of a sum of money equal to the amount of insurance benefits Velma Denton or her estate would have received but for our unfair labor practices, with interest thereon at 6 percent. WE WILL make whole, jointly and severally with the aforesaid Union, any other employee who was formerly in the bargaining unit of the said Union or the estate of any other such em- ployee by reason of the failure of such employee or estate to receive the coverage and benefits set forth in the insurance clause of the collective- bargaining agreement negotiated by us and the said Union, by payment to such employee or estate of a sum of money equal to the amount of insurance benefits such employee or estate would have received but for our unfair labor practices, with interest thereon at 6 percent. PRESTIGE BEDDING COMPA- NY, INC. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. - This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the, Board's Office, Clifford, Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR, RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause Prestige Bedding Company, Inc., or any other employer, to discriminate against any employee on the basis of their non- membership in our Union. WE WILL NOT enter into or maintain any collec- tive-bargaining agreement with the said Compa- ny, or any other employer, which would include any provision which requires membership in our Union as a condition for participation in insur- ance or other welfare benefits. WE WILL make whole, jointly and severally with the aforesaid Company, Velma Denton's es- tate for any loss suffered to Velma Denton or her estate, by reason of the failure of her or her estate to receive the coverage and benefits set forth in the insurance clause of the collective-bargaining agreement negotiated by us and the said Compa- ny, by payment to the said estate of a sum of money equal to the amount of insurance benefits Velma Denton of her estate would have received but for our unfair labor practices, with interest thereon at 6 percent. WE WILL make whole, jointly and severally with the aforesaid Company, any other employee who was formerly in our bargaining unit or the estate of any other such employee for any loss suffered to such employee or estate by reason of the failure of such employee or estate to receive the coverage and benefits set forth in the collec- tive-bargaining agreement negotiated by us and the said Company, by payment to such employee or estate of a sum of money equal to the amount of insurance benefits such employee or estate would have received but for our unfair labor practices, with interest thereon at 6 percent. PRESTIGE BEDDING COMPANY, INC. 695 Dated By This is an official by anyone. UNITED FURNITURE WORK- ERS OF AMERICA , LOCAL 282, AFL-CIO '(Labor Organization) (Representative) (Title) notice and must not be defaced This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: Upon an original charge filed on October 10, 1972, and a first amended charge filed November 14, 1972, by Velma Den- ton, an individual, herein referred to as Denton, in Case 26-CA-4516 and an original charge filed on October 10, 1972, and a first amended charge filed on November 14, 1972, by United Furniture Workers of America, Local 282, AFL-CIO, herein called the Union or Local 282, in Case 26-CA-4517, the Regional Director for Region 26 of the National Labor Relations Board, herein called the Board, issued an order consolidating cases and consolidated com- plaint on November 28, 1972, against Prestige Bedding Company, Inc., herein called Prestige or the Company, al- leging violations of Section 8(a)(I),(2),(3), and (5) of the National Labor Relations Act, herein called the Act. Upon a charge filed on November 20, 1972, in Case 26- CB-763-1 and a separate charge filed the same day in Case 26-CB-763-2 by Richard A. Brackhahn, attorney for the Company, the said Regional Director issued an order con- solidating cases and consolidated complaint on April 30, 1973, against Local 282 and United Furniture Workers In- surance Fund, herein called the Fund, alleging violations of Section 8(b)(1)(A) and (2) of the Act. Also, on April 30, 1973, the said Regional Director issued as amended consolidated complaint in Cases 26-CA-4516 and 4517 against the Company, deleting the allegations of violation of Section 8(a)(5) of the Act, but retaining the allegations of Section 8(a)(1), (2), and (3). On the same day the said Regional Director issued an order consolidating for hearing Cases 26-CA-4516, 4517- and 26-CB-763-1 and -763-2. Thereafter, on May 15, 1973, a second amended charge in Case 26-CA-4516 and 4527 was filed by Local 282 and, thereafter, on May 16, 1973, the said Regional Director issued an amendment to the amended consolidated com- plaint in these cases reciting the said second charge which alleged independent allegations of violation by the Compa- ny of Section (a)(l) of the Act. The duly filed answers and amended answers of the Re- spondents, while admitting the jurisdictional and certain factual allegations of the complaints and amended com- plaints, denied the commission of any unfair labor practic- es. Pursuant to notice, a hearing in this case was held before me at Memphis, Tennessee, on June 28 and 29, 1973. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral agrument, and to file briefs. Oral argument was waived except for a brief statement by counsel for the Company. Briefs were filed by counsel for the General Counsel and for each of the Respondents. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by the various parties, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, a corporation with a plant and place business at Memphis, Tennessee, where it is engaged in the manufacture of bedding, during the year immediately pre- ceding the issuance of the original complaint herein, a repre- sentative period, shipped goods of a value in excess of $50,000 directly to points located outside the State of Ten- nessee, and received materials and supplies of a value in excess of $50,000 directly from points outside the State of Tennessee. It is admitted, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is admitted by all parties, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. i ii THE UNFAIR LABOR PRACTICES A. Introduction and Issues The Company and the Union entered into and allegedly maintained a collective-bargaining agreement containing an insurance clause allegedly violative of the Act in that the clause provided for insurance coverage for members of the Union only. An employee of the Company, Velma Denton, who was also a member of the Union, became ill, was un- able to work, and thereafter filed a claim with the Fund, which was created by the International Union of which the Local Union, Respondent herein, is an affiliate. The Fund i Counsel for the General Counsel has moved for certain corrections to be made in the transcript of the proceedings I find that the motion is well taken and, accordingly, the transcript is corrected in the respects requested by counsel for the General Counsel 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused payment for reasons hereinafter set forth in detail. The complaint, in substance, alleges that the refusal to honor Denton's claim and other hereinafter detailed actions of the Company, the Local, and the Fund, by reason of the fact that the insurance clause of the contract between the Company and the Union was unlawful and constituted dis- crimination against Velma Denton and that therefore the Company violated Section 8(a)(1) and (3) of the Act, and the Union and the Fund violated Section 8(b)(l)(A) and (2) of the Act. Additionally, the complaint alleges that the Company unlawfully assisted the Union in violation of Sec- tion 8(a)(2) of the Act. Thus, the principal issues of the cases are (1) whether the contract was unlawful and violative of the Act and (2) whether Velma Denton and other unnamed employees suf- fered discrimination by reason of the unlawful contract and the actions of the parties with regard thereto. There are other subsidiary issues raised by the motions and the plead- ings, which are discussed below in conjunction with the disposition of the principal issues. B. The Facts The Union was certified as the bargaining representative of the Company's production and maintenance employees on May 1, 1967 2 Sometime thereafter, probably around the first part of July 1967, the Company and the Union entered into a col- lective-bargaining agreement containing an insurance clause which clause was renewed intact upon the renewal of the collective-bargaining contract dated July 22, 1970, effec- tive through July 22, 1973. It is this insurance clause which the General Counsel maintains is unlawful. The clause, as renewed on July 22, 1970, reads in pertinent part as follows- Commencing August 1, 1970, the Company agrees to pay to the trustees of the United Furniture Workers Insurance Fund, 700 Broadway, New York, New York 10003, and their successors in trust, a sum equal to $12 per month, for each employee who is a member of the Union and such other employees that the Company may desire to have covered by the insurance benefits outlined below. . . Notwithstanding anything else to the contrary in this agreement, the provisions of this article shall not be subject to the grievance and arbitration procedure of this agreement. On July 19, 1967, LeRoy Clark, one of the individuals who negotiated the original 1967 contract, and who was also a union representative and since 1970 president of the Union, sent a letter to Gerald J. Finney, president of the Company, which read, in pertinent part, "Regarding the insurance premium for the employees of your plant, please be advised that the Company is to make payment of $8.75 per month, per employee beginning with July 1967.. .. " Despite this letter, the Company sent to the Fund during 2 Case 26-RC-2887 the entire period of the initial agreement of 1967, and from the date of the second agreement effective July 22, 1970, until July 1972, when there were no longer any members of the Union in the Company's employ, insurance premiums only for those employees who were members of the Union. Thus matters stood until some time in 1971, when, accord- ing to the credited testimony of Union President Clark, Abraham Zide, director of the Fund, telephoned Clark and asked the latter why the Company had been paying insur- ance premiums on only three or four employees. It should be noted that at this time the Company had approximately 14 to 18 employees. In the telephone conversation, Clark informed Zide that Clark did not know why the money was being sent for only three or four employees but promised Zide that he would call the Company to find the answer. Accordingly, Clark called Gerard Finney, the Company's president, and asked why the Company was paying premi- ums for only three or four employees. Finney told Clark that he was only paying for those people who were mem- bers of the Union Clark then told Finney that this was not proper and that Finney was supposed to pay for all em- ployees. Finney replied "Well look at your contract." It was at that point, according to Clark, that Clark did look at the contract which stated that payments were to be made for union members only Clark then told Finney that this was wrong. However, Finney was adamant After this con- versation, Clark called Zide in New York and told him what was happening. According to Clark, Zide took the position that he was not going to be a party to an illegal contract.3 According to Clark, these conversations took place some time in September or October 1971 After these calls to Finney and to Zide, Clark again called Finney to attempt to convince the latter that Finney should pay premiums for all employees. According to Clark, he explained to Finney that he, Clark, had not been aware that the contract said what it did because Clark, who had partici- pated in the negotiations, felt that the Union had agreed to an open contract insofar as availability of insurance to all members of the bargaining unit was concerned Finney, however, still remained adamant and replied that he was going to pay only what the contract called for. However, Finney did promise that he would check with his lawyer, and that he would call Clark again after speaking to counsel. But, according to Clark, Finney never returned the call. As a result, sometime later Clark called Finney again and again Finney stated his position to the effect that he was only going to pay what the contract called for on its face.' J Although Clark testified that Zide then wrote directly to the Company, telling it that it should pay premiums for all employees, this alleged letter was never introduced into evidence and Finney testified that no such letter was ever received All of the foregoing from the testimony of Clark, which is credited with regard to the conversations However, I do not credit Clark to the effect that he was unaware of the wording of the contract limiting the application of the insurance to members only Although Finney denied that he ever received any calls from Clark during 1971, he did admit, on cross-examination, that he did receive a telephone call from Clark to the effect that the Union desired the Company to pay premiums for all members of the unit sometime, proba- bly a few weeks at the most, before receiving a letter from the Union's attorney to the effect that the contract, as drawn, was not lawful I do not credit Finney's denial that he received the telephone calls from Clark because on direct examination Finney stated that the first time that he was aware of PRESTIGE BEDDING COMPANY, INC. To further fix the date when these conversations oc- curred, notice is taken that beginning with the Company's remittance to the Fund on August 13, 1971, the Fund re- fused to accept the Company's checks. Therefore, the con- versations between Clark and Zide and Clark and Finney undoubtedly occurred within the period of August, Septem- ber, or October of 1971 This gives further credence to the fact, as claimed by Clark, that he had conversations with Finney regarding the illegality of the contract at about that time. As noted, from August 1971, with perhaps one exception, the Fund refused to accept any of the checks submitted by the Company in payment for the insurance of company employees who were members of the Union. Instead, the Fund sent these uncashed checks to Clark at the union headquarters. Clark accumulated the same until some time in July or August 1972, when he returned them to Finney. In any event, by the spring of 1972, the matter had caused such consternation that Clark requested the Union's coun- sel to send a letter to the Company to the effect that what the Company was doing with regard to the insurance was unlawful. This letter, dated March 14, 1972, requested that the Company make insurance payments for all employees, including nonmembers of the Union. The letter also insisted that under the above set forth insurance article of the collec- tive-bargaining agreement the Company was obligated to sent to the trustees of the Fund the sum of $12 per month for each employee. In reply, counsel for the Respondent on April 6, 1972, sent a letter to counsel for the Union in which it was stated that article XII, the insurance clause of the contract, con- tained the language initially negotiated and agreed on in July of 1967. In that letter, the Company's counsel claimed that the clause , as written, was not unlawful and, in fact, provided for the Company to pay insurance premiums to the Fund for any employee who desired to have the Compa- ny do so. It should be noted, that in connection with all of the foregoing, Finney testified that he was unaware of the fact that the Fund was refusing to deposit the Company's monthly checks in payment for the insurance for members of the Union who were employees of the Company Finney explained this by stating that there were many checks of all kinds issued by the Company that were outstanding at any one period of time and that he would not have known of them unless the matter was called to his attention by his office staff. Thus matters stood until the month of June 1972. On June 9, 1972, the Company sent a check in the sum of $24 to the Fund which represented payment for the two remaining members of the Union, Velma Denton and another employ- ee member.5 The record also shows that dues were deducted, pursuant to authorization by Denton, for the month of June 1972, which indicated that for that month, at least, Denton was the fact that the Union wanted him to pay premiums for all employees was the receipt of a letter from the Union's counsel in March. 1972 This, by Finney's own admission on cross-examination, was not correct 5 Tennessee being a "right to work " state, the agreement between the Company and the Union did not contain union-security provisions Howev- er, the agreement did provide for dues-deduction authorizations 697 a member of the Union. On June 27, 1972, Denton became ill and entered the hospital in Memphis where she remained as a patient until her discharge on July 6. There is some confusion in the record as to whether at that time Denton left her employ with the Company. The Company's payroll record for Den- ton, which was introduced in evidence, shows that Denton worked for a number of hours during the pay period ending July 7, 1972. However, the testimony of both Clark for the Union, and Finney for the Company, indicates that Denton did not return to work after she became ill on June 27. Additionally, the Company in its brief, concedes that Den- ton left the Respondent's employ on the day she became ill. Although Denton was admitted to the hospital on June 27 for what was thought to be a heart condition, it was discovered during the period of her hospital confinement that she had an incurable malignancy and that her illness was, therefore, terminal. Nevertheless, on July 19, 1972, Denton filed a claim for insurance benefits with the Fund for the period of her hospitalization. This claim was coun- tersigned by LeRoy Clark as president of the Union and was then sent to the Fund in New York. By letter dated August 10, 1972, Abraham Zide, director of the Fund, noti- fied Denton that her claim for insurance benefits was re- jected due to the fact that "the employer has not been paying premiums to the Fund in accordance with the pro- visions of the collective-bargaining agreement." At approx- imately the same time, Clark returned to the Company all of the undeposited checks which the Company had sent to the Fund beginning with August 1971, and which Clark had, in turn, received from the Fund which refused to de- posit the same. As noted above, Denton's illness was terminal and she died on March 13, 1973. However, before her death, Denton filed the charges and amended charges against the Compa- ny on the dates heretofore set forth. C. Preliminary and Subsidiary Issues 1. The 10(b) defense At the outset of the hearing herein, counsel for the Com- pany moved that the consolidated amended complaint against the Company be dismissed on the ground that the matters alleged in the complaint as violative occurred or had their beginnings more than 6 months before the filing of the charges by Denton and by the Union, and that, therefore, the complaint is barred by Section 10(b) of the Act.' With regard to the charges filed by the Union, the original charge and the first amended charge alleged violations of Section 8(a)(5) of the Act in that the Respondent refused to bargain with the Union to change the text of the agreement above-mentioned and also that the Respondent by paying premiums only for the members of the Union unilaterally changed the terms and conditions of the contract. However, 6 Section 10(b) of the Act reads in pertinent part Provided, that no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the Respondent admits in its own brief, the complaint does not allege any violations of Section 8(a)(5) of the Act and therefore the 10(b) defense as to the refusal to bargain charges has no validity. What remains, as a basis for the complaint with regard to charges filed by the Union, is the second amended charge which merely alleges violations of Section 8(a)(1) of the Act in the language of the statute. Inasmuch as the Respondent is alleged in the complaint to have interfered with, restrained, and coerced not only Vel- ma Denton, but other employees, in their Section 7 rights in that it continued to insist on its interpretation of the contract and on enforcing the agreement as written at all times up to and including the date of the hearing herein, the first amended charge was timely filed and the limitations of Section 10(b) are, therefore, not applicable. With regard to the charges filed by Velma Denton, which charges form the basis for the amended consolidated com- plaint herein against the Company, the original charge was filed on October 10, 1972. Here again, the gravamen of the complaint is the maintaining of the allegedly, unlawful con- tract clause in force and effect and the allegedly unlawful conduct which ensued therefrom, as a result of which Velma Denton was discriminated against and which also constitut- ed unlawful assistance to the Union. The Company, as not- ed above, insisted upon maintaining in force and effect the allegedly unlawful clause up to and including the date of the hearing herein. Therefore, the effect of this action on the part of the Company, if the theory of the complaint is adopt- ed, was that Velma Denton was allegedly discriminated against during July and August of 1972. Therefore, the orig- inal charge which was filed October 10, 1972, fell well within the 10(b) period. Moreover, since the Company insisted that the contract was still in force and effect as late as June 1972, the charge was timely filed. The Company contends that the contract in question was entered into more than 6 months prior to the filing of the charge; that, therefore, the date of the execution of the contract is the governing date and that the complaint being based on a charge filed more than 6 months after the effec- tive date of the contract, must be dismissed. In support of its argument, the Respondent cites, among other cases, the decision of the Supreme Court in Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et al. [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S.411 (1960), in which the Supreme Court held, in substance, that where an employer and a union entered into a collective -bargain- ing agreement containing a union -shop clause at a time when the union was not a majority representative of the company's employees, a charge filed after the union had become a majority representative and more than 6 months after the execution of the contract would not support a complaint because barred by Section 10(b) of the Act. How- ever, in the cited case, although the unlawful assistance to the union which was rendered by execution of the union- security clause at a time when the union was not a majority representative of the company's employees occurred more than 6 months before the filing of the charge, the contract, itself, was lawful on its face and , in effect, the unfair labor is alleged in the complaint to be unlawful on its face, and if the theory of the General Counsel has merit, then the continued maintenance and adherence to the clause consti- tutes the alleged unfair labor practice which continued up to and even after the filing of the charge and the complaint. Accordingly, the limitations set by Section 10(b) of the Act are not applicable. This is also true with regard to the allega- tion of the Company's unlawful assistance to the Union. In the Bryan case, by the time that the charge was filed the union had achieved majority status and had been the major- ity representative of the respondent's employees for more than 6 months prior to the filing of the charge. Accordingly, the alleged assistance violation was barred by the statute. However, in the case at bar, the alleged unlawful wording of the contract in question, which allegedly constituted the unlawful assistance, continued on and-was still being effec- tuated as of the time of the filing of the charge and the issuing of the complaint. Accordingly, the charge and the complaint are not time-barred? 2. The "improper 'party in interest" defense Counsel for the Company, also at the outset of the hear- ing, moved to dismiss the complaint against the Company on the basis that the Charging Party, Velma Denton, had died and that her estate was the proper party, but had not been substituted. He further contended that with the death of the Charging Party, the charge became a nullity and, therefore, the complaint must be dismissed since the com- plaint is based upon the charge. I find no merit in this contention. It is true that the Act requires a charge before the General Counsel may issue a complaint. However, there is no re- quirement as to who may file the charge. It has long been held that the charge is not proof and is certainly not a pleading. It merely sets in motion the machinery of an in- quiry. "When the Board complaint issues, the question is only the truth of its accusations. The charge does not even serve the purpose of a pleading." 8 Accordingly, when Den- ton died the complaint and the charge did not become nullities. The charge and amended charges filed by Denton merely gave notice to the General Counsel and to other parties that a possible unfair labor practice or practices had been committed and that an inquiry was in order. Addition- ally, the only necessary parties to the action under the amended Act are the Respondents and the General Coun- sel. Moreover, the Act does not contemplate nor does it seek redress for private wrongs. An unfair labor practice is a public wrong which requires a public remedy. The mere fact that in order to properly remedy a discriminatory action under the Act the Board requires monetary reimbursement to make a discriminatee whole , is not the result of a private action at law, but merely one of the means by which a public wrong is remedied. In connection therewith, the Board has long held that a Respondent who has discriminated against an individual who has died after the discriminatory act will practice, which was the execution of the contract, was , barred b For the reasons thus cited , I find the other cases cited by the Company by Section 1 0(b). to inapplicable and inapposite However, in the case at bar, the contract insurance clause 8 N L R.B v. Indiana & Michigan Electric Company, 318 U.S 9. PRESTIGE BEDDING COMPANY, INC. 699 be ordered to make whole the discriminatee's estate for any loss the discriminatee may have suffered? 3. The motion to defer to the grievance and arbitration procedures of the contract Counsel for the Company moves that the matters at issue herein be deferred to the grievance and arbitration proce- dures of the collective-bargaining agreement between the Company and the Union. However, the subject matter of the complaint springs from the allegedly unlawful insurance clause, as noted above. Also, as set forth above, the insur- ance article of the contract specifically provides that the provisions of that article shall not be subject to the griev- ance and arbitration procedures of the agreement. Notwith- standing, counsel for the Company argues that the Board's policy with regard to deferral to arbitration has progressed to a point that, despite the foregoing contractual prohibition against arbitration concerning the insurance clause, the Board would not hesitate to defer to arbitration in this case However, a search of the Board's decisions with respect to deferral provides no precedent where the Board has defer- red despite a specific contractual prohibition against defer- ral. Additionally, the proceedings herein concern litigation of alleged unfair labor practices committed by both the Em- ployer and the Union. Thus, the Union must necessarily be disqualified from representing an employee or an ex- employee's estate in an arbitration proceeding because it could not be expected to fairly represent such employee in an arbitration proceeding against itself. Accordingly, even if it were not for the specific prohibition contained in the agreement against deferral to arbitration with regard to the insurance article of the contract, the very circumstances of the case present a bar to the utilization of arbitration. Therefore, the Respondent's motion to defer to the griev- ance and arbitration procedures of the contract is hereby denied. 4. The agency issue The complaint alleges, and counsel for the General Coun- sel contends, that the Fund is an agent of the Union and of the Company for the purposes of fixing liability for the alleged unfair labor practices contained in both of the con- solidated complaints herein. In order to resolve this ques- tion it becomes necessary to examine the organization of the Fund, insofar as the record reveals such organization, and also to assess the relationship between the Fund, the Union, and the Company as contained in the collective-bargaining agreement between the Company and the Union. The only testimony with regard to the organization of the Fund is that of LeRoy Clark, the president of the Union. In addition to being president of the Union, Clark is also a vice president of United Furniture Workers of America Nation- al Union and also a trustee of the Fund. He testified, and documentary evidence shows, that the Fund is located in the same building in the City of New York as is the national 9 See Dayton Coal and Iron Corp, 101 NLRB 672, Mastro Plastics Corpora- tion , 136 NLRB 1342, enfd 354 F 2d 170 (C A 2. 1965). headquarters of the National Union of which the Union herein is an affiliate. However, the Fund has separate of- fices in the same building. The Fund is an entirely separate entity from the National Union except that some of the trustees of the Fund are also officers of the National Union. The Fund was instituted for the purpose of providing van- ous types of insurance benefits for members of the Fund who, according to Clark, would be any employees of any employer who contributes money to the Fund to pay the premiums. The types of insurance are reimbursement for hospitalization, medical care, and $1,000 in death benefits. There are qualifications for entitlement to these benefits which are set forth in a pamphlet issued by the Fund and which was received in evidence. According to this booklet, "The United Furniture Workers Insurance Fund has devel- oped this program to provide benefits directly for its cov- ered members and their dependents. No other persons or third parties are intended to be benefited by this program, and no such person may make claim to or sue for any of the benefits or monies herein specified. This program of bene- fits is financed through contributions made to the Fund by employers under the terms of their collective bargaining agreements with local unions of the United Furniture Workers of America, AFL-CIO. Eligible members shall be covered for benefits only so long as contributions are re- ceived from employers under the terms of their collective bargaining agreements." According to Clark, the term "members," as noted above, refers not to members of the Union but to any employees of any employer who contracts with any local affiliate of the National Union to pay premiums to the Fund on behalf of his employees. Additionally, Clark testified that employers who contract with various locals located in "right to work states" pay premiums to cover all their employees, regard- less of the employees' membership or lack of membership in the locals. According to Clark, whom I credit in this respect, the local has no control over the Fund. Nor has the Fund any control over the local. In negotiating agreements with em- ployers, the Respondent Union herein may or may not use the Fund as the negotiated insurance carrier for the employ- ees of the particular employer with whom it is negotiating. In other words, it is not obligatory for any local of the National Union to use the Fund as an insurance carrier of the individuals whom the local may represent. Additionally, the local may place insurance with any insurance carrier that the employer and the local may agree upon. Further- more, even if, as in the instant case, the Fund is chosen as the carrier, the local union does not in any way aid or assist in the administration of the Fund or in making claims to the Fund except on a voluntary basis as a service to the employ- ees whom it represents. Thus, an employee may obtain a claim form from either the employer, the Fund, or the Union. The Union has an insurance clerk who will assist an employee whom it represents in filling out a form and, in fact, usually does, and although the form is submitted to the Union, which then registers it and sends it on to the Fund, even this is not necessary and the claimant may send the claim directly to the Fund. While it is true that Clark is a trustee of the Fund and a national vice president, as well as president of the Local Union, his functions as a trustee are 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate and distinct from his functions as president of the Respondent Union herein and as a national officer. It would seem from Clark's testimony that one was not depen- dent on the other. Moreover, the Union here involved does not dictate fund policy, nor is there any evidence in the record that it partici- pates in any way in the delineation of the powers of the trustee or in the manner in which the Fund is operated. While it is true, as argued by counsel for the General Counsel, that the insurance is placed with the Fund solely by reason of the contract negotiated between the Company and the Union, and that the Fund's authority to act as the insurance carrier is derived solely from the contract be- tween the Respondents herein, I cannot conclude that this relationship, and the fact that the Fund has been selected as the carrier in the contract, establishes the Fund as an agent of the Union or of the Company within the meaning of Section 2(13) of the Act. General Counsel cites, in support of his position that the Fund is an agent of the Union and of the Company, cases in which the particular union involved and the employers involved set up an insurance fund in which the parties to the agreement not only created the fund themselves, but, also, by such agreement, established the authority and the limits of authority of the trustees'of the fund and generally super- vised and overlooked the operation of the fund -mutually created. In the case at bar, the Fund is an entirely indepen- dent organization set up by the National Union of which the Respondent Union herein is but an affiliate and, moreover, acts in its capacity as insurance carrier for the employees involved in much this same way that any independent insur- ance carrier would act. There is no control by either the Company or the Respondent Union over the Fund, the authority of its trustees, or the manner in which the Fund is administered. Accordingly, I find and conclude that the Fund is not an agency of either the Company or the Union within the meaning of the Act. Rather, its position with relation to the Respondents herein is more nearly that of an independent insurance carrier. Therefore, any unfair labor practices committed by the Respondents herein cannot be imputed to the Fund. D. Discussion, Analysis and Concluding Fundings with Regard to the Principal Issues As above stated, the principal issues presented by the complaints, answers, and various contentions of the parties are whether (a) the agreement between the parties contained an unlawful "members only" insurance clause, (b) whether, by reason of the various activities of the parties with relation to this insurance clause, Velma Denton and possibly other employees suffered discrimination, and (c) whether this in- surance clause constituted unlawful assistance to the Union by the Company. For primary consideration is the contract itself and the wording of the insurance clause. As heretofore set forth, the clause reads in pertinent part, "The Company agrees to pay ... $12 per month, for each employee who is a member of the Union and such other employees that the Company may desire to have covered by the insurance benefits outlined below." Counsel for the Company argues that the wording above set forth permits not only union members but also employ- ees other than members of the Union to take advantage of the insurance benefits offered by the contract. However, the wording is clearly such that it permits only those employees whom the Employer would place under the aegis of the insurance clause and does not permit any member of the certified unit to freely elect to take advantage of the insur- ance offering without the Respondent Company's permis- sion. Moreover, Finney testified that in the entire duration of the two contracts which contained this clause, from July 1967 until the hearing date, no employee other than mem- bers of the Union were ever covered by the insurance of- fered in the clause. Nor did Finney testify that the Company would have paid premiums for any but Union members. At the hearing, the Union's president, Clark, testified that the insurance clause contained in the contract, as set forth above, was not the clause negotiated and did not reflect the true understanding of the parties. According to Clark, the understanding was that all employees in the unit were to be permitted to take advantage of the insurance offered by the Fund and that there was no intention to limit the insurance coverage to members of the Union. I do not accept this testimony for the reason that it consti- tutes parol'evidence to explain the terms of a contract where the language of the contract speaks for itself. There are no ambiguities presented by the above-recited clause. It clearly states that the insurance is available and that the Company will make contributions for members of the Union only. The Board has long held that it will not accept parol evi- dence to establish modification of written agreements. The Board has stated "under the parol evidence rule, it is pre- sumed that all oral understandings on the same subject matter are merged in the final agreement of the parties." 10 Accordingly, I find and conclude that the insurance clause in question was a "members only" clause. Where, as here, there is a certified union which, under Board law, must represent equally all of the employees in the unit for which it is certified, a "members only" contract is unlawful. Here there was a discriminatory withholding of benefits from a segment of unit employees because of their nonmembership in the union and, therefore, the clause is clearly violative of the Act." Accordingly, by maintaining in force and effect and by giving effect to the "members only" insurance clause, above recited, the Union violated Section 8(b)(1)(A) and (2) of the Act and the Respondent violated Section 8(a)(l) and (3) of the Act. Additionally, the complaint alleges that the maintenance of the above agreement constituted unlawful assistance by the Company to the Union in violation of Section 8(a)(2) of the Act. Both Respondents argue that this is a very bizarre effect inasmuch as, according to counsel for the Union, the Company regarded the Union much the same as an individ- ual might regard cancer. Both Respondents cite the fact that 10 Peterson & Lythe, 60 NLRB 1070, fn 1; Electro Metallurgical Co, 72 NLRB 1396, Jersey Corp, 112 NLRB 660 (refusing offer of parol evidence to establish modification of written union-secunty contract). 11 Radio Officers Union of the Commercial Telegraphers Union, A.F.L (Gay- nor News Co) v. NLRB , 347 U.S 17; Jandell Furs, 100 NLRB 1390, 1392-93 PRESTIGE BEDDING COMPANY, INC. there could not have been assistance in view of the fact that the Union, instead of gaining membership, lost membership over the years of the duration of the contract and that, in fact, by July 1972, no members of the Union remained in the Company's employ. The Company also cites the fact that since then a decertification petition has been filed and that the Union lost the election held pursuant thereto i2 However, it is not the success of the assistance which de- termines whether a violation has been committed, but the act of assistance itself. It should be noted that the Company's plant is located in Memphis, Tennessee. Ten- nessee is a right-to-work state. Consequently, the parties could not have entered into a collective-bargaining agree- ment containing a union-shop clause. Accordingly, the holding out of the offer of free hospitalization and life insur- ance only to members of the Union constituted an induce- ment to employees who were not contractually required to do so to join the Union. Whether this was a contempleted result or was unintended by the Respondents when they signed the contract containing the members-only insurance clause is immaterial. The fact is that the implied promise of free insurance was inducement to the employees to join the Union and, therefore, constituted unlawful assistance. Ac- cordingly, by insisting in maintaining the insurance clause, as written, up to and including the date of the hearing herein, the Respondent Company violated Section 8(a)(2) of the Act. I have above found that the maintenance of the insurance clause in the collective bargaining agreement constituted interference, coercion and restraint on the part of both the Company and the Union, and also constituted discrimina- tion within the meaning of Section 8(b)(2) and Section 8(a)(3) of the Act. This, of course, was with regard to all of the Respondent's employees who were not members of the Union during the period of the contract. The complaint alleges also, however, that Velma Denton, a member of the Union, was discriminated against by the acts of the parties. As recited heretofore, sometime in 1971, probably around August of that year, Abraham Zide, director of the Fund, called to the attention of Union President Clark the fact that the Company was remitting premium payments only for two or three employees. Zide wanted to know why this was being done and reminded Clark that the Fund would have no part of an arrangement which was discriminatory. Thereafter, Zide on behalf of the Fund refused to deposit or cash the premium checks remitted by the Company to the Fund for members of the Union only. It is unnecessary to recite here again the correspondence and conversations that followed between Clark and Finney and between counsel for both Respondents. At any rate, Denton, while still an employee of the Re- spondent and still a member of the Union, contracted a fatal illness and was hospitalized on June 27, 1972. Thereaf- ter, she made claim for hospitalization and other charges pursuant to the benefits under the Fund, which claim the Fund received on August 7, 1972. Thereafter, by letter dated August 10, 1972, Fund Director Zide wrote Denton a letter 12 Case 26-RD-252 in which the Regional Director issued a tally of ballots showing that of the 14 votes case, I I were against the Union and only 3 votes were cast for the Union 701 refusing payment on the basis that the Company had not been paying premiums to the Fund in accordance with the provisions of the collective-bargaining agreement. This, is the only basis upon which there was a refusal to pay the claim. Denton remained permanently disabled and never did return to her employment with the Company. Eventually, Denton died on March 13, 1973. Her death, under the bene- fits ordinarily available from the Fund, would have paid to her heirs the sum of $1,000 as and for life insurance in addition to other benefits had it not been for the Fund's refusal to pay for the reasons above set forth. Counsel for the General Counsel contends that since Denton was a member of the Union at the time that she made her claim and contracted her final illness, the failure of the Fund to pay her, which was the ultimate result of the entering into and maintaining of the unlawful insurance clause, constituted discrimination against Denton by the Union, the Fund, and the Company.13 The General Counsel bases his theory that there was discrimination against Denton and Denton's estate, even though Denton was a member of the Union, and not one of those excluded by the contract from the benefits of the Fund, because the Respondents, in entering into an agree- ment which discriminated against some of the Company's employees, set in motion the series of events which eventu- ally caused Denton and Denton's estate to lose the benefits of the insurance. The General Counsel claims that the insur- ance provisions of the contract establish the level of employ- ment benefits in the unit, and that the Respondent Union, as the certified representative of the employees in the unit, owed all of the employees in the unit the duty of fair repre- sentation free of arbitrary, invidious, or unfair consider- ations.14 The General Counsel goes on from there and argues that by agreeing to, and maintaining the contract provision as cited above, which gave benefits to one class of unit employees while denying such benefits to another class of unit employees, the Union applied an arbitrary and unfair distinction in the performance of its representative duties. Then, the General Counsel's argument continues, it was, in part, the Union's failure to provide fair representa- tion that resulted in the effective cancellation of the insur- ance benefits for all employees including union member Denton. Therefore, according to the General Counsel, the Union and the Company should be held liable for any loss of benefits flowing from the maintenance of the discrimina- tory provisions of the contract and the interrelated cancella- tion of benefits. Otherwise put, Denton, although a member 13 Both Finney and Clark were unsure whether Denton was a member of the Union after July 1, 1972 However, the General Counsel introduced into evidence a pretrial affidavit signed by Denton and sworn to before counsel for the General Counsel, which affidavit was received conditionally upon a later showing by the General Counsel that the receipt of such affidavit was proper as an exception to the hearsay rule The Board has held that it will consider as evidence statements of deceased persons Accordingly, the re- ceipt in evidence of Denton's investigatory affidavit, which was properly authenticated, is hereby reaffirmed, and so much of that affidavit as alleges that Denton was a member of the Union at the times material herein is accepted as proof of that fact This is so because the affidavit is somewhat corroborated by the testimony of Finney and Clark See West Texas Utility Co , 94 NLRB 1638, enfd 195 F 2d 519 (C A 5, 1952), Chun King Sales, Inc, 126 NLRB 851, 864-865, Pasadena Bowling Center, 150 NLRB 729, 733-734 14 See Miranda Fuel Co, 140 NLRB 181 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union, suffered loss of benefits because of the Fund's refusal to permit the implementation of the parties' unlaw- ful contractual provision providing for the payments of in- surance premiums by the Company for insurance benefits only for union members. As found above, I agree with the General Counsel's con- tention that the employees of the Company who were mem- bers of the unit represented by the Union, but who were deprived of insurance benefits by reason of their nonmem- bership in the Union, were discriminated against and that, therefore and thereby, the Company and the Union both violated the Act. However, I cannot apply this theory as it relates to Denton and Denton's heirs. I cannot consider the entire sequence of events as "one ball of wax" so as to find that the parties discriminated against Denton. I have here- tofore excluded the Fund as an agent of the Union and thereby cannot 'find" that the Fund contributed, under the Act, to any discrimination against Denton, or for that mat- ter, against any of the Company's employees. However, I find too farfetched the theory that the contract which, although unlawful, but which provided insurance for the benefit of members of the Union such as Denton, could have been the cause of Denton' s loss of insurance benefits and thereby could have caused discrimination within the meaning of the Act against Denton. It should be noted that the Company completely com- plied at all times, and, indeed, insisted upon complying with the exact terms of the insurance clause up to and including the last moment that Denton worked for the Company. Moreover, the Company tendered to the Fund premium payments on Denton's behalf during the entire period of Denton's employment. Therefore, I cannot consider the re- fusal of the Fund, which I have found not to be an agent of either the Company or the Union, to accept the tendered payments or pay the Denton claim, to be an act for which the Company can be held accountable as principal, or that the Company's entry into the unlawful clause and the action taken by the Fund constituted discrimination against Den- ton by the Company. With regard to the actions of,the Union herein, it is clear that from the moment the Fund called Clark's attention to the unlawful aspect of the insurance clause of the collective- bargaining agreement, the Union made attempt after at- tempt to correct this clause. The fact that the independent Fund refused to accept the payment which thereby resulted in Denton's monetary loss was not the direct result of the Union's actions . It is true that this is not a tort case of negligence and the Board does not apply, and is not obligat- ed to apply, the rule of proximate cause. However, there is an analogy here, and I cannot find that the entry into or maintenance of the unlawful clause was the proximate cause of the failure of Denton to receive insurance benefits from the Fund. The insurance clause was written, main- tained, and complied with for the benefit of employees in Denton's class, i.e., members of the Union. The fact that the actions of an independent third party, the Fund, prevented the payment of the benefits provided for, cannot be the basis for ascribing to the Union or the Company's discrimi- nation against Denton or Denton's estate. The foregoing conclusion has been arrived at with some misgiving. Denton was a factory worker who earned but a minimal hourly salary. Additionally, there is indication in the record that Denton was forced to apply for assistance to the Department of Public Welfare during the period of her terminal illness.15 Under these circumstances, it would be very satisfactory to the undersigned to be able to order the Fund, the Company, and the Union to pay to Denton's estate the amounts which would ordinarily have been due under the insurance clause of the collective-bargaining agreement and under the benefits offered by the Fund to its members. However, the remedial powers and authority vested in the Board are limited to the remedying of public wrongs encompassed by the Act and not to private wrongs. If there exists a forum to which the estate of Velma Denton can turn to collect the insurance benefits allegedly due from the Fund, the Board is not that forum. Accordingly, I am constrained to dismiss the complaint insofar as it alleges discrimination within the meaning of the Act by any of the Respondents against Velma Denton or her estate. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV. THE REMEDY Having found that the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, and that the Union has engaged in unfair labor practices within the meaning of Sections 8(b)(1)(A) and (2) of the Act, I shall recommend an order that they cease and desist therefrom and take such affirmative action as will effectuate the purposes of the Act. Although the contract containing the unlawful insurance clause expired on July 22, 1972, and although in an election held in June 1973, the Union lost the election and is no longer the representative of any of the employees in the unit for which it was originally certified, Board precedent would require that a cease and desist order and other remedial actions shall be ordered and that the matter has not become moot since the Respondents violated the Act by the original exclusion from the insurance benefits nonmembers of the Union. The discontinuance of the illegal conduct does not render the violation moot.16 The General Counsel has requested that the Respondents be ordered to excise the unlawful condition of article XII of the contract. However, since the contract has now expired and the Union is no longer the bargaining representative of Respondents' employees, excision will not be ordered. The record does not reveal any specific employee who has been deprived of insurance benefits by reason of the dis- criminatory conduct of the Company and the Union. How- ever, inasmuch as there may be some employees who were discriminated against, it will be ordered that the Company 15 Letter of Dr Wade T Murdock, dated July 9, 1973, received in evidence as Joint Exh 8 16 Salant & Salant, Inc., 87 NLRB 215; Jandel Furs, 100 NLRB 1390, 1392. PRESTIGE BEDDING COMPANY, INC. 703 and the Union jointly and severally make whole any em- ployee who suffered such loss within a period of 6 months prior to the filing of the original charges herein. CONCLUSIONS OF LAW 1. Prestige Bedding Company, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Furniture Workers of America, Local 282, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. United Furniture Workers Insurance Fund is not a labor organization within the meaning of Section 2 (5) of the Act, nor is it an agent of either the Company or the Union within the meaning of Section 2(13) of the Act. 4. By entering into and maintaining in force and effect a collective-bargaining agreement containing a clause pro- viding for insurance benefits for members only, the Compa- ny has violated Section 8(a)(1) and (3) of the Act and the Union has violated Section 8(b)(1)(A) and (2) of the Act. 5. By entering into and maintaining the aforesaid agree- ment containing the unlawful insurance clause , the Compa- ny has unlawfully assisted the Union in violation of Section 8(a)(2) of the Act. 6. The refusal of the Fund to pay insurance benefits to Velma Denton, and the estate of Velma Denton, did not constitute discrimination within the meaning of the Act against the said Velma Denton, a union member, by either the Company or the Union 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]