Ellex Transportation, Inc.

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ellex Transportation, Inc. (Formerly Hugh Breeding, Inc.) andTulsa General Drivers, Warehousemen and Helpers Local Union 523, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 16-CA-5587 May 5, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 30, 1974, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, counsel for the General Coun- sel and the Charging Party filed exceptions and sup- porting briefs. 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-menber 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 and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dismissed in its en- tirety. MEMBER FANNING, concurring: I agree that the complaint in this case should be dismissed. Here employee health and welfare and pen- sion coverage expired as of Friday, November 30, 1973, with the expiration of the collective-bargaining agree- ment. On Monday, December 3, a decertification peti- tion, found by the Regional Director to raise a question concerning representation, was filed. Subsequently, Re- spondent covered the unit employees with the plan that had been in effect for nonunit employees. The complaint alleges that Respondent acted unlaw- fully in that it acted unilaterally in extending the health and pension plan covering nonunit employees to its unit employees. There is no allegation in the complaint of any unlawful conduct with respect to the expired I While we affirm the Administrative Law Judge's findings and conclu- sions, we do not rely on his comment that Respondent might have violated Sec 302 of the Act by continuing premium payments to the Central States Health and Welfare and Pension Funds after the contract expired plan. A question concerning representation existed which foreclosed Respondent from dealing with the Union at the time it instituted the health and pension coverage. Telautograph Corporation, 199 NLRB 892 (1972) (Member Jenkins' and my concurring opinion). Without some action by Respondent, the unit em- ployees would have been without any coverage. Re- spondent's action merely resulted in unit employees maintaining, in general terms, the same relative eco- nomic position as they had under the terms of the collective-bargaining agreement. In these circum- stances, I agree that Respondent did not act unlawfully.2 2 In view of this, I find it unnecessary to decide whether the Union acquiesced in Respondent's conduct In agreement with my colleagues, I do not rely on the Administrative Law Judge's comment that Respondent might have violated Sec 302 of the Act by continuing premium payments to the Central States Health and Welfare and Pension Funds after the contract expired DECISION RAMEY DONOVAN, Administrative Law Judge: The charge in this case was filed on May 23, 1974, by the Union. The complaint issued under date of July 31, 1974, and the hearing was held in Tulsa, Oklahoma, on October 17, 1974, with all parties represented by counsel. The complaint alleges that since November 10, 1970, the Union has been the certified bargaining representative of Re- spondent's employees in an appropriate unit. It is further alleged that on or about December 1, 1973, Respondent uni- laterally instituted and implemented a pension program and a health and welfare program for unit employees, in violation of Section 8(a)(1) and (5) of the Act. The allegation is also made that a strike of Respondent's employees was caused by the aforesaid unfair labor practices. In its answer to the complaint, Respondent denies the commission of the alleged unfair labor practices and alleges affirmatively that it acted in good faith and that the Union acquiesced in its action. It is further alleged by Respondent that it bargained with the Union on the matters referred to in the complaint and "reached areas of tentative agreement" prior to the calling of the strike, and that the strike was unlawfully called and that the strike was "called solely by reason of economic factors." FINDINGS AND CONCLUSIONS I JURISDICTION Ellex Transportation, Inc. (formerly Hugh Breeding, Inc.), Respondent, is, at all times material, an Oklahoma corpora- tion, maintaining offices and places of business in Tulsa, Ard- more, and Ponca City, Oklahoma; Nederland, Texas; El Dorado, Kansas; Fort Smith, Arkansas; and Mount Vernon and Hannibal, Missouri, where it is engaged in business as a motor carrier. In a representative 12 month period, Respondent, in the course of its business operations, performed services for cus- tomers outside Oklahoma of a value in excess of $50,000 and 217 NLRB No. 120 ELLEX TRANSPORTATION, INC. also performed services for customers who did business with customers outside Oklahoma of a value in excess of $50,000. At all times material, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union, at all times material , is a labor orgamza- tion within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES On November 10, 1970, the Union was certified as the collective-bargaining agent in the following appropriate unit of Respondent's employees: All truckdrivers, mechanics, janitors, tire servicemen, tire recap men, gas pump men, and helpers of the Em- ployer at its facilities in Tulsa, Ardmore, and Ponca City, Oklahoma; Nederland, Texas; El Dorado, Kansas; Fort Smith, Arkansas; and Mount Vernon and Hanni- bal, Missouri; excluding office clerical employees, professional employees, guards and supervisors as de- fined in the Act. Thereafter, the Employer and the Union entered into a collective-bargaining contract covering "all truck and trans- port drivers, shop and maintenance employees of the Com- party, excluding "office and clerical employees, guards, and supervisors as defined by the National Labor Relations Act." By its terms, the contract included, inter alia, coverage of the employees under the Union's Central States, Southeast, and Southwest areas health and welfare fund and pension fund, with prescribed employer premium contributions to the said funds.' The term of the contract was December 1, 1970 to November 30, 1973, inclusive. The contract provided for continuation of the contract from year to year after its termi- nal date unless either party served notice of desire to modify or to terminate the contract at least 60 days-prior to the date of expiration. In September 1973, Hammontree, assistant business repre- sentative of the Union, sent to Respondent a five-page proposal for a contract to succeed the expiring 1970-73 con- tract. The proposal stated that it proposed all language in the Master Tank Line Agreement between various companies and the Southern Conference of Teamsters, with an adden- dum with Respondent "to be negotiated on sick leave, cost of living, wages, health and welfare, pension, holidays, length of contract, dispatch procedure" and so forth. Various proposals of the Union were then briefly stated on such mat- ter3 as wages, sick leave, holidays, pension, and health and welfare. For company drivers, for instance, the proposal on, "Pension [was] $11.00; 11.00; and 12.50"; on health and welfare the proposal was $11.50; 12.50;,13.50. The foregoing dollar amounts referred to the Union's proposal of the amount of Respondent's contribution to the Teamsters pen- sion and health and welfare funds.2 At some time in September 1973, after receipt of the union proposal, Respondent arranged with Hammontree to meet In the course of this Decision I shall sometimes refer to these funds as Teamsters funds. 2 In the expiring contract, the amounts of Respondent's contributions to the aforedescribed funds had also been set forth 751 with him "before we got into negotiations." The parties, prin- cipally Dan Banks, vice president of safety and industrial relations for Respondent, and Hammontree, met at a Tulsa motel. According to Hammontree, "This was not a formal meeting. It was just to discuss our proposals that we had given to them previous. . . . They wanted an explanation of what some of our proposals meant before we got into negotia- tions." As requested, Hammontree did explain the items of the union proposal referred to by Respondent. The matter of the pension and health and welfare funds in the union proposal was not raised by Respondent or discussed. The parties agreed at the September session to hold a contract negotiation meeting in October, but this meeting was never held due to the filing of an intervening deauthorization petition. The par- ties did not meet again until March 1974. As Hammontree testified "we had no more negotiations" after the deauthori- zation petition was filed, although, according to Hammon- tree, "I probably talked to them [the Company] on the tele- phone. That was about it. We agreed, you know, that after an election we would get into negotiations on the contract " In the meantime, on September 28, 1973, the deauthoriza- tion petition (Case 16-UD-13) had been filed with the Board and a decertification petition, in effect, absorbed and su- perseded the deauthorization petition and was processed through an election. An election was held on February 15, 1974, in the same unit of Respondent's employees in which the Union had been certified in December 1970. The Union won the election.3 On February 28, 1974, the Union was once again certified or recertified in the unit previously described. After the Union had submitted its contract proposal to Respondent in September 1973 and after the preliminary meeting between the parties in that same month regarding the union proposals, as described above, the parties did not meet again for contract negotiations until March 7, 1974. This hiatus was due to the filing and the pending and the process- ing of the deauthorization and decertification petitions above mentioned. As Hammontree testified, above "We agreed, you know, that after an election we would get into negotiations on the contract." In the period after the expiration of the old contract on November 30, 1973, various unit employees of Respondent had filed claims under the old contract's health and welfare provisions. These, as we have seen, were provisions under the Teamsters health and welfare fund to which the employer, pursuant to the contract terms, made specified contributions. The health and welfare claims of employees after November 30, 1974, were processed by the local union in the customary way and sent to the fund's office in Chicago. Respondent had paid or did pay its contributions or premiums to the fund on employee claims that originated prior to November 30, 1973, the terminal date of the contract. Such employee claims were then processed to conclusion under the Teamster health and welfare fund. However, there were other employee health and welfare claims, those arising after November 30, 1973, that, when processed by the local union to the fund's office in Chicago, were not paid by the fund because Respondent had 3 The February 1974 election was pursuant to the decertification petition. The vote was 73 for the Union and 71 against 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceased making the prescribed contributions or premium pay- ments to the fund. Hammontree and the local union were of course notified of this situation by the Teamster fund office. Hammontree also testified that he heard, during the post- November 30, 1973, period, from various employees, that the Respondent was now processing employee claimants under its own health and pension plan. In any event, although it had received no communication from Respondent on the subject, the Union was aware that in the period following the expiration of the contract, the Respondent had ceased making premium or contribution payments to the Teamster funds and that the funds were not honoring, i.e., were not paying, employee claims under the expired contract's health, welfare, and pension provisions. During this same period the employees became aware, and the Union, through intelligence from various employees, also became aware, that health and welfare and apparently pen- sion claims of employees were being received and handled by the Respondent under a plan or program of Respondent. From December 1, 1973, after the expiration of the old con- tract, the Union did not ask the Respondent about the forego- ing health, welfare, and pension situation, nor did it protest the situation to Respondent. There is no dispute that after the contract expired on November 30,1973, the Respondent ceased making premium contributions to the Teamster health, welfare, and pension funds. The old contract ran to November 30, inclusive. November 30 was a Friday. December 3, 1974, was a Mon- day. As far as appears, the Respondent made no announce- ment to the Union or to the employees on December 1, 2, or 3, or immediately thereafter, of the situation that would pre- vail regarding health and welfare or pensions now that the old contract had expired. The record does not establish the pre- cise date when the Respondent made available and imple- mented its own health, welfare, and pension plan. The General Counsel in his brief states that "on December 1, 1973, or shortly thereafter" the Respondent implemented its own health and pension plan for the unit employees. The Charging Party's brief describes the implementation of the company plan as occurring "shortly after the first of Decem- ber." The foregoing statements are based on the rather impre- cise testimony of Banks, a vice president of Respondent,' who was called as a witness by the General Counsel. I do not disagree with the foregoing quoted statements if they are understood to embrace the following context of facts in the record, Since Respondent had not announced to the Union or to the employees what it would do regarding health, welfare, and pensions after the old contract expired on November 30, 1973, employees with health and welfare claims continued to come to the local union office for process- ing of the claims, as had been the case under the contract. Presumably, the earliest claimant, after midnight November 30, would have come to the union office on Monday, Decem- ber 3, or perhaps there were no claims until a week or, so thereafter. The local union processed the claim or claims and this included sending it or them to the Teamster fund office in Chicago. The local union then, subsequently, was informed by the fund office that the claim would not be paid because the Respondent had ceased making premium contributions to the fund. The local union relayed the information to the claimant. Although the local union did not inquire of the Respondent what the situation was or why, the claimant evidently then went to the Respondent with the claim for which he desired compensation.' The Respondent there- upon processed the claim under its own health, welfare, and pension program. The latter was a program that Respondent had for its nonunit employees and it now extended its cover- age to the unit employees. In short, because of the time factor in the various steps aforedescribed, it was probably a week or more after November 30, 1973, that Respondent imple- mented its own program for any unit employee.' The indi- cation is that at that point and thereafter Respondent pro- cessed, under its own health and pension plan, all claims that had arisen since the expiration of the old contract. In sum, at some point after it was presented with claims that arose after November 30 and after the claims had first been pro- cessed unsuccessfully through the local union and the Team- sters fund office in Chicago, Respondent implemented its own program and made it retroactive to December 1, 1973. In that sense, Respondent implemented its program "shortly after the first of December" or "on December 1, 1973 or shortly thereafter." After a number of claimants had the experience described above, they and other employees were aware of the prevailing situation regarding claims and some of them relayed this information to the local union. Following the hiatus in meetings between Respondent and the Union from the end of September 1973, until the decertifi- cation petition processing, election, and recertification on February 28, 1974, the parties agreed to meet on March 7, 1974. At the March 7, 1974, and subsequent meetings, the princi- pal union representatives were Baukman and Hammontree, both assistant business representatives. Respondent was represented by Vice President Banks and Attorney Harring- ton. At the meeting on March 7 the Union submitted 10 pages of contract proposals. Among the proposals were arti- cles on health and welfare and pensions. The proposals pro- vided for company contributions to the Teamster health and welfare and pension funds in prescribed amounts and cover- age of the employees under such funds. This was the coverage in the old 1970-73 contract between the parties although the contributions or premiums in the new proposal were higher. On March 7, the company representatives made no comment or response regarding the Union's contract proposal on health and welfare and pensions. The next meeting was on March 13, 1974. The Company verbally proposed a pension and welfare plan that, it said, had already been "set up." Baukman said that the Union would not consider a verbal proposal and said that any company proposal should be in writing. There was then some reference or discussion about certain booklets that described the Com- pany's pension and health and welfare plans. It was agreed that the Company would bring the booklets to the next meet- mg, March 19. 4 Union Representative Baukman's testimony indicates that he under- stood from indirect sources that when the Teamster fund people rejected the postcontract claims, they ("our insurance people") advised the claimants to go to the-Company 5 A booklet describing Respondent's health and welfare program, which at some undisclosed date in this period was given to employees and later, on request, was given to the Union, shows that it was punted on "1 /23/74 " ELLEX TRANSPORTATION, INC. The evidence is clear, that the Union had become aware that, after the contract had expired, the Respondent had ceased making payments to the Teamster health, welfare, and pension funds. The Union also became aware subsequently, in the same period, that the Respondent was processing health, welfare, and pension claims of the employees under Respondent's own program. The Union made no protest about the situation from December through February. The evidence is less than convincing that, on March 13, 1974, when Respondent informed the Union that it had its own health, welfare, and pension program in effect and proposed that such program be adopted for the contract being nego- tiated, or at any other time during negotiations or otherwise, did the Union protest the fact that Respondent had unilater- ally instituted its program. At the hearing, Union Representative Hammontree was asked whether on March 13, 1974, he or anyone else had protested to the Company about the latter's unilateral action in implementing its own health and pension program. Ham- montree replied, "Yes, sir, I am satisfied we did." When asked, Hammontree was unable to recall who made the pro- test or what was said. He then said that the Union's notes on the meeting might contain the necessary information. Ham- montree was asked if he had the notes . He said, no, but Union Representative Baukman had the notes . When asked again what was said and by whom by way of protest, Hammontree said he could not give such specifics but he said "we objected throughout our negotiations on the health and welfare and pension plans." Baukman followed Hammontree as a General Counsel wit- ness. Baukman testified from, and with, the notes before him, which he had made at the March 13, 1974, and other meet- ings with the Company. For many pages of testimony Bank- man described what had taken place at all the meetings. There is no mention of any protest by the union representa- tive to the Company that the latter should not have unilater- ally instituted its own health and welfare plan from Decem- ber 1973 on or that the Company should cease the current coverage of the employees under the company plan. What the record shows is that, in the negotiations, the Union was proposing the Teamster health and pension plan for the new contract. The Company was proposing its own health and pension plan. Neither party would agree to the other's proposal but they did reach, eventually, union acceptance of a company proposal that the employees should decide in- dividually whether they desired coverage by the Teamster plan or by the company plan. This tentative agreement, how- ever, foundered on the lack of agreement over the Union's condition that if a majority of employees voted for one plan or another that plan would apply to all employees. The Com- pany,wanted the choice to remain individual, with the possi- bility being accepted that some employees would be under the company plan and some under the Teamster plan, according to individual choice. In the light of all the evidence, it is my opinion that, when Hammontree testified that "we objected throughout our negotiations on,the health and welfare and pension plans," he was referring to the fact that the Union objected to, did not agree with, the Company's contract proposals as to which health and pension plan should be in the new contract. The Company did not agree with the Union's proposals, and the 753 Union did not agree with the Company's proposals. But,I find no convincing evidence that Hammontree, Baukman, or any- one else protested on March 13, 1974, or at any other time about the Company's unilateral action since sometime in December 1973, in extending coverage of its health and pen- sion program to unit employees in a period when no contract was in effect. At the March 19 meeting, the Company did not have the aforementioned booklets that the Union had requested at the March 13 meeting but said it would bring them to the next meeting. The company did bring the booklets to the March 26 meeting and gave them to"the Union.6 The Union under- stood (correctly) that the booklets covered the plans that were already in effect for Respondent's unit and nonunit employees.7 The parties did not then discuss the subject of health and welfare and pension plans. On April 9, 1974, at a meeting of the parties, the Union submitted a nine-page contract proposal. On health and wel- fare and pensions the proposal was virtually the same as the prior union proposal and provided for coverage of the em- ployees under the Teamster health and welfare and pension funds. There was no particular comment by Respondent re- garding the foregoing sections of the union proposal. The parties met again on April 11. Baukman testified that the Company had not yet submitted in writing a complete proposal for a contract but there was much verbal discussion of issues. The Union then submitted a verbal proposal to the Company that included the Teamsters health and welfare and pension fund. The Company expressed interest but was non- committal. On April 16, the parties met. The Union submitted a writ- ten proposal. The parties went through the various items. The Union proposed the Teamster health and welfare and pension fund but the proposal set forth company contributions or premiums at lower amounts than in prior proposals. The Company had no comment on health and welfare and pen- sions. Near the end of the meeting Baukman said the Union had been negotiating and had tried to get a contract but now it was time to apprise the employees of the situation. He said that the Union was scheduling a meeting with the employees for Sunday, April 21. The Company and the Union then agreed to meet on Friday, April 19. On April 18, Banks of the Company called Baukman to cancel the April 19 meeting, saying that, the Company had not had time to get together a complete proposal to submit to the Union. Baukman told Banks that the union meeting with the employees had already been scheduled and the Union would go ahead with its Sunday meeting. At the union meeting on April 21, Baukman brought the employees up to date on the status of the Union's contract negotiations with the Company. He described the proposals that had been made by the Company to the Union, including 14 or 15 matters that the Company had submitted in writing. None of the written items received from the Company and which Baukman described at the meeting included the Com- 6 There were two booklets One, on pensions, was captioned "Retirement Income Plan" and shows "Plan arranged by Transportation Insurance Agency." The other is a booklet on an insurance, health, and welfare plan underwritten by Aetna Insurance Company for the company employees. 7 These plans were still in effect at the time of the instant hearing 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany's health and,welfare and pension plan.' However, there was discussion at the meeting about the Company's health and welfare and retirement (pension) plans that were currently in effect and which the Company was proposing for inclusion in the new contract . Baukman told the employees that the Company plans were "very inferior" to the Team- sters health and welfare and pension plan, particularly the Company's pension plan . Baukman said that the Company's plan was therefore disadvantageous to the employees. Baukman then told the employees that, in negotiations, the Company had taken the position that the employees should have the opportunity to determine for themselves whether they wanted the Teamsters health and welfare and pension plan or the company plan. Baukman further informed the employees at the April 21 union meeting that the union posi- tion in response to the aformentioned company demand was that the Union would agree that the employees could deter- mine whether they wanted the Teamster plan or the company plan but that the choice was to be determined by a majority of the employees. In short, if a majority voted for the Team- ster plan, that plan would be applicable to all; if a majority voted for the company plan that plan would apply to all. The Company's position was that the choice of plans should be on an individual basis rather than allow a majority of the in- dividuals to determine the choice of all.9 In addition to health and welfare and pensions, there were other issues, about five or six, on which the Company and the Union were apart during their contract negotiations. The record does not describe these other issues and they are not before us. Baukman described to the employees at the April 21 union meeting all the respective contract proposals and positions of the Company , and the Union. A vote was then taken at the union meeting on the Company's contract proposals. It was voted to reject the company contract proposals, 44 to 6. After this vote , a vote was taken on a strike. By 47 to 3 it was voted to strike or to authorize a strike. No specific date was set for the strike and the choice of the date was left to the union leadership that was negotiating with the-Company. The Company and the Union .met on April 22, 1974. At this meeting the Company stated that, on the condition that each employee have an individual choice as to whether he wanted the Teamster plan or the company plan, the Com- pany was proposing a company contribution or premium to the health and welfare and pension plan of $11 .50 and $10. Up until April 22, the Company's position had been inter 8 It is true that the Company had not submitted a contract provision or proposal setting forth a contract article on health and welfare and pensions As we have seen, the Company had given booklets to the Union on March 26, 1974, which described the Company's Aetna insurance and health and welfare plan and the Company's retirement income plan (pension). As far as appears from the booklets and the instant record they were provided by the Company and were noncontributory , as was the case with the Teamster plans 9 Under the company proposal, all employees could conceivably choose either the Teamster plan or the company plan and their choice would be placed in effect. However, if some employees voted for one plan, these employees would have that particular plan even though a majority of their colleagues had voted for the other plan This would mean that two plans would be operative in Respondent 's business, according to individual choice of employees. 10 The Company's proposed contribution was a contribution to the Team- ster health and welfare and pension plan and it represented an increase in alia, that there would be no increase in its contribution.io Baukman rejected the company proposal but said that he would be willing to write to the Teamster fund trustees about the Company's 'proposal that each individual ,employee should choose which plan he wished.-Baukman testified that, from past experience, he knew that the Teamster fund would not accept an arrangement whereby each individual employee of an employer selected and was covered by either the Team- ster plan or the company plan according to individual choice." The next meeting was on April 26 , 1974. Regarding health and welfare and pensions, the Company said that it was not rejecting the Union's proposal but that the Company was not ready to accept it. The union proposal to which the Company had made refer- ence on April 26 was a .written proposal previously described above, and which the Union had submitted at an earlier meeting. That proposal provided for the Teamster health and welfare and pension fund to cover Respondent 's employees and with contributions or premium to the fund from Re- spondent. The Union had also , told the Company verbally that it would be union position that any employees that had filed valid health and welfare claims between December 1, 1973, when the old contract expired, and the date of execu- tion of a new contract, should be compensated in accordance with the Teamster health and welfare plan. Employee claim- ants who had been paid pursuant to the company plan during the aforementioned period should, in the union view, be paid the difference, if any, in benefits paid by the company plan and the benefits provided under the Teamster plan. The Union had also informed the Company that as to employees who did not have health and welfare claims between Decem- ber 1, 1973, and the date of a new contract , the Union would not require that the Company pay any retroactive contribu- tions or premiums to the Teamster fund; but, as to employees who had valid claims, the union position was that the Com- pany would pay the necessary premiums to the Teamster fund and make up a difference in benefits as described above. the contribution or premium that had been paid by the Company to the Teamster fund under the 1970-73 contract Under the conditions of the Company's proposal, each employee would select either the company plan or the Teamster plan and would be covered by the plan of his choice. The proposed company contribution of, from the plan of his choice. The proposed company contribution of, for instance, $11 50, meant a contribu- tion of $11 .50 per week by the Company for each employee covered by the Teamster plan and coverage would result only from individual employees choice. 11 After the April 22 meeting Baukman never did write to the Teamster fund about possible approval of having employees of,the same employer being covered by two health and welfare and pension plans, with each employee selecting a plan of his choice . Baukman's testimony indicates that there were two reasons why he did not write to the Teamster fund He evidently believed it would be fruitless since, from past experience, he knew that the Teamster fund would not approve the dual fund arrangement proposed by Respondent Secondly , according to Baukman, he never could get a definite commitment from the Company that the Company would go along with or abide by a decision of the Teamster fund, i e , Baukman apparently sought agreement from the Company that if Baukman apparently sought agreement from the Company that if Baukman submitted the com- pany proposal of allowing some employees to choose to be covered by the company plan while other employees chose the Teamster plan, and if the Teamster fund trustees decided that the fund would not or could not operate with a two-plan setup in one company, then the Company would abandon its two-plan proposal and accept the Teamster plan as the sole plan. It may also be the fact that Baukman had in mind that the Company had refused to agree that if a majority of the employees chose one of the two plans then that plan would be the plan for all Respondent's unit employees. ELLEX TRANSPORTATION, INC. Regarding pensions, the Union had also proposed coverage in the Teamster pension fund. Verbally, the Union had fur- ther informed the Company that, for the period from Decem- ber 1, 1973, to the date of the new contract, the Union would not require the Company to pay all the pension fund premi- ums but only enough premiums to qualify the employees for eligibility during the period.12 It was with respect to all the foregoing proposals of the Union, written and verbal, that the Company said, on April 26, 1974, that it was not rejecting the union proposals but that it was not prepared to accept at that time. The Company did not explicate its position further. After April 26, the parties met on May 9, 1974. On health and welfare and pensions, the positions of the parties re- mained unchanged." The Company, in effect, took the posi- tion that a health and welfare and pension provision was feasible, including the Teamster health and welfare pension plan, if the Union agreed to the Company's proposed contri- bu tions or premiums to the plan, which were lower than those proposed by the Union; and if the employees were afforded the opportunity to elect individual coverage under either the Teamster plan or the company plan. The Union reiterated its position that it was prepared to allow the employees to choose between the two plans, provided that, if a majority voted for one plan, that plan would become the sole plan covering all employees. On May 14, 1974, there was another meeting and a Federal mediator was present for the first time. The session was rela- tively brief with little direct contact between the parties. The Union gave the mediator a revised schedule and pension plan. The amounts were lower than in the Union's last prior writ- ten proposal. As far as appears nothing emerged from this proposal at the meeting and the Company did not comment on it to the Union. The parties met again with the mediator on May 20. The Company offered a $1 increase in its premium contribution to the Teamster plan for the employees who chose that plan and the Company said it would pick up the back premiums on employees affected by retirement and also back premiums for health and welfare that had been filed, or, the Company would pay the difference in benefits under the company plan and the Teamsters plan for such claimants. This was appar- ently unacceptable to the Union because it was conditioned on the Company's proposal that the employees individually choose which plan each employee desired. At a later point Baukman testified that the Company's position never changed on the last-mentioned aspect. The Union thereafter, pursuant to the employees' strike vote on April 21, 1974, instituted a strike on June 2, 1974.14 The parties met during the strike on June 28, 1974, with the mediator. This was their last meeting. At this session, the 12 As explained by Baukman, under the Teamster pension fund, an em- ployee would be qualified for a full year even if, for instance, he was not covered by premiums paid in for 12 months Although Baukman did not know precisely, it was evidently his understanding that if the Company paid premiums, for instance, for 6 months on an employee, that employee would have a full year's eligibility in the Teamster pension. This minimum payment of premiums for the period referred to was what the Union had proposed 13 In all these meetings there were other contract issues outstanding between the parties. 14 The strike is still in effect 755 Company offered in addition to its last previous offer, an increase of $1 in company contribution or premium to the Teamster health, welfare, and pension fund for the second year of any contract arrived at but the $1 would be made to either the Teamster pension fund or to the health and welfare, but not both. - Analysis and Conclusions It is alleged in the complaint that since November 10, 1973, the Union has been the certified bargaining representative of Respondent's employees in the described appropriate unit and that, pursuant to a decertification election on February 15, 1974, the Union was recertified on February 28, 1974. Respondent's answer admits the foregoing. The complaint further alleges that since November 10, 1970, the Union has been the collective-bargaining agent of the employees in the aforementioned unit and has been and is the exclusive repre- sentative of all employees in the unit. Respondent's answer contains a simple denial of this allegation. The crux of the complaint, the allegation of the unfair labor practice, is specific and limited to the allegation that Re- spondent has refused to bargain collectively with the Union "in that" on or about December 1, 1973, Respondent "unilat- erally" instituted and implemented for employees in the unit a pension program and a health and welfare program without notification to or consultation with the Union. Respondent's answer denies this allegation and in succeeding paragraphs alleges affirmative defense.15 At the hearing the General Counsel presented his case in accordance with the scope and theory of the complaint. No attempt was made to amend the complaint or to litigate other issues or other kinds or types of illegal conduct. The General Counsel's brief is consonant with the foregoing. The Union, at the hearing, sought to introduce evidence of violations of the Act by Respondent that, in addition to the allegations and conduct introduced by the General Counsel, would purportedly show that Respondent engaged in surface bargaining, and that would purportedly show that a company official or officials circulated and solicited support for the deauthorization and decertification petitions from em- ployees. I sustained Respondent's objection to evidence in the above areas as being beyond the scope of the complaint. 16 I adhere to the above ruling. Surface bargaining (i.e., Re- spondent met with the Union but only went through the motions of bargaining as would (allegedly) appear from going into the details of various offers, proposals, and so forth or the lack thereof, and Respondent did not bargain in good faith in an effort to reach agreement) is a violation of Section 8(a)(5) and (1) of the Act and is appropriately to be alleged as such. The complaint contains no such allegation. The other area envisaged and assayed by the Union, i.e., employer participation in, and active support of, the i s The complaint also alleges that the strike which began on June 2, 1974, was caused by the unfair labor practices alleged in the complaint, described above, and, in effect, that the strike was therefore an unfair labor practice strike. Respondent's answer denies this. 16 Although the factor would not have been determinative in the circum- stances herein, even if present, there was no claim by the Charging Party that the areas that it sought to litigate arose because of newly discovered evidence. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, deauthorization and decertification petitions, if alleged and proved, is also a well-recognized type of illegal conduct, and would constitute -a violation of Section 8(a)(1) of the Act. This type of evidence could also be important in evaluating the legal effect of a decertification movement and petition under such circumstances, insofar as the bargaining rights and obligations of the Company and the Union was concerned." But, again, the instant complaint contains no such allegations and is limited to the narrow ground of unilat- eral action in instituting certain health , welfare, and pension plans. 18 In its brief, the Charging Party further argues that the ruling excluding the above proffered areas of unfair labor practices was in error. The brief refers to the scope of the charge as-justification for the - admission of such evidence. The charge alleges Section 8(a)(1) and (5) violations in that, since January 1, 1974 , Respondent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act. That this is a broad allegation is obvious . The charge also states that since Janu- ary 1 , 1974, the Respondent has refused to bargain with the Union "by engaging in conduct designed to undermine the status of said labor organization as bargaining agent." The quoted language above, it can be said, is borne out and pleaded in the allegations of the complaint since, clearly, the unilateral conduct alleged in the complaint could be said to have been designed to, and to have the effect of, undermining the status of the bargaining agent. It can also be said that the quoted phrase could arguably support complaint allegations of the additional type of conduct that the Charging Party sought unsuccessfully to litigate at the hearing before me. The charge, however, is not a pleading and serves only to set in motion the investigatory process of the Board's General Counsel . The complaint issued by the Board's General Coun- sel, after investigating the charge, in the pleading, and it is the complaint that frames the issues.19 The instant complaint, in my opinion, does not frame the " In Condon Transport, Inc., 211 NLRB 297 (1974), the complaint alleged 8(a)(1) and (5) violations. The 8(a)(1) allegation was that the re- spondent "independently violated Section 8 (a)(1) of the Act by unlawfully assisting employees in the filing of a decertification petition ." The evidence was found to sustain the allegation and it was held that because of this fact the decertification petition was removed as a viable factor in the Section 8(a)(5) refusal to bargain aspect of the case 18 The Board held in Moffitt Building Materials Company and Lumber- mans Wholesale Company, 214 NLRB No 110 (1974), that "the complaint was specific in alleging a refusal to bargain only" in that "Respondent did refuse and is refusing to bargain with the union concerning the discontinu- ance of Moffitt Building Materials Company and the effects of the discon- tinuance on employees," therefore "we must conclude that the issue of whether Respondent refused to bargain with the union concerning the griev- ances and not properly before the Administrative Law Judge." It was further held that a refusal to bargain with the Union for a new contract "was not alleged in the complaint" and the Board reversed the Administrative Law Judge's finding that Respondent had violated Section 8 (a)(5) of the Act in that respect. i9 "A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry [citation omitted] . The respon- sibility of making that inquiry and of framing the issues in the case is one that Congress has imposed upon the Board, not the Charging Party." N.L.R.B. v Fant Milling Company, 360 U.S 301 (1959). The cases cited by the Charging Party in its brief on this point are cases dealing with the issues of whether a, complaint could alleged matters not specifically alleged in the charge This is not the issue of a Charging Party litigating against a Respond- ent matters not alleged in the complaint 8(a)(1) and (5) issues other than as alleged and the allegations do not encompass the additional 8(a)(1) and (5) issues that the Charging Party sought to litigate at the hearing.20 Briefly stated, the material facts with respect to the issues framed by the complaint are that the contract was -expiring as of November 30, 1973; the Union sent a proposal for a new contract to Respondent; the parties met preliminarily in the latter part of September 1973, and arranged to begin contract negotiations in October; and meanwhile, a deauthorization petition had been filed with the Board on September 28, 1973. The parties agreed not to hold their October meeting and also agreed "that after an election we would get into negotiations on the contract." The decertification petition was filed on December 3, 1973, and the election was held on February 15, 1974; the parties did not meet from the latter part of Septem- ber 1973 until March 1974, having awaited the outcome of the decertification movement, petition , and attendant elec- tion. Although the deauthorization petition preceded the decer- tification petition in time of filing with the Board, the former was not processed to conclusion and no deauthonzation elec- tion as such was held. The Charging Party in its brief notes that the decertification petition and election "superseded the deauthorization petition...." I am satisfied that the Charg- ing Party is correct in stating that the deauthorization peti- tion was superseded by the decertification petition and elec- tion and that in effect the major issue of decertification was the prevailing cause of the long hiatus in negotiations. Experience teaches that prior to the actual filing with the Board of a decertification petition, considerable prior activity takes place. The employees advocating decertification of a union must initially prepare some kind of document or peti- tion to be signed by employees supporting the filing of a formal petition with the Board . The Board's rules and regula- tions require that such a petition must be shown to have the support of at least 30 percent of the unit employees at the time it is filed. In practical effect this requirement means that the initiators of the decertification movement must preliminarily approach employees in the unit to have them sign a properly 20 Speaking generally, a party filing a charge will usually present and be asked to present all evidence and evidentiary "leads" that it has in support of the charge This situation will usually continue throughout the Board's investigation of the charge The Board agent will also investigate relevant related areas that are encompassed by the charge even if such areas have not been delineated specifically in the charge The complaint that issues after the investigation is, not infrequently, broader than the specifics in the charge and, also, not infrequently, the complaint may be narrower than the charge. The usual reason for the latter situation is that the General Counsel, after investigation, has concluded that the evidence does not support all the allegations in the charge Decisions not to proceed on a charge, in whole or in part, are appealable to the Board's General Counsel in Washington, D C Evidence that may belatedly come to the General Counsel 's attention after issuance of a complaint may be handled by an amendment to the complaint under appropriate procedural rules and according to circumstances that vary with the stage at which the amendment is made or attempted and with other relevant considerations. If the rather general allegations of the instant charge could be said to have put Respondent on notice that it was charged with ( 1) illegal unilateral institution of a health and welfare program, (2) illegal surface bargaining; and (3) illegal sponsorship and support of a decertification petition, as the Charging Party apparently argues, then the complaint, on which the parties went to trial, would lead Respondent to the valid conclusion that allegations (2) and (3), above, of the charge , has been dropped, since the complaint and the General Counsel's case as presented was confined to allegation (1), above, the unilateral action ELLEX TRANSPORTATION, INC. worded document that indicates support. Securing the neces- sary number of signatures can be timeconsuming, particu- larly where, as in the instant case, the unit employees, or many of them, have the mobility characteristic of truckdriv- ers and work at employer terminals in five States. Further, some advocacy and discussion is usually entailed in securing signatures for decertificaiton since employees may not im- mediately be prepared to take a definite position on such an issue and this may entail delay in securing the requisite num- ber of signatures (in the decertification election held on Feb- ruary 15, 1974, the vote was 73 for the Union and 71 against). The securing of signatures from employees is of such a nature that it necessarily means that the employees become aware of the decertification movement. Some or many or a majority of the employees, as in the instant case, are evidently loyal to the Union. It is a fair inference, therefore, that the Union, through its members, was aware of the decertification movement prior to the time when the formal petition, with 30 percent or more employee support, was actually filed with the Board. The same inference is applicable to the employer. Foreman and other supervisors close to the employees would be aware of a decertification movement among the employees and would have heard of it prior to the filing of a formal petition with the Board. This would be true because of the time element and the mechanics of a decertification move- ment as described above. It would also be true that sponsors and supporters of a decertification would usually not seek to conceal the movement from the employer. This would be based on the general assumption that decertification would, in some instance, have the tacit approval, if not more, of the employer. In short, while the hiatus in negotiations began as a result of the filing of the deauthorization petition, the parties soon became aware of the decertification movement both before, on, and after December 3, 1973, when the decertification petition was actually filed with the Board. The deauthoriza- tion petition was never processed to the election stage and the issue of deauthorization was merged into and superseded by the decertification matter since, if the Union was decertified, the deauthorization issue would also be disposed of. By mutual agreement the parties agreed "that after an election we would get into negotiations on the contract." The election was the decertification election that was subsequently held on February 15, 1974. When the parties suspended negotiations for a new con- tract until the deauthorization and decertification matter was resolved, they were both aware that the existing contract would expire by December 1, 1973.21 Although the Union in September 1973 had sent the Company a general or prelliminary proposal for a new contract to succeed the expir- ing contract, neither party proposed or discussed with the other any measures that were to be taken regarding coverage of the employees in the period of the hiatus of negotiations after the old contract expired on November 30, 197,3.22 21 The old contract ran up to and including November 30, 1973, a Friday December 3, 1973, was a Monday 22 Neither party proposed, for instance, extension of the old contract for 60-i'0-120 days or whatever, or until the deauthorization and decertifica- tion issue was resolved by an election Nor was there any proposal for either continued payment or nonpayment of health, welfare, and pension premium 757 The health- and welfare and pension coverage of the old contract was a contractual matter providing for specific em- ployer contributions to named Teamster funds. It was further provided in the old contract that "by the execution of this agreement" the employer authorized "the Employer's Associations"23 to enter into appropriate trust agreements necessary for the administration of the Teamster Funds; and the employer also, by its contract with the local Teamster union, designated the employer's associations to designate trustees under the agreements, waiving all notice thereof and ratifying all actions taken or to be taken by the trustees within the scope of their authority. All these matters, including the contract with the local union; the contributions specified; the agreement in the contract with the local union; that, by the execution of the contract with the local union, the employer was designating and granting authority to an employers' as- sociation to enter into trust agreements and to designate trus- tees; and that the employer was also, by the same factor, waiving all notice of the above actions by the association "and ratifying all actions already taken or to be taken by such trustees within the scope of their authority," were matters of contract set forth in a contract that expired by December 1, 1973. These terms of the expired contract were not in the nature of perpetuities. They were not automatically or other- wise renewed.24 In my opinion, Respondent's legal obligation regarding contributions, and so forth, under the Teamster health, wel- fare, and pension funds expired on November 30, 1973. Moreover, the complaint does not allege that the Respondent unilaterally and illegally ceased contributions and coverage under the Teamster funds on November 30 or on December 1 or at any other time in violation of the Act.25 contributions by the employer to the Teamster fund after the old contract expired 23 These employers' associations are evidently associations in the industry with whom the Teamsters have national agreements including trust funds national in scope 24 I also take note that Sec 302 of the Act makes it unlawful for an employer to pay money to any labor organization or its representatives that represent or seek to represent the employer's employees. It is also unlawful for any person to demand or accept such proscribed payments This inter- diction is subject to certain specific exceptions in Sec . 302(c), including payments to trust funds established by a labor organization representing the employees, with the proviso that "(B) the detailed basis on which such payments are to be made is specified in a written agreement with the em- ployer .. . 25 Reuben R. Miller, et aL, d/b/a Sioux City Bottling Works, 156 NLRB 379 (1965), cited by the Charging Party's brief, contains language in the Trial Examiner's Decision appropriate to the facts of the case but not other- wise Thus there is language to the effect that "the termination of the Teamster health and welfare and pension funds and the substitution of another type of health and accident insurance" was not action that the employer could take "without consulting the majority representative of the employees." The union and employer had had a contractual relationship for over 20 years The last contract expired June 1963, Negotiations for a new contract were held in the summer and fall of 1963 . No agreement was reached. The parties next met in November 1963 when it was agreed that the employer would place in effect wage and other increases offered earlier and that the employer would operate in the interim without a written con- tract. The employer continued to check off dues of union members and remitted the dues to the union until August 1974 The employer continued its payments to the Teamster health and welfare fund . In June and July 1964, the parties again discussed a new contract but agreement was not reached Subsequent to the last meeting of the parties on August 6, 1964, the employer paid its obligation to the Teamster health, welfare, and pension plan for July 1964 but ceased payments thereafter On October 1964 the employer established its own health and accident plan. It is apparent from (Continued) 758 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Absent agreement on a new contract and since neither party had proposed any interim coveragd, Respondent's em- ployees would presumably have been without coverage on health, welfare, and pensions, after expiration of the contract on November 30, 1973. Since the instant complaint does not allege that Respondent unilaterally and illegally terminated its premiums and contributions to the Teamster funds after November 30, 1973, it may be that Respondent would have been viewed as not acting illegally if it simply had no coverage of its employees with respect to health, welfare, and pensions after November 30. Be that as it may, Respondent unilater- ally instituted and implemented a health, welfare, and pen- sion plan of its own shortly after expiration of the old con- tract. This conduct is alleged to constitute a violation of Section 8(a)(5) and (1) of the Act. It is well established as a general proposition that, or- dinarily, it is a violation of Section 8(a)(5) and (1) of the Act for an employer to unilaterally change wages, hours, or con- ditions of employment without affording the collective-bar- gaining agent an opportunity to bargain about such proposed changes.26 This legal doctrine is, however, materially af- fected in situations where there are rival or conflicting claims that raise a question concerning representation. Of course, a rival claim would exist where near the end of an existing contract or upon expiration of a contract or at other appropri- ate time, a union, other than the incumbent, claims that it represents the employees and files a petition for certification. A conflicting claim could typically be a movement and claim by employees asserting that the incumbent certified union no longer represents a majority of employees. Such a claim would be brought to a head by the filing of a decertification petition.21 More than 20 years ago the Board affirmed that "the filing the foregoing facts that, in the period after the old contract expired in June 1963, the parties had extended and operated under what was in effect an indefinite extension of the Teamster health, welfare, and pension plan, in- cluding employer contributions , as well as dues checkoff, and new mutually agreed-upon wage increases and other benefits. This extension of interim agreement continued until August 1974, at which time the employer unilat- erally ceased its payments to the health, welfare, and pension fund and then established its own program. The facts of the case clearly distinguish it from the instant case and the language in Sioux City, above, is to be read as addressed in the particular facts of that case It also appeared that the cases cited to support the above decisional language in Sioux City are cases dealing with very simple unilateral action situations . Briefly summarized, Kenneth B McLean, d/b/a Ken's Building Supplies v. NL.R B. 333 F.2d 84 (C A 6, 1964), involved a no-prior-contract situation: the union proposed a health and welfare plan, and thereafter the employer unilaterally instituted its own plan; N.L R.B. v Wonder State Manufacturing Company, 344 F 2d 210 (C.A 8, 1965), involved a no-prior-contract situation, where during contract negotiations the employer granted - a unilateral wage in- crease to employees; Montgomery Ward, & Co., Incorporated, 90 NLRB 1244 (1950), involved a situation where the employer, 5 days after submit- ting a contract proposal to the union , precipitously granted a wage increase to employees and then, without discussion with the union , made changes in employee benefit plan; in General Motors Corporation, 81 NLRB 779 (1949), the employer unilaterally instituted an insurance plan during negotiations, in W W Cross and Company, Inc., 77 NLRB 1162 (1948), the employer informed the union that the retirement plan was not subject to negotiation with the union thereafter the employer acted on the retirement plan unilaterally. - 26 NL.R.B. v Katz, et al., 369 U S 736 (1962). 27 Conflicting and rival claims might also be present where two or more unions seek to organize an unorganized plant and file either two petitions for certification or one union intervenes in a pending certification petiiion of a rival union. of the-petition [where there was an incumbent union] raised a prima facie question concerning representation which, un- der the `Midwest Piping' doctrine,28 precluded it [the employer] from bargaining further with the incumbent union during the pendency of the petition. . . . We also pointed out that, in continuing the established relationship with an in- cumbent union, an employer runs the risk of an unfair labor practice finding if the Board later determines that the petition raised `a real question of representation.' It would therefore be manifestly unfair to require an employer who has engaged in no antecedent unfair labor practice to bargain at his peril during the pendency of a timely petition." Accordingly, the Board held that the employer did not violate Section 8(a)(5) and (1) of the Act by refusing to resume negotiations with the incumbent union and by unilaterally increasing wages and employee benefit plans. National Carbon Division, Union Car- bide and Carbon Corporation, 105 NLRB 441, 442-443 (1953); 100 NLRB 689, 698-699 (1952).29 In Shea Chemical Corporation, 121 NLRB 1027, 1029 (1958), the Board held that "upon presentation of a rival or conflicting claim which raises a real question concerning rep- resentation, an employer may not go so far as to bargain collectively with the incumbent (or any other) union unless and until the question concerning representation has been settled by the Board.""' Citing the foregoing language of the Shea case, the Board went on to state in Telautograph Corpo- ration, 199 NLRB 892 (1972), that: The same should be applied where a real question concerning representation has 28 Midwest Piping and Supply Co, Inc., 63 NLRB 1060 (1945) 29 Briefly stated, the relevant factors in the cited case (see 100 NLRB 689, 705-707), were that union A had been certified on May 7, 1945 The status of union A remained recognized, undisturbed, and unchallenged until 1949. During negotiations with A in August 1949, the employer disclosed that it was aware of activity and of a claim by union B to represent employees but the employer stated that it intended to continue negotiation discussions with A On September 12, 1949 , union B filed a petition for certification On September 27, 1949, the employer informed A that it would no longer bargain with A Union B's petition was dismissed by the Board's Regional Director on March 30, 1950 The employer thereafter unilaterally made changes in wages and employee benefit plans about which it had previously been negotiating with A. So far as appears, the employer had never used the oft magic words that it had a good-faith doubt of A's majority status The Board's decision, quoted above, dealt with the effect of the representation activity and the petition of union B on the employer's relationship with union A. The decision also dealt with the dismissal of B's petition, and element not present in the instant case where the petition - was processed through the ultimate step of holding an election. The decision found that the dismissal of the petition was not determinative The Board noted that the petition was dismissed, not because it was -unfounded "but because of the pendency of certain charges filed by the union [A] whichhave been found herein to be without merit." Under such circumstances the Board found that dismissal of the petition did not change the situation of the employer since otherwise an incumbent union could "perpetuate its majority status by filing charges which after litigation were found to be groundless." See also NL.R B. v. Signal Oil and Gas Company, 303 F 2d 785 (C A. 5, 1962), citing National Carbon, above, in In 3 of the court's decision 30 An employer is obliged to continue to recognize and to bargain with an incumbent union over, the administration of their existing contract, de- spite the filing of a petition by a rival union Duralite Co, Inc., 132 NLRB 425, 427 (1964). In the instant case, Ellex, the unilateral action of the Employer alleged in the complaint took place after the expiration of the contract and during a period when a deauthorization petition was merged with and was superseded by a decertification petition and during a period, when, by mutual agreement, the Employer and the Union held negotiations in abeyance until the status of the Union was resolved by an election pursu- ant to the decertification petition. ELLEX TRANSPORTATION, INC. been raised by the timely filing of a decertification petition.31 In the instant case, prior to December 1, 1973, the date by which the old contract had terminated, the Union and the Respondent were aware that the Union's status was under challenge by-reason of deauthorization and decertification activity by employees. The challenge culminated on Monday, December 3, 1973, the first working day after Friday, November 30, 1973, the last day on which the old contract had been in effect. The employee decertification petition was filed on December 3, 1973. Negotiations between the Union and Respondent, which had been mutually suspended since the end of September 1973, remained suspended until and after the decertification election on February 15, 1974. Although Respondent called no witnesses at the instant hearing and presented no defense as such, the evidence that is contained in the record before me cannot be ignored. Nor am I free to ignore the legal principles that apply to the evidence in the record. The legal consequences flow from the eivdence before me and from the legal principles applicable thereto. As earlier described, in the period following the expiration of the old contract, when negotiations between the Union and Respondent were in suspension and when a question of repre- sentation was pending, various employees presented health and welfare claims to the local union as was provided and as the practice was under the old contract. The local union processed the claims to the Teamster fund in Chicago and learned thereby that Respondent had ceased after November 30, 1973, making payments to the fund as formerly provided in the expired contract. The next happening in this period of days and weeks was that Respondent then implemented the coverage of its nonunit health, welfare, and pension programs and extended their coverage to the unit employees when claims were presented to the Company. In practical conse- quence, this meant the postcontract claims were processed under the employer programs. The Union became aware of the situation albeit not from any communication to it by Respondent.32 In December, January, and February, the Union, although aware of the foregoing state of affairs, did not ask Respondent about the matter; it did not protest or object during that period nor did it protest Respondent's unilateral action in the period of negotiations that began on March 7 and 13, 1974, and there- after; it did not advise its members and employees not to present their claims for processing under Respondent's pro- 31 In Telautograph, the Board held "that the decertification petition, supported by an adequate showing ofinterest . raised a question concern- ing representation " It was further held that the employer had not violated Sec 8(a) (5) and (1) of the Act since the employer, as found by the Admims- trative Law Judge in his Decision that the Board enforced, "was not legally obligated to bargain with the [incumbent] union . ", and this was not because of "any objective considerations of good-faith doubt concerning the Union's continuing majority" but because "a question concerning represen- tation existed, foreclosing Respondent from dealing with the [incumbent] Union . " 32 Awareness and knowledge are facts The method and means by which awareness and knowledge are acquired constitute a difference set of facts The United States was aware that on December 7, 1941, Pearl Harbor was being attached and had been attacked There was no precedent or subse- quent announcement by the Government of Japan of the facts of which the United States was aware The United States responded to the known factual situa Lion 759 grams; it did not undertake nor did it advise its members that the Teamster fund would honor their claims in the interim absent employer contributions. In the light of the foregoing facts, and if tacit and passive acceptance and absence of oppo- sition equate with acquiescence in the state of affairs that came into being and existed after the expiration of the con- tract and during the suspension of negotiations pending the decertification election, and in the period of renewed negotia- tions beginning on March 7, 1974, then the Union acquiesced in the state of affairs. It is my opinion that on the evidence in the record before me and in the light of the applicable legal principles set forth in cases cited above, the Respondent has not violated Section 8(a)(5) and (1) of the Act as alleged in the complaint. Follow- ing the expiration of the old contract and while a question of representation was pending, which question was not resolved until February 15, 1974, Respondent was under no legal obligation to bargain collectively or to negotiate with the Union. Shea Chemical Corp., above; Telautograph Corpora- tion, above. Consequently, Respondent's unilateral action in instituting and implementing health, welfare, and pension programs for unit employees was not illegal. Having found that the evidence does not support the Sec- tion 8(a)(5) and (1) allegations of the complaint and that the conduct alleged therein was not illegal, I also find that the complaint allegation that the strike "was caused by the unfair labor practices" alleged in the complaint is not supported by the evidence since the conduct alleged in the complaint has been found not to constitute unfair labor practices. The strike therefore was not an unfair labor practice strike.33 33 If, arguendo, it had been found that Respondent had violated Sec 8(a)(1) and (5) by its unilateral implementation of its own health and pen- sion plan since December 1973, it does not follow that this unilateral con- duct was one of the causes of the strike. The cause or causes of a strike are factual matters. It is not as simple as post hoc, ergo propter hoc. Neither at the union meeting on April 21, 1974, at which the strike vote was cast, nor at any other time, does the record reveal that the union representatives or the union members mentioned in words or in substance that the employer had, since December 1973, implemented unilaterally and unlawfully its own health and pension plan and that this was a reason for, or a cause of, the strike. On direct examination, the General Counsel asked Baukman Q. What was the purpose of that meeting [April 21] with the em- ployees? A. The purpose was to present a proposal, a proposed offer for a contract [from the Company] and to take a vote on a contract [proposal]. The April 21 union meeting involved a presentation by Baukman of the respective proposals by the Company and the Union for the terms of a new contract The parties were apart on about six issues, including a health, welfare, and pension provision As described by Baukman at the union meeting, the Company was proposing that the current company plan on health, welfare, and pensions, including employee choice of plans, should be the plan in the new contract. The Union's position was that the Teamster health, welfare, and pension plan, with specified employer contributions thereto, should be in the new contract Baukman pointed out at the union meeting that the company health and pension plan was inferior to the Teamster plan and less advantageous to the employees. Baukman also in- formed the members at the meeting of the company proposal for employee choice of the plan the employee wished to have and of the union position of majority determination by employees on this matter of allowing employee choice. Continued 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAw authorize the union leadership to call a strike . On the evidence in this record, it is apparent that the votes at the meeting were focused entirely on - the terms for a new contract and insofar as the vote to reject the company Respondent -has not violated Section 8(a)(1) and (5) of the proposal on health and pensions (and as far as appears on other proposals) Act as alleged in the complaint . the rejection was on economic grounds and the strike vote was premised on [Recommended Order for dismissal omitted from the same basis There was no discussion and no vote at the meeting about the unilateral coverage of the employees in the company health and pension publication.] plan since December 1973, and up and through the date of the April 21 meeting. No one was advocating or voting on a rejection of employee coverage in the company program during the interim from the expiration of the old contract The only matter that they voted on on April 21 was the After the company proposals and the union proposals on about six out- terms of a new contract They voted to reject the company proposals and standing issues, including a health, welfare, and pension provision , were to support the union proposals and to strike to bring about a new contract described by Baukman and were discussed , the employees at the meeting with the terms the Union advocated or with terms reasonably approximate voted to reject the company proposals for a contract . They also voted to thereto