Norris Industries

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norris Industries and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, Local 509, UAW. Case 21 -CA- 14747 July 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On April 12, 1977, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in support of the Administrative Law Judge's Decision and in opposi- tion to the exceptions of the General Counsel and Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed on June 4, 1976, and duly served, the General Counsel of the National Labor Relations caused a complaint and notice of hearing dated July 22 to be issued and served on Norris Industries, herein Respondent. Therein, Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519. Respondent's answer, duly filed, conceded certain factual allegations within General Coun- 231 NLRB No. 16 sel's complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing with respect to this matter was held before me in Los Angeles, California, on various dates between October 28 and November 23, 1976. The General Counsel, Complainant Union, and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Since the hearing's close, General Counsel's representative and Respondent's counsel have filed briefs which have been duly considered. Upon the entire testimonial record, documentary evi- dence received, and my observation of witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claim. Upon the com- plaint's relevant factual declarations - specifically, those set forth in detail within the second paragraph thereof - which are conceded to be correct, and on which I rely, I find that Respondent herein was, throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate the statutory objectives. I1. COMPLAINANT UNION International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 509, UAW, designated herein as Complainant Union, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's em- ployees to membership. III. THE UNFAIR LABOR PRACTICE CHARGE A. Issue During April 1976 Respondent terminated the group medical insurance coverage of various employees then on medical leaves of absence; this was done consistently with a provision within a designated "Letter of Understanding" supplementing Respondent's then current collective-bar- gaining contract with Complainant Union herein, which had, shortly before, been concluded and signed. The provision reads as follows: Insurance terminates when the employee ceases to be a full-time active employee; however, if an employee is on economic, personal, or medical leave of absence, group insurance coverage will be continued not later than the end of the month following the month such leave is first initiated. 50 NORRIS INDUSTRIES General Counsel contends, herein, that, with reference to workers on medical leaves of absence particularly, termina- tions of medical insurance coverage bottomed upon this provision constituted a departure from past practice; that the provision, though concededly set forth within the designated "Letter of Understanding" supplementary to Respondent's fully executed contract with Complainant Union herein, had never been specifically considered, consensually negotiated, or consciously accepted by Com- plainant Union's representatives; that its presence within the contractual supplement noted reflects nothing more than Respondent's gratuitous supposition that Complain- ant Union had concurred with respect thereto; and that terminations of coverage consistently with the provision - without prior notification to, or consultation with, Com- plainant Union herein - should, therefore, be considered "unilateral" conduct, statutorily proscribed. Respondent concedes that Complainant Union's negotiators had never formally declared their conscious concurrence with the particular "disputed language" previously noted herein. Nevertheless, the firm contends that "the concept and/or the exact language" pursuant to which it was terminating medical insurance coverage for certain workers had been presented for Complaina: t Union's consideration during several collective-bargaining sessions; that Complainant Union's negotiators had neither demurred nor protested to Respondent's successive proposals; that the disputed language's physical incorporation thereafter - within a draft contract document which Complainant Union's negotiators finally signed and within a contract booklet subsequently printed - had never been challenged; that, with matters in this posture, Respondent's management representatives could reasonably presume Complainant Union's consensual "acquiescence" with regard to their medical insurance termination proposal; and that Respon- dent's subsequent terminations of medical insurance coverage, consistent with the disputed provision therefore should not be considered "unilateral" conduct derogative of Respondent's collective-bargaining obligation. B. Facts I. Background a. Respondent's Vernon plant Respondent manufactures various heavy metal products, within several Southern California plants. However, we are concerned herein solely with the firm's Vernon, California, facility, where it manufactures automotive wheels, com- pressed gas cylinders, and military products. Within its Vernon facility, Respondent employs some 2,300 workers. b. Respondent's collective-bargaining relationship with Complainant Union Complainant Union currently maintains separately negotiated collective-bargaining relationships with Re- spondent with respect to four Southern California facilities. Within Respondent's Vernon plant, specifically, Complain- ant Union has been a recognized collective-bargaining representative since 1960; the organization's successive contracts have covered some 2,000 production and mainte- nance workers, within a single bargaining group. The most recent contract negotiated by the parties - save for the contract currently in dispute - had covered a 3-year term between November 2, 1972, and November 1, 1975, specifically. c. Respondent's past practice with regard to terminations of insurance coverage Respondent's previously noted 1972-75 contract with Complainant Union had contained no specific commit- ment with regard to group medical insurance coverage for Vernon plant workers. Necessarily, therefore, the contract had reflected no consensus with regard to when persons on leave or absence might have their medical insurance coverage terminated. The parties had negotiated a side "Letter of Understanding" with regard to fringe benefits. However, that letter had merely stated, generally, that Respondent had no intention to abolish currently main- tained employee benefits, during the designated 1972-75 contract's term, but reserved the right to establish reason- able rules designed to regulate and control the use of such benefits. Despite this contractual silence, Respondent had for some years provided Vernon plant workers with a privately funded group medical insurance plan. The Prudential Insurance Company of America, Respondent's insurance carrier, had provided booklets for Vernon plant workers wherein the plan's benefits were described; these booklets had been distributed, generally, within Respondent's plant. Therein Respondent's workers had been notified, in relevant part, that: Insurance for yourself and your dependents will terminate if you cease to be a full-time employee ... Should you cease active work on a full-time basis because of disability, leave of absence or temporary lay-off, the insurance may be continued for such duration as is permitted by rules established by the Company in accordance with the terms of the Group Policy. In this connection, Prudential's group policy did provide, with respect to persons on temporary layoff or leaves of absence for reasons other than disability, that coverage would not continue beyond the end of the policy month which followed the specific month during which the particular employee had ceased to perform full-time service. With respect to disabled workers - regardless of whether their disability derived from some work-related illness or injury, or from causes which could not be considered work related - the firm's group policy set no time limits for medical insurance coverage continuation; rather, the policy was permissive, since the policy holder could define its own time limits. Consistently with this group policy language, Respon- dent's practice - with respect to persons on temporary layoff and personal leaves of absence particularly - had required the termination of group medical insurance coverage at the end of the calendar month following the month during which the layoff or leave commenced. (Workers granted leaves of absence for military service, or 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while holding union positions, had likewise had their insurance terminated.) However, with respect to disabled workers on medical leaves of absence, the firm's most recent 1972-75 practice had been to continue paying premiums, calculated to maintain medical insurance coverage for 1 year where medical leaves had been granted for nonwork-related reasons, and for 2 years whenever medical leaves bottomed upon some work-related disability had been granted. Respondent's costs, directly related to such continued group medical insurance coverage, could not reasonably have been considered minimal. Though monthly premium payments for particular covered workers might vary, depending upon whether they required or did not require coverage for dependents, the firm's monthly average premium cost - so the record shows - had closely approximated $60 per covered worker. During a represen- tative month, between 30 and 100 workers would, normal- ly, have been on medical leaves. While a witness, Respondent's industrial relations manager proffered a guess, which stands without challenge within the present record, that, during the prior contract period, his firm's premium costs, for workers on medical leave particularly, had run between $2,000 and $3,000 monthly. 2. Contract negotiations a. Preliminary statement The question presented for determination herein, regard- ing the proper scope of Respondent's contractually defined right to terminate group insurance coverage, for workers on medical leave, will require this Board's detailed consideration of developments throughout a protracted sequence of collective-bargaining sessions. With respect to such developments, significant testimonial conflicts have been noted, within the present record. Whenever such conflicts can be considered crucial, credibility determina- tions - calculated to resolve them - will be required. In this connection, Respondent's counsel has, within his brief, noted, cogently, that: As is often the case in collective-bargaining, the process by which the parties arrived at the current printed contract was not neat and tidy or a logician's delight. It was a long, drawn-out and sometimes confused process spanning many months which cannot be capsulized in a simple narrative description .... Thus it is not surprising if there are discrepancies in the testimony of the various participants. Under the circumstances even a well-meaning witness could be erroneous in his recollection, and, consequently, a key to resolving any inconsistencies will be the objective and documentary evidence accompanying the parties' testimony. The history concerning the "disputed language" was partic- ularly convoluted .... Mindful of these considerations, I find myself persuaded that most of General Counsel's and Respondent's witnesses herein have, indeed, proffered their best recollections with respect to relevant and material developments, throughout their negotiations. The testimonial record, within my view, reflects no deliberate witness-chair misrepresentations, conscious evasions, or planned obfuscation. Within a recent Administrative Law Judge's decision, however, it has been noted that proffered testimonial recollections do, sometimes, reflect partisanship, and that: Witnesses do not emerge from antiseptic surroundings nor do they testify in a vacuum which protects them from the failings to which the human mind and spirit are subject .... while "unconscious mistakes" and "honest confusion" may, likewise, color their purportedly factual reports. Further, rationalizations may sometimes transmute or modify memory. Whenever persuaded, during my review of the present record, that this may have somehow taken place, I have sought to resolve record conflicts with due regard for whatever supportive documentation the parties may have proffered, conceded or well proven matters, logical probabilities, the total "weight of the evidence" proffered, and reasonable inferences which might be drawn therefrom. See N.LR.B. v. J.P. Stevens & Co., Inc., 464 F.2d 1326, 1328 (C.A. 2, 1972); Northridge Knitting Mills, Inc., 223 NLRB 230 (1976). Compare Central Diagnostic Laboratory, 206 NLRB 754, 756 (1973), and cases therein cited. My determinations, therefore, will frequently reflect some reasonable syntheses derived' from the complete record; whenever considered necessary, however, record justifications for particular factual conclusions will be noted. b. Discussions before formal negotiations commenced Respondent's previously noted 1972-75 collective-bar- gaining agreement contained a provision that, should either party privy thereto desire their contract's modification or termination, written notice would have to be given the other party between August 1 and September 1 of that contract's final year. Looking toward this contingency, Ronald W. Flagg, industrial relations manager for Respon- dent's Vernon plant, and Paul Bluto, Complainant Union's financial secretary-treasurer and service representative, so the record shows, held several preliminary discussions - specifically during calendar year 1975's summer months - wherein various questions which might be raised in the course of their prospective contract talks were tentatively canvassed. With respect to these prenegotiation conversations, Flagg's testimony reflects his recollection that, together with several other subjects, Respondent's policy with regard to terminating group medical insurance coverage, for workers on leave, was discussed. (While a witness, Flagg claimed that - though his firm's previously determined general policy, with respect to terminating group medical insurance coverage, would have, inter alia, required terminations of such coverage for workers on medical leave following the conclusion of the month subsequent to the particular month within which their leaves began - that policy, particularly within the firm's Vernon plant, had not been followed. According to Flagg, Bluto was told, therefore, that Respondent would seek consensual commitments - during their forthcoming 52 NORRIS INDUSTRIES negotiations - pursuant to which the firm's practice regarding terminations of coverage, particularly for work- ers on medical leave, would be modified to conform with Respondent's general policy.) Flagg recalled that, when Bluto protested Respondent's proclaimed desire to reinstate a practice consistent with its previously formulated general policy - particularly with regard to the termination of medical insurance coverage for workers on medical leaves granted in connection with work-related disabilities - the service representative was reassured that any problems with regard to continued insurance coverage for workers so situated could be overcome. According to Flagg, his preliminary statement of Re- spondent's position with regard to this particular matter was, likewise, mentioned during a prenegotiation confer- ence which he had with Larry Johnson, Complainant Union's shop committee chairman. The latter, so Respon- dent's industrial relations manager recalled, had vouch- safed no protest. Confronted with Flagg's testimony, Complainant Union's Service Representative Bluto differed. Though he did recall a discussion with Flagg, during September or October 1975 specifically, when he had protested Respon- dent's proposal to terminate medical insurance coverage for workers on medical leaves due to work-related disabilities, Bluto claimed that their conversation had concerned workers then scheduled for layoff or termina- tion in connection with a planned shutdown at Respon- dent's Pico Rivera plant. However, when queried specifi- cally about his discussions with Bluto, relative to Pico Rivera's closure problems, Flagg could not recall whether Respondent's policies regarding the termination of medical insurance coverage for separated or laid-off workers had been mentioned. Upon this record, I conclude that Industrial Relations Manager Flagg's proffered recollection, regarding the substance of his prenegotiation conversations with Com- plainant Union's Representative Bluto, may very well reflect his genuine belief - now - with respect to what they discussed; however, his present testimonial recollec- tion, in my view, cannot be fully credited. I am satisfied that Flagg and Bluto probably did participate in tentative discussions - during the summer before their formal negotiations began - with regard to various proposals they might subsequently present. Nevertheless, I cannot con- clude, consistently with the industrial relations manager's testimony, that Respondent's desire to set a relatively strict "termination of coverage" policy, for workers on medical leave, was mentioned. Within his brief, Respondent's counsel argues that - since Flagg did proffer a specific contract proposal, dealing with this subject, shortly after negotiations began - he would, now, have more reason than Bluto to recall whether he had mentioned the matter previously. I note, however, the industrial relations manager's testimonial concession that he had tacitly concurred with Bluto's purported countersuggestion that no quick "termination of coverage" policy should be set or implemented for workers on medical leave because of work-related disabilities. If Flagg had, really, conceded his willingness to seek a consensus pursuant to which different "termination of coverage" policies would be determined for workers on medical leaves with work-related and nonwork-related disabilities, language calculated to provide for such differentiated policies could readily have been drafted in Respondent's first formal proposal which dealt with the subject. How- ever, when presented, that proposal (which will be discussed subsequently within this decision) facially reflect- ed Respondent's presumptive desire to pursue a single, moderately restrictive "termination of coverage" policy with respect to workers on medical leave, regardless of their particular disability's cause. I am persuaded, there- fore, that, since Flagg's first "Group Insurance" proposals provided no differentiated "termination of coverage" policies for workers on medical leave for so-called industrial or non-industrial reasons, despite his claimed concurrence with a purported suggestion proffered previ- ously by Bluto that such workers should be treated differently - the subject had not been broached during their prenegotiation conversations. Within his brief, Respondent's counsel does note General Counsel's failure to recall Larry Johnson for the purpose of rebutting Flagg's testimony relative to their purported prenegotiation conversation on this subject. Flagg's proffered recollection, so counsel contends, stands, therefore, without contradiction. When considered within its complete context, however, Johnson's failure to rebut Flagg's testimonial recital - in my view - provides no conclusive warrant for a determination that Respondent's industrial relations manager had mentioned a proposed modification of his firm's "termination of coverage" policy, with respect to workers on medical leave, during their talk. And, were I to conclude, nevertheless, that the subject had, indeed, been mentioned, Flagg's claim that Johnson had not reacted would persuade me, merely, that his mind had, then, been focused upon some other facet of Respondent's prospective insurance proposal; Flagg's purported com- ment, therefore, could hardly have "familiarized" Com- plainant Union's representatives with Respondent's pro- spective proposal, or predisposed them toward subsequent concurrence. Respondent's counsel notes, finally, that, since March I, 1976, his client has, despite the broadly permissive "disputed language" previously noted, continued insurance coverage for workers on medical leave with so-called industrial disabilities. Counsel suggests that: "If [Flagg] had not had the conversation [with Blutol as he described it, there would have been no reason to [continue medical insurance coverage for such workers consistently with Bluto's proposed] limitation." (Bracketed interpolations provided to promote clarity.) I have not, however, been persuaded. Bluto's testimony does warrant a determination, which I make, that, during his September-October 1975 conversations with Flagg regard- ing Respondent's Pico Rivera plant closure, continued group medical insurance coverage, for workers separated or laid off while on medical leave for work-related disabilities, had been requested; thus, Flagg's subsequent decision to except certain Vernon plant workers from Respondent's general "termination of coverage" policy could reasonably have been premised upon Respondent's recognition of Bluto's 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most recent September-October 1975 protest presented on behalf of Pico Rivera's workers, rather than some represen- tations which he had purportedly proffered previously. c. The commencement of negotiations On August 22, 1975, Industrial Relations Manager Flagg notified Complainant Union, consistent with the provisions of their collective-bargaining agreement, that Respondent wished to negotiate a new contract. Thereupon, commencing on September 3 and continuing through January 1976, the parties held some 30 meetings. During their various plenary bargaining conferences and so-called executive sessions, between 30 and 40 hours were devoted to discussions concerned with various substantive matters dealt with in Respondent's group medical and dental insurance proposals. The firm's first concurrent proposal, however, concern- ing the circumstances under which medical insurance coverage would be terminated for workers on leave, was - so far as the record shows - never consciously considered or specifically discussed. d. Respondent's October 15 proposal During their October 15 bargaining session, Respondent presented Complainant Union with its first economic proposals. Suggestions with respect to 12 contractual provisions were proffered, together with comprehensive proposals on pensions and group insurance. Inter alia, Respondent's group insurance proposal contained the particular "disputed language" relative to coverage termi- nations (previously noted within this decision) with which we are herein concerned. That language, however, was never specifically discussed. Following their concededly cursory review of Respondent's five-page submission, Complainant Union's negotiators - without discussion - rejected the firm's proposals, completely; the proposals were never presented to Complainant Union's member- ship. Thereafter, on November 1, Respondent's negotiators presented Complainant Union with certain revised eco- nomic proposals. Therein, Respondent's substantive group insurance proposals were summarized within a single paragraph; that paragraph, however, contained no specific reference to conditions which might prompt a termination of medical insurance coverage. (Respondent's group insurance proposal did note that, should Complainant Union prefer contributions to a qualified Taft-Hartley trust fund which could provide various health care benefits, Respondent would be willing to contribute certain speci- fied sums for "qualified employees on the active payroll" on the first working day of the month "who have been on the active payroll" during the preceding full calendar month. (Emphasis supplied.) Respondent contends that this language of limitation would necessarily imply the exclusion from coverage of workers on leaves of absence.) Within a final paragraph, Respondent noted that its proposal summarized "major economic items" but did not compass "other economic or non-economic items" which the firm proposed. Complainant Union's negotiators - so Flagg's credible, undenied testimony shows - raised no questions with regard to this language's significance. e. November 6 negotiations On November 6, the parties met for further negotiations, with a Federal mediator present. Throughout a substantial portion of this session, the Federal mediator - consistently with his service's standard practice - placed the parties in separate rooms; thereafter, he shuttled between them, conveying proposals and counterproposals. With respect to negotiations during this session, Industri- al Relations Manager Flagg testified - with corroboration from Robert Brady, his Vernon plant assistant - that Commissioner Walters, the Federal mediator, had request- ed them to make their best complete proposal. In connection therewith, Flagg contended that Commissioner Walters was, inter alia, given six documents for transmittal to Complainant Union's representatives. Flagg designated these documents as follows: 1. Four separate pages from a proposed multi-page contract section dealing with training matters. 2. A one-page document headed "Pension" which contained various substantive proposals, dealing with that subject. 3. A one-page sheet headed "Group Insurance" which contained certain substantive benefit proposals, together with the specific "disputed language" relative to coverage terminations with which we are herein concerned. While a witness, Flagg conceded that Commissioner Walters had, later during the session, merely returned the first three pages of Respondent's proffered "training" proposals, with respect to which Bluto had proposed certain changes. Bluto's testimony, however, reflects contentions that Commissioner Walters had merely supplied him with three documents which reflected Respondent's substantive "training" proposals; that he (Bluto) had made certain changes therein; that he had, then, initialed those particu- lar proposals; and that he had given them back to Commissioner Walters, for re-transmittal to Respondent's principal negotiator. Bluto and his fellow negotiators denied that they had received Respondent's separate "Group Insurance" or "Pension" proposals; further, they denied receipt of Respondent's purportedly proffered "training appendix" list. All the witnesses, whether summoned for Respondent or Complainant Union herein, recall that, toward the end of their session, the Federal mediator called them together, within a single room, where he went through a blackboard exercise listing the major "economic" matters with respect to which no consensus had been reached. The Federal mediator, however, did not then list the so-called disputed language with which we are herein concerned. With matters in this posture, Respondent's negotiators make no present contention that Complainant Union's spokesman had, somehow, signified their concurrence with a proffered "termination of coverage" proposal, during this November 6 session. Respondent's witnesses concede, 54 NORRIS INDUSTRIES rather, that they never received a response, pro or con, with respect to their "Group Insurance" proposal, which contained suggested coverage termination language. In his brief, Respondent's counsel contends, however, that: The significance of what occurred on November 6th instead lies in the fact that it demonstrates that the Company had not dropped the issue and that once again no specific objection was voiced by the Union. Thus, some determination must be made, herein, with respect to whether Complainant Union's negotiators were actually presented with November 6 substantive group insurance proposals - containing suggested language on coverage termination for Vernon plant workers on leave - which they had a chance to review and consider. Upon this record, such a determination cannot be cavalierly reached. While testifying herein, Complainant Union's shop committee chairman and secretary contended that they had received no company proffered documents, transmit- ted by the Federal mediator, during this November 6 session. And Complainant Union's service representative, while conceding that he had received and reviewed several "training" proposals, denied, likewise, that he had been given Respondent's purportedly proffered "Group Insur- ance" and "Pension proposals," either directly or through the Federal mediator. Copies of the firm's two, single-page proposals - which, so Respondent claims, Commissioner Walters had been requested to transmit - have been proffered for the present record. Those documents, however, contain no supplementary marks or notations persuasively corrobora- tive of Flagg's testimony that they were submitted for transmission to Complainant Union's negotiators, specifi- cally, during the November 6 session now under consider- ation. Respondent's witnesses did testify that, throughout their negotiations, various documents drafted for presentation to Complainant Union's representatives had been customarily prepared in multiple copies; and that these copies had been date stamped with a rubber hand stamp prior to their delivery. Flagg's personal "file" copy of Respondent's group insurance proposal, however, contains no rubber stamped date. Rather, it bears the industrial relations manager's handprinted "11/6/75, to Union by Comm" notation. Such a date record, of course, could either have been made on November 6 - or, conceivably, sometime thereafter. Further, Respondent's file copy contains a handprinted, pen-and-ink modification which - so Flagg testified - he had recorded shortly "before [he] gave [Respondent's group insurance proposal] to the Union" during their November 6 session, complying with a superior's request. And Respondent's presently proffered testimonial presentation, particularly with respect to this language modification, raises a tangential question in my view, regarding the November 6 session's course. First, I note that Respondent's proffered copy of the firm's "Group Insurance" proposal - which Flagg testimonially designated a verbatim duplicate of the document which he had given Commissioner Walters for transmission to Complainant Union's representatives - bears no hand- stamped "Nov. 6, 1975" date. Rather Respondent's purportedly verbatim document, proffered for the record, bears a photocopied date, which merely reproduces a hand- stamped date found on some other copy of the firm's "Group Insurance" proposal. Further, Respondent's rec- ord submission shows Flagg's purportedly last-minute modifying "insert" change, likewise, provided in photocopy form. However, Flagg had, so he testified, hand-printed that particular "insert" modification - directly following a telephone conversation with his superior - shortly before he gave his firm's "Group Insurance" proposal to Commis- sioner Walters for transmittal to Complainant Union's representatives; the record, therefore, provides no clear indication with respect to when, or how, the firm's proposal, purportedly readied for presentation with a hand- stamped date and hand-printed modification could have been photocopied When queried directly with respect to when Respondent's insurance proposal - with these notations - had been photocopied, Flagg testified that, "In order to keep track of where we were and what had gone to the Union, they were not stamped until they were officially given to the Union ... On that particular [November 6] morning we date-stamped, I believe it was, eleven or twelve copies so that we could go to the meeting and present it to the Union bargaining committee. The Commissioner asked that he take it to the bargaining committee; and so we gave him a copy to take, and we retained the others with the date stamp on it." He testified, further, that Respondent's "Group Insurance" proposal - with its hand-stamped date and hand-printed modification had been xeroxed since then. Thus, Respondent's document copy submitted for the present record could, conceivably, have come into existence sometime after the parties' November 6 session. However, the fact that, theoretically, something could have been done constitutes no proof that it was done. Upon this record, no critical determination that Respondent's proffered docu- ment was created merely to buttress Flagg's testimony regarding its November 6 transmission would be warrant- ed. Nevertheless, the present record, considered in totality, preponderantly warrants a determination in my view that Complainant Union's negotiators were, indeed, given a copy of Respondent's group insurance proposal sometime during their November 6 bargaining session. Flagg had previously presented such a proposal; his October 15 submission, though somewhat less detailed, had contained the particular "disputed language" with which we are concerned. By November 6, however, no consensus - particularly with regard to Respondent's pension and group insurance proposals - had yet been reached. Thus, when Commissioner Walters requested Respondent's negotiators to present their contract language proposals with respect to various "open" matters, logic suggests that Flagg would have, inter alia, given the Federal mediator his firm's group insurance and pension proposals. The negotia- tor's testimony that he did turn over documents containing these proposals, together with several other documents - which testimony Brady, his assistant, corroborated - merits credence, in my view. In his brief, Respondent's counsel concedes, properly, that credible testimony regarding a document's submission to some Federal mediator for transmission does not, 55 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without more, prove its consequent transmission or receipt. And Complainant Union's representatives have denied receiving "Group Insurance" and "Pension" proposals. Since direct testimony, probative of their transmission, could not be procured, solely deductive inferences may be drawn. The Federal Mediation and Conciliation Service pro- scribes or discourages formal testimony by Federal mediators, particularly with regard to whatever they may have done, or learned, while discharging their professional responsibilities. Thus, neither party herein summoned Commissioner Walters for the purpose of soliciting his recollection. Counsel have stipulated that no critical inference should be drawn, disadvantageous to General Counsel or Respondent, from the fact that Walters was never requested to testify. Herein, the requisite deduction, in my view, may properly be made. While a witness, Bluto did concede that he had received certain "training" documents from the Federal mediator; since I have credited Flagg's testimony that six documents were given to Commissioner Walters simultaneously, I have concluded that he would more than likely have transmitted Respon- dent's pension and group insurance proposals concurrently with the various "training" documents which Bluto concededly received. The fact that Respondent's transmitted document con- taining its group insurance proposal was never returned - with Complainant Union's response - suggests merely that union negotiators may well have had substantial reservations or questions with respect thereto; they could reasonably have concluded that further face-to-face discus- sions, in extenso, would be more likely to produce a consensus than capsulized notations within the document's margin. Finally, I note Flagg's testimony, which Bluto neither challenged nor sought to qualify, that Complainant Union's service representative had - shortly before their session concluded - protested Respondent's presumptive omission, from its final November 6 proposals of certain pension provisions which can be found set forth within Respondent's prepared document, proffered for the record, dealing with that subject. Bluto's protest, in my view, warrants a deductive inference, which I draw, that he had - sometime previously during their November 6 session - reviewed or considered Respondent's complete pension proposal; having concluded that he did so, I would deduce, further, that Respondent's concurrent group insurance proposal had been, likewise, tendered for his consideration. With matters in this posture, then, I conclude, consistent- ly with Respondent's contention, that, during their Novem- ber 6 negotiations, Complainant Union's representatives were at least given the opportunity to consider Respondent's group insurance proposal containing the particular "dis- puted language" with which we are presently concerned. On November 7 Flagg supplied Complainant Union with a six-page document containing a summary of Respon- dent's various November 6 proposals. With respect to group insurance, the document set forth certain substantive proffers. Inter alia, the proposal reflected Respondent's willingness to make contributions to some qualified Taft- Hartley trust fund for Vernon plant workers "who are on the active payroll on the first working day of the month and who have been on the active payroll during the preceding full calendar month." (Emphasis supplied.) Further, Re- spondent's submission contained a final textual paragraph which read as follows: Items outlined above summarize major economic items as proposed by the company and do not include other economic or non-economic items as proposed by the company. Also, as mentioned in our original proposal, the company reserves the right to add to, subtract from, or modify its total proposal at any time during the negotiations. On November 8, Respondent's proposals were presented to Complainant Union's membership. They were rejected. During the discussion which preceded their rejection there were no questions raised or comments made, so far as the present record shows, relative to Respondent's proclaimed willingness to make trust fund contributions for workers on the Vernon plant's "active payroll" during specified periods. Further, no questions were raised, so I find, calculated to solicit some clarification with regard to Respondent's comment that its proffered summary did not compass "other" economic or noneconomic proposals previously proffered. Complainant Union's Vernon plant workers, following tjeir November 8 rejection of Respondent's final Novem- ber 6 proposals, struck the firm. Their work stoppage, so the record suggests, continued until December 9; on that date, so I find, the parties negotiated a substantial contractual consensus, calculated to conclude the strike. f. December 8 negotiations Throughout the Vernon plant's work stoppage, noted herein, Respondent and Complainant Union exchanged no further proposals. Respondent did send its striking workers a letter presumably calculated to define its position with regard to pending negotiations. The present record, however, provides no clue with respect to Complainant Union's reaction. Finally, on December 8, Respondent's negotiators and Complainant Union's representatives reconvened. Their marathon session, which began then, continued for some 36 hours; the negotiators reached a tentative contractual consensus on December 10, at 4 o'clock in the morning. During their talks, proposals were made orally; the tentative consensus reached - which concededly was not complete - was to be contingent upon ratification by Respondent's Vernon facility "bargaining unit" members. With respect to group insurance, consensual agreements were reached which called for several substantive modifica- tions of Respondent's prior November 6 proposal. The present record, however, clearly warrants a determination, which I make, that Respondent's disputed "termination of coverage" language - which had been set forth within its prior October 15 and November 6 proposals - was never specifically considered. Shortly before the parties concluded their marathon session, Flagg proffered a general, catchall proposal calculated to settle the disposition of those "open items" 56 NORRIS INDUSTRIES which had not theretofore been consensually reviewed. With respect to Flagg's precise proposal, the present record, however, reflects some testimonial conflict. Complainant Union's shop committee chairman and secretary both testified that Flagg had proposed a so-called reversion to their past contract's language, with respect to every residual open matter. Complainant Union Service Representative Bluto, however, subsequently capsulized Flagg's final comment thusly: . . . that the open items would be as we had agreed to before [namely, that past contract language would be renewed] or some of them would be resolved on the basis of what the company had proposed (bracketed interpolation added to promote clarity). According to Bluto, Flagg was then requested to designate specific "open items" which would be resolved on the basis of Respondent's most recent proposals. As Bluto recalled, Flagg mentioned a subcontracting provision, certain seniority provisions, and Respondent's prior proposal on Union leaves of absence; however, no references were made to Respondent's presently disputed "termination of coverage" language, in its previously proffered group insurance proposals. Summoned in Respondent's behalf, Flagg testified that he had proposed resolutions, with respect to various remaining "open" matters, based solely upon Respondent's last (namely, most recent), proposals; he recalled that, when Bluto requested a clarification, subcontracting and "two or three" further matters had been mentioned. Flagg conceded that the presently disputed "termination of coverage" language had not been discussed; he declared, however, that, with respect to group insurance, he had reiterated the firm's prior November 6 proposal with certain substantive changes. When queried specifically, Flagg initially denied that he had ever suggested a reversion to prior contract language, with respect to any remaining "open" matters, save in connection with "num- erous classification changes" which Complainant Union had proposed. Subsequently, however, he conceded that, with respect to holidays, vacations, committee seniority, overtime progression, and committee release time, the parties had, actually, consensually reaffirmed their prior contract's language. With matters in this posture, I credit Bluto's testimony regarding the significance of Flagg's final, catchall contract proposal. In substance, Flagg had, so I find, suggested: 1. That, with respect to contractual provisions regarding which Complainant Union had proposed changes, but with respect to which no changes had been consensually negotiated, prior contract language should be reaffirmed; and 2. That, with respect to contractual provisions regarding which Respondent had proposed changes, but with respect to which no changes had been consensually negotiated, Respondent's most recent proposals should provide the conceptual bases for the parties' prospective contract commitments. Though consensus had been reached with regard to certain substantive "Group Insurance" and "Pension" matters, further details with respect to both subjects were, so the record shows, still pending discussion and settlement. Inter alia, the disputed "termination of coverage" language with which we are concerned had not been specifically discuss- ed. Thus, Flagg's final portmanteau proposal - verbally given to Complainant Union's negotiators - necessarily carried a suggestion that, with respect to group insurance coverage terminations, Respondent's previously detailed provision would be part of their final consensus. On December 10, Flagg presented Complainant Union with a document dated the previous day, which purported to summarize Respondent's final proposal with regard to various "major" matters. Respondent's submission con- cluded with a paragraph which read as follows: Items outlined above summarize major areas as proposed by the company and do not include all economic or non-economic items as discussed, it being understood by the parties that these items will be as outlined in the company's last proposal. With respect to group insurance, Respondent's written proposal dealt solely with substantive matters. The disput- ed "termination of coverage" language (which had previ- ously been presented for Complainant Union's consider- ation, but never discussed) was not set forth. Complainant Union's negotiators reproduced Respondent's proposal, which was then presented to Complainant Union's mem- bership, presumably, during a December I meeting. Inter alia, Respondent's various substantive proposals with respect to medical insurance and dental care benefits were reviewed. Further, Service Representative Bluto's testimo- ny warrants a determination, which I make, that someone did question the significance of Respondent's final refer- ence to a consensus bottomed upon terms "outlined in the company's last proposal." In response, Bluto cited several of Respondent's proposed classification changes; no company proposal, calculated to define the conditions pursuant to which medical insurance coverage might be terminated, was mentioned. g. Respondent's partial contract draft is reviewed Sometime between December 10, 1975, and January 12, 1976, Flagg provided Complainant Union's shop commit- tee with a partial contract draft which purportedly reflected the contractual consensus previously reached. The record, considered in totality, warrants a determination, which I make, that Complainant Union's shop committeemen - presumably on December 17, but certainly before the Christmas holiday - did review Respondent's draft document, and suggest revisions. Respondent's proposed draft compassed 26 prospective contract articles; both schedules A and B set forth within draft articles II and VII respectively; schedules C and D dealing with job classifications and rates of pay by labor grade; and various "Training Program Outline" provisions, compassed within a partial schedule E draft, with respect to which six projected "training schedules" were still to be written; together with certain draft "Letters of Under- 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing" set forth within three subsections. Respondent's draft contract copy, so the record shows, contained no proposed or consensually negotiated language dealing with group insurance benefits or pensions. Necessarily, there- fore, the draft contained no reference whatsoever to those disputed "termination of coverage" provisions with which we are presently concerned. Complainant Union's shop committee chairman, so his credible testimony shows, queried Brady, Flagg's assistant, when he received Respondent's draft contract, with respect to whether it was complete. Respondent's representative conceded that it was not, though he merely cited "training programs" when requested to designate the material which was not being supplied. Brady's response, so the record shows, may not have been comprehensive. Nevertheless, I am satisfied that Complainant Union's shop committee members were not really misled. They knew, or could readily have determined, that specific language, drafted to reflect their presumptive concensus with regard to group medical insurance coverage and pensions, had not yet been proffered for review. h. The January 12 conference Shortly before January 12, 1976, Industrial Relations Manager Flagg notified Complainant Union's service representative that he had prepared contract "language" with respect to both group insurance and pension benefits. Bluto was asked whether he wanted provisions with respect to such matters made part of their prospective contract. When Bluto took no position, Flagg declared that he preferred to have their "Letters of Understanding" repro- duced where Respondent's employees could read them. Bluto then noted his acquiescence. The parties - so I find - thereupon "set up a meeting" for January 12; according to Flagg, the meeting's purpose was to "finalize the language" with respect to Respondent's group insurance and pension benefit programs. With respect to what transpired on January 12, however, Complainant Union's representatives and Respondent's negotiator have presented significantly divergent testimo- ny. Their concededly disparate recollections must therefore be considered. While a witness, Flagg recalled - with Brady's corrobo- ration, in material part - that the parties met on January 12 pursuant to their prearrangement; that Service Repre- sentative Bluto, and Complainant Union's shop committee chairman, vice chairman, and secretary, together with Complainant Union's local "skilled trades" representative, were present; that he (Flagg) produced a three-page document setting forth Respondent's complete "Group Insurance" and "Pension" proposals, which, inter alia, contained the currently disputed "termination of coverage" language; that copies of these draft provisions were distributed to each of Complainant Union's representa- tives; that these drafts were read; and that Bluto thereupon proffered three suggested changes. First: Respondent's group insurance proposal, within a paragraph which preceded the final paragraph containing the currently disputed language, committed the firm to make a designat- ed contribution for dental care, geared to straight-time hours "worked" by qualified bargaining unit employees; Complainant Union's service representative, so Flagg testified, requested that Respondent's contribution should be shown as based upon straight time hours "paid" rather than hours worked. Second: Within several successive paragraphs, set forth in Respondent's pension proposal, the firm's progressively greater contribution commitments had been likewise defined with respect to straight time hours worked; Bluto suggested several parallel changes, consis- tent with his prior suggestion, whereby Respondent's contribution commitments would be geared to hours "paid" rather than hours worked. Third: Flagg, when presenting his draft proposals, had declared his desire to rewrite part of his firm's draft pension provision, so that Respondent could not be considered committed with respect to contributions for "bargaining unit" workers to both Complainant Union's labor-management group pen- sion plan and his firm's previously maintained retirement fund; thereupon, so Flagg testified, Bluto suggested a strategically placed textual insertion of the single word "both" which would accomplish Respondent's objective. According to Flagg, no other language changes were suggested; Complainant Union's representatives did not even mention or discuss Respondent's proffered "termina- tion of coverage" language in its group insurance proposal. As noted, Complainant Union's several shop committee members and Service Representative Bluto have, herein, presented a somewhat different picture with respect to what took place during their January conference with Respondent's negotiator. They recalled a general "discus- sion" with regard to certain administrative problems connected with Respondent's proposed "pension" and "dental plan" coverage commitments. Further, they re- called a discussion regarding the calculation of Respon- dent's proposed pension fund and dental benefit contribu- tions, during which Respondent's industrial relations manager had concurred with Bluto's suggestion that such contributions should be based on hours "paid" rather than hours "worked" by bargaining unit employees. (Initially, Complainant Union's three shop committee representa- tives could not recall precisely when their January discussion, with regard to these several subjects, took place. Bluto's testimony, however, reflects a tacit concession - consistent with Respondent's present contention - that their conference took place on January 12; I have so found.) Complainant Union's spokesman contended further that they discussed the prior discharge of a particular worker, Lupe Noriega, during this conference. While conceding that verbal discussions had been pursued, with respect to certain group insurance and pension matters, they denied Respondent's contention that they had been supplied with draft "Group Insurance" and "Pension" proposals which they had reviewed. They did, however, testify - consis- tently with Flagg's contention - that during their verbal discussions Respondent's currently disputed "termination of coverage" language, in its purportedly proffered "Group Insurance" proposal, had neither been mentioned nor discussed. With matters in this posture, Flagg's testimonial recollec- tions - specifically with regard to this January 12 conference - merit credence, in my view. My determina- 58 NORRIS INDUSTRIES tion, bottomed upon a complete record review, derives from various considerations; those, among others which may most reasonably be deemed weighty, should be mentioned. First: Complainant Union's shop committee secretary, Leroy "Chico" Johnson, did concede during cross-exami- nation that he had "reviewed" the specific language set forth in the first four paragraphs of Respondent's negotiat- ed "Pension" commitment before January 19, when, so the record shows, representatives of the parties signed the contract with which we are presently concerned. When queried, then, with respect to precisely when he had previously reviewed the specific language noted, Johnson declared that he had done so some 2 weeks after Complainant Union's December II contract ratification vote, while he, together with Vice Chairman Valenti of Complainant Union's shop committee, was "going over" the partial contract draft which Respondent had prelimi- narily compiled. The documentary record, however, clearly reveals that Respondent's partial contract compilation - which Complainant Union's shop committeemen were given to review shortly before the Christmas holiday - had contained no "Pension" provision whatsoever. Further, Leroy Johnson did testify that he had seen two particular paragraphs, currently found within Respondent's negotiat- ed "group insurance" letter, before January 19; however, he recalled seeing those paragraphs as part of Respondent's previously proffered December 9 package proposal. When reminded that those particular paragraphs had not been set forth, in haec verba, in Respondent's December 9 group insurance proposal, Johnson changed his mind, declaring that he had not reviewed them. When considered, with due regard for its complete record context, Johnson's less-than- certain testimony, in my view, does suggest that he had actually been given a chance to review the specific contractual language now in dispute, inter alia, sometime before Complainant Union's representatives signed the contract with which we are concerned. Certainly his proffered recollections can hardly be considered sufficient- ly persuasive to foreclose such a determination. Second: Leroy Johnson's further testimony reflects his claimed recollection that, during the January 12 conference which we are now considering, the parties discussed Lupe Noriega's termination, previously noted; that they sched- uled future conference dates, when various pending grievances would be discussed; and that they discussed a possible special arrangement calculated to preserve pen- sion rights for some 10-17 Vernon plant workers. However, January 12, 1976, fell on Monday; Complainant Union's shop committee and Respondent's representatives normal- ly discussed grievance matters - so the record shows - during Thursday conferences. Further, Respondent's wit- nesses have testified - credibly, I find - that when the parties held their January 12 conference, Noriega's written grievance had not yet been filed. Mindful of this, I conclude that Johnson's professed memories, with regard to particular matters related to grievance disposition which the parties discussed, cannot be considered completely reliable. His presumptively mistaken recollections, with regard to subjects which purportedly were discussed, necessarily renders his concomitant denial that Respon- dent's draft proposals on group insurance and pension matters were proffered for review less than persuasive. Third: During cross-examination, Complainant Union's shop committee chairman, Larry Johnson, did concede that various pension matters had been discussed during the parties' January 12 conference; further, he did concede - despite a professed failure of recollection - that Com- plainant Union's representatives "may have had" some document, with specific pension language, before them. In that connection, Johnson speculated that certain designat- ed sections of Respondent's contractual "pension" com- mitment may have been proffered for Complainant Union's consideration when the firm's so-called "Decem- ber 9th" written proposals were presented; a review of that compilation, however, reveals that it did not contain the specific language to which reference was made. Johnson finally recalled having seen such language, but could not recall precisely where or when he had seen it. With due regard for his conceded failures of recollections, I find his direct testimony - that Respondent's spokesman had presented no draft "Group Insurance" or "Pension" proposals for group consideration during their January 12 conference - less than persuasive. Fourth: Complainant Union's representatives have sever- ally conceded, within their testimonial recitals, that, during their conference, Service Representative Bluto had request- ed Respondent's commitment to calculate monthly "pen- sion" and "dental" plan contributions geared to hours "paid" rather than hours worked. Mindful of this conces- sion, Respondent's counsel - within his brief - notes cogently that: Parties do not discuss language changes unless they are reviewing documents and the changes which the Union witnesses admitted discussing are consistent with . . . the documents and testimony of Mr. Brady and Mr. Flagg. Despite Bluto's witness chair declaration that, "I don't believe that I ever had a document before me when the issue was being discussed," I find these comments persuasive. In this connection, further, I note Bluto's testimonial concession that he had suggested a second language change calculated to forestall any possibility that Respondent might be committed to contribute for two pension plans. He had merely suggested that the specific word "both" should be inserted within a single designated sentence. Clearly such a suggestion - succinctly phrased and limited in scope - would most likely have been made with reference to specific contractual language which the parties then were considering. Fifth: Complainant Union's representatives contend that much of the language currently found within their consensually negotiated "Letters of Understanding" deal- ing with group insurance and pension benefits derived from Respondent's December 9 proposal, which Com- plainant Union's membership had subsequently ratified. The signed contract document with which we are con- cerned, however, contains three paragraphs which Respon- dent's negotiators had not yet presented, verbatim, for Complainant Union's consideration, when Flagg proffered his written recapitulation of their December 9 consensual 59 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commitments. (The disputed "termination of coverage" language can be found within the last of these three paragraphs.) Further, Respondent's current "Pension" letter reflects some comprehensive, nonsubstantive, textual revisions of Flagg's December 9 formulation dealing with retirement plans. Substantially, therefore, General Counsel would seem to be seeking a determination herein that Industrial Relations Manager Flagg was trying to quietly "shoehorn" three paragraphs concerned with group insurance benefits, plus a significantly revised "Letter of Understanding" dealing with pension benefits, into the parties' prospective contract documents, though Complainant Union's negotia- tors had never been given a chance before January 19 to review their definitive textual formulation. The suggestion, in my view, carries no persuasion. Respondent's negotiator, so I find, had theretofore pursued negotiations with complete good faith; the fact that his "Group Insurance" and "Pension" proposals may not have been thoroughly canvassed before January 12 derived solely from the exigencies of the parties' collective-bargaining situation. Complainant Union's spokesmen, herein, may have genuinely convinced themselves that they could not, consciously, have concurred with Respondent's currently disputed "termination of coverage" proposal. Consequent- ly, they may have further convinced themselves that they had never been presented with such a broadly permissive "Letter of Understanding" provision - which dealt, inter alia, with termination of medical insurance coverage for workers on medical leave. However, their testimonial protestations, within my view, cannot withstand scrutiny. I find, consistently with Respondent's contention, that before Complainant Union negotiators were finally pre- sented with a draft contract ready for signature, they had, indeed, been given a proper opportunity to review Flagg's definitive formulation of Respondent's group insurance proposal. i. The draft contract is signed Directly following the January 12 conference with which we have been concerned, Brady had Respondent's master copy of Flagg's draft group insurance and pension proposals modified to conform with Bluto's several suggestions. The conjoined letters, thus modified, were subsequently photocopied; reproductions of both modified draft formulations were placed in Brady's so-called contract file folder. Thereafter, when Flagg directed Brady to collect and bind the various documents which com- passed Respondent's contractual consensus, the latter bound the firm's draft "Group Insurance" and "Pension" provisions with his previously prepared partial contract draft, noted herein. On January 19, Complainant Union's concerned staff representatives, local officers, and shop committeemen met with Respondent's several management representatives, for a so-called celebration dinner in a community restaurant. Copies of their negotiated contract, ready for signature, were supplied. (The contract copies, bound with metallic paper fasteners, contained the several current "Letters of Understanding" which the parties had negotiated. Inter alia, these compassed a designated sec. D which contained Respondent's previously drafted and consensually modi- fied "Group Insurance" and "Pension" benefit programs; the firm's group insurance letter contained the disputed "termination of coverage" language with which we are herein concerned. The bound contract draft further contained a complete collection of those provisions which the parties had consensually negotiated, save for six "training schedule" appendixes which had not yet been completely formulated.) In a general atmosphere of friendly convivial relaxation, Bluto queried Flagg with respect to whether his proffered contract draft reflected the consensus which Respondent and Complainant Union had reached. Upon receiving Flagg's reassurance that it did, Bluto and his fellow union representatives signed the contract. The record, however, warrants a determination, which I make, that no union representative thumbed through or reviewed the docu- ment's contents before signing it. Shortly thereafter Brady was given delegated responsibil- ity for getting the contract printed. His testimony - which I credit in this connection - reveals that he took Respondent's complete contract draft, together with various "Letters of Understanding" including his firm's pension and group insurance benefit letters, and submitted them to Respondent's previously selected printer. 3. Subsequent developments a. Complainant Union's review of contract galley proofs On January 30, while Respondent's printer was still working on their contract, several company representatives so I find met with Service Representative Bluto to consider some procedural questions which Respondent's controller wanted resolved concerning the prospective implementa- tion of their negotiated pension plan. During their discussion, those present - so Flagg's credible, uncontra- dicted testimony shows - referred to paragraphs B through E in Respondent's designated "Letter of Under- standing" dealing with pension matters. These paragraphs can be found - in the specified letter - set forth on the same photocopy page which contains the disputed "termination of coverage" language, relative to workers on medical leave, closing the prior group insurance letter. Mindful of this, I conclude - consistent with Respondent's contention - that during this January 30 conference Service Representative Bluto's personal attention would necessarily have been focused upon pension "letter" language closely proximate to the disputed group insurance provision noted. Necessarily, therefore, his knowledge that Respondent's management, then, consid- ered these final letter formulations - concerned with both its group insurance and pension commitments - part of their negotiated consensus, may reasonably be inferred; I so find. Sometime later, during February 1976, Brady received from Respondent's printer two sets of galley proofs for the contract "booklet" which Respondent would thereafter have printed. He supplied Larry Johnson, Complainant Union's shop committee chairman with a galley set, which Complainant Union's representatives could proofread. 60 NORRIS INDUSTRIES According to Brady, Complainant Union was given a collected set of galley pages which contained the complete text of what subsequently became Respondent's printed contract booklet, save for six training schedules. Specifical- ly, Brady testified that the galley set which he transmitted compassed a complete "Letters of Understanding" compi- lation, which Respondent and Complainant Union had agreed they would reproduce in their printed contract booklet. More particularly, Brady recalled that the galley set included Respondent's negotiated "Group Insurance" and "Pension" benefit commitments. Complainant Union's witnesses, however, have proffered diverse recollections with respect to what they received. Specifically: Shop Chairman Johnson declared that the galley set which Brady provided contained merely the first 80 pages of their prospective printed contract. Substantial- ly, Johnson's declaration reflects his recollection that Complainant Union was supplied with a galley set which merely compassed the parties' formal contract, together with schedules "C" and "D" previously noted; thus, according to Complainant Union's shop chairman, the galleys contained no schedule "E" training program outline, no "Letters of Understanding" whatsoever, and no detailed training schedules. However, Vice Chairman Valenti of Complainant Union's shop committee testified that, when he was requested to proofread galleys, Chair- man Johnson gave him a collection of galley sheets which included Respondent's schedule "E" training program outline, plus various "Letters of Understanding" with the exception of those concerned with group insurance and pension benefits. The record considered in totality persuades me that Brady's proffered recollection, particularly with reference to this galley set's substantive content, merits credence. When requested to provide Respondent's printer with draft material for a prospective "contract" booklet, Brady would have had no reason to withhold any part of the January 19 compilation which Complainant Union's representatives and Respondent's management spokesmen had signed; I conclude that nothing was withheld. The compilation which he sent to Respondent's printer, so I have found, would, therefore, have contained draft "Letters of Under- standing" concerned with pension benefits, medical insur- ance coverage, and dental plan benefits. Further, Respon- dent's last designated "Group Insurance" letter submission would have contained the disputed "termination of coverage" language with which we are concerned. Further, Brady's testimony that he received from Respondent's printer galley sheets which contained com- plete "Group Insurance" and "Pension" letters, and that he transmitted those galley sheets to Complainant Union's representative has documentary support. That support - which could be described with circumstantial detail would, however, require a rather lengthy exposition; suffice it to say, therefore, that Respondent's collection of galley pages, submitted for the present record, reflects a system of pagination provided by the firm's printer, which persua- sively demonstrates that a galley sheet numbered "23" which contained complete "Group Insurance" and "Pen- sion" letter texts had been provided for proofreading. (The record does show that Respondent's printer subsequently provided Brady with a second collection of galley sheets. While a witness, Shop Committee Chairman Johnson, testified that, when he was given this second compilation for proofreading, he was told, "This is one that's got the Letters of Understanding and Training Programs in it." My review of Respondent's documentary submission, however, has persuaded me that Johnson's testimony reflects faulty recollection. The printer's pagination marks, in his second set of galley sheets returned for proofreading, clearly reveal that it covered merely six training schedules.) True, Vice Chairman Valenti of Complainant Union's shop committee did testify that, when he proofread the first collection of galley sheets which Brady had provided, he merely reviewed "Letters of Understanding" within sec- tions A, B, and C thereof, but not those compassed within section D which dealt, inter alia, with "Group Insurance" matters and contained the currently disputed "termination of coverage" language. However, Valenti's testimonial recitals, in my view, reflect his possible confusion or defective recollection. (Valenti testified initially that he had proofread merely the printer's first 22 numbered galley sheets. When reminded that this would mean he could not have proofread sec. C of the galley sheets "Letters of Understanding" portion completely, since that section had been continued for several paragraphs on page 23 in the galley sheet collection, Valenti changed his testimony; he declared that he had proofread sec. C completely, includ- ing the portion reproduced on page 23 noted.) Should a determination be considered warranted that Valenti did indeed review section C completely, in the galley sheets "Letters of Understanding" portion, but that he reviewed nothing further therein, this Board would be constrained to conclude, perforce, that Respondent's printer had provided a partially filled galley sheet page 23 in a proof set which contained further numbered galley sheets; nothing within the present record, however, would support a determination that such a partially filled galley sheet had ever been provided. Clearly, Respondent's documentary record calls for determinations, rather, that Valenti received and reviewed 25 completely filled galley sheets which - in their designated "Letters of Understand- ing" portion - did contain a sheet numbered 23 with section C's final paragraphs, plus complete "Group Insur- ance" and "Pension" letters. Necessarily, therefore, Vice Chairman Valenti could have, inter alia, proofread the disputed "termination of coverage" language with which we are presently concerned. Further proof that Flagg did, indeed, provide Complain- ant Union's representatives with galley sheets which contained their consensually negotiated section D benefit letters can be cited. In Respondent's January 12 draft "Group Insurance" proposal and the January 19 draft contract - compassing a modified "Group Insurance" letter - which the parties signed, some draftsman or typist had made a typographical error; the firm's promised contribution rate for certain designated "dental plan" coverage, which should have been shown as 11.5¢ per straight time hour paid, was shown as .115¢ per straight time hour. The contract booklet which Respondent's printer finally produced, however, reflects the firm's promised contribution rate correctly. Clearly the requisite 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD correction must have been made after the particular galley sheet which reflected the error had been proofread. With respect thereto, Brady testified that the printer's presump- tive .115¢ mistake had been noticed and mentioned, during a conversation, by Leroy Johnson, Complainant Union's shop committee secretary; that Brady had, thereupon, corrected his galley copy, which he returned to Respon- dent's printer; and that the printer had subsequently submitted a corrected galley sheet with the contribution rate properly shown. Before Brady testified, Leroy Johnson had initially conceded that he "could have" had a conversation with Brady regarding this mistakenly repro- duced monetary figure; directly following his concession, however, Johnson had proffered a retraction, contending that he could not remember. Thereafter, when summoned in rebuttal, subsequent to Brady's testimony, Johnson declared initially that they had not had "any" discussion regarding this .115¢ mistake; secondarily, however, he recalled a conversation during which Brady had mentioned certain "corrections or additions" which the galleys would require based upon his notes; finally, Johnson reiterated his prior testimony that he could not remember discussing "decimal points" with Respondent's representative. Since Johnson's proffered recollections considered in totality clearly reflect his lack of certainty in this connection, Brady's witness chair recital with respect to their conversa- tion, in my view, merits credence. With matters in this posture, I conclude - consistent with Respondent's contention - that, when Complainant Union's representatives reviewed and proofread galley sheets for their prospective contract booklet, they were provided, inter alia, with a fully complete opportunity to consider Respondent's group insurance commitments, their defined limitations, and, more particularly, the disputed "termination of coverage" provision which Gen- eral Counsel challenges herein. b. Respondent's implementation of the disputed language Sometime after March 1, Respondent implemented the disputed language with which we are concerned. According to Flagg - whose testimony in this respect merits credence - no determinations with respect to medical insurance coverage suspensions had been made prior thereto, because March I had been designated the consensually determined "effective date" for various insurance coverage options which Respondent's Vernon facility workers would be given a chance to choose. Respondent's personnel manager - so Flagg's testimony shows - was thereafter designated to draft a letter, directed to workers then on medical leave, notifying them that their group medical insurance coverage would be terminated prospectively at the close of the month following the month during which their leave had commenced. Shortly thereafter, sometime in late March or April 1976, Shop Committee Chairman Johnson received a telephone call from a Vernon facility worker; the latter reported that he had just received a letter notifying him his medical insurance coverage would be terminated should his leave continue for another 30 days. Johnson promptly called on Flagg; when the latter reiterated Respondent's purpose to effectuate terminations of medical insurance coverage, thereafter, consistent with the provision dealing with that subject in their "Group Insurance" letter, Johnson asked how terminations of coverage would be handled. His testimony with respect to what he understood Flagg's reply to convey, which I credit, reads as follows: . . . [He] went on to explain that people that were off on sick leave, if they're hurt on company property, they will go ahead and continue to cover them. If it's a personal leave or a personal sick leave, then they would terminate it 30 days after the month in which they left. However, if they went out on [work-related] sick leave, it would cover them for that injury only, and drop the dependents and all this other. When, thereafter, Shop Committee Chairman Johnson told Service Representative Bluto that permissive "termination of coverage" language had been incorporated in their negotiated "Group Insurance" letter, Bluto promptly called upon Flagg; he queried the latter with regard to how this had happened. Flagg declared that Complainant Union's representatives had "agreed" with respect to the disputed language's inclusion during their January 12 conference. Bluto protested, however, that his negotiation files contained no "document" which reflected a consensus reached relative to the disputed "termination of coverage" language; he contended that Complainant Union's spokes- man had never "discussed" such a broadly permissive provision during their contract talks. c. Complainant Union proposes a revised contract for Respondent's concurrence Thereafter, so the record shows, Bluto conferred several times with Flagg and various representatives of Respon- dent's management. Flagg, however, would not consider a modification of Respondent's newly determined policy and practice with regard to group medical insurance coverage terminations for workers on medical leave. On or about June 3, so the record shows, Bluto prepared a revised contract with the disputed language deleted. More particularly, he prepared a complete contract with a revised "Group Insurance" letter; there the designated letter's final sentence - which, inter alia, contained the disputed language calculated to permit Respondent's termination of group insurance coverage for workers on medical leave - had been excised completely. Bluto requested Flagg to sign his proffered document as revised; Flagg, however, refused. Shortly thereafter Complainant Union's charge herein was filed. C. Discussion and Conclusions 1. Issue The duty to bargain collectively, which Section 8(a)(5) and Section 8(b)(3) of the statute, taken together, lay conjointly upon concerned employers, labor organizations, and their representatives, compasses a consequential duty requiring both parties to execute written contracts "incor- porating any agreement reached" when requested. See, specifically, Section 8(d); cf. H. J. Heinz Company v. 62 NORRIS INDUSTRIES N.L.R.B., 311 U.S. 514, 526 (1941). This much, presum- ably, Respondent's principal negotiator and Complainant Union's representatives would, herein, concede. The statute, however, lays down a further requirement. When collective-bargaining contracts have been, finally, negotiated and signed, neither party may modify the terms and conditions provided for therein, save in situations where the party desirous of some modification has complied with certain designated preconditions. Inter alia, the party desiring a modification must "offer to meet and confer with the other party" for the purpose of negotiating a modified contract. Neither party, however, may be required to discuss or consent to modifications of particu- lar terms and conditions, defined within a contract for some fixed period, should the moving party propose a modification which would become "effective" before some designated contract reopening date. General Counsel's representative, herein, concedes - necessarily - that Complainant Union and Respondent have negotiated and signed a written contract, with "Letters of Understanding" supplementary thereto, which taken at face value purports to reflect their reciprocal consensual commitments. Nevertheless, he (General Coun- sel's representative) seeks a Board determination, now, which would partially modify their "Group Insurance" letter's terms and conditions, by proscribing Respondent's claimed right to terminate group insurance coverage for disabled workers on medical leave coterminously with "the end of the month following the month" in which their leave commenced. More particularly, he contends that there was no consensual "meeting of the minds" between Complain- ant Union and Respondent, pursuant to which the disputed "termination of coverage" language previously noted herein - which would facially validate the firm's current practice - became part of their negotiated "Letter of Understanding" dealing with group insurance benefits. In this connection, General Counsel's representative seeks a determination that Complainant Union's negotia- tors reasonably believed Respondent's disputed "termina- tion of coverage" language would not be compassed within the specific "Letter of Understanding" with which we are concerned. (Since the record considered in totality would clearly warrant a determination, which I make, that Respondent's proposed "termination of coverage" provi- sion was never particularly considered, discussed, or rejected, in haec verba, during the parties' negotiations, General Counsel's contention, in my view, could have been proffered more appropriately with obverse phraseology; namely, that Complainant Union had never been given reason to believe that Respondent wanted the disputed language with which we are concerned specifically incorpo- rated in their proposed "Group Insurance" letter.) In his brief, General Counsel's representative further notes Respondent's manifest belief that Complainant Union's representatives had "agreed" or "acquiesced" regarding the specific inclusion of Industrial Relations Manager Flagg's proposed "termination of coverage" provision within a consensually negotiated "group insur- ance" benefit program. Then, since the record considered in totality reveals, so General Counsel contends, that Complainant Union's representatives and Respondent's principal negotiator honestly held divergent subjective beliefs, particularly with regard to whether Flagg's pro- posed "termination of coverage" language should have been considered part of their negotiated consensus, he suggests that no true meeting of the minds with respect thereto had been reached. Having made this point, General Counsel submits further that: ... Respondent's implementation of the changes [permitted byl the disputed language on March 1, 1976, must be found to have constituted a unilateral change in conditions of employment .... It is well establish- ed that an employer is not only under a duty to bargain exclusively with the chosen representative of its employees concerning the terms and conditions of their employment, but is under the correlative obligation not to unilaterally change established conditions without consultation and bargaining with a representative of its employees, in the absence of circumstances excusing or justifying such unilateral action .... In this case, there was no agreement between the parties and there are no circumstances which justify or excuse Respon- dent's unilateral action. Consequentially, Respondent's course of conduct, in General Counsel's view, should be considered a statutory "refusal to bargain" violative of Section 8(a)(Xl1) and (5) of the statute. Supporting this contention, he cites Reapp Typographic Service, Inc., 204 NLRB 792 (1973), where Administrative Law Judge Peterson determined, with Board concurrence, that a respondent employer had violated Section 8(a)(5) and (1), during a contract's term, through its unilateral discontinuance of sickness, accident, and life insurance programs which - pursuant to contrac- tual requirements - the designated respondent had previously provided. Respondent contends, contrariwise, that Complainant Union's representatives - through their course of conduct during the negotiations with which we are concerned and, specifically, through their failure to protest or question the formulation of Flagg's proffered "termination of coverage" provision in Respondent's January 12 group insurance proposal - had, indeed, demonstrated their acquiescence with respect thereto. Their failure to protest or raise questions, Respondent's counsel suggests, should be con- sidered a competent "manifestation of assent" sufficient to warrant Respondent's conclusion that a negotiated consen- sus, with respect to group insurance benefits generally, reflected Complainant Union's concurrence, inter alia, with the firm's permissive "termination of coverage" language compassed therein. 2. Conclusion With matters in their present posture, General Counsel's representative seeks a Board determination which would essentially confirm Respondent's present contractual and supplementary "letter" commitments, but would neverthe- less abrogate the firm's currently claimed right to make decisions - with regard to terminations of group insurance coverage for certain Vernon facility workers on medical leave - which its negotiated "Group Insurance" letter 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facially and clearly permits. Substantially, therefore, General Counsel's representative - through his contention that Respondent's current course of conduct, which has been consistent with a patently permissive "Letter of Understanding" provision, should nevertheless be consid- ered "unilateral action" statutorily proscribed - really seeks a reformation of the firm's completely memorialized consensus previously reached with Complainant Union's representatives. See 66 Am. Jur. 2d 521, "Reformation of Instruments," Section I, ff. There we find certain princi- ples, germane herein, set forth: § 1. The equitable remedy of reformation of written instruments is the remedy afforded . . . to the parties . . . to written instruments which import a legal obligation, to reform or rectify such instruments whenever they fail, through mistake or fraud, or a combination of fraud and mistake, to express the real agreement or intention of the parties. The action for such relief rests on the theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake or mistake andfraud, some provision or language was omitted, inserted, or incorrectly worded, and the action is to change the instrument so as to conform it to the contract agreed on. Reformation of a written instrument is permitted only on the supposition that it does not represent the true agreement of the parties, and is ordered so as to effectuate their true intent. If the instrument embodies the actual contract of the parties, reformation will be refused. And reformation will also be refused if the minds did not meet and there was no preexisting agreement and common intention to which the instrument can be conformed [Emphasis supplied.] §4. Inasmuch as the relief sought in reforming a written instrument is to make it conform to the real agreement or intention of the parties, a definite intention or agreement on which the minds of the parties have met must have preceded the instrument in question. There can be no reformation unless there is a preliminary or prior agreement, either written or verbal, between the parties, furnishing the basis for rectifica- tion or to which the instrument can be conformed .... Mutual mistake in a written instrument presup- poses a prior or preceding agreement between the parties, and to show the mutual mistake, the preceding agreement must ex necessitate be shown. Both parties must have understood the contract as it ought to have been and in fact was, except for the mistake .... §6. Although both seek to arrive at the intention of the parties, there are obvious differences between the construction of a written instrument and its reforma- tion. When a court construes a written instrument, it is assumed that the instrument reflects the actual agree- ment of the parties, and the language calls for construction because it is uncertain or ambiguous. On the other hand, ambiguity or uncertainty has nothing to do with the reformation of a written instrument, but rather reformation is adjudged because the instrument, by reason of mistake or fraud, does not embody the true agreement of the parties .... §11. Upon the reformation of an instrument, the general rule is that it relates back to, and takes effect from, the time of its original execution. [Note: General Counsel seeks a remedial directive herein whereby Respondent would be required to reinstate insurance coverage for workers whose coverage had not been properly terminated, and to make whole such workers for whatever losses they may have suffered, or medical expenses they may have been required to bear.] §12. There are two basic grounds for the reforma- tion of written instruments which do not correctly state and embody the intention and pre-existing agreement of the parties to the instrument, namely, (1) mutual mistake of the parties, and (2) ignorance or mistake of the complaining party coupled with or induced by the fraud or inequitable conduct of the other or remaining parties .... [Emphasis supplied.] § 13. There must be an antecedent agreement which the written instrument evidences, and the mistake must have been in the drafting of the instrument, not in the making of the contract .... A mistake which is relievable in equity has been defined as some uninten- tional act, omission or error arising from ignorance, surprise, imposition, or misplaced confidence .... [T]he ignorance must be unconscious, and not a mental state of conscious want of knowledge as to something that may or may not exist .... §22. [W]hen no question of fraud, bad faith, or inequitable conduct is involved and the right to reform an instrument is based solely on a mistake, it is necessary that the mistake be mutual . . . it follows from the above that in the absence of fraud or inequitable conduct by the other party . . . unilateral mistake is not a ground for reformation, the remedy in such case being cancellation or recision of the instru- ment. §23. A mutual mistake, for which an instrument will be reformed, is one which is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. It is a mistake shared by both parties to the instrument at the time of reducing their agreement to writing, and the mistake is mutual if the contract has been written in terms which violate the understanding of both parties - that is, if it appears that both have done what neither intended . .. . By the statement that the mistake must be mutual is not meant that both parties must agree at the hearing that the mistake was in fact made, but that the evidence of . . . mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing .... [Emphasis supplied.] §24. Fraud practiced in drawing and executing an instrument so that it does not speak the real terms of the contract which the parties have agreed on, or unconscionable conduct amounting to fraud, consti- tutes grounds for a reformation of the instrument if it is essential to protect from in ury the innocent party thereto..... Of course, tne right to reformation 64 NORRIS INDUSTRIES cannot be based on the ground of fraud if the other party did nothing to mislead the complainant. §49. A court of equity . . . may strike out of an instrument subject matter not embraced within the actual agreement of the parties, and also clauses inserted by the mutual mistake of the parties or by the scrivener or draftsman against the intention of the parties. [Empha- sis supplied.] §75. If a party acquiesces in an instrument after becoming aware of the mistake, he loses his right to reformation. The acquiescence may be direct or implied §79. [M]ere negligence in executing or accepting a written instrument is not a bar to reformation where the ground for relief is mutual mistake. Mistakes nearly always presuppose negligence, and so it must be evident that the rule which permits reformation on the ground of mutual mistake does not contemplate that mere negligence will bar reformation . . . It is clear that a unilateral mistake is not of itself a ground for reforming a written instrument. If, therefore, a party who seeks reformation proves only a unilateral mistake he has not established a cause of action; he is not entitled to relief even if he has exercised the highest possible degree of care; and there is no point in talking about negligence .. .. [Emphasis supplied.] §83. In accord with the rule that mere negligence is not a defense to a complaint or reason to reform an instrument, it is held that the negligent failure of the complaining party to read an instrument before he signed it does not of itselfbar reformation, or does not necessarily bar reformation. Where the parties to a contract have reached an agreement on its terms and one of them has undertaken to reduce the contract to writing or to prepare a writing which embodies the agreement, the other party is ordinarily entitled to assume that the written instrument is correct, and is not barred from reformation by signing or accepting it without reading it. .... [Note. however, that the party desirous of reformation must still show that the challenged error within the instrument was a product of mutual mistake, which he negligently failed to detect. Interpolation provided to promote clarity.] Mindful of these principles, I find no justification, in the present record, for determinations - consistent with General Counsel's contention - that Respondent's course of conduct reflects a statutorily proscribed refusal to bargain. Rather, I find Respondent's current policy and practice, with respect to terminations of group insurance coverage for Vernon facility workers on medical leave, properly bottomed upon "Letter of Understanding" lan- guage with respect to which Complainant Union should be considered bound. Several considerations which have led me to this conclusion may be noted. First: I note, despite the General Counsel's contrary contention, that Complainant Union's negotiators before their January 19 contract signing ceremony had been given "reason to believe" that Respondent's spokesman desired certain language, calculated to define various situations in which group insurance coverage for bargaining unit workers would be terminated, set forth in a definitive "Letter of Understanding" consensually negotiated. Re- spondent's specific formulation, drafted for that purpose, had concededly been presented for Complainant Union's consideration, inter alia, during their October 15 session. (Respondent's complete proposal had then been rejected. Complainant Union's representatives had not catalogued their reasons; clearly, however, they had not been con- cerned particularly with Respondent's proffered "termina- tion of coverage" provision. The firm's principal negotiator certainly had not been given notice that his proffered formulation, with respect thereto, would be disapproved.) Respondent's industrial relations manager subsequently presented his suggested provision without change through a Federal mediator; Complainant Union's representatives, so I have found, proffered no protest. True, they probably were primarily concerned throughout their November 6 session with several different matters; the record, however, warrants a determination in my view that they were then given a sufficient chance to note the broadly permissive scope of Respondent's reiterated "termination of coverage" proposal. Thus, when Respondent's industrial relations manager - toward the conclusion of their subsequent December 8 - 10 marathon session - finally suggested that certain "open" matters should be considered resolved "on the basis of what [Respondent] had proposed" his proffer necessarily conveyed a further reiteration of Respondent's previously drafted "termination of coverage" language, compassed in a comprehensive "Group Insur- ance" proposal with respect to which substantial consensus had been reached. (Though Flagg, when requested to designate various matters which might be resolved consis- tent with his suggestion, did fail to mention Respondent's previously proffered "termination of coverage" provision, his lapse, in my view, reflected neither guile nor any purpose of concealment. In its situational context, rather, Flagg's failure to vouchsafe a complete, comprehensive reply, when confronted with Bluto's query, reveals nothing more than presumptive fatigue, sufficient to warrant a deduction that he probably suffered from a memory failure following the parties' lengthy, stressful bargaining session.) Finally, during their subsequent January 12 conference, Respondent's principal negotiator, so I have found, presented Complainant Union's representatives with a definitive "Group Insurance" draft letter proposal which, inter alia, contained once more Respondent's desired "termination of coverage" language. The firm's draft and Respondent's concurrently presented "Pension" letter proposals were reviewed. Changes with respect to both proposals were suggested and considered; consensus was reached. Though Respondent's proffered coverage termi- nation provision concededly was not then discussed, Complainant Union's negotiators were neither precluded from considering it, nor misled regarding its purpose. With matters in this posture, General Counsel's present conten- tion - that no proper "meeting of the minds" between Complainant Union and Respondent can be found with particular reference to Respondent's proffered "termina- tion of coverage" provision - carries no persuasion. Compare A. Schlecht v. Hiatt, 271 F.Supp. 644 (D.C. Ore., 1967), reversed on jurisdictional grounds 400 F.2d 875 (C.A. 9, 1968), in this connection. Therein, the district 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD court, confronted with a complainant union's claim for relief bottomed upon a written contract, found that, while the particular contract provision which the labor organiza- tion cited to justify its claim had not been discussed in detail during the contracting parties' negotiations, no union representative had made "false or misleading" statements with respect thereto; that the concerned employer had been given a full opportunity to read and study the contract; that he had "elected" not to read its provisions; and that he should, under the circumstances, be considered bound thereby. Second: Respondent's present contention that Complain- ant Union's course of conduct, throughout their negotia- tions and specifically during their January 12 conference, should be considered a competent "manifestation of assent" sufficient to warrant Respondent's belief that a consensus with respect to group insurance coverage terminations had been reached merits Board concurrence. In his brief, Respondent's counsel suggests that: · . . [A] contracting party should not be able to avoid the clear effect of language in a document which he has had a fair opportunity to review, regardless of any lack of realization that the language existed, when he has remained silent .... Certainly the non-negligent party should not be penalized for the negligence of the other party .... [T]he mental reservation of a party to a bargain does not impair the obligation he purports to undertake unless perhaps the other party has reason to know of the reservation .... This recapitulation of legal principles, proffered as ger- mane herein, I find persuasive. Compare Federico v. Frick, 3 Cal.App. 3d 87.2 (1970). Complainant Union's represen- tatives - throughout several bargaining sessions during which they discussed various substantive portions of Respondent's proposed group insurance program - may never have consciously considered or raised questions with regard to Flagg's suggested "termination of coverage" language; nothing in the present record, however, would warrant a determination that Respondent's negotiator was thereby given "reason to believe" that his draft formula- tion, with respect thereto, might be subsequently chal- lenged. In a comparable collective-bargaining context, silence - whether chargeable to negligence or bottomed upon some purely subjective misconception - has been found sufficient to signify consent. Machinists Automotive Trades District Lodge No. 190 of Northern California, et al. (Peterbilt Motors Company), 227 NLRB 486 (1976). Herein, Respondent's negotiator was privileged to conclude, in my view, that Complainant Union's spokesmen had "ac- quiesced" with respect to his several-times-proffered termination provision. Compare Theodore Mayer & Broth- ers, 62 LA 540, 542 (1974), and Paper Converting Machine Co., 55 LA 1074 (1970); separate arbitrators have reached similar conclusions. Third. General Counsel's riposte proffered in his brief - that Respondent's defense substantially reflects a nonper- suasive contractual "waiver" claim - carries no persua- sion. In that connection, General Counsel suggests that a labor organization's waiver of its right to bargain with regard to working conditions must be clear and unmistak- able; he contends that Complainant Union's mere "failure to raise a challenge" with respect to Respondent's pro- posed "termination of coverage" provision, therefore, should not be considered sufficient. However, Respondent claims no presumptive "unilateral" right bottomed upon managerial prerogatives to terminate group insurance coverage for particular workers because of demonstrable contractual silence with respect thereto. Further, Respon- dent proffers no claim that Complainant Union's represen- tatives - through a consciously negotiated management- rights clause or contractual "zipper" provision - have necessarily waived their statutory right to bargain, with respect to group insurance coverage termination. (Respon- dent's industrial relations manager, so far as the record shows, never did claim - during their protracted contract negotiations or thereafter - that Respondent's currently claimed right to terminate group insurance coverage for workers on medical leave was nonbargainable, or that Complainant Union's spokesman should be considered precluded from discussions with respect thereto. The firm's principal negotiator, rather, laid Respondent's group insurance proposal - with the currently "disputed" provision specifically set forth therein - before Complain- ant Union's spokesmen. Though he may not have specifi- cally solicited their reaction with respect to that provision, there can be no doubt that whatever protest they might have proffered would have been considered. Substantially, therefore, Respondent recognized Complainant Union's right to bargain.) With matters in their present posture, therefore, this Board's decisional "waiver" rubric cannot reasonably be considered pertinent. The contractual language, pursuant to which Respondent justifies its current policy and practice with respect to group insurance coverage termina- tions, stands "clearly and unmistakably" stated. Should Complainant Union be considered bound thereby? That constitutes the sole question presented for determination herein. In my view, Complainant Union should be considered committed. Respondent, so I have found, has not challenged its right to bargain; the record, rather, warrants a determination, which I have made, that union negotiators were really given a fair "opportunity to bargain" regarding group insurance coverage terminations. Their failure to consciously consider, discuss, or question Respondent's proposal with respect thereto derived, so the record shows, from their understandable preoccupation with various other substantive provisions compassed within Respondent's group insurance proposal. The question presented, therefore, requires no determination with re- spect to whether Complainant Union's course of conduct constituted a clear and unmistakable "waiver" with respect to currently disputed contract language; rather, the Board must determine merely whether Complainant Union's course of conduct should be considered a binding "mani- festation of assent" with respect thereto. Fourth: Though, currently, Complainant Union and Respondent may profess different subjective conceptions, particularly with regard to the true nature and scope of their negotiated "Group Insurance" consensus, the present record will support a determination, in my view, that their January 19 signed contract, with its supplementary letters, 66 NORRIS INDUSTRIES reflects a legally sufficient "agreement" whereby both parties may properly be considered bound. More particu- larly, General Counsel's presentation will not preponder- antly warrant a determination, in my view, that Respon- dent's principal negotiator and Complainant Union's representatives permitted a definitive "termination of coverage" provision to become part of their negotiated group insurance letter through mutual mistake. No persua- sive showing has been made that both parties privy thereto did what neither desired; stated otherwise, no determina- tion would be warranted that both parties planned to say one thing, particularly with reference to Respondent's claimed right to terminate group insurance coverage, but mutually declared something different mistakenly. In his brief, Respondent's counsel notes persuasively that: The Company intended to propose a change in the treatment of employees on leave of absence, drafted clear language to that effect, gave the Union ample opportunity to review it, and the Union did in fact read the language, regardless of whether its import regis- tered. Further, while Complainant Union's negotiators may have, innocently but mistakenly, failed to note the broadly permissive scope of Respondent's proposed "termination of coverage" provision, no determination would be warranted, on the present record, that their mistake had been causally "induced" through inequitable, duplicitous, or conceivably unconscionable conduct chargeable to Respondent's representative. We confront a situation, therefore, which reflects nothing more than Complainant In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. Union's truly "unilateral" mistake for which Respondent's principal negotiator cannot be held responsible. Whatever innocent misconceptions Complainant Union's representa- tives may have shared - particularly regarding the nature and scope of Respondent's contractually validated "termi- nation of coverage" policy and practice - those miscon- ceptions were solely theirs; Flagg's broad view of Respon- dent's specifically confirmed rights bottomed upon their negotiated consensus was, I find, objectively justified. With due regard for conventional principles of contract law, therefore, I find both parties bound consistent with their negotiated "Group Insurance" letter's substantive and procedural provisions. No basis for a contractual reforma- tion, through the complete negation of Respondent's claimed "termination of coverage" rights, or some newly declared portion thereof, has been demonstrated herein. Since Respondent and Complainant Union have, there- fore, reached a legally confirmed "agreement" particularly with reference to Respondent's defined right to terminate group insurance coverage, inter alia, for Vernon facility workers on medical leave, the firm's consequential termina- tions of such coverage for particular workers consistent therewith cannot reasonably be considered "unilateral" conduct statutorily proscribed. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed order: ORDER The complaint is dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 67