Crest Beverage Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crest Beverage Co., Inc. and Salesdrivers, Helpers and Dairy Employees, Local Union No. 683, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 21-CA-14937 August 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND WALTHER On March 23, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the Charging Party and the General Counsel each filed briefs in support of the Administrative Law Judge's Decision. 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 Respondent, Crest Beverage Co., Inc., San Diego, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has 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 RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in San Diego, Califorina, on January 26, 1977. The charge was filed August 12, 1976, by Salesdrivers, Helpers and Dairy Employees, Local Union No. 683, International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America (hereinafter called the Union). The complaint issued September 22, 1976, alleging that Crest Beverage Co., Inc. (hereinafter called the Respondent), had violated Section 8(a)(5) and (I) of the National Labor Relations Act, as amended. The parties were permitted at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Posttrial briefs were filed by the General Counsel, by Respondent, and by the Union. IssUE The complaint alleges that Respondent violated Section 8(a)(5) and (1) by discontinuing pension and health and welfare contributions as of June 1, 1976, upon expiration of its bargaining contract with the Union. The answer denies any wrongdoing. 1. JURISDICTION Respondent is a California corporation, headquartered in San Diego, engaged in the nonretail distribution of beverages. It annually purchases goods outside California, for delivery in that State, valued in excess of $50,000. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On June 20, 1973, the Southern California Beer Distribu- tors Association, an employer association to which Re- spondent belonged, and eight Teamsters locals, of whom the Union was one, entered into a bargaining contract, effective from June 1, 1973, to June 1, 1976, covering the "drivers, driver-salesmen, drivers' helpers, and warehouse- men" employed by the Association's employer-members. The contract required, among other things, that the 50-odd employer-members make certain monthly contributions on behalf of the covered employees to designated pension and health and welfare plans,' which plans are administered jointly by representatives of labor and management. Respondent made the required contributions throughout the term of the 1973-76 contract. Then, on June 1, 1976, immediately upon that contract's expiration, Respondent's president, Steve Sourapas, informed the Union during a bargaining session: [T]hat we would cease paying all health and welfare and pension benefit payments effective that date, because we were in violation of federal law, National I Namely. Western Conference of Teamsters Pension Trust Fund, and Teamsters Miscellaneous Security Fund Plan X. 231 NLRB No. 25 116 CREST BEVERAGE CO. Labor Relations Act, and we could not do so, because there was not a written agreement.s A union spokesman, Herman (Red) Sperling, replied: [T]hat's nonsense. There are payments made all the time after contract expiration dates, and nothing in violation of the law at all.3 Sperling's protest notwithstanding, Respondent has made no contributions to the designated plans for months since the expiration of the 1973-76 contract. The Union notified Respondent on March 15, 1976, of its "desire to modify, amend or terminate" the 1973-76 contract. Respondent in turn notified the Union on March 25 that it: .. . desires to negotiate with you solely on an individual company basis and hereby withdraws from any multiemployer bargaining unit to which it hereto- fore may have belonged or to which it may now belong. Negotiations between the Union and the San Diego County employers subject to the 1973-76 contract ensued on a joint basis, with several employers maintaining a united front through a common spokesman, attorney Erwin Lerten; and three others, including Respondent, participating as independents.4 A contract finally was reached between the Union and the Lerten group on July 8, during the seventh bargaining session. The Union and Respondent remain at odds to the present, however, and the Union's bargaining relationships with the other two independents, Dan McKinney Co. and Shoreline Beverage Distributors, have since terminated. During the first bargaining session, on May 3, the Union's spokesman, Sperling, stated that, even though some of the employers were bargaining individually, the Union and its sister locals "wanted an overall contract for Southern California." The Union then presented a com- plete written proposal, after which Lerten presented a written proposal on behalf of his group and Sourapas did likewise for Respondent. Concerning pensions and health 2 Sourapas had in mind Sec. 302 of the Act. which states in relevant part: Sec. 302 (a) It shall be unlawful for any employer. .to pay, lend, or deliver .. any money or other thing of value (2) to an) labor organization . which represents ... any of the employees of such employer .... Sec. 302 (c) The provisions of this section shall not be applicable ... (5) with respect to money . . paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer . . . Provided, That . . . (B) the detailed basis on which such pavoientn are rto he made is specified in a written agreement with the emplover . . .Emphasis supplied.l :1 Sperling is credited that he challenged the legal soundness of Sourapas' and welfare, the Union's proposal asked for specified increases in employer contributions, while Respondent's stated: "Contributions not to exceed present levels." Nothing of moment occurred in the second session, held May 12. During the third session, on May 26, Respondent proposed through Sourapas that the existing pension plan be replaced by Respondent's "own company pension plan" and that they "put the health and welfare out to bid." Robert Schulze, the general manager of Dan McKinney Co., proclaimed that as its position as well, prompting one of the Union's spokesmen, Edmund Rodriques, to state in substance: "With this type of proposal we're headed for a work stoppage." A strike never materialized. It was during the next session, on June 1, that Sourapas announced Respondent's intention to discontinue making pension and health and welfare contributions because of the nonexistence of a written contract. Sourapas added, to Sperling's query if there would be further bargaining sessions, that Respondent "would be willing to meet" but that its doing so was not "to be construed as a continuation or extension of the contract." s Also during the June 1 meeting, the Union retreated from its earlier position on various cost items, among them pensions and health and welfare. Management officials expressed pleasure with the Union's revised posture, but withheld any commitment pending a further meeting. At the following meeting, on June 7, the Union iterated its June I proposal. Lerten advanced a counterproposal for his group, Schulze did the same for Dan McKinney Co., and Sourapas "gave one slightly different" for Respondent. Little progress was made, and the meeting closed with Sperling saying the only alternative was to bring in the Federal Mediation and Conciliation Service. The next session was June 19, in the presence of a Federal mediator. Lerten made his group's "best and final" offer, after which Sourapas articulated what he character- ized as a "final position" on behalf of three independents- Respondent, Dan McKinney Co., and Shoreline Beverage Distributors. The mediator asked that the position of the independents be reduced to writing and sent to the Union. Schulze of Dan McKinney Co. volunteered to do that. assertion, and Sourapas' testimony that no response was made- "not that I can recall"- is discredited. As is later discussed herein, Sourapas' assertion did reflect a misconception of the law; and it would seem altogether probable, given Sperling's seemingly high level of knowledge in bargaining matters, that he would have spoken up to set the record straight. Sperling is director of the statistical and research department of Joint Council of Teamsters No. 42. which is parent to the Union in the Teamsters organizational hierarchy. 4 The complaint alleges. the answer admits, and it is found that this at relevant times was an appropriate unit for purposes of the Act: "All drivers. driver-salesmen, drivers' helpers, and warehousemen employed by Respon- dent at 7545 Carroll Road. San Diego, California: excluding salesmen, merchandisers, clerical employees, guards, professional employees. and supervisors as defined in the Act." I There is neither contention nor evidence that the parties agreed that the old contract be extended. Sourapas testified that Sperling stated during the June I meeting that the final proposal of Respondent and other indepen- dents was unacceptable and "that he would negotiate with the other wholesalers in San Diego." Respondent argues that the Union thus foreclosed further negotiation with Respondent. This argument is rejected because (a) Sourapas' underlying testimony is inconclusive on the point., (h) Sperling credibly denied saying he would no longer negotiate with Respondent, and (c) it is belied by the Union's subsequent course of conduct. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schulze sent a letter to the Union, dated June 23, together with a document purporting to embody Sourapas' oral proposal of June 19. The letter stated: Please find enclosed a final proposal from Crest Beverage, Dan McKinney Company and Shoreline Beverage, made Saturday, June 19, 1976. Copies have been mailed to all interested parties, including John Taylor of the Federal Mediation Office. If you have any questions concerning the enclosed proposal, please don't hesitate to call. The enclosure, captioned "Final Proposal for Crest, Dan McKinney, and Shoreline," stated regarding pensions: II11. Pensions: No increase in pension contribution. (Rate of contribution to be 65C/hour.) Company will establish new pension program for bargaining employ- ees. Company will contribute 65¢ per hour with maximum of 40 hours per week, for each hour worked or paid for, on all employees who have completed probationary period. And it stated, concerning health and welfare: 16. Health and Welfare - No maintenance of benefits -- Company contribution to remain as is, $89.05 per month. The parties next met on July 8, again with the mediator, whereupon agreement was reached between the Union and the Lerten group. But, as earlier mentioned, agreement between the Union and the independents was not forth- coming. Sourapas announced that Respondent was adher- ing to the position he had put forth June 19, and which was reflected by the document Schulze had distributed under cover of June 23. Sperling countered that it was not the Union's intention to enter into a different or lesser contract with the independents than with the Lerten group. One of the management representatives raised the idea of a "most favored nations clause" to cover that contingency, which Sperling promptly rejected. Later meetings, on a single-employer basis, were held between the Union and Respondent on July 26 and August 3. The Union's efforts to discuss substantive contract terms were largely stymied by Sourapas' insistence that the Union first provide convincing assurance that there would be no "splashover" from elsewhere of a Teamsters boycott of Coors beer. Respondent is a Coors distributor. The union officials tried to assure Sourapas that there would be no boycott in San Diego County. Sourapas would have none of it, replying that he did not question their good intentions but did doubt their ability to control the situation. He added that he would not accept the assurances of Frank Fitzsimmons, president of the Interna- tional Brotherhood of Teamsters, either. Most of both meetings was used up in this manner, although the Union did manage to broach an oral contract proposal on July 26, and to tender it in writing on August 3. Respondent neither discussed nor countered the Union's July 26 oral/August 3 written proposal. Rather, by letter of August 9, it informed the Union that, "due to an impass [sic] in negotiations," it was putting certain "company proposals" into effect as of August I1. Concerning health and welfare, the letter stated that "all employees will be covered by company health plan - American General Life Insurance Company." The letter was silent regarding pensions. The week following the June 1 expiration of the 1973-76 contract, the Union posted notices on the employee bulletin boards of the several employers, including Respon- dent, advising the employees how to maintain their health and welfare coverage by their own contributions. David Shock, the Union's secretary-treasurer, testified that it is "not uncommon" for there to be a gap in coverage between contracts, and that the Union regularly follows this procedure to protect the employees from hardship. Sourapas testified that he could not remember a time in past negotiations when there was not a gap between expiration of the old contract and entry into the new; and that there invariably were attendant gaps in pension and health and welfare contributions by the employers. The current contract between the Union and the Lerten group provides that the 1976 health and welfare gap be cured by retroactive employer contributions, but says nothing about retroactive pension contributions. The 1973-76 contract provided for retroactive contributions to both the pension and health and welfare funds to cover the 20-day gap between contracts on that occasion. The document setting forth the pension plan adopted by the 1973-76 contract contains this "Notice to Covered Employers, Employees and Local Unions": To be eligible to participate in the Pension Plan, you must be covered under a bona fide written Pension Agreement (labor contract) between an Employer and a Local Union of the Western Conference of Teamsters. [Emphasis supplied.] Article I, section 4, of the pension plan states: The term Union shall mean any local union of The Western Conference of Teamsters . . . which, at the time of reference, has a Pension Agreement in effect with an Employer and has agreed to be bound by the terms and provisions of the Trust Agreement. [Emphasis supplied.] Section 7 of the same article states in relevant part: The term Pension Agreement as used herein shall mean a written agreement between any Union and any Employer which . . . requires payments to the Trust Fund on behalf of employees of such Employer who are represented by such Union. [Emphasis supplied.] The health and welfare plan is not in evidence, but a booklet describing it is. The booklet defines "eligible participants" as: Active employees and retired employees of any Sub- scribing Employer who are in job classifications covered under the terms of a collective bargaining agreement .... 118 CREST BEVERAGE CO. The booklet makes no explicit reference to a written bargaining contract. B. Discussion Respondent advances three purported justifications for discontinuing the pension and health and welfare contribu- tions upon expiration of the 1973-76 contract-that Section 302 of the Act proscribes such contributions absent an effective written contract; that an impasse had been reached in negotiations, enabling such unilateral action; and that the terms of the pension and health and welfare plans in question forbade contributions after the contract's expiration. Taking these contentions in order, the Board has dealt with the Section 302 argument at least twice in the past year or so, rejecting it both times. Vin James Plastering Co., 226 NLRB 125, fn. 3 (1976); Wayne's Dairy, 223 NLRB 260 (1976). See also Hinson v. N.LR.B., 428 F.2d 133, 138 (C.A. 8, 1970); and Sir James, Inc., 183 NLRB 256 (1970). There is nothing in the present situation to remove it from the governance of these authorities, as concerns Section 302. This would-be justification for Respondent's conduct therefore is rejected.6 Respondent's impasse argument likewise fails to per- suade, for two reasons. First, it cannot be concluded that an impasse had occurred before Sourapas' June I an- nouncement that Respondent was discontinuing contribu- tions. The criteria of impasse are set forth in Taft Broadcasting Co., 163 NLRB 475, 478 (1967),7 and reaffd. verbatim in Allen W. Bird II, Receiver for Caravelle Boat Company, 227 NLRB 1355, 1357-58 (1977): Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. These criteria had not been met in advance of Sourapas' announcement. That was only the fourth bargaining session; in that very session, the Union had markedly reduced its demands and Sourapas had stated his willing- ness to continue meeting; Sourapas did not couch his announcement in terms of impasse or the futility of future bargaining, but only in terms of contract expiration;8 the preceding sessions had yielded some revision of bargaining position by both Respondent and the Union; and the parties met again within a week (June 7), at which time Sourapas presented yet another proposal. 6 Respondent's reliance on Moglia v. Geoghegan, 403 F.2d 110 (C.A. 2, 1968), is misplaced. The employer in taat case had never entered into any kind of a written agreement concerning pension contributions -a distinc- tion duly noted in Hinson v. N. L. R. B., supra at 139. 7 Affd. sub nom. Television and Radio Artisis v. N.L.R.B., 395 F.2d 622 (C.A.D.C., 1968). * Indeed, the concept of impasse was not interjected until Respondent's August 9 letter notifsing the Union of the August II institution of various unilateral changes. 9 In Curtle Printing Co., 169 N LR B 251 (1968), relied on by Respondent, Second, even supposing an impasse on June I, Respon- dent was not thereby licensed to cease funding pension and health and welfare coverages altogether, as it did, but only to "make unilateral changes in working conditions consis- tent with its rejected offer to" the Union. Caravelle Boat Company, 227 NLRB at 1358; Royal Himmel Distilling Company, 203 NLRB 370, fn. 3 (1973). It will be remembered that Respondent's last previous offer, pnade May 26, called for institution of its own pension plan and that health and welfare be put out to bid. Respondent's final contention-that the terms of the pension and health and welfare plans forbade contribu- tions after expiration of the 1973-76 contract-is but another way of saying that the Union, by entering into a contract adopting those plans, waived its right to bargain over the postexpiration discontinuance of their coverages- and, correlatively, over Respondent's basic statutory obligation to preserve benefit levels-after contract expira- tion. Such a waiver of bargaining rights is to be inferred only if sustained by clear and unequivocal evidence. E.g., Cara- velle Boat Company, 227 NLRB at 1358; Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, 223 NLRB at 265; Kroehler Mfg. Co., 222 NLRB 1269, 1270 (1976); Borden, Inc., 196 NLRB 1170 (1972). The booklet describing the health and welfare plan, while referring to "a collective bargaining agreement," says nothing about the agreement's being in writing. Nor is there any clear indication in the booklet that the health and welfare plan requires a bargaining contract now in effect, as opposed to one previously expired; and there is no evidence otherwise that postexpiration contributions would have been rejected and/or coverage denied by the trustees of the plan. The pension plan, by contrast, explicitly seems to contemplate a written bargaining contract ("pension agreement"), now in effect. But then, so does Section 302 of the Act; and, as has been shown, the Board does not see Section 302 in so literal a light. It would not be surprising, for that matter, if the pension plan were designed in this fashion purely to assure harmony with the "written agreement" proviso of Section 302. Moreover, as with the health and welfare plan, there has been no independent showing that postexpiration pension contributions would have been rejected and/or coverage denied by the trustees. All of which is to say that the pension plan document and the health and welfare booklet, alone and without evidence of the manner in which the plans are administered, fail to carry Respondent's considerable burden of proving that the Union had waived its right to bargain over continua- tion of the coverages. Cf. Mobile Oil Corporation, 219 NLRB 511 (1975). 9 Respondent cites, as further evidence in support of its argued-for construction of the pension and health and the insurance plan in question had been subscribed to by the employer before the advent of the union and expressly was to cancel should the affected employees come under the coverage of a bargaining contract, which finally happened. Unlike the present case, there was explicit evidence in addition to the language of the plan. in the form of a letter, to prove the cancellation feature. Dismissing the complaint, the Board noted that "termination of the insurance was not the result of unilateral action by Curley, for Curley was without power to prevent it ... Curley could do nothing to forestall it once the contingency requiring cancellation of the (Continued) 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welfare plans, the apparent practice of a number of the employers of withholding contributions during the hiatus between contracts; and the Union's practice, concerning health and welfare, of informing the affected employees of ways to maintain coverage by their own contributions at such times. This perhaps is as consistent, however, with a union striving to minimize employee hardship in the face of pervasive employer abuse as with mutual consent, and thus is of little value to Respondent in showing a clear and unequivocal waiver. In sum, Respondent's final contention, like the previous two, is rejected. It is concluded that, by discontinuing pension and health and welfare contributions upon expiration of the 1973-76 contract, it violated Section 8(a)(5) and (1) as alleged. CONCLUSIONS OF LAW 1. By unilaterally discontinuing pension and health and welfare contributions as found herein, Respondent en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Respondent shall be ordered to cease and desist from the unfair labor practices found, and, affirmatively, to make whole the unit employees by making all pension and health and welfare contributions as required by the bargaining contract that expired June 1, 1976, to the extent that such contributions have not been made or that the employees have not otherwise been made whole for their ensuing medical expenses,'0° and to continue such contributions until Respondent negotiates in good faith with the Union to a new contract or to an impasse. Additionally, since there is reason to believe that some of the employees themselves contributed to the maintenance of health and welfare coverage after Respondent unlawful- ly ceased contributing, Respondent shall be ordered to reimburse such employees for such outlays, as determined in the compliance stage. Finally, since the violations occurred in the context of contract negotiations, and may well have contributed to the eventual lack of success of those negotiations, Respon- dent shall be ordered generally to bargain in good faith with the Union. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: insurance coverage occurred." Respondent has made no comparable showing of an unavoidable contingency. "} To the extent that Respondent provided the employees with alterna- tive health and welfare coverage, they would not benefit from a requirement that Respondent now duplicate that coverage retroactively. Such a requirement therefore would be of a punitive character, without redeeming justification in terms of the policies of the Act, and so will not be incorporated in the Order. Wayne's Dairy, 223 NLRB at 265: Service Roofing Co., 200 NLRB 1015 (1972). "1 All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. ORDER" The Respondent, Crest Beverage Co., Inc., San Diego, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Salesdrivers, Helpers and Dairy Employees, Local Union No. 683, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representa- tive of its employees in the appropriate unit described below, by unilaterally discontinuing pension and health and welfare contributions. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take this affirmative action necessary to effectuate the policies of the Act: (a) Bargain on request with the aforementioned Union as the representative of its employees in the appropriate unit concerning wages, hours, pension, and health and welfare benefits, and other terms and conditions of employment and, if an understanding is reached, embody it in a signed document. The appropriate unit is: All drivers, driver-salesmen, drivers' helpers, and warehousemen employed by Crest Beverage Co., Inc., at 7545 Carroll Road, San Diego, California; excluding salesmen, merchandisers, clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) Make whole the employees in the above unit by paying all pension and health and welfare contributions as required by the bargaining contract that expired June 1, 1976, to the extent that such contributions have not been made or that the employees have not otherwise been made whole for their ensuing medical expenses, and continue such payments until Respondent negotiates in good faith with the Union to a new agreement or to an impasse. This shall include reimbursing any employees who themselves contributed to the maintenance of health and welfare coverage after Respondent unlawfully ceased contributing. (c) Post at its San Diego facility copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director of Region 21, after being signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees customarily are posted. Reasonable steps shall be taken to ensure that said 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. 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. '2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 120 CREST BEVERAGE CO. notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director of Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Salesdrivers, Helpers and Dairy Employees, Local Union No. 683, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the representative of our employees in the appropriate unit described below, by unilaterally discontinuing pension and health and welfare contribu- tions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL bargain on request with the aforemen- tioned Union as the representative of our employees in the appropriate unit concerning wages, hours, pension and health and welfare benefits, and other terms and conditions of employment; and, if an understanding is reached, embody it in a signed document. The appropriate unit is: All drivers, driver-salesmen, drivers' helpers, and warehousemen employed by Crest Beverage Co., Inc., at 7545 Carroll Road, San Diego, California; excluding salesmen, merchandisers, clerical em- ployees, guards, professional employees, and supervisors as defined in the Act. WE WILL make whole the employees in the above unit by paying all pension and health and welfare contributions as required by the bargaining contract that expired June 1, 1976, to the extent that such contributions have not been made or that the employ- ees have not otherwise been made whole for their ensuing medical expenses, and will continue such payments until we have negotiated in good faith with the Union to a new agreement or to an impasse. This shall include reimbursing any employees who them- selves contributed to the maintenance of health and welfare coverage after we unlawfully ceased contribut- ing. CREST BEVERAGE Co., INC. 121