Camay Drilling Co.

CAMAY DRILLING COMPANY Camay Drilling Company and International Union of Operating Engineers, Local Union No. 12, AFL-CIO and Lambert Vande Burgt. Cases 31-CA-6901, 31-CA-6985, and 31-CA-7315 January 14, 1981 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 22, 1978, Administrative Law Judge James T. Rasbury isued his original Decision in this proceeding. On December 22, 1978, the National Labor Rela- tions Board issued a Decision and Order Reopen- ing Record and Remanding Proceeding to Admin- istrative Law Judge' permitting the Trustees of the Operating Engineers Pension Trust to intervene and to introduce evidence with respect to two critical issues 2 and directing the Administrative Law Judge to reevaluate his findings of fact, reso- lutions of credibiity, and conclusions of law in light of the evidence adduced on remand. On September 27, 1979, the Administrative Law Judge issued the attached Supplemental Decision in which he reaffirmed the rulings, findings, and con- clusions of his original Decision. Thereafter, the In- tervenor filed exceptions and a supporting brief, the General Counsel filed exceptions and a sup- porting brief, and Respondent filed an answering brief to the exceptions of both the Intervenor and the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the Administrative Law Judge's original Decision and the attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith, to modify his remedy, and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by: (1) interrogating employees concerning their union activities, (2) threatening employees with termination if they continued to engage in i 239 NLRB 997. 2 The two issues were (I) whether Respondent did, in fact, receive notice from the union allocating an additional 25 cents per hour per wage classification due under the parties' then-existing contract to the pension trust fund, and (2) whether the agreement reached on July 6, 1977, with regard to settling the strike provided for pension contributions in the amount found by the Administrative Law Judge. 254 NLRB No. 19 protected activities; (3) encouraging employees to decertify their collective-bargaining representative and bargain directly with Respondent; (4) aiding in the preparation and encouraging the circulation of a petition in an effort to secure a union-shop deauthorization election; and (5) aiding employees in the preparation and circulation of petitions re- questing the Union to reconsider Respondent's last wage offer and using such petitions as a basis for filing an unfair labor practice charge against the Union. The General Counsel filed exceptions claiming that Respondent violated Section 8(a)(l) of the Act in several additional respects. We find merit in cer- tain of the General Counsel's exceptions. The Gen- eral Counsel asserts that, during the strike referred to above, employee John Kelso was threatened with termination unless he abandoned the strike. Kelso's uncontradicted testimony reveals that on April 14 he was approached by J. C. Wilsby, a drilling superintendent, who asked him to abandon the strike and begin working on a drilling rig which Respondent recently had put into operation. When Kelso responded that he was not going to cross a picket line, Wilsby stated, "Well, all these hands that I call that refuse to go, they will no longer be working for Camay again after the strike's over." Since the strike was an unfair labor practice strike, it is clear that the striking employ- ees were entitled to reinstatement whether or not replacements had been hired for them. According- ly, Wilsby's solicitation to abandon the strike coup- led with his threat to replace Kelso if he did not do so violated Section 8(a)(1) of the Act. 3 The General Counsel further contends that the contents of a letter sent by Respondent to its strik- ing employees on April 7 violated Section 8(a)(1) of the Act. 4 We agree. At the outset, the General Counsel asserts that the first paragraph set forth in footnote 4 solicits employees to abandon the strike. Although in certain instances the solicitation of em- ployees to cross a picket line and work during a strike is not violative of the Act, we have specifi- cally noted, in such situations, the absence of a a Marlock Truck Body & Trailer Corp.. and its Agent Roy L. Matrlock, 217 NLRB 346 (1975). 4 The letter states, inter alia: Camay will ask you to return to work as our rigs are started up knowing that you may have to deal with crossing a picket line if one exists .... The Company's first offer will be to the Camay men now laid off. Following this we will call in men from whatever sources we can. We feel and have an obligation to the new men that will be on our payroll. And we will honor that obligation. Union threats of fines or "trials" for men who cross the picket lines may be expected. It should be stated, however, that Camay will never accept any settlement of its strike unless such threats are with- drawn. 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promise of special benefit or a threat of detriment in the request. 5 In the instant case, the solicitation in the letter was soon followed by a similar request coupled with a threat of detriment made to Kelso. In addition, the direct appeal to employees con- tained in the letter occurred during the midst of an unfair labor practice strike and within the context of other violations of the Act by Respondent, sum- marized above, disparaging the Union as the em- ployees' collective-bargaining representative. Under these circumstances, we find that the re- quest to employees to abandon the strike contained in the letter is violative of Section 8(a)(1) of the Act. 6 We further find that the portion of the letter wherein Respondent asserts that it will "never accept any settlement" unless the Union withdraws or promises to withdraw "threats of fines or 'trials' for men who cross the picket lines" is violative of the Act. The issue of union fines imposed on strik- ers is one in which Respondent may have a genu- ine concern and, to that end, it may legitimately discuss the issue with the Union, although since it is a nonmandatory subject of bargaining it cannot insist to impasse on this matter. 7 We are of the opinion, however, that Respondent is not privi- leged to communicate directly with employees re- garding this issue which involves a matter that is fundamentally an internal union affair while at the same time engaging in unfair labor practices dispar- aging the Union. Accordingly, we find that the above-noted portion of the letter is an attempt to undercut the Union's status as a collective-bargain- ing representative in violation of Section 8(a)(1) of the Act.8 The Administrative Law Judge found, and we agree, that Respondent failed to properly reinstate unfair labor practice strikers as of July 18, 1977, the date on which they unconditionally offered to return to work. As noted by the Administrative Law Judge, the original charge filed with respect to this issue alleged that 10 individuals had been improperly denied reinstatement, while an amended charge filed approximately 2 months later listed only Lambert Vande Burgt, James Stark, and Mayo Kennedy as having been unlawfully denied reinstatement. Absent an explanation as to why the names of certain individuals were deleted in the amended charge, the Administrative Law Judge re- a Mosher Steel Company, 220 NLRB 336 (1975); Coca-Cola Bottling Company of Louisville. 166 NLRB 134, 135 (1967). e O'Land, Inc., d/b/a Ramada Inn South, 206 NLRB 210 (1973). UOP Norplex. Division of Universal Oil Products Company, 179 NLRB 657 (1969), enfd. 445 F.2d 155 (7th Cir. 1971). s Cf. General Electric Company, Battery Products, Capacitator Depart- ment, 163 NLRB 198 (1967), enforcement denied in pertinent part 400 F.2d 713 (5th Cir. 1968). served final determination of this matter for the compliance stage of this proceeding. We note that the complaint in this proceeding al- leges only that the three above-named strikers were unlawfully denied reinstatement when they made unconditional offers to return to their former posi- tions of employment. The complaint does not allege that Respondent has unlawfully discriminat- ed against any other of its employees nor does it claim that there are any other strikers who are situ- ated similarly to the three strikers named in the complaint. Accordingly, we find a violation of Sec- tion 8(a)(3) of the Act only with respect to Lam- bert Vande Burgt, James Stark, and Mayo Kenne- dy and our remedial order will apply only to them.9 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. The Administrative Law Judge found, and we agree, that the unilateral act of Respondent in dis- continuing the wage payment of 25 cents after Jan- uary 31, 1977, was violative of the Act, but that this 25 cents was picked up in the final settlement of July 6, 1977, and that the employees have been fully reimbursed by Respondent. We also agree with the Administrative Law Judge's finding that Respondent must fully reimburse the Union's pen- sion and vacation-holiday trust funds for all moneys which have been withheld since February 1, 1977, in the amounts and for the periods of time as set forth in Exhibits G and H attached to the Administrative Law Judge's original Decision. Ac- cordingly, we shall order such reimbursement.' 0 9 In a footnote in his brief to the Board, counsel for the General Coun- sel requests a finding by the Board that Respondent violated Sec. 8(aX5) and (1) of the Act by unilaterally implementing its final wage proposal of February 3. Counsel for the General Counsel contends that, even though it was not alleged as a violation of the Act in the complaint, the issue was fully litigated at the hearing. We do not agree with counsel for the General Counsel that this issue was sufficiently litigated at the hearing, and, accordingly, we shall make no findings regarding it. Moreover, to determine an issue of this magnitude when it is raised for the first time as a post-hearing theory would place an undue burden on Respondent and deprive it of an opportunity to present an adequate defense. 'O Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlaw- fully withheld fund payments. We leave to the compliance stage the question whether Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. These addi- tional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of Continued 240 CAMAY DRILLING COMPANY As we have found that Respondent has unlawful- ly failed or refused to reinstate unfair labor practice strikers Lambert Vande Burgt, James Stark, and Mayo Kennedy, we shall order that Respondent offer the three above-named individuals immediate and full reinstatement to their former positions or, if such jobs no longer exist, to substantially equiv- alent positions, without loss of seniority and other rights and privileges previously enjoyed, discharg- ing, if necessary, any replacements hired. We shall further order that Respondent make Lambert Vande Burgt, James Stark, and Mayo Kennedy whole for any loss of earnings or other benefits they may have suffered as a result of the discrimi- nation against them from the date Respondent un- lawfully refused to reinstate them to the date of Respondent's offer of reinstatement in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).11 We shall order that Respondent preserve and make available to the Board or its agents, upon re- quest, all pertinent records necessary to determine the amounts of backpay due, and we shall order Respondent to post appropriate notices. Finally, since Respondent has engaged in unfair labor practices of a sufficiently egregious nature so as to demonstrate a disregard for its employees' fundamental statutory rights, we shall order Re- spondent to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act.12 CONCLUSIONS OF LAW 1. Camay Drilling Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drillers, derrickmen, cathead men, rotary helpers, mechanics, welders, truckdrivers, roustabouts, yardmen, crane operators and roustabout foremen employed by the employer within the geographical jurisdiction of Local 12 [International Union of Operating Engi- neers, AFL-CIO], excluding all office clerical employees, professional employees, all other funds withheld, additional administrative costs, etc., but not collateral losses. Merryweather Optical Company, 240 NLRB 1213 (1979); see also Fitzpatrick Electric. Inc., 242 NLRB 739 (1979). 1' See, generally, is Plumbing d Heating Co., 138 NLRB 716 (1962). 12 See Hickmott Foods. Inc., 242 NLRB 1357 (1979). employees, guards and supervisors as defined in the Act. 4. By its unilateral act of discontinuing payment of 25 cents per hour which was added to the em- ployees' wage structure as of January 31, 1977, Re- spondent has violated Section 8(a)(5) and (1) of the Act. 5. By its unilateral act of discontinuing payment at 30 cents per hour to both the Operating Engi- neers pension fund and vacation-holiday trust fund, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By failing and refusing to reinstate unfair labor practice strikers Lambert Vande Burgt, James Stark, and Mayo Kennedy on or about July 18, 1977, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By aiding and abetting employees in the prep- aration and circulation of petitions requesting the collective-bargaining agent to reconsider Respon- dent's last offer and by using said petitions as a basis for filing an unfair labor practice charge against the Union, Respondent has interfered with the Section 7 rights of its employees and thereby has violated Section 8(a)(1) of the Act. 8. By aiding and abetting employees in the prep- aration of petitions and encouraging their circula- tion in an effort to secure a union-shop deauthori- zation election, Respondent has interfered with the Section 7 rights of its employees and thereby has violated Section 8(a)(1) of the Act. 9. By encouraging employees at employee meet- ings to decertify their collective-bargaining repre- sentative and bargain directly with Respondent, Respondent has interfered with the Section 7 rights of employees and thereby violated Section 8(a)(l) of the Act. 10. Respondent violated Section 8(a)(l) of the Act when it threatened employees with termination if they continued to engage in protected concerted activities. 11. Respondent violated Section 8(a)(1) of the Act when it interrogated employees concerning their union activities. 12. Respondent violated Section 8(a)(1) of the Act when it threatened an employee engaged in an unfair labor practice strike with replacement if he continued to engage in protected concerted activ- ity. 13. Respondent violated Section 8(a)(1) of the Act in its letter of April 7, 1977, by soliciting em- ployees to abandon an unfair labor practice strike, and by attempting to intervene in internal union af- fairs and undercut the Union as a collective-bar- gaining representative. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14. The strike which began on March 12, 1977, was at all times thereafter an unfair labor practice strike initiated, at least in part, by Respondent's unilateral act of changing the terms of a current and effective labor agreement between Respondent and Local Union No. 12. 15. The consolidated complaint is dismissed inso- far as it alleges violations of the Act not specifical- ly found herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Camay Drilling Company, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing or otherwise disregard- ing any of the provisions of the collective-bargain- ing agreement existing between the parties during the time material herein. (b) Failing and refusing to reinstate unfair labor practice strikers Lambert Vande Burgt, James Stark, and Mayo Kennedy upon the request of said employees to unconditionally return to work. (c) Interrogating employees concerning their union activities and/or threatening employees with discharge because of their union or protected con- certed activities. (d) Interfering with employees' Section 7 rights by aiding and encouraging employees to circulate petitions seeking to interfere with the collective- bargaining agent's rights of representation. (e) Interfering with employees' Section 7 rights by aiding and encouraging employees to circulate petitions seeking a union-shop deauthorization elec- tion. (f) Soliciting unfair labor practice strikers to abandon a strike and threatening them with re- placement if they fail to do so. (g) Interfering in internal union affairs in an at- tempt to undercut the Union's status as collective- bargaining representative. (h) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Take all necessary steps to immediately reim- burse the Union's pension and vacation-holiday trust funds for all moneys withheld from said trusts in the amounts as set forth in the section of this Decision entitled "The Remedy." (b) Offer Lambert Vande Burgt, James Stark, and Mayo Kennedy immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges previously enjoyed, discharg- ing, if necessary, any replacements hired, and make Lambert Vande Burgt, James Stark, and Mayo Kennedy whole for any loss of earnings or other benefits they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and fund payments due under the terms of this Order. (d) Post copies of the attached notice marked "Appendix" 13 at places where Camay Drilling Company drilling operations are occurring within the geographical jurisdiction of Operating Engi- neers, Local Union No. 12. Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '3 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: 242 CAMAY DRILLING COMPANY To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with, restrains, or coerces employees with re- spect to these rights. More specifically, WE WIL.L NOT interrogate employees con- cerning their or other employees' union or protected concerted activities. WE WILL NOT threaten employees with dis- charge because of their union or protected concerted activities. WE WILL NOT aid or encourage employees to circulate petitions thereby interfering with the rights of the collective-bargaining agent as the exclusive collective-bargaining representa- tive of the employees. WE WILL NOT aid or encourage employees to circulate petitions seeking a union-shop deauthorization election and/or to provide a basis for filing unfair labor practice charges against the Union. WE WILL NOT solicit unfair labor practice strikers to abandon a strike or threaten to re- place them if they fail to do so. WE WILL NOT intervene in internal union matters in an attempt to undercut the status of the Union as the exclusive collective-bargain- ing representative of the employees. WE WILL NOT fail or refuse to reinstate unfair labor practice strikers when they uncon- ditionally offer to return to work. WE WILL NOT unilaterally change or disre- gard the terms of the written, effective collec- tive-bargaining agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL offer Lambert Vande Burgt, James Stark, and Mayo Kennedy immediate and full reinstatement to their former positions or, if those positions no longer exist, to sub- stantially equivalent positions, removing, if necessary, any employees who may have been hired to take the place of those striking em- ployees, and WE WILL make them whole for any loss of earnings or other benefits they may have suffered as a result of the discrimination against them, with interest. Wl WilI. reimburse the Union's pension and vacation-holiday trust funds for all amounts withheld since February 1, 1977, in the amounts and manner prescribed by the Nation- al Labor Relations Board. CAMAY DRILI.ING COMPANY SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was first heard before me in Los Angeles, Califor- nia, on February 7 and 8, 1978. My Decision issued on June 22, 1978, in which Respondent Camay Drilling Company was found to have violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein the Act), in several instances. Respondent was ordered to cease and desist certain specified conduct and to take certain affirmative action designed to effectuate the purposes of the Act. At the original hearing, counsel for the Operating En- gineers Pension Trust appeared and petitioned to inter- vene. At that time the Petitioner's motion was denied on the ground that the Petitioner's interest in the matter would not be established until the issue of whether the Act had been violated, as alleged, had first been re- solved. The Petitioner's counsel, however, was permitted to remain at counsels' table and consult with both the Charging Party's counsel' and the General Counsel. The Petitioner's counsel was also advised that he would be welcome to submit an amicius curiae brief. The Petition- er's Counsel did remain at the counsel table and did submit a brief. On December 22, 1978, the Board issued its Decision and Order (239 NLRB 997) reopening the record and re- manding this proceeding to the Administrative Law Judge for the purpose of allowing the Petitioner to inter- vene and present evidence on the issues of (1) whether Respondent did, in fact, receive notice from the Union allocating the additional 25 cents per hour due under the contract to the pension trust fund and (2) whether the agreement reached on July 6, 1977, with regard to set- tling the strike provided for future contributions in the amount found by the Administrative Law Judge. Pursuant to the Board's remand instructions, a further hearing was held on April 3, 1979, in Los Angeles, Cali- fornia, in which all parties were permitted to examine and cross-examine witnesses and to present evidence bearing on the two issues as specified by the Board in its remand. Upon the entire record in this case, and from my ob- servations of the witnesses and their demeanor, I make the following: 2 I Counsel for the Charging Party appeared at the original hearing hut did not appear to participate in the remand. 2 Two inadvertent errors in the original Decision are hereby corrected. In sec. DI, par. 8. instead of June 31 the date should he January 31. in Conclusion of Law 5 the violation should have read Sec. 8(aHS) and (1) of the Acl 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT A. The Additional Evidence and Testimony as It Relates to the Two Issues Specified in the Board's Remand Levena Bell testified that she has been employed by Local 12 for the past 13 years "doing secretarial work, taking care of agreements, records." She identified Inter- venor's Exhibit I (a duplication of G.C. Exh. 9) as a letter she had typed for Mr. Judd, then director of agree- ments for Local 12, dated July 19, 1976, and directed to Ray Turner, then president of Camay Drilling Company. The letter asked that an additional 25 cents be allocated to the pension fund as of January 31, 1977, bringing the total contribution to the pension fund to 55 cents (per hour). Bell further testified that after putting the letter in an envelope she placed it in the mailroom, where mail is then handled by the mailroom employees of Local 12. The exhibit Bell identified had a checkmark after the word "Files" in the lower left-hand corner indicating that this particular copy was the office file copy. Bell testified that the procedure followed with this piece of mail was the normal and usual routine of the office and that there was nothing in the file to indicate that the letter was returned as being undelivered. On cross-examination Bell acknowledged that she typed as many as 50 letters a month and there was no reason why she should remember this particular letter. She also testified that she made carbon copies of letters and not Xerox copies. (The exhibit-Intervenor's Exh. I as well as G.C. Exh. 9-is some form of photocopy and not a carbon copy. While leave was granted to substitute a photocopy for the exhibit utilized during the testimony, the exhibit identified at the hearing by the witnesses was not a carbon copy.) Leo Majich, manager of the Operating Engineers trust funds since 1972, identified Intervenor's Exhibit 2 as the trust funds' copy of the July 19, 1976, letter from Judd to Turner directing that the additional 25 cents be allo- cated to the pension fund as of January 31, 1977. He identified the letter as one taken from the regular office files relating to Camay Drilling Company. Majich identi- fied Louise Blaine-the person named on said letter-as an employee of the trust funds who works on the desk "that recorded all details in connection with contributing employers. , Majich further testified concerning the internal procedures that took place at the trust fund offices following receipt of their copy of the letter re- garding the change in contributions to the pension fund. Majich explained the apparent mixup on the trust fund report form relating to Respondent for the month of March 1977 (see Intervenor's Exh. 5). It appears that the form sent out from the trust to Camay had shown 55 cents in the pension column, making a total contribution rate (for both the vacation/holiday and the pension) of 85 cents, but these figures had been marked out and the figures of 30 cents and 60 cents, respectively, inserted in their place. When received by the trust fund, the larger D Again it should be noted that the particular exhibit was a photocopy and not a carbon copy as Bell testified she had made and placed in the mailroom. figures were reinstated and the shortage noted, but no one informed Camay. The April form (Intervenor's Exh. 6) reflects a similar misunderstanding between the trust and Respondent with a similar failure of communications between the parties. (Internal records of the trust contin- ued to show an underpayment by Respondent based on the July 19 letter the trust had in its files.)4 Majich's testimony also made it clear that mail passing between the offices of the trust fund and the union of- fices is not placed in the United States mail. Both the trust office and the union offices are located in the same building and written communications are directly deliv- ered by each party to the other by their respective mail- room employees. William Wilson, an auditor for the Operating Engi- neers trust funds, identified Intervenor's Exhibit 8 as a payroll record of Respondent which he explained re- flects that Respondent continued to show 30 cents for vacations and holidays and 30 cents for pensions during the first part of 1979, but in mid-August 1977 started showing 30 cents for vacations and 55 cents for pensions. (My original Decision found Respondent to have violat- ed Sec. 8(a)(5) by withholding payments to the trust fund insofar as the basic 30 cents for vacation and holi- days and the basic 30 cents for pensions are concerned. Luskin credibly testified that in the fall of 1977 there was an accounting reserve fund established to protect Re- spondent against possible future liabilities.) William Waggoner has been business manager of the Union since 1976, and for 9 years before becoming busin- ees manager he served as president of the Union. Wag- goner was asked if Camay had agreed at the Burlingame meeting of July 6, 1977, to pay the 75 cents to the pen- sion fund or the 80 cents to the vacation/holiday fund, to which question he replied, "No sir." When asked what, if anything, was said with regard to the rate of contributions to the two trust funds that would apply to offshore drilling platforms, Waggoner replied: A. The only thing we were concerned about at that particular time at the Hondo platform was the Montgomery rates as reflected in Exhibit A [of In- tervenor's Exh. 10] would be identical in total com- pensation and wages and fringes as that we negoti- ated with Montgomery. With regard to the rates to be paid at Elk Hills (par. 3 of Resp. Exh. 3), while Waggoner stated, "We were dis- cussing the Montgomery rates at Elk Hills, "Waggoner was quick to acknowledge that he did not recall Camay's discussion with regard to Elk Hills. (The exhibit sheds no light whatsoever on the compensation to be paid, except to say that Camay would comply with the Davis Bacon Act.) 4 While Intervenor's Exh. 7 was rejected as not being relevant to the issues being litigated in this hearing and I remain of the same opinion, it is interesting to note that attached to said exhibit is a form the trust ad- ministrator uses to notify participating companies of any delinquency. However. there was no evidence introduced to indicate that this form was utilized to notify Respondent in March 1977 of any delinquency 244 CAMAY DRILLING COMPANY On cross-examination, Waggoner testified that he did not recall any discussion of Camay's rate of contribution to the pension fund. Richard Squyres testified that he was employed by the Union as an oil field business agent. During May of 1978, he said he saw a notice on the "dog house" 5 of Camay's drilling operation in Elk Hills which indicated that a 55- cent pension contribution was being withheld on behalf of the employees.6 Squyres also identified Intervenor's Exhibit 2 as check stubs for the pay period ending April 29, 1978, for employees Pollard and Peterson which indi- cated that Camay was setting aside a total of 55 cents per hour for the pension trust fund. (See the nontax fund on said exhibit which indicates a deduction of $22. Forty hours times 55 cents per hour equals $22.) Barney Hoy, a business representative for the Union, testified that he talked to Bob Brodt, a crane operator for Camay on the Hondo platform in May 1978, and was told by Brodt that Camay was deducting 55 cents per hour from each employee's paycheck to be paid to the pension trust fund. Meyer Luskin, president and chief executive officer of Respondent, testified that, although he had given instruc- tions in August 1977 to make the 55-cent deduction from the employees' checks and to set up said sums as an ac- counting reserve pending the outcome of the litigation, the actual deduction (of the additional 25 cents) was not made until October. (See Intervenor's Exh. 8. The nontax figure shown in September versus the nontax figure shown in October confirms his testimony.) Luskin further testified that on one occasion in the spring of 1978 he was questioned by the employees on the Hondo platform regarding the pension deductions and that he had explained that the extra 25 cents would either be paid directly to the employees or to the pension trust fund in accordance with the final decision in the pending litigation. Both Luskin and Waggoner testified that they had one or two get-togethers in 1978 in an effort to resolve the problems, but had been unsuccessful in reaching an agreement. B. Analysis and Conclusions The total impact of Levena Bell's testimony did noth- ing more than confirm that the July 19, 1976, letter noti- fying of the increased pension allocation was typed in the union office and was delivered to their mailroom. While this was the usual mail routine, there is still no positive proof that said letter was ever deposited in the U.S. mails. The fact that the pension trust received their copy of the letter does not aid in explaining the mystery because their mail was hand delivered by the Union. 5 The term "dog house" refers to an oilfield change room for the em- ployees. 6 The notice, or piece of tablet paper, was rejected as being inad- equately authenticated as a document for which Respondent was in any way responsible. It should be noted, however, that Luskin testified that Camay began to establish an accounting reserve in the fall of 1977 when the principals were unable to resolve their differences. According to Luskin, on one occasion when some employees on the Hondo platform inquired about the pension money, he explained that the additional 25 cents per hour would either be paid directly to them or to the pension trust fund when litigation was finally settled. Moreover, I remain puzzled by the rather positive testi- mony of Bell to the effect that the copies she made were all carbon copies and yet not a single carbon copy was ever produced as evidence. The "file" copy produced by the General Counsel at the original hearing (G. C. Exh. 9) has certain information contained thereon which is not found on the "file" copy produced by the Intervenor (Intervenor's Exh. 1). Neither "copy" was a carbon copy. The testimony of Majich-while confirming the fact that the trustees received their copy of the July 19, 1976, letter-shed absolutely no light whatsoever on the issue of whether or not Respondent did, in fact, receive notice from the Union allocating the additional 25 cents to the pension fund. The fact that the payments made to the trusts by Respondent for February and March 1977 were on the basis of 30 cents and 30 cents, rather than 30 cents and 55 cents tend to further show that Camay never re- ceived notice of the increased allocation to the pension fund. (Camay had evidently changed the figures in March and April 1977 back to what it believed to be the correct figures and the trust never advised Camay of the apparent misunderstanding until February 1978, which would have been during the time of the first hearing and well after the conflict had come to light.) William Wilson's testimony shed no light on either of the two issues to be considered here. His testimony only confirmed what Respondent was willing to stipulate; namely, that an accounting reserve was established by Camay in the fall of 1977 to protect itself against a possi- ble adverse ruling with regard to the money due the pen- sion fund. Waggoner's testimony was quite convincing that there was no discussion at the July 6, 1977, meeting in Burlin- game between the parties regarding the pension contribu- tion by Respondent. Waggoner's testimony was to the effect that the Union was seeking parity on the part of Camay with the total compensation of Montgomery. Waggoner admitted that he did not recall any discussion as to the specific rates of pension contributions by Camay and the union spokesmen certainly were not talk- ing about Camay's making contributions to the various funds in the same amount as Montgomery because these were totally different figures. (Montgomery was to con- tribute 75 cents an hour to the pension fund and 80 cents to the vacation/holiday fund. There has never been any dispute about Camay's allocation of 30 cents to the vaca- tion/holiday fund. This entire dispute concerns the addi- tional 25 cents to the pension fund or a total of 55 cents.) Thus when Waggoner testified of total compensation he could not possibly have meant identical compensation and allocation as that paid by Montgomery. Respon- dent's typed version of the July 6 agreement (Resp. Exh. 7) reflects the Montgomery total compensation. Having carefully reviewed the entire record in this case, I remain of the opinions expressed in my original Decision. Based on the credited testimony of Meyer Luskin and the logical reasoning as previously set forth in detail, I am convinced that Respondent never received the letter of July 9 notifying it of the desired change in the pension fund allocation. Nor has there been any con- 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vincing evidence at either the first hearing or the remand to indicate that the parties even discussed the pension fund contribution. Under such circumstances the parties could not possibly have agreed to a specific amount. 7 The Intervenor further argues in its brief that Camay violated Section 8(a)(5) of the Act by insisting to impasse on agreeement concerning nonmandatory subjects for collective bargaining and by refusing to sign the Burlin- game agreement on wages. It is true-as the Intervenor argues-that the duty to bargain in good faith does not permit a party to condition agreement upon withdrawal of a pending unfair labor practice charge. However, such an argument in this instance distorts the facts. There was no impasse at Burlingame. Nor is there any evidence that Respondent insisted on the dropping of the lawsuits. Luskin testified that as far as he was concerned the strike action of the Union had been totally ineffective and was not giving Respondent any difficulty. It was the Union The Intervenor's brief points to a colloquy between the Administra- tive Law Judge and Beasley during the first hearing as supporting the proposition that there was discussion in the early negotiations regarding the pension fund contribution; however, Beasley concluded the question- ing by saying, "Well, that was my impression that I got .... " I find Beasley's testimony totally inadequate to support a finding that the par- ties discussed the 25 cents in additional contributions to the pension fund. that was looking for some means to save face and asked for something additional over Respondent's final offer of February 3, 1977. These assertions were not challenged. The only reason Respondent agreed to sweeten the pot was to rid itself of the pending litigation. While it is il- legal to insist to impasse on the withdrawing of pending Board charges, it is not illegal for the parties to voluntar- ily agree to do so in connection with a final settlement and this is exactly what the parties agreed to do. As indi- cated in my original Decision, Respondent's Exhibit 7 accurately reflects what the parties agreed to on July 6, 1977, in Burlingame, and the Union's refusal to sign said agreement fully justified any failure of Respondent to carry out said contract. CONCLUSIONS OF LAW The Remedy, the Conclusions of Law, and the Order and notice to employees remain as set forth in my origi- nal Decision issued on June 22, 1978.8 8 The Remedy section of my original Decision indicated that interest should be paid on certain trust fund money that were not paid during the pending litigation. The Board has determined that any "additional amounts" depend upon the circumstances of each case and thus should be left to the compliance stage. See Fitzpatrick Electric. Inc., 242 NLRB 739 (1979), and cases cited therein. 246