Quality Hotel Tacoma Dome

538 314 NLRB No. 91 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The name of this Charging Party was amended at the hearing. 2 The Respondent does not except to, and we affirm, the judge’s finding that it committed postsettlement violations of Sec. 8(a)(5) and (1) by unilaterally instituting new terms and conditions of em- ployment involving ‘‘at will’’ employment, problem review, no-so- licitation, visitation, cash and charge, vacation, and leaves of ab- sence. 3 The General Counsel and Charging Party Trust Fund correctly note in their exceptions that the judge erroneously stated that the Federal district court decision and the arbitration decision involving the issues encompassed by Case 19–CA–21491 were rendered prior to the September 6, 1991 settlement agreement in Case 19–CA– 21578. Both decisions issued after the settlement agreement: the Federal district court decision on May 26, 1992, and the arbitrator’s decision on June 15, 1992. Contrary to the contentions of both par- ties, however, we do not find that the judge’s error in this regard affects his decision that, under Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978), the settlement agreement precludes the General Counsel from litigating the presettlement conduct alleged in the charges in Cases 19–CA–21491 and 19–CA–21747. 1 The name of the Trust Fund appears as amended at the hearing. 2 Prior to the commencement of the hearing, counsel for the Trust Fund filed a motion for collateral estoppel; counsel for Respondent filed an opposition and an accompanying Motion for Summary Judg- ment; and counsel for the General Counsel filed an opposition to both motions. At the trial, both pretrial motions were taken under advisement by me, with rulings deferred until the issuance of this decision. 3 Accompanying Respondent’s posthearing brief was a motion to supplement the aforementioned Motion for Summary Judgment with two affidavits of Joseph Brunetti. Brunetti testified at the hearing, and there is no claim of newly discovered or previously unavailable evidence. Accordingly, this motion is denied. Ferryman Enterprises d/b/a Quality Hotel Tacoma Dome and Hotel Employees and Restaurant Employees, Local 8, Hotel Employees and Res- taurant Employees International Union, AFL– CIO and HERE Health and Welfare Trust Fund.1 Cases 19–CA–21491, 19–CA–21747, and 19–CA–22298 July 28, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN On October 14, 1993, Administrative Law Judge Burton Litvack issued the attached decision. The Gen- eral Counsel and Charging Party HERE Health and Welfare Trust Fund filed exceptions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Ferryman Enterprises d/b/a Quality Hotel Tacoma Dome, Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Daniel Sanders, Esq., for the General Counsel. Judd Lees, Esq. (Williams, Kastner & Gibbs), of Bellevue, Washington, for the Respondent. Mel Kang, Esq. (Ekman & Bohrer), of Seattle, Washington, for Charging Party HERE Health and Welfare Trust. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. The unfair labor practice charge in Case 19–CA–21491 was filed by Hotel Employees and Restaurant Employees, Local 8, Hotel Employees and Restaurant Employees International Union, AFL–CIO (the Union) on May 7, 1991, and the unfair labor practice charges in Cases 19–CA–21747 and 19–CA–22298 were filed on October 16, 1991, and September 23, 1992, re- spectively, by HERE Health and Welfare Trust (the Trust Fund).1 Based on the unfair labor practice charges, on Octo- ber 29, 1992, the Regional Director of Region 19 of the Na- tional Labor Relations Board (the Board) issued a second consolidated complaint alleging that Ferryman Enterprises d/b/a Quality Hotel Tacoma Dome (Respondent) engaged in acts and conduct violative of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondent timely filed an answer denying the commission of any of the al- leged unfair labor practices. Based on a notice of hearing, a trial before me was held in Seattle, Washington, on January 5 and 6, 1993. At the hearing,2 all parties were afforded the opportunity to examine and to cross-examine witnesses, to offer into the record any relevant documentary evidence, to argue their legal positions orally, and to file posthearing briefs. All parties filed the latter documents, and each brief has been carefully considered by me.3 Accordingly, based on the entire record herein, including the posthearing briefs and my observation of the testimonial demeanor of the several witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a State of Washington corporation, with an office and place of business in Tacoma, Washington, and is engaged in the business of operating a hotel and restaurant facility. In the normal course and conduct of its business op- erations, during the 12-month period immediately preceding the issuance of the instant second consolidated complaint, which period is representative, Respondent derived gross rev- enues in excess of $500,000 and purchased and received goods and materials valued in excess of $50,000, directly from sources outside the State of Washington or from sup- pliers inside the State of Washington, who had received the goods and materials from outside the State. Respondent ad- mits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 539 QUALITY HOTEL TACOMA DOME 4 This provision reads as follows: 18.01 No room attendant shall be required to do a substantial makeover of more than sixteen (16) rooms with private bath in any one shift of eight (8) hours without extra compensation. Each room of a suite shall be counted separately for this pur- pose. Room attendants shall be paid an additional fifty cents ($.50) for each bed, crib, or cot made up over this limit, and independently shall be paid at the overtime rate if required . . . above. Joseph Brunetti, the general manager of the Hotel since June 1, 1991, defined the term ‘‘substantial makeover’’ as cleaning a room and changing the bedding, whether used or not. 5 This provision, in relevant part, reads as follows: 19.01 The Employer shall provide health and dental insurance for eligible employees who have completed the review period. Brochures shall be made available to the employees and the Union through the Human Resources Department. 19.02 Contributions required For employees covered by the Restaurant Employees Welfare Fund, the employer shall pay the appropriate amount specified below each month for each em- ployee who works sixty-five (65) hours or more during each month to the Restaurant Employees, Bartenders, and Hotel Serv- ice Employee Welfare Fund. In addition each employee who has authorized withholding and has not elected to revoke employee contributions . . . shall pay the appropriate amount . . . to be added to the Employer payment. . . 19.05 Administration The Welfare Fund shall be administered by a ten (10) member Board of Trustees (five (5) representing the Employers and five (5) representing the Union) in accord- ance with the terms and provisions of that certain Trust Agree- ment creating the Welfare Fund. . . . Except as otherwise pro- vided . . . the employer and the Union hereby agree to be bound by the terms and provisions of said Trust agreement and amendments. . . . 19.07 Trustees’ Authority Except as otherwise provided in 19.01 through 19.04 herein, the Board of Trustees shall provide hospital, medical, dental, vision, and such other health care . . . benefits as feasible. . . . The determination of . . . the eligi- bility of employees for such benefits shall rest exclusively with the Trustees. 6 The parties stipulated that bargaining sessions were held on March 7, April 24, July 20, August 28, and November 1, 1990. In addition, the record establishes that negotiating sessions were held on a day in March, on May 13, and June 13, 1991. II. LABOR ORGANIZATION Respondent admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES The second consolidated complaint and the General Coun- sel allege that Respondent and the Union were parties to a collective-bargaining agreement, covering certain of Re- spondent’s service and restaurant employees, which was ef- fective until January 31, 1990; that, while extending their agreement on a day-to-day basis, the parties engaged in bar- gaining for a successor contract; that, in the midst of the ne- gotiations, without notice to or bargaining with the Union, Respondent engaged in certain unilateral changes, including, since August 1990, the cessation of payments to the Trust Fund for the coverage of new bargaining unit employees, who had not completed a ‘‘review period’’ of 5 months, under the contractual health insurance plan; since January 1991, the institution of a new health plan for new bargaining unit employees; and, in March 1991, changing the method of compensating housekeepers for substantial makeovers; and that, as a result of the unlawful unilateral changes in the terms and conditions of employment of bargaining unit em- ployees, Respondent engaged in bad-faith bargaining, thereby precluding a genuine impasse in the bargaining in or about June 1991. Further, it is alleged that, in the absence of a valid impasse, Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally, without bargaining with the Union, in June 1991, substituting a new health insurance plan for all bargaining unit employees and, in June 1992, implementing the terms and conditions of employment contained in a new employee handbook. Respondent denies the commission of any of the alleged unilateral changes, contending that any changes instituted during the bargaining were contractually mandated and that a valid impasse in bargaining was de- clared by the Union in June 1991, rendering lawful any changes in employees’ terms and conditions of employment subsequent to that date. Finally, with regard to the employee handbook allegations, Respondent asserts that its provisions were never implemented. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent, which owns and operates four other hotels in the States of Oregon and Washington, owns and operates the Quality Hotel Tacoma Dome, a 160-unit full service hotel and restaurant facility located in Tacoma, Washington (the Hotel). The record establishes that the previous owner of the Hotel recognized the Union as the collective-bargaining rep- resentative of its food and beverage employees, kitchen em- ployees, and hotel service employees and embodied such rec- ognition in successive collective-bargaining agreements, com- mencing in June 1988, with the most recent of which effec- tive from August 1, 1989, until January 31, 1990, and that, having purchased the Hotel in December 1989, Respondent agreed to continue to recognize the Union as the bargaining representative of the above-described employees and to abide by the terms of the existing collective-bargaining agreement, including the housekeeping bonus pay provision, article XVIII,4 and the health insurance clause, article XIX.5 The record further discloses that, as the existing contract was due to expire, Respondent and the Union agreed to negotiate over the terms of a successor collective-bargaining agreement and that they agreed to extend the terms and conditions of the existing contract on a day-to-day basis during the ensuing ne- gotiations. There is no dispute that, commencing in March 1990 and culminating on June 13, 1991, the contract negotiations, be- tween Respondent and the Union, continued for 16 months, during which time the parties met and bargained on, at least, 8 occasions.6 Central to the unfair labor practice allegations of the second consolidated complaint were discussions re- garding the aforementioned housekeeping article and conten- tious bargaining over health insurance, which appears to have been the single most significant impediment to agreement during the negotiations. With regard to the latter matter, in order to place the bargaining, over it, in context, certain points must be understood. Initially, while the health insur- ance article of the existing collective-bargaining agreement does not mandate that the employer cover bargaining unit 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 The increase in the initial eligibility period, during which em- ployers would make contributions for the employee, was designed to alleviate a projected need for a substantial contribution increase and a reduction in the Trust Fund reserves. 8 Ferryman insisted that Respondent would begin making payments to the Trust Fund for any new employees after the initial eligibility period; however, there is no record that such was ever done. On this point, Ferryman testified that he and Winter interpreted the initial eligibility period as including the contractual probationary period of 3 months. employees under the health insurance plan, which is adminis- tered by the trustees of the Trust Fund, at the time Respond- ent purchased the Hotel and assumed the existing collective- bargaining agreement, all bargaining unit employees were covered under that health plan, and Respondent continued to enroll new employees only in the Trust Fund’s health insur- ance plan. Further, notwithstanding the terms of the ‘‘benefit plan instrument,’’ which provide that new employees are ini- tially eligible for coverage only after having worked a certain amount of time, which, on October 17, 1989, the Trust Fund’s board of trustees changed from 3 to 5 ‘‘consecutive months in which [the employee works] 65 or more hours,’’ the Trust Fund requirement and the industry practice, to which, apparently, the former owner of the Hotel adhered and, there is no dispute, to which Respondent initially ad- hered, was that employers of covered employees reported and made ‘‘the required contribution’’ for new employees commencing in the initial month following their hire.7 There in no real dispute as to the initial course of bar- gaining over health insurance. Thus, both Glen Grover, a business agent and the chief spokesperson for the Union dur- ing bargaining through March 1991, and Attorney Herbert Gellman, who represented Respondent during the contract negotiations, testified that, at the first two bargaining ses- sions, the health insurance discussions concerned the pro- posed premium payments under the Trust Fund’s plan. In this regard, the existing agreement provided that, for the $102.50 monthly premium for each covered employee, the employee would be responsible for $5 and Respondent would be responsible for the remainder ($97.50). The Union’s initial contract proposal to Respondent retained the aforementioned monthly premium payment contributions for 1990, but for 1991, in order to fund a $125 premium, sought a $120 contribution from Respondent while continuing the $5 employee contribution. Respondent’s response was that it wanted the ‘‘insurance payment shared 50/50 between employer/employee.’’ According to Gellman, as there was a 5-month health insurance eligibility period during which em- ployees had no coverage and as there was high employee turnover resulting in some employees never receiving health insurance coverage despite Respondent being responsible for making almost the entire premium payment on them, Re- spondent’s initial position was that the employees must pay a higher portion of the monthly premium, with such ulti- mately reaching a 50/50 split. Gellman added that Respond- ent was willing to increase its premium responsibility but only if the initial eligibility period was reduced ‘‘where we’re paying for nothing.’’ Reflective of the bargaining over health insurance during the initial months is the fact that, at the April 24 session, discussions concerned a proposed $25 cap on the employee monthly premium payment. Commencing with the July 20, 1990 bargaining session, the direction of the health insurance discussions abruptly changed. According to Glen Grover, echoing Gellman’s above testimony, at that bargaining session, Stan Phillips, Respondent’s hotel manager at the time, said that Respondent did not want to ‘‘establish eligibility’’ for new employees, who might not be employed long enough to receive the exist- ing health insurance plan’s benefits, and either at that meet- ing or the August 28, 1990 meeting, Respondent proposed that the Union permit it to submit an alternative health insur- ance plan to the bargaining unit employees as an option and stated that it would commission an insurance broker to present one to the employees. With regard to this new plan, Glen Grover testified that, subsequent to that July bargaining session, all he received were ‘‘generalizations’’ with the ‘‘only specific thing’’ being that a new plan would be devel- oped. Then, 5 months later, at the parties’ November 1, 1990 bargaining session, Respondent presented its proposed alter- native health insurance plan, the Pierce County medical plan, to the Union’s negotiators. While there exists no testimony on the point, based on a letter, dated December 20, from Grover to Gellman, it appears that, also on November 1, the Union made a counterproposal, removal of the 5-month eligi- bility period from the Trust Fund’s health insurance plan in exchange for Respondent’s agreement to be responsible for each employee’s entire monthly premium to the Trust Fund. There is no evidence of any specific response; however, given the parties’ subsequent conduct, the counterproposal was obviously rejected. Commencing in August 1990 and continuing through June 1991, with the existing collective-bargaining agreement, in- cluding the health insurance provision, having been extended on a day-to-day basis during the ongoing successor contract negotiations, Respondent ceased making monthly health in- surance premium payments for new bargaining unit employ- ees to the Trust Fund. According to Gene Ferryman, the sole owner of the Hotel, in August 1990, inasmuch as Respondent believed the existing plan was not adequate and had decided to offer an optional health insurance plan to the bargaining unit employees ‘‘as soon as we could get it okayed by the Union,’’ after consulting with his accountant, Scott Winter, he decided that Respondent would no longer make contribu- tions for new employees to the Trust Fund. There is no dis- pute that the implementation of Respondent’s decision was accomplished without notice to the Union or affording it an opportunity to bargain. Justifying Respondent’s conduct, Ferryman testified that he and Winter reviewed the language of article XIX of the existing agreement and concluded that section 19.01 permitted Respondent to offer an optional plan to the bargaining unit employees and that section 19.02 meant that premium payments for new employees commence when they are ‘‘covered’’ by the health insurance plan and that new employees were not ‘‘covered’’ until the passing of the 5-month initial eligibility period.8 Besides withholding premium payments for new hires from the Trust Fund, in a letter dated December 6, 1991, from Attorney Gellman to Glen Grover, the former an- nounced that ‘‘management wishes to advise you that for new hires effective January 1, 1991 they will be enrolled in the new [health insurance] plan with effective coverage to take place ninety (90) days after hire.’’ Glen Grover testified that this had never been discussed during negotiations and 541 QUALITY HOTEL TACOMA DOME 9 Gene Ferryman testified that, in fact, after January 1, 1991, new employees were given a choice of coverage under the Trust Fund’s health insurance plan or the Pierce County medical plan. Thereafter, he was confronted with prior sworn deposition testimony in which he had stated that, after January 1, new employees were only offered coverage under the latter plan. Explaining this contradiction, Ferryman averred that ‘‘shortly after the testimony,’’ he realized that his statement had been ‘‘an error’’; however, he admitted never hav- ing revealed this mistake to anyone. 10 Present for Respondent were Gellman, Tandy, and department managers, and present for the Union were Grover, Rick Hall, who was the Union’s managing director, and others. 11 Hall stated that ‘‘it was not our understanding that the employ- ees would have individual option . . . the entire bargaining unit got the plan, or the entire bargaining unit got the other plan.’’ that, after reading the letter, he telephoned Gellman and ‘‘re- minded him that the only thing we were in agreement on was a plan to have them present . . . coverage . . . to the em- ployees, and then the employees would then choose what they wanted.’’ According to Grover, Gellman said ‘‘that was his understanding as well.’’ Nevertheless, the record dis- closes that Gellman’s above-quoted statement, in fact, rep- resented Respondent’s practice, for new hires, subsequent to January 1, 1991. Thus, in response to counsel for the General Counsel’s question regarding what health insurance plan was offered to new employees after January 1, 1991, Respond- ent’s accountant, Winter, replied, ‘‘Pierce County Medical.’’ Asked if that was the only health insurance plan offered to new employees, Winter said, ‘‘As far as I know.’’ Finally, when asked whether new employees would have had no health insurance coverage if they had not chosen the Pierce County Medical Plan, Winter responded ‘‘yeah. That’s as far as I know.’’9 Glen Grover testified that he had no knowledge that Respondent was enrolling new employees in the Pierce County medical plan and that, after his above-described tele- phone conversation with Gellman, he heard nothing more about implementation of the Pierce County medical plan for any bargaining unit employees until some time after January 1 at which time some of the employees informed him that Respondent had posted a notice, ‘‘indicating to them that they all were required to enroll in a new health care plan.’’ Grover immediately telephoned the Hotel’s new general manager, Steve Tandy, and told him ‘‘that the posting of the new health . . . plan was completely against the grain of our negotiation process’’ and, thereafter, filed an unfair labor practice charge with the Board regarding Respondent’s con- duct. The parties did not have another scheduled contract bar- gaining session until a meeting in March 1991 in a con- ference room at the Hotel.10 According to Glen Grover, Gellman and Tandy ‘‘assured us that it was a misunder- standing on the part of the employees in our bargaining unit; that the plan was for management employees only; that it would have no effect on our previously discussed plan.’’ Thereupon, the parties agreed on a date in early April at which management would present a health insurance plan to the bargaining unit employees and at which an insurance broker and a Trust Fund representative would discuss how Respondent’s plan impacted on the employees. Rick Hall’s account of this meeting corroborated that of Grover. Accord- ing to him, Gellman and Tandy both said that the bulletin board notice had been a ‘‘mistake’’ and that management only was being offered the Pierce County medical plan. Fur- ther, the parties agreed that a meeting of bargaining unit em- ployees should be scheduled at which time an insurance broker and a Trust Fund representative would discuss the Pierce County Plan and that ‘‘then we would have a vote and let the employees decide which [plan they] wanted.’’11 As a result of what was said, Grover withdrew the unfair labor practice charge. The bargaining unit employees’ meeting, at which the Pierce County medical plan would be presented and com- mented upon by Respondent’s insurance representative and a representative of the Trust Fund, was scheduled for a day in April 1991. Rick Hall testified that, shortly before the day of the meeting, he received a telephone call from a Trust Fund official, who informed Hall that there had been ‘‘a sub- stantial drop off of members in the plan’’ for Respondent and that his information was that Respondent did not believe it had to pay for the initial 8 months of employment for new hires. Hall attended the bargaining unit employees’ meeting, which progressed according to the agreed-on procedure, and requested that Steve Tandy meet with him privately. Tandy agreed, and they spoke alone on an upper floor of the Hotel. According to Hall, who was uncontroverted, he began by asking Tandy where Respondent had conjured the 8 months eligibility period. Tandy replied that such came from Re- spondent’s interpretation of the contract, which did not re- quire membership in the Union for the initial 3 months of employment, and the health insurance plan’s 5-month initial eligibility period. Hall replied that ‘‘people have to join the Union after 30 days’’; that ‘‘being a member of the Union or not has nothing to do with your obligation to make con- tributions to [the] plan . . . from day one’’; and that Tandy did not have the authority ‘‘to go ahead and all by himself decide that he’s interpreting the contract this way.’’ Hall added that Respondent was ‘‘digging a hole’’ with the Trust Fund and had to correct the matter, but Tandy refused to do so. The record reveals that, subsequently, Hall spoke to Trust Fund representatives and requested an audit of Respondent’s records and conducted a meeting of bargaining unit employ- ees, at which all voted to retain the Trust Fund health insur- ance plan. At this point, turning to the allegations involving the housekeeping provision of the existing collective-bargaining agreement, article XVIII, I note that this does not appear to have been a significant issue during negotiations and that the crux of the matter concerns the point at which housekeepers must be paid the additional 50 cents per bed. In this regard, there is no dispute that the Hotel’s prior owner paid the above bonus to housekeepers for each additional bed changed in excess of 16 beds and that Respondent continued this practice until some time in March 1991. During the course of the bargaining, the Union initially proposed to in- crease the bonus to $1.25 per bed, but, eventually, proposed no change from the existing amount. Respondent’s consistent position was that no housekeeping bonus should be paid. Moreover, Respondent’s representatives continually stated that they interpreted the contractual housekeeping provision as requiring the payment of the bonus after 16 rooms rather than 16 beds; according to Glen Grover, ‘‘at some meeting, Herb Gellman pointed out to me that they were actually pay- ing for beds when the contract was written in terms of 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 There is no evidence as to whether Respondent ever resumed adhering to the admitted past practice. rooms.’’ Thereafter, Grover added, ‘‘Phillips and . . . Gellman, and I agreed . . . to continue with [the existing but] erroneous practice [which] had been going on . . . until we reached agreement on the new contract.’’ During cross- examination, Grover admitted acknowledging to Gellman that the bonus payment should have been after 16 rooms, and not 16 beds, and conceded that ‘‘once a contract was ratified, they were going live up to this language as it was written in here.’’ He added that Respondent was ‘‘paying more money to the employees than they should have.’’ Finally, Grover conceded that, in his December 6 letter, Gellman ac- curately described their discussions—‘‘We discussed allow- ing [Article XVIII] to remain in full force and effect while we are negotiating, however it would be terminated under the new contract. The union members have already received the benefit of . . . a misapplication of that provision. . . . In its place, a premium will be included . . . that provides a rela- tionship to rooms only and not beds.’’ Notwithstanding its attorney’s commitment to continue the status quo through the negotiations, without giving notice to the Union or affording it an opportunity to bargain, in March 1991, Respondent dis- tributed, to all housekeeping personnel, a memorandum, clarifying its policy on the payment of ‘‘extra bed credits’’ pursuant to article XVIII and stating that, ‘‘according to the contract, you are entitled to extra compensation only after sixteen rooms have been completed and all beds within those sixteen (16) rooms have been made, with the exception of substantial makeovers.’’ Finally, according to the accountant Winter, in the latter part of March, Respondent commenced paying the housekeeping bonus in accord with its announced change from past practice,12 and the record reveals that the Union only became aware of Respondent’s above-described changed practice from the complaints of bargaining unit em- ployees. Thereafter, against the above-described backdrop of sus- pected unilateral changes by Respondent, involving with- holding the payment of health insurance premiums and changing the method of paying the housekeeping bonus, the next contract bargaining session was held on May 13, 1991, in the Hotel’s conference room. According to Rick Hall, who was the Union’s main spokesperson, the first matter dis- cussed was the housekeeping bonus. Hall accused Respond- ent of changing its practice, and, after Respondent argued that it was merely following the contract, ‘‘I said you’re right . . . but this is clearly the past practice here that you’ve been paying on these double beds, and that not only was [Respondent] paying on the double beds . . . but the predecessor . . . had paid in that exact same manner.’’ Steve Tandy responded that it was not ‘‘fair,’’ that Respondent in- terpreted the contract as permitting the change. He continued, saying such was important to Respondent as it was remod- eling most of its rooms, utilizing double beds rather than two single beds in each room, and that ‘‘they didn’t want to pay on the extra bed. It was a substantial amount of money for the Employer.’’ With this matter unresolved, Hall testified, the negotiations then turned to health insurance, with one as- pect of the discussions being the meaning section 19.02 of the existing contract—‘‘we talked about Mr. Tandy’s revela- tion in regards to the eight month period in which he did not have to pay on employees. [Tandy] . . . referred to a 90 day period they didn’t have to join the Union, and that if they didn’t have to join the Union . . . during the review period, [Respondent] didn’t have to pay the contribution.’’ Tandy added that, because new employees received no insurance benefits during the 5-month eligibility period, Respondent didn’t have to pay on them for those 5 months. Hall re- sponded that the employees had voted to retain the Trust Fund health insurance plan. Tandy replied that Respondent continued to desire to offer the Pierce County medical plan as an ‘‘optional plan.’’ Hall asked what he meant, and, after Tandy and Herb Gellman began arguing, Hall suggested that Respondent should caucus in order to present an answer to the Union. Hall testified that, after a short break, Gellman stated that ‘‘if we’re to go with the Union plan, we want a 50/50 split on the co-payment. If we’re going to go with the Pierce County Medical Plan, we want a 50/50 split on em- ployee only coverage.’’ Hall replied the Trust Fund would not permit ‘‘selectivity of plans,’’ and ‘‘we had to have one plan or the other.’’ Believing there was confusion in Re- spondent’s position, Hall asked that Ferryman be present at their next meeting, and ‘‘we can find out really what [he] wants to do’’ in order to complete the negotiations. Tandy said he would endeavor to have Ferryman present. Herb Gellman testified to a different version of the parties’ May 1991 bargaining session discussions over health insur- ance. According to the attorney, Respondent continued to propose the Pierce County health plan as an option for the bargaining unit employees and reiterated its earlier proposals regarding the existing health insurance plan—that it desired a 50/50 split on the monthly premium payments to the Trust Fund and that it would consider going beyond such a split in return for a reduction in the 5-month eligibility period, during which it paid the employee’s monthly premium while the employee received no coverage. The union representa- tives rejected each of the foregoing proposals, and one de- clared that the parties were ‘‘at impasse’’ with regard to health insurance. Gellman further testified that, after a cau- cus, the Union’s representatives asked if, they made ‘‘modi- fications’’ on health insurance, would Respondent be willing to increase wages. Thereupon, the union negotiators stated that the Union would be willing to permit Respondent to en- roll all new employees in the Pierce County health plan in return for Respondent’s agreement to grandfather all current bargaining unit employees into the existing Trust Fund insur- ance plan. Respondent’s negotiators replied that they be- lieved that, under the existing plan, the total monthly pre- mium for each current employee could reach $165, and wanted to retain the right to either have a cap on the amount of the monthly premium increase or the right to reopen the contract if the health insurance premiums became too costly. Gellman added that, at the close of the bargaining session, three options were on the table—the existing health plan with its initial eligibility period; the Pierce County Health Plan with a 50/50 monthly copayment; and the employee option of either plan with current bargaining unit employees to be grandfathered into the union plan and new employees placed in the Pierce County health plan. With regard to the house- keeping bonus issue, Gellman corroborated Glen Grover that, previously during the negotiations, the parties had agreed that Respondent had been ‘‘misapplying’’ the contractual house- keeping provision by paying the bonus after 16 beds rather 543 QUALITY HOTEL TACOMA DOME 13 According to Brunetti, he assumed the general manager position in the first week of June and, after moving his family and posses- sions to Tacoma from Phoenix, Arizona, telephoned the Union in order to seek a postponement of the bargaining session. He spoke to Rick Hall, who refused to postpone the meeting in order to con- clude the negotiations. 14 Asked why the Union declared an impasse, Hall testified, ‘‘we felt we had to declare impasse in writing in order not to be the vic- tim of any kind of litigation, because we were going to carry out a boycott. . . . so we felt that in order to cover ourselves . . . so that we weren’t violating the [no strike no lockout clause] . . . we had to declare impasse.’’ Hall failed to explain the contradiction be- tween this letter and the Union’s leaflet to the employees. There is no dispute that, pursuant to art. XXII of the existing col- lective-bargaining agreement, by declaring an impasse in the negotia- tions, the Union effectively terminated the existing contract, which had been extended on a day-to-day basis while negotiations for a successor agreement continued. 15 Hall sent the letter to Gellman because ‘‘we did not feel that the employer had a right to implement his last offer or anything else.’’ 16 As he believed his authority extended only through the existence of the collective-bargaining agreement, the arbitrator issued a make- whole remedy, effective from March through only June 13, 1991, and not beyond. than rooms and that ‘‘we had reached an accord that when the contract was signed that issue would go back to the way it was originally intended’’; however, beyond recalling that the Union raised the issue at the May 1991 bargaining ses- sion, he offered no elaboration on the point. Six days before the above-described May 13, 1991 bar- gaining session, the Union filed the unfair labor practice charge in Case 19–CA–21491. The charge alleged that Re- spondent had engaged in certain unlawful unilateral changes in the bargaining unit employees’ existing terms and condi- tions of employment, specifically its failure and refusal to make contributions to the Trust Fund on behalf of new bar- gaining unit employees since August 1990 and its new cal- culation method for the payment of the housekeeping bonus. After the investigation disclosed an asserted contractual basis for Respondent’s acts and conduct and after obtaining the agreement of the parties, following established procedures, the Regional Director of Region 19 decided to hold the un- fair labor practice charge proceeding in abeyance, deferring to the contractual grievance and arbitration procedure for res- olution of both matters. In fact, while the parties did proceed to arbitration on the housekeeping bonus issue, inasmuch as the Trust Fund had filed a lawsuit over Respondent’s failure to make premium contributions, since August 1990, for new employees, who were all enrolled in the existing health in- surance plan, and as the issues were identical to those which would have been placed before an arbitrator, they agreed to have the issues resolved in that proceeding and not to arbi- trate the latter matter. Notwithstanding the lawsuit and the arbitration, Respond- ent and the Union continued their collective bargaining, ar- ranging for another meeting on June 13 with the under- standing that Ferryman would be present. On the scheduled day, the parties met in the Hotel’s conference room; rep- resenting Respondent was Joseph Brunetti, who had recently been appointed as the Hotel’s new general manager,13 and representing the Union were Hall, Joseph Massimino, the Union’s president, and Robert Detamore, a business agent. There is no dispute that the meeting lasted little more than 15 minutes. According to the corroborative accounts of the union representatives, the meeting began with Brunetti re- questing permission to tape record the session and Hall refus- ing to permit him to do so. Massimino asked whether Brunetti possessed authorization to bargain for the Hotel, and Brunetti said that he did. Hall then asked why Ferryman was not present, and Brunetti responded that he was ‘‘detained’’ at a Trust Fund audit in Vancouver and that Gellman was in court and would not attend. Thereupon, Hall said that the major issue was health insurance and asked what Brunetti had to say. Brunetti replied that Ferryman indicated that he was going to go with the Pierce County plan and wanted to have a 50/50 split in the monthly premiums. Becoming ‘‘angry’’ and interpreting Brunetti’s comment as meaning Respondent intended to implement the Pierce County med- ical plan, Hall accused Brunetti of giving the Union ‘‘kind of a run around’’ and committing an unfair labor practice by implementing that health insurance plan and, ‘‘at that point . . . said hey, you know, there’s no sense talking anymore. We’re tired of this. And Joe Massimino said let’s walk. And we left the room.’’ Brunetti testified to a different version of what occurred, stating that Hall said he wanted to know one thing—would Ferryman consider grandfathering. Brunetti said, no, and Hall arose, saying, ‘‘I believe we’re at an im- passe.’’ The other union representatives agreed and all left the room. Whether or not the word was uttered at the bargaining ses- sion, it is clear that the Union leadership did, in fact, believe that the negotiations were at an impasse. Thus, later on June 13 after the meeting, not only did the Union distribute a leaf- let to bargaining unit employees, which stated ‘‘You have a right to picket your current employer once we have declared impasse in negotiations. At the present time management has proposed numerous takaways and we have no other recourse than to declare an impasse’’ but also Rick Hall wrote a letter to Herb Gellman, stating that, pursuant to the terms of article XXII of the collective-bargaining agreement, the Union was declaring ‘‘that we are at impasse in negotiations.’’14 Two weeks later, on June 26, 1991, Hall wrote another letter to Gellman, stating that he understood that Respondent planned to implement changes in the bargaining unit employees’ terms and conditions of employment and ‘‘that bargaining reached impasse because of your client’s illegal action which clearly impeded bargaining.’’15 On July 3, 1991, with the bargaining in the above-de- scribed posture, the Union filed an unfair labor practice charge in Case 19–CA–21578, alleging that Respondent had refused to bargain in good faith and had engaged in unilat- eral changes, involving the changing of work schedules. The record discloses that, prior to the filing of the charge, not only had the Union declared an impasse in the negotiations based on Respondent’s unlawful activities but also, on June 15, the arbitrator issued his decision, ruling that Respondent had acted in violation of the existing collective-bargaining agreement by changing the method of bonus compensation for housekeeping employees16 and, on May 26, a United States magistrate judge issued a decision, ruling that, in ceas- ing to make contributions to the Trust Fund on behalf of new employees from their date of hire, Respondent had engaged in an ‘‘abrupt’’ change in practice not justified by any lan- guage in the existing collective-bargaining agreement or by 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD past practice. Further, there is no dispute that, in or about July, without notice to the Union or offering it an oppor- tunity to bargain, Respondent commenced registering all bar- gaining unit employees in the Pierce County health plan and, thereafter, failed and refused to make health insurance pre- mium payments, for any bargaining unit employees, to the Trust Fund after investigation of the unfair labor practice charge by Region 19 and, presumably, a finding that such was meritorious, on August 29 and September 4, respec- tively, Respondent and the Union entered into an informal settlement of the allegations, which was approved by the Re- gional Director. The settlement agreement, which neither ex- pressly reserves the unfair labor practice charge issues in- volved in Case 19–CA–21491 nor addresses the matters of Respondent’s asserted failure to bargain in good faith or the validity of the union-declared bargaining impasse, remedies two specific unlawful unilateral changes, a change in sched- uling procedures and a new training program. The parties stipulated that, in or about July or August 1992, Respondent distributed a new employee handbook to all bargaining unit employees and that, prior to doing so, Re- spondent failed to consult with the Union with regard to its contents. As to the reason for the publication of the new handbook, Joseph Brunetti testified that ‘‘I was informed by Choice International Hotels, who we are a franchise of, that they were going to have another inspection, and the inspec- tion calls for the Hotel to have in place a handbook.’’ Ac- cordingly, Brunetti began preparing the handbook ‘‘in late June’’ and issued it a month or two later. The General Coun- sel alleges that certain of the terms and conditions of em- ployment, set forth in the handbook, were never con- templated by the parties during negotiations and, therefore, constitute unlawful unilateral changes and that others were discussed during the bargaining but, if, as alleged, the instant bargaining impasse resulted from Respondent’s bad-faith bar- gaining and was, thus, invalid, these likewise constitute un- lawful unilateral changes. With regard to the initial allega- tion, the parties stipulated that the handbook implemented an ‘‘at will’’ employment policy, which had never been the sub- ject of negotiations. Also, Rick Hall testified that, while Re- spondent proposed no change in the grievance and arbitration procedure during bargaining, the handbook sets forth a three step problem review procedure, to resolve ‘‘differences’’ over work matters; that the handbook establishes a new cash and charge responsibility policy and a new no-solicitation policy; and that the handbook announces changes, not pro- posed during bargaining, in the vacation, visitation, and charged leave of absences policies. As to the second allega- tion, according to Hall, in the handbook, Respondent imple- mented changes in the overtime and holiday policies— changes consistent with its bargaining proposals to the Union. Conceding that what was announced in the handbook constituted the Hotel’s labor relations policy, General Man- ager Brunetti testified that, while such was a newly imple- mented practice, the problem review procedure was not in- tended to replace the contractual grievance and arbitration procedure and was meant to be a lower level problem-solv- ing procedure. He further testified that the change in the va- cation policy was implemented inasmuch as there were no 10-year bargaining unit employees; that the new cash and charge policy ‘‘is something that we do and we do not stand by. . . . I don’t know that I have ever enforced this para- graph’’; and that ‘‘I enforce [the new no-solicitation policy] periodically throughout the week.’’ Brunetti also denied that the terms and conditions of employment, set forth in the handbook, were implemented therein—‘‘They were policies that were there prior to the handbook. . . . I just incor- porated them into a handbook. So they were past practices that I wrote down so everyone could read them.’’ He added that he learned of the past practices from department man- agers and supervisors at the Hotel. Finally, with regard to the handbook, on or about October 19, Respondent published a memo for bargaining unit employees, informing them that it was in the process of revising the handbook and that the em- ployees should ‘‘disregard the current handbook until we have completed our updated changes.’’ B. Legal Analysis Prior to analyzing the merits of the unfair labor practice allegations of the second consolidated complaint, it is essen- tial to discuss the effect of the informal settlement agreement in Case 19–CA–21578 on the allegations, a matter which forms the basis of counsel for Respondent’s pretrial Motion for Summary Judgment and one of Respondent’s affirmative defenses to the unfair labor practice allegations. In this re- gard, counsel for Respondent argues that, subsequent to the investigation of the unfair labor charge in Case 19–CA– 21578, which alleged that Respondent violated Section 8(a)(1) and (5) of the Act by engaging in bad-faith bar- gaining and unilateral changes, in late August and early Sep- tember 1991, the parties entered into an informal settlement agreement of the allegations, which was approved by the Re- gional Director of Region 19 and with which Respondent fully complied; that the conduct, involved in Cases 19–CA– 21491 and 19–CA–21747, occurred from in or about August 1990 through June 1991; and that, as conduct, which ante- dates a settlement agreement, may not be considered as evi- dence of unfair labor practices, the allegations of the second consolidated complaint must be dismissed. Both counsel for the General Counsel and counsel for the Trust Fund contend that, in entering into the informal settlement agreement in Case 19–CA–21578, the parties meant to reserve the allega- tions of Case 19–CA–21491 and that, while settlement agree- ments may bar prosecution of postsettlement charges filed by other parties, the unique status of fringe benefit funds renders the policy inapplicable in this instance. Board law, with re- gard to the effect of settlement agreements on presettlement conduct, is both longstanding and stringent—‘‘a settlement, if complied with, will be held to bar subsequent litigation of all prior violations . . . except to the extent they were not known to the General Counsel or readily discoverable by in- vestigation . . . or were specifically reserved from the settle- ment by the mutual understanding of the parties.’’ Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978); Steves Sash & Door Co., 164 NLRB 468, 473 (1967). As to whether evi- dence of prior violations was ‘‘known’’ to the General Coun- sel, the applicable test is whether such ‘‘was or should have been discovered through a proper investigation.’’ Hatfield Trucking Service, 270 NLRB 136, 137 (1984). Moreover, the Board requires that ‘‘proof that a charge has been specifi- cally reserved from a settlement agreement must be estab- lished by affirmative evidence,’’ and the fact that a charge is not listed in the settlement agreement does not constitute specific reservation. E.S.I. Meats, 270 NLRB 1430, 1431 fn. 545 QUALITY HOTEL TACOMA DOME 17 While the unfair labor practice charge in Case 19–CA–21491, filed by the Union, concerned only Respondent’s allegedly unlawful unilateral change in the calculation of the housekeeping bonus and its unilateral failure and refusal to remit to the Trust Fund immediate health insurance premium payments for bargaining unit employees who were employed fewer than 5 months, the unfair labor practice charge in Case 19–CA–21747, filed by the Trust Fund, encompasses all of Respondent’s preimpasse allegedly unlawful unilateral changes, including the above acts, Respondent’s alleged bargaining in bad faith, and the validity of the union-declared bargaining im- passe. Thus, while the Sec. 10(b) of the Act 6-month statute of limi- tations period for the latter charge encompasses Respondent’s acts and conduct since April 16, 1991, and while Respondent commenced withholding premium payments for new bargaining unit employees in August 1990, the practice continued through June 1991. The Board has long held that each allegedly unlawful failure to make a trust fund payment constitutes a ‘‘separate and distinct violation of the Act,’’ and failures within the 10(b) period may be litigated not- withstanding that the practice had been ongoing more than 6 months from the filing of the charge. A & L Underground, 302 NLRB 467, 469 (1991); Farmingdale Iron Works, 249 NLRB 98, 99 (1980). In these circumstances, the Trust Fund’s unilateral change allegation encompasses Respondent’s failure to remit premium payments. Moreover, inasmuch as accountant Winter was inexact as to when, in late March, Respondent commenced its change in calculating the housekeeping bonus, it can not be said to have commenced outside the statute of limitations period and, therefore, I likewise find that this allegedly unlawful change may by encompassed by the unfair labor practice charge in Case 19–CA–21747. 3 (1984). Finally, ‘‘if, after settlement of one charge, a re- lated charge regarding pre-settlement conduct is filed, litiga- tion of the new charge is barred whether the same or a dif- ferent party filed the new charge.’’ E.S.I. Meats, supra at 1431 (emphasis added). Applying the foregoing principles to the instant matter, I find merit in counsel for Respondent’s Motion for Summary Judgment and corresponding affirmative defense, noting, at the outset, that, as counsel points out, all of the events, which underlie the second consolidated complaint’s unfair labor practice allegations and the unfair labor practice charges in Cases 19–CA–21491 and 19–CA–21747,17 oc- curred prior to the Union’s filing of the unfair labor practice charge in Case 19–CA–21578, which alleges that Respondent had failed to bargain in good faith and had engaged in un- lawful unilateral changes, and the Regional Director’s ap- proval of the informal settlement agreement therein. In these circumstances, I believe, it is clear that the settlement agree- ment precludes resolution of the allegations of the unfair labor practice charge in Case 19–CA–21491, filed by the Union. Thus, there was no specific reservation of the allega- tions of the latter unfair labor practice charge set forth in the informal settlement agreement in Case 19–CA–21578, and there exists no affirmative record evidence that the parties in- tended to do so. Both counsel for the General Counsel and counsel for the Trust Fund seek that I draw certain infer- ences, from the record and the language of the settlement agreement, establishing that the parties’ intent was to reserve Case 19–CA–21491; however, in my view, such would only lead to undue speculation and I shall decline to do so. As did the trial examiner in Steves Sash & Door Co., supra, counsel for the Trust Fund infers, from the wording of the settlement agreement, from the absence of any mention of Case 19–CA–21491, and from the lack of a provision, with- drawing all pending charges, that the parties intended to re- serve the unfair labor practice charge for future litigation. Contrary to counsel, buttressing my view that acceptance of counsels’ contention would lead to undue speculation, inas- much as Respondent and the Union voluntarily agreed to ar- bitrate the housekeeping bonus issue and to permit the health insurance premium payment issue be decided in the Trust Fund’s lawsuit to compel Respondent to make the payments, as both matters had been decided prior to execution of the settlement agreement, and as there is no record evidence that Respondent would not comply with both adverse decisions, one may just as reasonably infer that the parties believed that Case 19–CA–21491 had been resolved and that the parties did not intend to reserve the matter. Moreover, as stated above, the Board has consistently rejected, as speculation, the contention that acts ‘‘of omission may constitute specific res- ervation.’’ E.S.I. Meats, supra at 1431 fn. 3; Cambridge Taxi Co., 260 NLRB 931 (1982). In these circumstances, absent clear, affirmative evidence, I reiterate that one can only spec- ulate as to what the parties intended, and, therefore, I see no reason to depart from the clear Board policy, regarding the litigation of presettlement agreement conduct. Accordingly, given that the unfair labor practice charge in Case 19–CA– 21491 involves presettlement conduct, I find that the settle- ment agreement in Case 19–CA–21578 precludes resolution of the issues raised by the former matter. Turning to consideration of the effect of the settlement agreement in Case 19–CA–21578 on the presettlement agree- ment conduct encompassed by the subsequent unfair labor practice charge in Case 19–CA–21747, it is readily apparent that, having successfully pursued a lawsuit against Respond- ent for collection of the health insurance premium payments for all new employees, which were withheld by Respondent since August 1990, the Trust Fund’s purpose in filing the un- fair labor practice charge, in Case 19–CA–21747, was to col- lect the health insurance premium payments, allegedly un- lawfully withheld by Respondent since it commenced cov- ering all bargaining unit employees under the Pierce County medical plan. In this regard, I note that, in order to establish a violation of Section 8(a)(1) and (5) of the Act based on the conduct, the General Counsel initially must establish that the union-declared impasse on June 13 was invalid, having been caused by Respondent’s bad-faith bargaining, which re- sulted from its allegedly unlawful unilateral changes. How- ever, all the matters, which are raised by the charge in Case 19–CA–21747, alleged as unfair labor practices in the second consolidated complaint, and necessary to establish Respond- ent’s bad-faith bargaining, were certainly discernible by the General Counsel during the investigation of the Union’s un- fair labor practice charge, in Case 19–CA–21578. Thus, just 1 week before the filing of the charge, Rick Hall had wrote to Respondent’s attorney, Gellman, challenging the bar- gaining impasse as resulting from Respondent’s ‘‘illegal ac- tion.’’ Further, one aspect of the Union’s unfair labor prac- tice allegations concerned Respondent’s bad-faith bargaining resulting from alleged unilateral changes. Therefore, the va- lidity of the impasse certainly should have been the subject of a ‘‘proper investigation,’’ by Region 19, of the Union’s charge, and, in the above-described circumstances, it is ut- terly inconceivable to me how the Regional Director could have failed to have considered the issue. Hatfield Trucking Service, 270 NLRB 136, 137 (1984). 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 Of course, if a bargaining unit employee had filed the unfair labor practice charge in Case 19–CA–21747, no complaint would ever have issued. If the General Counsel and the Trust Fund wish to challenge the Board’s policy in this area of the law, their conten- tions are best addressed to the Board or any reviewing courts. While recognizing that the Board holds that, notwith- standing that a subsequent charge is filed by a different charging party, a settlement agreement disposes of all issues involving presettlement conduct, counsel for the General Counsel and counsel for the Trust Fund, in support of their contention that the settlement agreement, in Case 19–CA– 21578, does not bar my consideration of the presettlement agreement conduct, which is the subject of Case 19–CA– 21747, argue that the Trust Fund and the Union have diver- gent duties and responsibilities, that the only interest of the Trust Fund herein is the collection of delinquent contribu- tions, that the Trust Fund has no other forum in which to proceed, and that, therefore, the Trust Fund enjoys some sort of special status and the Board’s normal settlement agree- ment policy is ‘‘misapplied’’ as to trust funds. While the ar- guments of counsel are compelling and notwithstanding that, pursuant to the Supreme Court’s decision in Laborers Health & Welfare Fund for Northern California v. Advanced Light- weight Concrete Co., 484 U.S. 539 (1988), the Board is the only forum before which the Trust Fund may pursue the col- lection of postcontractual delinquent contributions, I note that the Board has not yet granted to fringe benefit trust funds any sort of special status, exempting such entities from its aforementioned policy, regarding the subsequent litigation of presettlement conduct. Unless and until the Board so acts, I must reject the arguments of counsel and find that the Trust Fund stands on no different footing than any other charging party in similar circumstances.18 Accordingly, as recognized by counsel for the General Counsel, the ‘‘linchpin’’ of the unfair labor practice charge, filed by the Trust Fund, involves presettlement agreement conduct, which should have been discovered by the General Counsel during the investigation of Case 19–CA–21578. Therefore, that a different charging party filed the subsequent unfair labor practice charge is an irrelevant consideration, and ‘‘the issue is not whether the new charge was filed by a different charging party, but whether the matters raised by the new charge were reasonably discernible through inves- tigation. E.S.I. Meats, supra; Hatfield Trucking Service, supra. Noting the availability of the evidence relating to the allegedly unlawful unilateral changes, which, in the view of the General Counsel, comprises the evidence bearing on Re- spondent’s asserted bad-faith bargaining, and to the validity of the union-declared impasse at the time of the filing of the unfair labor practice charge in Case 19–CA–21578, I con- clude that the General Counsel must be barred from litigating the presettlement unilateral change and bad-faith bargaining issues and recommend dismissal of paragraphs 5(a) through (c), 5(e), 6, and 7 of the second consolidated complaint. Fur- ther, inasmuch as the issue of whether Respondent failed to bargain in good faith so as to render the June 13, 1991 union-declared bargaining impasse invalid may not be liti- gated in this proceeding and as it appears that the imple- mented health insurance plan is that which was offered to the Union during bargaining, there can be no contention that Re- spondent unlawfully implemented a new health insurance plan for bargaining unit employees after the union-declared impasse. Therefore, I shall likewise recommend dismissal of paragraph 5(d) of the second consolidated complaint. With regard to paragraph 5(f) of the second consolidated complaint, the allegations pertaining to implementation of the various employee handbook provisions in July or August 1992, inasmuch as the General Counsel is barred from liti- gating the validity of the union-declared bargaining impasse of June 1991 and as it is conceded that certain of the imple- mented provisions of the handbook were consistent with that which was offered to the Union during the course of the bar- gaining and prior to the impasse, I shall recommend dis- missal of paragraphs 5(f)(ii) and 5(f)(iv) of the second con- solidated complaint. As to other provisions of the employee handbook, the parties stipulated that the ‘‘at will’’ employ- ment policy was new and never the subject of negotiations; General Manager Brunetti conceded that the problem review procedure, the vacation, cash and charge, and the no-solicita- tion policies were new and never proposed or discussed dur- ing the bargaining; and Rick Hall testified, without contradic- tion, that the handbook announced new visitation and leaves of absence policies, which had never been discussed during the bargaining. The Board has long held that, after an im- passe in bargaining, an employer may only implement new terms and conditions of employment, which are consistent with its last offer to a union during bargaining. Fire Fighters, 304 NLRB 401, 402 (1991); Storer Communications, 294 NLRB 1056 (1989). While counsel for Respondent asserts that none of the above changes in the bargaining unit em- ployees’ terms and conditions of employment had ever been implemented, General Manager Brunetti admitted that the new no-solicitation policy had been regularly enforced at the Hotel and that, when distributed to employees, the provisions of the handbook constituted Respondent’s labor relations pol- icy. While the handbook may have been rescinded in Octo- ber 1992, it is clear that provisions had been implemented and that employees were told to disregard the handbook only after the filing of the unfair labor practice charge in Case 19–CA–22298. In these circumstances, 88 Transit Lines, 300 NLRB 177 (1990), is in apposite, and, as the foregoing hand- book provisions do not correspond to what was offered to the Union prior to the bargaining impasse, Respondent’s imple- mentation of these, in the handbook, was violative of Section 8(a)(1) and (5) of the Act. Fire Fighters, supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged 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. At all times material herein, the Union has been the ex- clusive representative for purposes of collective bargaining of the following appropriate unit: all food and beverage em- ployees, kitchen employees and hotel service employees em- ployed by Respondent at the Hotel; excluding all other em- ployees, supervisors, and guards as defined by the Act. 4. Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act by unilaterally, without notice to or offering the Union an opportunity to bargain, in or about July or August 1992, implementing changes, set forth in an employee handbook, in the aforementioned bargaining unit employees’ terms and conditions of employment, not encom- 547 QUALITY HOTEL TACOMA DOME 19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 20 If 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.’’ passed by preimpasse bargaining proposals, including new ‘‘at will’’ employment, problem review, no-solicitation, visi- tation, cash and charge, and leaves of absence policies and a revised vacation policy. 5. The above unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Unless specifically found above, Respondent engaged in no other unfair labor practices. REMEDY Having found that Respondent has engaged in and is en- gaging in certain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action necessary to effectuate the purposes and policies of the Act. With regard to the new ‘‘at will’’ employment, problem review, cash and charge, no-so- licitation, visitation, and leaves of absence policies imple- mented in the employee handbook published in July or Au- gust 1992, I shall recommend that, to the extent that it has not already done so, Respondent be ordered to cease and de- sist from enforcing the policies. With regard to the changed vacation policy, I shall recommend that Respondent be or- dered to restore the practice to that which existed prior to the publication of the aforementioned employee handbook; to not implement such a change in the bargaining unit employees’ terms and conditions of employment until, after the Union declines to bargain or after Respondent bargains in good faith, the Union agrees to the changes or an impasse in the bargaining occurs; and to make whole employees for all losses sustained from the change plus interest. Such sums shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest paid in accord- ance with the formula set forth in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record herein, I make the following rec- ommended19 ORDER The Respondent, Ferryman Enterprises d/b/a Quality Hotel Tacoma Dome, Tacoma, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally, without notice to or offering the Union an opportunity to bargain, implementing changes in the bar- gaining unit employees’ terms and conditions of employ- ment, which were not encompassed by preimpasse bargaining proposals, including new ‘‘at will’’ employment, problem re- view, no-solicitation, visitation, cash and charge, and leaves of absence policies and a revised vacation policy. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the polices of the Act. (a) Restore the vacation policy for all food and beverage employees, kitchen employees, and hotel service employees to that which existed prior to the publication of the employee handbook in July or August 1992, make whole employees for any losses they suffered as a result of the unlawful unilat- eral change in that practice in the manner set forth in the remedy section of this decision, and maintain the policy in effect until after the Union declines to bargain or, after it bargains in good faith, the Union agrees or another impasse in bargaining occurs. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay, if any, due under the terms of this Order. (c) Post at its Tacoma, Washington hotel and restaurant fa- cility copies of the attached notice, marked ‘‘Appendix.’’20 Copies of the notice, on forms provided by the Regional Di- rector of Region 19, after being signed by Respondent’s au- thorized representative, shall be posted by Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order of what steps Respondent has taken to comply. IT IS FURTHER ORDERED that, insofar as the second con- solidated complaint alleges that Respondent engaged in con- duct violative of Section 8(a)(1) and (5) of the Act by engag- ing in unilateral changes and bad-faith bargaining prior to June 13, 1991, by unilaterally implementing a health insur- ance plan for bargaining unit employees, and by engaging in certain unilateral changes in June 1992, the second consoli- dated complaint is hereby dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board had found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by the terms of this notice. WE WILL NOT, unilaterally, without affording Hotel and Restaurant Employees, Local 8, Hotel Employees and Res- taurant Employees International Union, AFL–CIO (the Union) an opportunity to bargain, implement changes in our food and beverage employees’, kitchen employees’, and hotel service employees’ terms and conditions of employment, which were not encompassed by our bargaining proposals 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made to the Union before it declared an impasse in bar- gaining on June 13, 1991, including new ‘‘at will’’ employ- ment, problem review, no-solicitation, visitation, cash and charge, and leaves of absence policies and a revised vacation policy. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaran- teed by Section 7 of the Act. WE WILL restore the vacation policy of all of our above- mentioned employees to that which existed in June 1992 and make whole, with interest, any employees who suffered losses as a result of our unlawful unilateral change of that policy, and WE WILL implement no changes in the policy until after the Union declines to bargain or after we bargain in good faith and the Union agrees or another impasse in bargaining occurs. FERRYMAN ENTERPRISES D/B/A QUALITY HOTEL TACOMA DOME