Fashion Furniture Mfg., Inc.

FASHION FURNITURE MFG Fashion Furniture Mfg., Inc. and Upholsterers' International Union of North America, Local 15, AFL-CIO. Case 21-CA-22652 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 25 June 1985 Administrative Law Judge Joan Wieder issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed a brief in response to the ex- ceptions.1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 only to the extent consistent with this Decision and Order. The Respondent and the Union have maintained a collective-bargaining relationship for some years. Prior to 1979, the Respondent bargained through a multiemployer association. After the association disbanded in 1979, the Respondent and the Union negotiated individually. The most recent contract was effective from 1 April 1979 to 1 April 1982, and by mutual agreement was extended until 1 April 1983.3 The judge found, and we agree, that the Re- spondent and the Union reached agreement on a new contract on 6 April, which agreement was ratified by the Respondent's employees that after- noon.4 Nevertheless, the judge concluded that the Respondent's later refusal to sign the completed written agreement when tendered in August and September was lawful. In this regard the judge found that the written submission contained inad- vertent errors that the Union did not clearly offer to correct and, more importantly, that there was a condition precedent to executing the contract that was not satisfied. This purported condition prece- dent was the inclusion of a provision regarding, the Respondent's arrearages in health and welfare and pension payments required under the previous con- tract. In concluding that this provision was a con- i The Respondent has moved to strike the exceptions filed by the Charging Party This motion is denied as the exceptions adequately iden- tify those portions of the judge's decision to which exception is made and the portions of the record on which they rely 2 No party excepted to the judge's finding that the Respondent' s denial of union access to the plant violated Sec 8(a)(5) All dates are in 1983 unless indicated otherwise The Respondent thereafter signed a separate agreement regarding part-time employees which was ultimately to be incorporated into the final written contract 705 dition precedent, the judge found that although such a provision is not a mandatory subject of bar- gaining, the Respondent legitimately considered it an integral part of its agreement to a new contract because the Union never clearly indicated that it was adverse to including such a provision in the collective-bargaining agreement . In essence, the judge found there was no meeting of the minds on a new contract. For the following reasons, we dis- agree with the judge. With regard to the purported condition prece- dent, it is apparent that the Union did inform the Respondent that it did not wish to include the ar- rearage provision in the new contract. Thus, the record indicates that some time prior to the 6 April bargaining session that resulted in the parties' agreement, the Respondent and the Union met to discuss the Respondent's delinquency in payments to the health and welfare and pension funds. It is undisputed that the parties agreed at that time that the Respondent would pay off the arrearages over a 24-month period. The record further reveals that when the Respondent's president Sax requested that this agreement be included in any contract reached in the upcoming negotiations, Union Rep- resentative Fierro expressly told Sax that he "could not do that." Fierro's testimony in this regard is uncontradicted. During the subsequent contract ne- gotiations there were no further discussions be- tween the parties regarding the inclusion of this provision in the contract, and no indication from the Respondent that its exclusion was a bar to sign- ing any agreement reached.5 Moreover, there is no evidence that at the time the parties reached agree- ment, the Respondent indicated that the agreement was conditioned on inclusion of a provision on ar- rearages. Under these circumstances, the evidence does not support the judge's finding that inclusion of the arrearage provision was a condition prece- dent to the Respondent's execution of the contract. Consequently, whether or not the arrearages provi- sion was a mandatory subject of bargaining, the ab- sence of the provision from the written document does not excuse the Respondent's refusal to sign the agreed-upon contract. Turning to the issue of whether the errors con- tained in the written contract justify the Respond- ent's refusal to execute it, we note that generally inadvertent errors do not "excuse a complete refus- al to execute an agreement previously reached." S Thus the present case differs from Amer-Cal Industries, 274 NLRB 1046 (1985), cited by the judge In Amer-Cal, the Board adopted the judge's finding that there was no meeting of the minds when the union neither objected to nor refused to bargain about the employer's nonman- datory proposed condition precedent, which proposal formed an integral part of the employer's contract package 279 NLRB No. 95 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ace Machine Co., 249 NLRB 623, 637 (1980). The Board has found that such errors do not indicate lack of agreement between the parties and the need for minor alterations in the agreement does not re- lieve the parties of the obligation to execute the contract agreed to, particularly where, as here, the other party indicates a willingness to make such al- terations. Trojan Steel Corp., 222 NLRB 478, 483 (1976). Here, the Union admits that the contract submitted to the Respondent contained an error re- garding the pension waiver provision, and at the hearing the parties also stipulated that the third year health and welfare contribution rate was in- correct.6 However, the credited testimony of Union Representative Valdez regarding the events of the 24 August and 20 September meetings with Sax includes his testimony that he at that time of- fered to correct any errors in the contract. Concededly, there is no evidence that the inad- vertent errors were in fact corrected but, signifi- cantly, Valdez' further uncontradicted testimony is that he did not correct the errors because Sax in- sisted for the first time at the 24 August meeting, more than 4 months after the contract was ratified, that the contract include additional relief in the form of a 3-month deferral of the scheduled in- crease in current health and welfare payments. Thus, on 24 August Valdez took the position that he could not renegotiate a contract that had al- ready been agreed to and ratified, but told Sax that he would mention the possibility of the deferral to his superiors at the International. At the 20 Sep- tember meeting, Valdez informed Sax that the de- ferral was out of the question, as it would result in a decrease in employees' benefits. Sax responded that he would sign the contract only if the Union agreed to correct the pension waiver provision and to the deferral. No mention was made of any other impediment to signing the contract. The evidence thus makes clear that the Respondent's refusal to execute the contract did not hinge either on inad- vertent errors in the written agreement or the pur- ported condition precedent, the arrearage provi- sion, but rather on the Union's denial of the Re- spondent's additional and belated demand for con- cessions regarding deferral of the benefit payments after an agreement had been reached and ratified. It is well settled that once an agreement has been reached, it is incumbent upon the employer, as well as the union, the execute it. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). The Respondent therefore was foreclosed from attempting to re- negotiate the substance of provisions to which it had previously agreed. International Credit Service, 8 Sax did not mention this error to the Union prior to the hearing 240 NLRB 715 (1979), enf. denied on other grounds 651 F.2d 1172 (6th Cir. 1981). According- ly, we find that the Respondent's refusal to execute the written contract violated Section 8(a)(5) and (1) of the Act. Having found that the Respondent unlawfully re- fused to sign the agreed-upon contract discussed above, we further find that the Respondent's subse- quent failure to implement increases in wages and health and welfare payments required under the contract and its failure to withhold and remit dues to the Union also required under the contract con- stitute additional violations of Section 8(a)(5) and (1) and Section 8(d) of the Act.7 Accordingly, we shall order the Respondent to execute the collec- tive-bargaining agreement agreed upon with the Union and to comply with its terms retroactively to its effective date. In addition, the Respondent shall make whole the employees in the bargaining unit and the Union for losses, if any, which they may have suffered by the Respondent's refusal to sign the agreement, in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), plus inter- est as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).8 AMENDED CONCLUSIONS OF LAW Substitute the following as paragraphs 3, 4, and 5 of the judge's Conclusions of Law. "3. By refusing to execute and sign the collec- tive-bargaining agreement agreed upon between it and the Union, and by denying the Union access to its facility for the purpose of discharging its bar- gaining obligation, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. "4. By failing and refusing to implement wage increases and increases in contributions to employ- ee health and welfare insurance programs and fail- ing to withhold and remit to the Union dues from employees' paychecks, as required by the collec- ' Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld payments We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit fund in order to satisfy our "make whole" remedy There additional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, when 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 funds withheld, additional administrative costs, etc , but not collateral losses Merryweather Optical Corp, 240 NLRB 1213 (1979) 8 With respect to its failure to withhold and remit dues, the Respond- ent shall honor the contractual checkoff provisions and valid dues-check- off authorizations and remit to the Union dues it should have checked off pursuant to the collective -bargaining agreement in effect between the parties, with interest Shen-Mar Food Products, 221 NLRB 1329 (1976) FASHION FURNITURE MFG. tive-bargaining agreement between the Respondent and the Union , the Respondent has enagaged in and is enagaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) and Section 8(d) of the Act. "5. The above unfair labor practices affect com- merce witin the meaning of the Act." ORDER The National Labor Relations Board orders that the Respondent, Fashion Furniture Mfg., Inc., Cer- ritos, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to execute the collective- bargaining agreement agreed upon by the Respond- ent and the Union. (b) Failing and refusing to implement wage in- creases and increases in contributions to employee health and welfare insurance programs and failing to withhold and remit to the Union dues from em- ployees' paychecks, as required by the collective- bargaining agreement between the Respondent and the Union. (c) Denying the Union's representatives access to employees at the Respondent's facility for the pur- poses of discharging the Union's bargaining obliga- tion. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request by the Union, forthwith execute the contract upon which agreement was reached with the Union, with correction of any inadvertent errors or, if the Union does not request such execu- tion, bargain collectively in good faith, on request, with the Union as the exclusive representative of its employees in the unit found appropriate and, if an understanding is reached, embody such under- standing in a signed contract. (b) Give retroactive effect to the terms and con- ditions of employment of the contract, and make whole its employees and the Union for any losses they may have suffered by reason of the Respond- ent's failure to execute the agreement in the manner set forth in this Decision and Order. (c) Post at its Cerritos, California facility copies of the attached notice marked "Appendix."s 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 Nation- al 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 " 707 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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 the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT fail or refuse to execute the col- lective-bargaining agreement agreed upon between us and the Union. WE WILL NOT fail and refuse to implement wage increases and increases in contributions to employ- ee health and welfare insurance programs and WE WILL NOT fail or refuse to withhold and remit to the Union dues from employees' paychecks as re- quired by the collective-bargaining agreement be- tween us and the Union. WE WILL NOT deny access to our premises to agents of Upholsterers' International Union of North America, Local 15, AFL-CIO, who seek admittance for the purposes of representing you so long as Local 15 remains your collective-bargain- ing representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request by the Union, forthwith execute the contract, with correction of any inad- 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vertent errors, on which agreement was reached between us and the Union or, if the Union does not request such execution, WE WILL bargain collec- tively in good faith , on request, with the Union as the exclusive representative of our employees in the unit found appropriate and, if an understanding is reached, embody such understanding in a signed contract. WE WILL give retroactive effect to the terms and conditions of employment of the contract, and make whole our employees and the Union for any losses they may have suffered by reason of our fail- ure to execute the agreement , with interest. WE WILL rescind the restrictions which were placed on the agents of Local 15 on 18 October 1983. FASHION FURNITURE MFG., INC. Alvin L. Pittman, Esq., for the General Counsel. Jerry Sax, of Cerritos, California, for the Respondent. Jeffrey L. Cutler, Esq. (Davis, Frommer & Jesinger), of Los Angeles, California, for the Charging Party. DECISION FINDINGS OF FACT 1. JURISDICTION Respondent is a California corporation with its plant and place of business in Cerritos, California, where it manufactures furniture. Jurisdiction is not in dispute. The complaint alleges, Respondent admits in a stipulation, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent , although admitting it has recognized the Union as the exclusive bargaining representative of its employees during a substantial collective -bargaining history, denies that the Union is a labor organization within the meaning of Section 2 (5) of the Act . At hear- ing, the Respondent changed its answer to the complaint to deny that the following is the appropriate unit: All production employees of Respondent in the up- holstery and allied departments , excluding wood workers, teamsters, fulltime inspectors, office em- ployees, foremen not working more than sixty-five percent (65%) of their time on production during any given work week, guards and supervisors as de- fined in the Act. STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge . This case was heard on 1 and 2 November and 17 and 18 Decem- ber 1984 in Los Angeles, California. A complaint was issued by the Regional Director of Region 21 of the Na- tional Labor Relations Board on 30 December 1983 and amended on 30 April and 16 August 1984 based on an unfair labor practice charge filed by Upholsterers' Inter- national Union of North America, Local 15, AFL-CIO (Union) on 6 October 1983,1 as amended on 19 October 1983 and 21 February 1984. The complaint , as amended, alleges that Fashion Furniture Manufacturing , Inc. (Re- spondent or Company) violated Sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (Act) by failing and refusing to execute a collective -bargaining agreement embodying terms the parties reached during negotiations, failing and refusing to implement the terms of this new agreement , unilaterally changing the agree- ment by ceasing to withhold and remit dues to the Union in contravention of the terms of the then-existing con- tract, and denying union representatives access to its plant. Respondent's timely filed answer to the complaint, as amended, denies the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were timely filed on behalf of the General Counsel and the Respondent. Based on the entire record, including my observation of the demeanor of the witnesses, I make the following This amendment to Respondent's answer to the com- plaint was permitted. The General Counsel and Charging Party were afforded the opportunity to demonstrate with specificity during the course of the hearing any prejudice or denial of due process incurred because of this amend- ment. Neither the General Counsel nor counsel for Charging Party again raised the issue. The Union admitted employees to membership, Re- spondent bargained with its representatives and employ- ee members of the negotiating committee, dues were de- ducted by the Company and forwarded to the Union until Respondent unilaterally stopped the practice,2 and, after the collective-bargaining agreement expired, the Union continued to handle welfare payments and griev- ances and tried to get the Company to sign a contract. There was no evidence adduced showing lack of ma- jority representational status , lack of status as a labor or- ganization, or any other factors rendering the previously recognized unit not appropriate. The record demon- strates that at all times material the unit is appropriate and the Union is a labor organization within the meaning of Section 2(5) of the Act . Ana Color, 266 NLRB 611 (1983). III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union and Respondent maintained a bargaining relationship for some years prior to the incidents alleged in the complaint . Respondent was a member of United 8 There is no assertion this action was taken due to a change in the ' All dates refer to 1983 unless otherwise indicated Union's status as a labor organization FASHION FURNITURE MFG. Furniture Manufacturers Association (UFMA or Asso- ciation), a multiemployer collective-bargaining associa- tion, up until 1979 UFMA bargained with the Union. In 1979, UFMA and the Union reached agreement on all the noneconomic terms of a contract. Thereafter, there was a 2-week strike of UFMA members After the strike, the Association disbanded. The Union then negotiated the economic terms of the contract with the individual employers. The Union and Respondent agreed to a contract with effective dates of 1 April 1979 to 1 April 1982. Respond- ent was represented by an attorney. This agreement was extended for 1 year. The negotiations for the extension of the contract were conducted by Alfonso Fierro for the Union and Jerry Sax, Respondent's president, for the Company The 1-year extension did not modify any terms and conditions of the contract. Respondent's em- ployees ratified this extension by vote taken on 21 Janu- ary 1982. B. 1983 Contract Negotiations In early February 1983, the Union mailed to Respond- ent its contract proposals in contemplation of expiration of the collective-bargaining agreement . Also around Feb- ruary, an employee negotiating committee was selected.3 The remainder of the events involved are in dispute. Due to the passage of time and other intervening events, the witnesses were vague on many, if not all, the matters they testified about According to Fierro, a week or two after the union proposals were sent to the Company, he met with Sax and the negotiating committee.4 Fierro claims that Sax advised him that because "it's been a very hard year and it was a tough market . . . [Sax) decided that he would sign a like agreement from Parkview Furniture . he couldn't be put at a disadvantage and whatever was signed at Parkview Furniture [Parkview), that he would sign " Sax said he was comfortable in agreeing to what- ever Larry Brooks, Parkview's representative and former chief negotiator for UFMA, "agreed to." Fierro asserts that he thereafter kept Sax apprised of the progress of the Parkview negotiations in apparent acquiescence to Sax's proposed method of handling the negotiations. The record is unclear how many negotiating sessions, if any, occurred between this first meeting and 25 March. Sax was in Colorado from 5 March to 20 March. On or about 25 March, Fierro and Sax again met. Sax had received notice from Lionel Richman of the Union that Respondent was in arrears on its pension and health and welfare contributions. Sax claims that he asked if he could be allowed to make the settlement of the arrear- ages part of the new collective-bargaining agreement and Fierro replied that he would discuss the matter with Raymond Valdez, the Union's business manager and Fierro's supervisor Sax asked Fierro to get him an ac- 3 The employees on the committee included Dora Cavazos, Antonio Romero. Arturo Guerrero, Robert D Juarez, and Eliseo Torres The presence of the negotiating committee was not corroborated Sax did not directly refute that the meeting occurred, but he did refute the presence of the negotiating committee and the claim that he would accept the same contract that a competitor, Parkview Furniture, negotiat- ed with the Union 709 counting of the health and welfare and pension arrear- ages . Sax admitted the Union and Respondent agreed to permit him to pay off the arrearages over a 24-month period. Fierro did not dispute that Sax requested that the settlement of arrearages be incorporated into the collec- tive-bargaining agreement. Sax also proposed the elimination of the pension, that he be authorized to hire part time employees, and defer- ral of the effective date of the health and welfare insur- ance from 1 June to 1 September. Fierro, according to Sax, said lie would discuss these matters with Valdez and get back to Sax. The Union and Parkview reached agreement on 31 March. Fierro claims he telephoned Sax and informed him Parkview's agreement had been ratified by its em- ployees and he was ready to present the terms and con- ditions to Respondent. Sax does not expressly deny re- ceiving this telephone call. Fierro went to the Company on the morning of 6 April, first meeting alone with Sax and giving him a copy of the terms of the Parkview agreement . 5 Sax stated he wanted modifications of the Parkview agreement; in particular, he wanted to elimi- nate the pension provisions and requested a provision permitting the hiring of six part-time employees to work no more than 32 hours a week. Sax testified without ref- utation that he also reiterated his request that settlement of the arrearages in the pension and health and welfare contributions be included in the "negotiations" of the contract. According to Cavazos' uncontroverted testimo- ny, this meeting lasted from 12:30 until 3.30 p.m. Fierro then met with the employees and explained the Company's proposed amendments to the Parkview agreement. The employees voted and rejected the pro- posal. According to the undisputed testimony of Dora Cavazos,6 Fierro reported the results of the vote to Sax, who then came to the employees and said "he could not agree with their turning down the contract, that it was the best offer and they would have to close the plant if they didn't agree."' Later in the day, Fierro, the negotiating committee, and Sax again met and negotiated. Cavazos, in her affida- vit,8 stated, "Sax and Fierro did agree on a new 3-year contract . . . Sax and Fierro agreed on the health and welfare as follows. 1st year was a raise from $98 to $144 per month, and $169 the second year, and the third year was open for negotiations." Cavazos testified in Decem- ber 1984, consistent with her affidavit, that they agreed on a new contract after discussing wages, pension defer- ral of 2 years and 11 months, and health and welfare in- surance. It is undisputed that the subject of part-time 5 Sax claims that he received only the first of a six-page document This claim is not credited based on demeanor and inherent probabilities 5 Cavazos has been employed by Respondent for about 13 years Her testimony which is adverse to Respondent is credited Shop-Rite Super- market, 231 NLRB 500 (1977), Maxwell's Plum, 256 NLRB 211 (1981) Fierro could not recall if the employees took this first vote to accept the Parkview agreement This comment was not alleged to be violative of the Act s The affidavit was given on 27 December 1983 In general , at the time of her testimony, Cavazos, like the other witnesses in this proceeding, ex- hibited poor recall and testified inconsistently I find her affidavit a more accurate account of the events Shogun Restaurant, 273 NLRB 755 (1984) 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was also discussed during this negotiating session. Sax admitted that the Union's position on insurance was to maintain the same level of benefits and that this posi- tion was at least mentioned on 6 April during the meet- ing with the negotiating committee. However, Sax also contended that there was no discussion with Fierro on 6 April regarding a collective-bargaining agreement. This disclaimer is refuted by all the employee witnesses, in- cluding Antonia Romero and Eliseo Torres, and is not credited. Although Romero and Torres were unclear about what was negotiated, they clearly understood the parties reached agreement on a contract. Sax claims, without refutation, that the Union agreed to permit him to pay off the arrearages over a 24-month period. However, there was no indication whether this provision was to be included in the collective-bargaining agreement or was to be a side agreement. After the negotiating session, the negotiating commit- tee and Sax went out to discuss the terms of the agree- ment with the employees. Both Fierro and Cavazos ex- plained the terms of the new contract to the employees and related to the employees that they were voting on the contract. All the employees who testified understood the ratification vote to be on the entire contract. Sax ad- mitted on brief that Fierro mentioned maintaining the same insurance benefits during his explanation to the em- ployees. The employees overwhelmingly ratified the contract. The vote was 35 yes votes, 5 no votes, and 10 void ballots. Sax's claim that the negotiations and vote involved at- tempts to get a sense of employee feelings, and not con- tract negotiations, is not credible. Sax's demeanor was not forthright and he was not candid. Shortly after testif- ing that the only item discussed with the negotiating committee was wages, he admitted deferral of the pen- sion was agreed upon and the negotiating committee agreed to recommend the matter to the employees. Also Sax admitted that the Union was trying to maintain in- surance benefits. Sax's claim that there was no discussion regarding a collective-bargaining agreement "per se" is also not credible. Sax admitted he was present when the negotiating committee discussed the subjects to be voted upon. Yet he claims all Fierro said was wages would be increased 25 cents the first year, 35 cents the second year, and 45 cents the third year of the contract. Sax did not reconcile the apparent improbability of why such an assertedly narrow statement required a 20-minute expla- nation. Fierro spoke to the employees in both English and Spanish. Sax volunteered to act as a translator for one of Respondent's Spanish-speaking witnesses; thus, it is found that Sax had the facility to understand all the representations being made to the employees. Respond- ent's claim that Sax was unaware they were negotiating a contract is patently incredible. Another basis for not crediting Sax's testimony is his lack of candor. For exam- ple, at the commencement of cross-examination, he denied meeting with Fierro on 6 April 1983 and, only after close questioning, admitted meeting with him once in the morning and once in the afternoon on that day. Also some of his answers were not responsive. Sax did not refute the testimony that after the vote he thanked the employees for their cooperation and prom- ised them he was going to attempt to increase business. This unrefuted testimony is a further indication that all parties recognized a contract had been negotiated and ratified. Fierro informed Sax that he would have the contract prepared and would provide him a copy as soon as possible for execution. Fierro appeared to be a forth- right but confused witness, with an uncertain and unreli- able recollection of events and details. Where his recall was clear, he is credited over Sax. The "part time" employee provision was the subject of a further meeting. According to Fierro, after the verbi- age of the part-time employee provision was discussed on 6 April, Fierro, consonant with the parties' agree- ment, had it reduced to writing with the assistance of Valdez and around 13 April he brought the draft to Sax. The draft differed from Sax's proposal to hire six part- time employees for a total of 32 hours per week by pro- viding for three part-time employees per year who were to work up to 20 hours a week. Sax changed the 20- hour-per-week provision in the draft to 24 hours per week, initialed the change, and executed the document.9 The parties stipulated that agreement on part-time em- ployees occurred and was executed subsequent to 6 April and the General Counsel's Exhibit 4 evinces that agree- ment. 10 About 2 weeks after the ratification vote, Fierro gave Sax what he referred to as a working copy of the con- tract. The document was a copy of the Parkview agree- ment with the modifications agreed upon 6 April as Fierro understood them. Sax perused the document and said he wanted to examine the finished contract. Due to clerical shortages, Respondent was not given a copy of the final draft of the collective-bargaining agree- ment until 16 August. Sax quickly thumbed through the agreement and noted an error in the pension-waiver pro- vision. The waiver was for 2 years only, not the agreed- upon 2 years and 11 months. After further review of the agreement, Sax noted what he considered additional errors in the document and telephoned Valdez to relate his findings. C. Events of 24 August In response to Sax's telephone call, Valdez met with Sax on 24 August. Fierro was also present. The parties stipulated that the health-and-welfare provision of the contract erroneously contained a figure for health and welfare payments for the third year; the agreement should reflect that the third year was open to negotia- tion. Sax again claimed the pension was waived for 2 years, 11 months, but the draft of the contract provided for only a 2-year waiver. Valdez ii asked to check the accu- 9 A further example of Sax's lack of credibility was his testimony that he did not agree to the part-time employee provision even though he modified it, initialed the change, and signed it 10 Despite entering into this stipulation , Sax later testified that he did not agree to G C Exh 4, further calling into question the reliability of his representations it Valdez' version of the events of 24 August is credited based on de- meanor I also considered the other variant factors necessary to resolve credibility, including established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record FASHION FURNITURE MFG. racy of the representation with the negotiating commit- tee. Sax replied Valdez did not have to meet with the ne- gotiating committee, that such action would only confuse matters. Sax then stated he suffered financial reverses in 1983 and needed the additional relief of deferring pay- ment of the health and welfare increases from 1 June to 1 September. Valdez told Sax he could not renegotiate an agreement that had been ratified by the members. Sax reasserted his need for "this relief and that Fash- ion Furniture, along with other companies like Parkview, Charldon (ph.), Landmark and if all the other firms had not signed agreements yet and they were going to take the union on in their own way " According to Valdez, Sax said Landmark took the Union on in a strike and replaced all the workers, Charl- don (ph.) took the Union on in a bankruptcy court; and Parkview was doing its way. Sax said that he was not going to be the only big union shop left in town. Valdez asked him if he would sign the contract, that if there was an error in the contract or the provision, that "we would correct any errors, if he would sign the contract." Sax told Valdez no. He "says that his attorney was telling him to set [sic] on them at that point." Valdez then told Sax he would talk to the board of trustees of the health and welfare fund and informed Sax that if the deferral was granted, it would reduce the em- ployees' benefits by 25 percent. Sax said he would sign the contract if he was given the 3-month deferral on the increase in health and welfare payments, "that his lips would be sealed, he would not tell any of the other man- ufacturers what I did for him." It is found that the only error raised by Sax on 24 August related to the pension waiver. The only other matter discussed was the health and welfare provisions, which Sax wanted to renegotiate. Valdez contacted the chairman of the board of trust- ees, John Serembus, who informed him that if he was to reopen negotiations and grant Respondent the waiver, members' benefits would be cut by 25 percent and every other shop would want the same provision Serembus ad- vised against reopening negotiations and granting defer- ral. D. Events of 20 September On 20 September, Valdez12 and Fierro again met with Sax. Valdez informed Sax that the International Union had instructed him that he could not defer the health- and-welfare benefit increase. Sax told Valdez he had agreed to the deferral Valdez denied such agreement and reiterated that he could not defer the health-and-wel- fare increase, that he would correct any errors in the pension waiver period. Sax again offered to sign the con- tract if the Union granted him deferral of the health and welfare increases. Sax then told Valdez, "he was not going to be the last union shop . . . and that he was having close contact with Larry Brooks of Parkview, and he was guiding him on what to do . . He [Sax] said if I did not play ball with him, that the next contract, he would go non- 711 union. . . He would sell the building or would do what- ever he had to do." Valdez had prepared a statement for the negotiating committee to confirm that the pensions were deferred for 2 years, 11 months to avoid any "problems with ERISA or anyone else." Sax refused to sign the agreement with- out the health and welfare deferral and correction of the pension waiver provision. Valdez then filed an unfair labor practice charge. E. Events of 18 October On 18 October, in response to a telephone call from a member, Elsie Romero, regarding difficulties with insur- ance bills that were not being paid, Valdez, along with Fierro and Parrish,13 went to Respondent's premises to discuss the problem with Romero. The union representa- tives followed established procedure and contractual re- quirements by first getting authorization from the office manager to enter the plant. Based on the credited testi- mony of Valdez in lieu thereof, which was corroborated by Fierro, as the union representatives started discussing the insurance problem with Romero, Sax came up to them and said, "from then on, he was the only one that could authorize entry. Sax said we were not welcome and to get out. Sax pointed to Valdez and told him that he [Valdez] was not welcome in his plant. Valdez asked Sax if he was throwing him out. Sax answered yes." It is found that Sax's comment clearly related to the union agents that he was reserving exclusive authority to grant them access and, in his exercise of that authority, was deeming them not welcome. This message is held to be a denial of access to the plant by union representatives. Respondent did not deny that it refused to permit the union representatives access to the plant on 18 October. There is no evidence that any union representative sought access to the plant after 18 October. Also unrefut- ed is the testimony that: in October Respondent ceased deducting union dues from the employees' paychecks and remitting the payments to the Union; on 1 December the Company failed to implement the first of three scheduled wage increases. Respondent has not imple- mented any of the other wage increases scheduled under the claimed new agreement negotiated 6 April IV. ANALYSIS AND CONCLUSIONS A. Fierro's Authority Respondent contended during the trial that Fierro did not have authority to negotiate a contract with Respond- ent. It appears the Company has abandoned this position because on page 20 of its brief it states: In the case of University of Bridgeport, 229 NLRB 1074 (1977), it was held that when an agent is ap- pointed to negotiate a collective-bargaining agree- ment, that agent is deemed to have apparent author- ity to bind his principals in absence of clear notice to the contrary. If Fierro did have the authority to 12 These findings of fact are based on Valdez credited testimony Valdez' demeanor exhibited candor and he demonstrated clear recall 13 Parrish is the Union's financial secretary 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bind the Union, as he alleged, the Company was never told that it was limited Considering this admission , Respondent's failure to question Fierro's authority to negotiate for the Union with either Fierro or other union representatives; the Company negotiating the 1-year extension of the prior contract; Sax negotiated and reached agreement with Fierro, it is concluded that Fierro had apparent authority to bind the Union and Respondent cannot now use this claim as an excuse to not execute a contract. Niagara Therapy Mfg. Corp, 237 NLRB 1 (1978); Shawn's Launch Service, 261 NLRB 836 (1982). That Fierro felt con- strained to consult Valdez on certain matters, including health-and-welfare and pension waiver, did not evince a lack of authority to negotiate. Marriott Corp., 258 NLRB 755 (1981). B. Did the Company Violate Section 8(a)(5) and (1) of the Act by Refusing to Execute and Comply with an Agreed- Upon Collective-Bargaining Agreement Section 8(d) of the Act defines the duty to bargain col- lectively as the duty to meet and confer "in good faith with respect to wages, hours, and other terms and condi- tions of employment . . and the execution of a written contract incorporating any agreement reached if request- ed by either party " An employer violates Section 8(a)(5) and (1) of the Act by refusing to execute a written con- tract incorporating the terms of a collective-bargaining agreement reached with a union representing its employ- ees. H. J. Heinz Co. v. NLRB, 311 U.S. 514, 525-526 (1941); NLRB v. Strong Roofing Co., 393 U.S. 357, 359 (1969) As the Court stated in H. J. Heinz, supra at 526, the employer's "refusal to honor, with his signature, the agreement which he has made with a labor organization, discredits the organization, impairs the bargaining proc- ess and tends to frustrate the aim of the statute to secure industrial peace through collective bargaining." The threshold issue therefore is whether the parties reached an agreement and whether, under that agree- ment, unfair labor practices have been committed. In determining whether an agreement has been reached, the particular circumstances surrounding the ne- gotiations must be examined . The collective-bargaining history and setting are to be considered Pepsi-Cola Bot- tling Co., 251 NLRB 187 (1980), affd. 659 F.2d 87 (8th Cir 1981). Also in determining whether, under such ne- gotiated agreement, an unfair labor practice has been committed, the Board is not bound by the technical rules of contract law. See Lozano Enterprises v. NLRB, 327 F.2d 814, 818 (9th Cir 1964). Cf. NLRB v. M & M Olds- mobile, 377 F.2d 712, 717 (2d Cir 1977). "Rather, a more crucial inquiry is whether the two sides have reached 'an agreement,' even though that `agreement' might fall short of the technical requirements of an accepted con- tract " Capitol-Husting Co. v. NLRB, 671 F.2d 237, 242 (7th Cir. 1982), quoting NLRB v. Donkins Inn, 532 F.2d 138, 141 (9th Cir 1976), cert. denied 429 U.S. 895. Accordingly, "a collective-bargaining agreement is not dependent on the reduction to writing of the parties' in- tention to be bound." Capitol-Husting Co. v. NLRB, supra at 243, citing NLRB v. Haberman Construction Co., 641 F.2d 351, 355-356 (5th Cir. 1981) (en banc). When a portion of the agreement is reduced to writing, addition- al terms may still be found based on oral agreements not included in the written agreement . Cf. Pacific Northwest Bell Telephone Co. v. Communication Workers, 310 F.2d 244, 247 (9th Cir. 1962). Furthermore, the parties are not required to discuss each clause when they are merely modifying an existing contract. NLRB v. Colletti Color Prints, 387 F.2d 298, 305 (2d Cir. 1967). In determining whether an agreement has been reached, the Board con- siders "[t]he bargaining history and all other relevant cir- cumstances surrounding the negotiations. . ." Cherokee United Super, 250 NLRB 29, 32 (1980). In reaching this determination, acceptance may be inferred from the con- duct of the parties after one of the parties makes an offer. To find acceptance, "[a]ll that is required is con- duct manifesting an intention to abide and be bound by the terms of an agreement." Capitol-Husting Co. v. NLRB, supra at 243. Once the parties have agreed on the terms and conditions of employment in a collective- bargaining agreement, Section 8(a)(5) of the Act prohib- its the employer from unilaterally altering those terms that are mandatory subjects of bargaining. Fibreboard Corp. v. NLRB, 379 U.S. 203, 209-210 (1964); NLRB v. Williamsburg Steel Products Co., 369 U.S. 736, 744-748 (1962); American Distributing Co. v. NLRB, 715 F.2d 446, 449 (9th Cir. 1983). In the instant proceeding, based on credited testimony, I find that the parties agreed that Respondent would sign the same agreement negotiated by its competitor, Park- view Furniture. This finding is consistent with the Com- pany's established method of bargaining. Respondent, while a member of the UFMA, relied on the efforts of others to accomplish contract negotiations in reaching collective-bargaining agreements. In 1979, when the UFMA disbanded, Respondent similarly reached an agreement with the Union by agreeing to sign the same collective-bargaining contract as Landmark Furniture and Parkview Furniture. The 1-year extension of the 1979-1982 agreement did not alter the terms and condi- tions. Considering Respondent's background, its bargain- ing history makes it more probable that Sax agreed to accept the same contract Parkview Furniture negotiated with a few modifications Respondent asserts that it has no obligation to execute the Union's draft of the contract for it failed to reflect the pension waiver agreement and the erroneous inclu- sion of a health and welfare contribution rate for the third year of the contract. Respondent argues that there are many other terms that he found in the final draft of the contract to which he did not agree. These other items were initially mentioned at the trial. This argument is found to be without merit regarding all items except pension waiver and the third-year health-and-welfare contribution Some of the provisions mentioned by Sax are not indicative of failure to agree; rather, they are, at most, minor errors, which could have been readily recti- fied if Respondent had met its obligation to assist in re- ducing the agreement to writing and commenting on the draft agreement in a timely manner . Georgia Kraft Co., 258 NLRB 908 (1981). FASHION FURNITURE MFG The other matters are encompassed in Respondent's agreement, with noted exceptions, to be bound to the terms and conditions of the contract entered into by Parkview Furniture NLRB P. Colletti Color Prints, supra at 298. Sax claimed that the parties never negotiated many of the terms and conditions included in the con- tract drafts given him by the Union. The Company does not assert these terms and conditions were ever raised during negotiations or were different from those includ- ed in the Parkview contract. The Union testified without refutation that the terms of the contract, questioned by Respondent at hearing only, were part of the Parkview contract and, thus, it is found that they were agreed to by Respondent as encompassed in the understanding that he would accept whatever Parkview agreed to, save the arrears of the health and welfare and pension funds, part- time employees, and the 2 year and 11 month waiver of the pension fund contributions. Respondent has failed to show that deferral of the commencement of health and welfare payments to 1 Sep- tember was made a condition precedent to the execution of the contract. Based on stipulation, the first 2 years of health-and-welfare payments were agreed upon on 6 April and the parties agreed to defer negotiations on the third year until a later date There was no probative evi- dence that deferral of health and welfare contributions was raised until August, well after the date of agreement. A party to a contract cannot later insist on that matter's inclusion See Yates Industries, 238 NLRB 167 (1978). As Administrative Law Judge Pollack found in Pacific Coast Metal Trades Council (Foss Shipped), 260 NLRB 1117, 1119 (1982). "Section 8(d) of the Act explicitly re- quires the execution of a written contract incorporating any agreement reached if requested by either party. [Ci- tations omitted]" However, neither party is required to sign a bargaining agreement containing terms not previ- ously agreed on The General Counsel must show not only that an agreement was reached, but that the docu- ment which Respondent has refused to execute accurate- ly reflected that contract Oil Workers Local 7-507 (Cap- itol Packaging Co.), 212 NLRB 98, 108 (1974). The General Counsel argues that the document con- tained inadvertent errors which the Union offered to correct and, thus, the Employer still had a duty to exe- cute the written collective-bargaining agreement prof- fered to him in August. Citing Shawn's Launch Service, 261 NLRB 836 (1982). The General Counsel failed to prove that Valdez offered to correct the error in the pension waiver. Valdez testified that he told Sax he would correct or change the clause to permit a waiver from 2 years to 2 years and 11 months if Sax's contention that the clause was wrong was affirmed by members of the negotiating committee There is no showing, that Valdez ever checked with the members of the negotiat- ing committee or otherwise confirmed that a correction was justified and would be implemented. Valdez admit- ted that Fierro could not recall the terms of the pension waiver agreement reached during the second negotiating session on 6 April 1983 Valdez was not shown to have been prevented from checking with the members of the negotiating committee by Sax's refusal to let him discuss with those members 713 the terms of the pension waiver agreement reached on 6 April. There was no claim that Valdez could not have contacted these individuals in the parking lot, at home, or otherwise. The offer to correct the error in the pen- sion provision, as was the case with the offer to correct the provisions for the third year of the health and wel- fare contributions, came at hearing . It is noted that the Union never made any changes to the contract, but merely sought Respondent's execution of a contract which it now admits contains errors which do not reflect the agreements reached between the parties and ratified by the employees. Respondent is required to execute a written agreement embodying agreed-upon terms upon request by the ex- clusive collective-bargaining representative. It is found that Respondent is not required to sign the draft agree- ment proffered by the Union for it did not embody agreed-upon terms nor was there a clear offer to correct the contract to reflect those terms. American Plastic Molding Co., 234 NLRB 681 (1978). Thus, the next issue is whether an enforceable oral understanding was reached. H. J. Heinz Co. v. NLRB, supra at 526. The parties understood an agreement was reached as of 6 April, including an understanding that the verbiage of the provision permitting the employment of part-time employees was to be submitted later. The parties may agree to negotiate a clause or reduce an agreement to writing at a date subsequent to acceptance. The record is clear that Respondent accepted the terms of the parttime employee proposal submitted to it by the Union on a date subsequent to 6 April, modifying and signing the provision as drafted by the Union. American Health Care Center, 273 NLRB 1728 (1985). The record, however, reveals that the parties did not reach agreement on the terms of a collective-bargaining agreement for there was no meeting of the minds over Respondent's proposed condition precedent to the execu- tion of an agreement regarding the arrears on the health and welfare and pension programs . Respondent wanted the facility to pay off the arrearages in these accounts over a 24-month period and there is no direct refutation of its contention that this proposal was an integral part of Respondent's agreement to the contract. Although such a proposal cannot be considered a mandatory matter for bargaining, inclusion of the proposal is not re- pugnant to the policies of the Act. The General Counsel has failed to show that such an agreement is reflected in the contract or that the parties agreed to not include the matter in the contract and treat it as a side agreement. The General Counsel has failed to show by a preponder- ance of the evidence that there was a meeting of the minds on this issue. See Amer-Cal Industries, 274 NLRB 1046 (1985), and Interprint Co., 273 NLRB 1863 (1985).14 14 As the administrative law judge stated , with Board approval, in Pepsi-Cola Bottling Co, supra 251 NLRB 187, 189 (1980), affd 659 F 2d 87 (10 Cir 1980) [A] complete package proposal made on behalf of either party through negotiations remains viable , and upon acceptance in toto must be executed as part of the statutory duty to bargain in good faith, unless expressly withdrawn prior to such acceptance, or de- Continued 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company did not engage in any conduct manifest- ing agreement to be bound by the terms of the draft con- tract. See Capitol-Hustings Co. v. NLRB, supra at 243. As soon as he got a copy of the agreement , Sax expressed some reservations regarding the terms. Ratification and the indication of unconditional agreement expressed on 6 April does not create a binding collective-bargaining agreement when such approval was conditioned on a dif- ferent understanding of how the matter of the agreement on arrearages was to be treated . Such differences of un- derstanding cannot be abrogated by a party seeking to require execution. See R & K Caterers, 273 NLRB 602 (1984). That the proposal was not a mandatory subject of bargaining does not entitle the Union to ignore Respond- ent's desire to have the arrearages included in the con- tract. See, generally, Good GMC, 267 NLRB 583 (1983). I conclude there was no meeting of the minds and that Respondent's refusal on 14 August and 20 August to exe- cute the proposed collective-bargaining agreement was not violative of the Act. 15 The Union did not clearly express a refusal to bargain about the arrearages . There is no impasse alleged. The only matter of record is the apparent misunderstanding of how the agreement on arrearages was to be handled, whether as a side matter or in the contract . The Union never put Respondent on notice that it was adverse to inclusion of the provision in the contract . i 6 Respondent should not be required to sign a contract that does not include this nonmandatory proposal. Accordingly, I rec- ommend that the allegation that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to sign an agreed-upon contract be dismissed. Having found that there was no agreement between the parties, Respondent did not violate the Act by its re- fusal or failure to implement the increases in health and welfare insurance premiums effective 1 June 1983 and by failing to implement wage increases pursuant to the as- serted 6 April agreement. There was no allegation or showing that the expired contract contemplated the in- creases in wages and health and welfare premiums nego- tiated on 6 April. Thus, I recommend that these allega- tions of violation of the Act be dismissed. The failure to withhold and remit dues after expiration of a collective-bargaining agreement is not violative of the Act. As explained in Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962): Notwithstanding the fact that union security and checkoff are compulsory subjects of bargaining, and that Respondent acted unilaterally with respect to (eased by an event upon which the offer was expressly made contin- gent at a time prior to acceptance Cf B F Goodrich Chemical Co., 232 NLRB 399 (1977) is There was no showing that Respondent's request to include the ar- rearages agreement as a part of the collective-bargaining agreement was illegal, or was made "in face of a clear and express refusal by the Union to bargain about the [nonmandatory subject] " Union Carbide Corp., 165 NLRB 254, 255 ( 1967), enfd sub nom Oil Workers Local 3-89, 405 F 2d l t I t (D.C. Cir. 1968) 16 Cf Robbins Door d Sash Co, 260 NLRB 659 (1982), Hassett Mainte- nance, 260 NLRB 1211 (1982) The proviso does not apply to other terms and conditions of employment such as union access to employees on plant premises them, we find nothing unlawful in Respondent's action here . The acquisition and maintenance of union membership cannot be made a condition of employment except under a contract which con- forms to the proviso to Section 8(a)(1). So long as such a contract is in force , the parties may, consist- ent with its union-security provisions, require union membership as a condition of employment. Howev- er, upon the termination of a union-security con- tract, the union-security provisions become inoper- ative and no justification remains for either party to the contract thereafter to impose union-security re- quirements. Accordingly, I recommend that this allegation of vio- lation of the Act be dismissed. Alleged Refusal by Respondent to Allow the Union Representatives Access to its Plant The General Counsel argues that Respondent, by unre- futedly informing Union Representatives Fierro and Valdez that Respondent had implemented a new require- ment for obtaining authorization to enter Respondent's facilities and by telling them that they were not welcome and asking them to leave the premises, violated Sections 8(a)(1) and (5) and 8(d) of the Act. The General Counsel further asserts that the 6 April agreement, as well as the preceding collective-bargaining contract, provides that "the business representatives and authorized representa- tives of the Union . . . shall have access to the Compa- ny's plant ..." In support of this argument, the Gener- al Counsel cites Valley Mfg, 264 NLRB No. 171 (Sept. 30, 1982) (unpublished); Merryweather Optical Co., 240 NLRB 1213 (1979); and Houston Coca-Cola Bottling Co., 265 NLRB 766 (1982). The 6 April meeting has been found above to have not resulted in an enforceable con- tract, and arguments pertaining to post 1 April agree- ments will not be considered. It is found that by telling the union representatives they were no longer welcome in the plant, Respondent denied them access to the plant. It is without dispute that the Union still represents Re- spondent's employees as their collective-bargaining agent. Respondent made no attempt to rebut the pre- sumption of majority status. Master Slack Corp., 271 NLRB 78, 84 (1984); Bennington Iron Works, 267 NLRB 1285 (1983); Terrell Machine Co., 173 NLRB 1480, 1481 (1969). Respondent does not allege that its actions were taken in protection of its property rights, that there was a health or safety hazard or that the Union's presence caused an undue, unwarranted or even minimal disrup- tion. The lack of any infringement upon the Employer's control over its property to ensure that its operations were not interfered with , or that the Union's presence was not limited to reasonable periods of time , is a failure to demonstrate a property right which would be counter-balanced against the employees' right to proper representation. See Holyoke Water Power Co., 273 NLRB 1369 (1985). The Union has a statutory obligation to represent all employees in the unit. It is undisputed that by prior custom and contractual provision Respondent permitted FASHION FURNITURE MFG. union representatives access after receiving permission from the office manager. By telling these representatives that the custom would no longer be followed is a unilat- eral change in the conditions of employment in violation of Section 8(a)(1) and (5) of the Act. R. C. Cobb, Inc., 231 NLRB 99, 104 (1977). The expiration of the collective- bargaining agreement does not permit this unilateral change in terms and con- ditions of employment. As the Board held in Bay Area Sealers, 251 NLRB 89 at 90 (1980): Although an employer's contractual obligations cease with the expiration of the contract, those terms and conditions established by the contract and governing the employer-employee, as opposed to the employer-union, relationship survive the con- tract and present the employer with a continuing obligation to apply those terms and conditions, unless the employer gives timely notice of its, inten- tion to modify a condition of employment and the union fails to timely request bargaining , or impasse is reached during bargaining over the proposed change. See Sir James, Inc., 183 NLRB 256 (1970); Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, 223 NLRB 260 (1976); Sioux Falls Stock Yards Company, 236 NLRB 543 (1978); James A. McBrady, Inc. and Maine Erection, Inc., 238 NLRB 847 (1978). See also NLRB Y. Haberman Construc- tion Company, 618 F.2d 288 (5th Cir. 1980). This long-established practice which was contractually required in the pasta? survives expiration of the con- tract 18 As a condition of employment, the method of access by employees to their representatives for griev- ance resolution is a matter related to "wages, hours, and other terms and conditions of employment" within the meaning of Section 8(d) of the Act and is a mandatory subject of bargaining. Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), enfd. 320 F.2d 615, 620 (3d Cir. 1963). See also Westinghouse Electric Corp., 141 NLRB 733, 735-736 (1963), reversed on other grounds 325 F.2d 126 (7th Cir 1963); Motoresearch Co., 138 NLRB 1490, 1492 (1962), J & H Rainwear, 273 NLRB 497 (1984), and Houston Coca-Cola Bottling Co., 265 NLRB 766, 778 (1982). It is undisputed that traditionally the Union had virtually unencumbered access to the plant for a variety 17 The last operative contract provided in the "Recognition " section as follows The Business Representatives and Authorized Representatives of the Union, as provided hereafter, shall have access to the Company's plant , but must obtain permission from the Company or its designee prior to entering the shop, and such permission should not be unrea- sonably denied The Union agrees to exercise its rights in a manner which minimizes interference with production, productivity and effi- ciency in the Company's operation As noted above, there is no claim that the union representatives on 18 October or at any other time interfered with production, productivity, and efficiency, and this was not asserted as the basis for Respondent's action 18 The complaint does not allege that denial of access was a separate violation of Sec 8(a)(1) of the Act, nor was the issue fully and fairly toed Thus, I will not consider if telling the union representatives they had to leave the Employer's premises was an independent violation of Sec 8(a)(1) of the Act Respondeni does not claim impasse and it will not be implied 715 of reasons, including the processing of grievances. Denial of access to the union representative unilaterally re- moved a "real and substantial benefit" when it unilateral- ly denied union representatives access to the plant. Gran- ite City Steel Co., 167 NLRB 310, 315 (1967). Not every unilateral change in working conditions constitutes a breach of the bargaining obligation. The unilateral change must be material , substantial, and signif- icant. Rust Craft Broadcasting of New York, 225 NLRB 327 (1976); Peerless Food Products, 236 NLRB 161 (1978). Thus, the question is whether the denial of access amounted to a breach of bargaining obligation. Although it might be argued" that the unilateral change was not shown to have had any adverse impact on grievance processing or otherwise diminish employee benefits, Fierro creditably testified he had to collect union dues, police the contract, and perform all his rep- resentational duties, including grievance handling, from the plant parking lot. After 19 October, no nonemployee union representative requested permission to enter the plant. This failure was not alleged to be a waiver, and waiver cannot be implied under these circumstances. The Company's unrescinded ban was not for limited hours or portions of the facility or the elimination of an unused right established solely by practice, unlike the situation in Granite City Steel Co., supra, and Peerless Food Products, supra. In this case, there was no showing of a reasonable alternative channel of communication through stewards or otherwise. The Company made no claim that the Union abused its right of access and did not assert a busi- ness justification. Thus, it is concluded that the Coinpa- ny's action substantially reduced and impaired the em- ployees' representational rights. Granite City Steel Co., supra at 315. Compare National Sea Products, 260 NLRB 3 (1982), and Houston Coca-Cola Bottling Co., supra at 779. As found in Granite City Steel Co., supra at 316: Unilateral action . . . in regard to a working con- dition such as a grievance procedure . . is in dero- gation of the statutory representative's bargaining authority and destructive of the bargaining process This is not to say that the statute freezes Re- spondent to the existing practices on plant access. It is to say that prior to effecting changes therein it is under a duty to give its employees' statutory repre- sentative an opportunity to bargain concerning pro- posed changes. The bargaining representative is en- titled to "an opportunity to present arguments to the employer to dissuade him from effecting the change, and also an opportunity to propose alterna- tives or compromises which might moderate the change so as to accommodate the interests of the employees as well as of the employer." Kinard Trucking Company, Inc., 152 NLRB 449, 450. Respondent never afforded the Union "an opportunity to bargain concerning the . . change." Id. Since the Company's action was a complete denial of nonemployee representatives' right of access with no showing of 19 Respondent did not argue that the change was de minimis 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD access to stewards or other reasonable means of griev- ance handling, it is found that the unilaterally imposed change was "material , substantial, and significant" and, hence, a refusal to bargain collectively within the mean- ing of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent Fashion Furniture Manufacturing, Inc. is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 15, Upholsterers' International Union of North America, AFL-CIO is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By denying the Union access to its facility for the purposes of policing contract matters and investigation of grievances which were relevant to the Union's discharge of its bargaining obligation, thereby denying employees of a substantial benefit, Respondent refused to bargain in good faith and violated Section 8 (a)(5) and (1) of the Act. 4. The above unfair labor practice affects commerce within the meaning of the Act. 5. A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act. THE REMEDY Having found that Respondent violated Section 8(axl) and (5) of the Act, I recommend that it be ordered to cease and desist therefrom in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. I also recommend that Respondent be ordered to take certain affirmative action necessary to effectuate the policies of the Act. [Recommend Order omitted from publication.]