Joey'S Stables

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jack Nykiel, a sole proprietorship, d/b/a Joey's Sta- bles and Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24, of the Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO. Case 7- CA-23850 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 16 December 1985 Administrative Law Judge Stephen J. Gross issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The General Counsel filed a re- sponse. i 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 brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jack Nykiel, a sole proprietorship, d/b/a Joey's Stables, Detroit, Michigan, its officers, agents, sucessors, and as- signs, shall take the action set forth in the Order. 1 The Respondent moves to strike certain factual allegations which the General Counsel included in her response to the Respondent 's exceptions The General Counsel filed a response. We deny the Respondent's motion 2 The Respondent excepts to the judge's finding that the Union did not waive its right to bargain about group insurance coverage We note that the Union did not learn of the Respondent's unilateral change until after it occurred We also note that upon learning of the change, Union Busi- ness Agent Miazga immediately protested to the Respondent's owner ' The Respondent also excepts to the remedy which the judge recom- mended to make the Union's welfare fund whole We shall leave the de- termination of the Respondent's required contributions to the fund, if any, to the compliance stage Joseph A. Barker, Esq, for the General Counsel. Robert J. Finkel, Esq. and Bradley T. Raymond, Esq., of Southfield, Michigan, for the Respondent. DECISION STEPHEN J. GROSS, Administrative Law Judge. Re- spondent operates a restaurant in Detroit, Michigan. The restaurant's employees are represented by Local 24 of the Hotel and Restaurant Employees Union (the Union). The General Counsel claims that Respondent violated the National Labor Relations Act (the Act) in two re- spects: (1) by refusing to execute a written contract em- bodying a collective-bargaining agreement that Respond- ent and the Union had previously reached; and (2) by changing the employees' insurance coverage in violation of Respondent's collective-bargaining contract with the Union without notice to or bargaining with the Union.' Respondent admits that it meets the Board's jurisdic- tional standards applicable to restaurants. At the hearing, however, Respondent argued that such standards are in- appropriately low. But Respondent has not proposed what standards should apply (other than indicating that the dollar amounts should be higher by some unspecified amount); has not introduced evidence that would show that Respondent would not be subject to the Board's ju- risdiction under these new, unspecified, jurisdiction levels; and has not argued the point on brief. I accord- ingly find that Respondent is an employer engaged in commerce within the meaning of the Act. 1. DID RESPONDENT AND THE UNION REACH AGREEMENT The General Counsel, the Union, and Respondent agree that Respondent and the Union did bargain over the terms of a collective-bargaining agreement, that the Union drafted a contract that it claims embodied the terms of an agreement reached during the bargaining, and that Respondent had refused to sign that contract. (I will hereafter refer to the document the Union submitted to Respondent for execution as the "draft contract.") If Respondent and the Union did reach agreement, and if the draft contract does reflect that agreement, Re- spondent violated the Act by refusing to execute it. Sec- tion 8(d) of the Act; H. J. Heinz v. NLRB, 311 U.S 514 (1941). But Respondent contends that no agreement was reached and that, in any case, the draft contract is not consonant even with what the General Counsel claims to be the agreement. My conclusion is that both of Respondent's conten- tions are correct. Background The contractual relationship between Respondent and the Union began 30 years ago. Their last written con- tract was for a 1-year term that expired on 2 February 1984. The first meeting in which the parties discussed a new contract was held in January 1984. (The term "par- ties" as used herein means Respondent and the Union.) Three more meetings were held during the period Febru- ary-April 1984 in which the parties bargained over con- tract terms. And in May the parties met to discuss the disclosure by Respondent of financial information. The ' Local 24 filed a charge on 19 September 1984, claiming that Re- spondent failed to execute the agreement On 20 November the Union amended the charge, alleging an unlawful change in the employees' insur- ance coverage The complaint was issued on 7 November 1984, amended on 20 November, and again amended at the hearing on 26 February 1985 The case went to hearing in Detroit on 25, 26, and 27 February 1985 Briefs have been filed by the General Counsel and by Respondent At the hearing on 27 February the General Counsel moved to further amend the complaint so as to request remedial payments to the welfare fund The General Counsel and Respondent both filed memoranda arguing this point As the issue has been fully litigated and is consistent with the alle- gations contained within the complaint, the General Counsel's motion to amend is granted 279 NLRB No. 97 JOEY'S STABLES 729 Union was represented by Business Agents Del Miazga and Peggy Lukacs (although Miazga and Lukacs were not both present at all sessions). Respondent was repre- sented by a consultant, Phillip Lahner (Jack Nykiels, Respondent's owner, attended all the meetings with the Union but with minor exception left the bargaining to Lahner.) The bargaining between Respondent and the Union proceeded on the assumption that the terms of any new collective-bargaining contract should be the same as the terms of the 1983-1984 contract (the old contract) except to the extent the parties proposed changes in those terms. And many provisions of the draft contract: ( 1) are un- changed from the old contract; and (2) were not the sub- ject of any proposal by either Respondent or the Union. It would serve no purpose to review the provisions that meet both of the above criteria. What the following pages of this decision will instead consider are those pro- visions in the draft contract that either are changed from the old contract, or were the subject of a proposed change by one of the parties (whether any change was agreed to), or are otherwise claimed to be in issue by one or both of the parties. A. Article-by-Article Analysis of the Draft Contract Preamble The "effective date" of the draft contract is 1 July 1984. The date was selected by the Union without dis- cussion with Respondent. Nothing happened on 1 July that requires denominating it the contract's "effective date." In particular- (1) the old contract did not end on 30 June 1984; and even assuming that the parties did agree to the terms of a collective-bargaining agreement, no one claims that they reached agreement on 1 July, and the facts show that that could not have been the case. A lack of agreement about the effective date of a pro- posed collective-bargaining contract in some circum- stances can alone be a complete defense to a claim that an employer or a union is unwarrantedly refusing to exe- cute a written collective-bargaining contract, Mercedes- Benz of North America, 258 NLRB 803 (1981) Arguably that is not the case here, however, because the choice of effective dates is without significance in terms of its impact on Respondent (assuming that the other terms in the draft contract do represent the agreement between the Union and Respondent). As will be discussed below, moreover, there are many more obvious bases on which to conclude that the Union and Respondent never reached agreement. The effective date chosen by the Union affected the termination date specified in article XVIII of the draft contract, and the choice of termination dates is signifi- cant. But that will be considered below, in the discussion of article XVIII. 1. Article IV, section 2 On 1 March 1984 Respondent sent a list of eight "pro- posals" - that is, proposed contract changes-to the Union. The first proposal on that list was intended to eliminate the employees' entitlement to overtime pay for certain work. Article IV, section 2 of the old contract reads, in part, as follows: Time and one-half shall be paid for all hours worked in excess of eight . . . hours in any one day, and on the employees' sixth . . consecutive day of work. Anyone working on the seventh . . . day shall be paid at the rate of double time. Respondent's proposal 1 would "eliminate reference to 6th and 7th day." The General Counsel claims that at a bargaining ses- sion held on 5 April Respondent and the Union did reach agreement on proposal 1 on the following basis: (1) the contract change would apply only to servers (that is, to waitresses but not to chefs, etc.); (2) the change would apply only to employees whose work for the week to- taled less than 40 hours, (3) the change would apply only to servers who voluntarily worked a sixth or seventh day-Respondent could not require servers to work more than 5 days per week at regular pay rates; (4) the Union would undertake to draft contract language that would reflect the proposal as modified; and (5) the con- tract change would have to be approved by the bargain- ing unit members. (Subsequently the employees did ap- prove the change.) Respondent, on the other hand, contends that at no time did it and the Union reach agreement on the pro- posal. For one thing, claims Respondent, it never agreed to the Union's demand that work on the sixth or seventh day at nonovertime pay rates be on a voluntary basis. For another, according to Respondent the arrangement worked out at the 5 April meeting was that the Union was to submit revised language for Respondent's consid- eration. As it turns out, the contract language drafted by the Union obviates the need to resolve that dispute The revision of article IV drafted by the Union was as follows: First, the only change to section 2 as drafted by the Union was that it was renumbered "2 A." Second, the draft contract includes a section 2.B that reads as fol- lows: If a server requests to work a sixth or seventh con- secutive day, the server may waive his or her over- time rights for that day, provided such employee does not exceed the forty hour work week. In the event the server exceeds forty hours in the work week, overtime shall be paid for all hours over forty hours. The waiver of overtime must be in writ- ing, with a copy sent to the Union.2 In no bargaining session did anyone propose that em- ployees should be able to work a sixth or seventh day without overtime pay only if they waived overtime rights in writing, and in no bargaining session did anyone propose that the Union would have to be advised when employees worked a sixth or seventh day at nonovertime 2 Emphasis added 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates. Moreover, the Union's insertion of language about written waivers and notice to the Union was not a result of an oversight. The Union added it knowing that it went beyond anything the parties discussed. Section 8(d) of the Act requires "execution of a writ- ten contract incorporating any agreement reached if re- quested by either party." But clearly the overtime provi- sions of the contract drafted by the Union vary from any oral agreement between Respondent and the Union (even assuming the accuracy of the testimony of the Union's representatives). If the parties did in fact reach agree- ment, variations between a draft contract written by one of the parties and the parties' agreement do not necessar- ily permit other party to refuse to execute a written con- tract. If the variations are only "minor deviations" from the agreement, or if they are "inadvertent errors," a party that has been asked to execute the contract must do so (after the contract has been modified to eliminate those deviations or errors).3 But here the Union deliberately included contract terms in its written draft that the Union knew had not been agreed upon. Moreover, those terms were intended to impose duties on the Respondent beyond anything the parties had previously discussed, and they were intended to interject the Union into an area in which it had previ- ously played no role.4 Under these circumstances, the additional terms included by the Union in its draft of ar- ticle IV can be viewed in two ways. One is to consider them to be proof of an absence of agreement on the overtime issue. The other is to treat them as rendering the draft something other than an "incorporating" of the parties' agreement (in the terminology of Sec. 8(d).) In either event it is plain that negotiations on the subject are incomplete. 2. Article VI Article VI specifies the insurance coverage that Re- spondent is to provide for its employees. (That insurance is to be provided through the Hotel Employees and Res- taurant Employees International Union Welfare Fund. This decision will hereafter refer to that Fund as the "welfare fund" and to the insurance as the "group insur- ance.") The language of article VI in the draft contract raises three kinds of issues. First, the Union made numerous language changes that were not the subject of any pro- posal of either party and that the Union never discussed with Respondent. Second, Respondent proposed three changes to the language of article VI that are not reflect- ed in the draft contract. And third, article VI in the draft contract specifies the monthly amounts that Respondent and its employees are to pay to the welfare fund. Ac- cording to Respondent, it never agreed to the amounts 8 The quotations are from, respectively Georgia Kraft Co, 258 NLRB 908, 912 ( 1981), enfd. 696 F 2d 931 (11th Cir 1983), and Shawn 's Launch Service, 261 NLRB 836, 837 (1982) * Compare Shawn 's Launch at 837 (union's attachment of additional material to contract drafted by the union did not excuse the respondent employer from executing the contract since the additional material was "not intended to subject Respondent to any obligations not therefore as- sumed by it") specified in article VI or, for that matter, to any other amounts. Overall revision in language. Article VI in the old con- tract appears to be the product of an uncoordinated series of amendments. Moreover, in some respects the old contract failed to describe the actual agreement of the parties. That former problem-amendments piled on amendments-apparently was common in other collec- tive-bargaining contracts to which the Union was a party, and the Union accordingly drafted a revised ver- sion of the group insurance provisions for general use in its contracts with employers. The Union inserted this re- vised version in the draft contract, doing so without dis- cussing the matter with Respondent. Many of the changes in article VI seem to be no more than a rationalization of the old contract's provisions and a reordering of paragraphs and accordingly have no sub- stantive effect. Respondent does not argue otherwise. But a few of the changes could have an impact on Re- spondent, or on Respondent's employees, or on both Re- spondent and its employees. For example: (1) under the old contract Respondent was purportedly required to make its monthly payments by the 15th day of each month, while under the new contract payments are due on the 10th day; (2) the old contract provided that em- ployees would begin getting insurance coverage after 90 days of employment with Respondent (sec. 6) while the new contract lengthens the waiting period to 9 months (sec. 2).5 Respondent's proposed revisions to article VI. Three of Respondent's eight proposals refer to article VI. Proposal 2 relates to part-time employees. The old contract provided that Respondent had to make insur- ance payments in respect to both full-time and part-time employees. Under Respondent's proposal 2, that would be changed so that Respondent would make payments only in respect to full-time employees. Proposal 3 was directed at audits conducted by the welfare fund. Under the expired contract, the welfare fund's auditors arguably had unlimited access to Re- spondent's employee records. Proposal 3 would have limited that access to specified kinds of records. Finally, the old contract provided for arbitration of grievances generally (in art, X). But article VI contained separate arbitration provisions covering disputes arising under the insurance provisions of the contract Respond- ent's proposal 4 would eliminate the arbitration provi- sions in article VI. The General Counsel contends that Respondent agreed to withdraw each of the three proposals, thereby leaving article VI unchanged. Respondent denies that it withdrew any of the three. My conclusion is that the evi- dence supports Respondent. First, Lahner credibly denied that Respondent reached any agreement with the Union on any of the three proposals. And second, even if Lahner's testimony is ignored, the testimony of the 5 Respondent notes that the old contract provides that the medical in- surance carrier is Blue Cross/Blue Shield while a different carrier is re- ferred to in the new contract However, the old contract's reference to Blue Cross/Blue Shield was incorrect See G C Exh 12 at p 6, and Tr 20 Thus, the draft contract made no change in this respect JOEY'S STABLES Union's witness fails to show that Respondent ever with- drew its proposed changes to article VI. Turning first to proposal 2-elimination of payments in respect to part-time employees-Lukacs testified that at the bargaining session on 5 April she responded to the proposal by explaining that if employers did not make payments in respect to part-time employees, payments covering full-time employees would have to be in- creased, or the benefits full-time employees received would have to be reduced. Her testimony concluded this way: Q. (By the General Counsel): Did he make any response to those statements by you? A They agreed that what I said was-you know, they didn't understand that is what it was at first. Q. In your mind was there any agreement or res- olution of Item No. 2 at that point in time in [the] negotiations? A. To the best of my knowledge, the item was agreed to leave it as it was in the collective bargain- ing agreement. Q. Did the subject come up again in any subse- quent negotiations? A. No, sir, it did not. Q. So how was it left at this particular session in terms of Item. No. 2? Explain to us again. A As far as I was concerned, it was settled. Q. Settled in what way? A Mr. Nykiels said he had not understood what it was and his intention was not to take away from employees what they already had.6 What Lukacs' testimony adds up to is that Respond- ent's representatives said that they did not understand that payments in respect to part-time employees subsidize health insurance for full-time employees, and that Re- spondent did not want "to take away from his employees what they already had." Miazga's testimony is comparable, except that, accord- ing to Miazga, Nykiels and Lahner never uttered any words indicating their agreement; rather "they just went along shaking their heads."'' I will deal with Miazga's testimony about headshaking in connection with my consideration of Respondent's proposals 3 and 4, below, and will here assume that Lukacs' recollection was accurate. But even with that as- sumption it is clear that: (1) Respondent never said it was withdrawing proposal 2; (2) the Union never asked whether Respondent was withdrawing proposal 2; and (3) neither Respondent nor the Union ever said anything on the order of "we have reached agreement about part- time employee insurance payments." The General Counsel claims that Respondent should be required to execute a 3-year contract with the Union on the basis of a nonwritten agreement. Given that 8 Tr 265 Nykiels denied saying any such thing Lukacs' only other testimony about proposal 2 is that Lahner said that Respondent's pro- posed changes to art VI "were not going to be a problem if we could have an understanding " Tr 286 7 Tr 85, see also Tr 190-192 731 claim, one would expect the General Counsel to be able to point with some precision to the communication by which Respondent withdrew its proposed change. The record, however, at best permits the General Counsel to argue that Respondent agreed with the Union 's argu- ments to the effect that Respondent's proposal would have effects that Respondent would not want. That simply is not the same thing as agreement by Respondent to retain the contract provision unchanged. As for Respondent's proposals 3 and 4, according to Lukacs they were "discussed kind of together." Lukacs testified that in response to Respondent's comments about the proposals, she said that "under the ERISA laws we had no choice but to put the language in."9 What then happened, said Lukacs, was that Lahner, in reply, said "he could reconsider his position on those ar- ticles and we started talking on other items."10 Accord- ing to Lukacs there was no further discussion on propos- als 3 and 4. That, of course, does not add up to agreement. But Miazga testified otherwise. As touched on above, Miazga claimed that Nykiels and Lahner showed that they agreed with the Union's position on proposals 2, 3, and 4 by shaking their heads. In Miazga's words: After a lengthy discussion, Phil Lahner and Jack Nykiels both seemed to just-how can I say, that they just went along shaking their heads and going yeah It was just where it was never brought up again. It wasn't discussed and it was, when he was shaking his head, it was like yes. He was agreeing to it 11 Perhaps a shake of the head could under some circum- stances bind the headshaker to the terms of a collective- bargaining contract. But in the very least the record would have to show that the headshaking was in re- sponse to a specific proposal or counterproposal. That was not the case during the negotiations between Re- spondent and the Union. Thus even were I to credit Miazga over both Lahner and Lukacs, I would still have to conclude that the record failed to show that the par- ties reached agreement on either proposal 3 or proposal 4. Issues concerning the amount of Respondent 's insurance payments. The old contract provided that Respondent would pay for the full cost of the group insurance-the employees would pay nothing. That was incorrect. The actual agreement between Respondent and the Union was that Respondent would pay for half of the group in- surance costs ($27.50 of the $55 per month costs per em- ployee).12 8 Tr 266 Id 10 Id 11 Tr 85 11 In the draft contract the Union attempted to rectify the disparity between the language of the old contract and the actual agreement of the parties by providing that Respondent's "monthly contribution, effective February 1, 1984, shall be $55 00 per month The employer shall pay $27 50 per month and shall deduct $27 50 per month from eligible em- ployee's pay " The Umon never advised Respondent that it was going to Continued 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the draft contract, beginning on 1 October 1984 Respondent would pay less than half of the insurance costs. (Respondent would continue to pay $27.50 per month per employee while each employee would pay $57.50.) The General Counsel claims that this change was the result of bargaining , and agreement, between the Union and Respondent. Respondent, however, denies that it reached agreement with the Union on its group insurance payments. I will deal with Respondent's con- tention in this respect later in this decision (in the discus- sion of whether the parties reached agreement on any economic issue). Finally, as just noted the draft contract provides that the switch from $55 per month payments (with the em- ployees paying $27.50) to $85 per month (with the em- ployees paying $57.50) was to be "effective October 1, 1984" (sec. 2B). The Union unilaterally selected the 1 October date without any bargaining on the matter. 3. Article X, section 4 As a matter of practice, Respondent's employees re- ceive their copies of the collective-bargaining contract from the Union, not from Respondent . But the terms of the old contract do not square with that practice. The last two sentences of article X, section 4, of the old con- tract provide that: (1) it is Respondent 's responsibility to provide employees with copies of the collective-bargain- ing contract; and (2) any failure by Respondent to do so could result in monetary penalties. Under Respondent's proposal 5, those two sentences would be eliminated. The General Counsel contends that the Union accepted Respondent 's proposal and that the parties accordingly reached agreement on this matter. Respondent disagrees. The record on this issue is most peculiar in that the General Counsel's position directly contradicts the Union's only witness on the subject , Del Miazga. She testified that proposal 5 was discussed only at the 30 March session. Miazga first seemed to say that on 30 March she agreed to Respondent's proposal 5. But she subsequently testified differently . According to that later testimony, Miazga "didn't agree to remove the lan- guage." i s Rather, said Miazga, during that 30 March meeting she pointed out to Lahner and Nykiels that since the Union was already providing employees with copies, there was no need for any contract language change: "I didn't see no need to even drop it.,, 14 Miagza went on to testify that Lahner and Nykiels "agreed with what I was saying." 15 What Miazga's testimony adds up to, then, is that as she understood the status of proposal 5, the parties agreed that while the Union would continue to be re- sponsible for supplying employees with the copies of the add such language to the draft contract Had the parties otherwise reached agreement, however, it would not appear Respondent could rea- sonably cite this language as a basis for refusing to execute the draft con- tract (See part III of this decision for further discussion of the 1983-1984 agreement between Respondent and the Union regarding the employees' insurance) 18 Tr 185 1* Tr 112 15 Id contract, there would be no change in the language of article X. Miazga's understanding was entirely unreasonable. Re- spondent never agreed to retain the language of the old contract concerning the provision of copies to employ- ees. (There is no issue about that. As noted earlier, in fact, the General Counsel's position is that the Union agreed to Respondent's proposal : see the General Coun- sel's brief at p. 12.) The contract as drafted by the Union reflects Miazga's mistaken understanding of the results of negotiation on 30 March: Article X is unchanged from the old contract. The General Counsel, in recognition of the variance be- tween the contract language and what the General Counsel claims is the agreement between Respondent and the Union, takes the position that the Union's inclu- sion of the two sentences in the draft contract was the product of an "inadvertent" error by the Union, and that Respondent had the duty to advise the Union that "the draft varied from the agreement reached."i a Respondent might well have had that duty if the par- ties had in fact reached agreement on a contract and if the inclusion of the two offending sentences in the draft contract really was inadvertent. But neither of those cir- cumstances was present here . In particular , no union wit- ness ever claimed that the inclusion of the sentences was inadvertent. Rather, Miazga testified (in the course of cross-examination) that the Union deliberately retained in its draft contract the two sentences that Respondent wanted deleted. To summarize : ( 1) the General Counsel claims that the Union agreed to Respondent's proposal 5; (2) the Union's witness on the subject testified that the agreement was to the contrary-that Respondent withdrew its proposal; (3) Respondent did not in fact withdraw its proposal; and (4) the Union deliberately included in the draft contract it sent to Respondent the language in article X that Re- spondent wanted eliminated . To say the least, that adds up to a failure on the General Counsel's part to prove that Respondent and the Union reached agreement about Respondent's proposal. Two considerations remain. One is Lahner's testimony. According to Lahner, at the 30 March negotiating session Miazga agreed to Re- spondent's proposal; but at the next session, on 5 April, the union representatives advised him that Miazga had no authority to make that agreement . Miazga and Lukacs, in turn, denied that Lahner was ever advised that Miazga was not authorized to act on the proposal. The General Counsel contends that Lahner's testimony about Miazga's agreement on 30 March is correct but that his testimony about the events at the 5 April session is wrong. Given the circumstances described earlier, however, I see no need to dwell on the conflicting testi- mony of Lahner, Lukacs, and Miazga about whether the Union ever claimed that Miazga had no authority to agree to proposal 5. The other consideration is Miazga's suggestion, during the course of her testimony, that the Union would have 16 Both quotations are from G C Br p 28 JOEY'S STABLES revised the contract in accord with proposal 5 had Re- spondent "talked to me about it when he received the contract." 1 7 But the question before us is not whether Respondent and the Union would have reached agree- ment had there been further bargaining. Rather, the issue here is whether an agreement had already been reached when the Union asked Respondent to sign the draft con- tract. As discussed above, the record is clear that the parties reached no agreement on Respondent's proposed amendment of article X. 4. Article XIII Respondent proposed changing article XIII (in the proposal 6), but subsequently withdrew the proposal. Ar- ticle XIII of the draft contract is the same as the article in the old contract and accordingly does reflect the agreement of the parties. (The General Counsel argues that the testimony about Respondent's proposed change to art. XIII had broad implications for this proceeding. That argument will be considered later in this decision.) 5. Article XV Article XV of the old contract requires Respondent to inform the Union, in writing, "at least ten (10) days in advance of any sale, transfer, or other change in owner- ship." The article goes on to subject Respondent to cer- tain liabilities if Respondent fails to comply with the notice requirement. Under Respondent's proposal 7, all of article XV would be omitted. I s According to the General Counsel, Respondent not only agreed that the provision could stay in the collec- tive-bargaining contract, Respondent further agreed that the notice requirement should be changed to 14 days- that is, should be made 4 days longer than it already was. The testimony Lahner and Miazga discussed the pro- posal on 30 March. As both testified, they reached no agreement. Lahner told Miazga that Respondent object- ed to the 10-day notification requirement. Miazga told Lahner that the Union could not agree to the proposal. The only other time the proposal was discussed was during the 5 April session. Miazga's testimony about the discussion of proposal 7 at that meeting is vague, con- fused, conflicts in some respects with Lukacs' (as well as with Lahner's), and is altogether unreliable. Turning to Lukacs' testimony, this is what she said happened: (1) Lahner and Lukacs first discussed the extent to which the provision limited Respondent's ability to sell the res- taurant, and Lukacs said that Nykiels' "had a right to sell the establishment"; (2) Lahner then complained about the 10-day notice requirement; (3) at that point Lukacs pro- posed changing the article's 10-day requirement to 14 days; and (4) Lahner accepted Lukacs' proposal. Focusing on Lukacs' 14-day proposal and Respond- ent's agreement to it, these are Lukacs' own words (re- fernng to the 5 April meeting): 733 A. Lahner said something about 10 days' notice. I asked him if that was one of the biggest issues we had here and he said he might be able to reconsider it, and I said how about two weeks. He agreed on a two week notice to the Employer. Q. (By the General Counsel): Was there any other discussion concerning the admission of that clause in the contract? A. Not to the best of my knowledge . . . . As far as I was concerned it was in and we were to change it to two weeks. Q. Did that subject ever come up again in any subsequent negotiations? A. No, sir, it did not.19 Q. (By Respondent's counsel): Who proposed the 14 days. A. I said "if you can't live with 10 how about 14." Q. Mr Lahner specifically told you he agreed to that? A. Yes sir . . . [he said] he didn't have a problem with It. 20 Q. (By the General Counsel, on redirect): How was [the] issue left? A. How we ever came up with two weeks, I don't know. But it was left that we would put two weeks in it and leave it as it was.21 Lahner denies ever withdrawing Respondent's propos- al 7 and denies that the Union ever proposed changing the 10-day requirement to 14 days. (Nykiels did not testi- fy about the discussions concerning proposal 7. The General Counsel attributes significance to that lack of testimony, and I will discuss the General Counsel's con- tention later in this decision.) Conclusion My conclusion is that Respondent and the Union reached no agreement on Respondent's proposal 7. To begin with, I credit Lahner, not Lukacs. It would have been an amazing gaffe for Lahner, an experienced labor negotiator, to have agreed to lengthen the notice requirement when he went into the meeting demanding that the notice requirement be removed completely, and when, in the very least, he could have simply withdrawn the proposal, leaving the 10-day requirement unchanged. I simply do not believe that Lahner would have made that kind of mistake. Second, even were I to find that Lukacs' testimony is an accurate reflection of what actually occurred, I would nonetheless conclude that no agreement had been reached. The General Counsel argues that the fact that agree- ment is the product of one party 's mistake does not enti- tle that party to refuse to sign a collective- bargaining " Tr 186 16 The proposal refers to art "VP" of the old contract But at the 19 Tr 268 hearing everyone agreed that the proposal was understood by the nego- 80 Tr 309 tiators to refer to art XV 21 Tr 312 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract embodying that agreement. And in some cir- cumstances that is so. See Cutter Laboratories, 265 NLRB 577, 578 fn. 4 (1982) (employer would be required to execute contract embodying the terms of a handwritten agreement even had the employer' s assent to one of the terms been the result of "its lack of attention or careless- ness"). But this was not one of those circumstances (even as- suming the accuracy of Lukacs' testimony). It is one thing to require a party to collective bargaining to abide by an agreement that embodies the party's mistake when the mistake is part of a written agreement (as in Cutter Laboratories), or even when it is part of a fully discussed oral understanding. It is quite another to impose such a requirement when, as here, the alleged agreement would have had to have been the product of momentary inat- tention or confusion. Taking Lukacs' testimony at face value, after all, after Lahner's discussion of his reasons for the proposal, Lukacs responded with a virtual non sequitur (the 14-day suggestion). Lahner then uttered the phrase "I don't have a problem with it," and all conver- sation on that subject ended-without any effort by the union to confirm that the parties really had reached agreement on such strange terms. Those circumstances simply do not add up to anything that can be called an "agreement." As a final matter, the contract, as drafted by the Union, makes no change whatever to article XV. Thus, the provision continues to provide for a 10-day notice period. It is tempting to find that this failure of the draft contract to reflect the alleged agreement is further evi- dence of the lack of credibility of the Union's representa- tives. But the probability is that the failure of the Union to provide for 14 days' notice in its draft of article XV was simply a function of carelessness by the Union. In any event, had the Union and Respondent actually reached agreement on the terms claimed by the Union, the fact that the draft contract provides for 10 days' notice rather than 14 could hardly be a justification for Respondent's refusal to execute the contract. 6. Article XVIII The subject of article XVIII is the duration of the agreement. The draft contract presents two issues in this respect: the choice of the month in which the agreement is to terminate; and the duration of the agreement in years. Month in which the agreement would terminate. As touched on earlier, the old contract ran from 3 February 1983 until 2 February 1984. Respondent deemed Febru- ary to be an "advantageous" month for contract expira- tion because it is Respondent's least busy month.22 The draft contract does not retain February as the month of contract expiration. Rather, the expiration date specified in the draft contract is in July. (See, in this con- nection, the earlier discussion of the preamble to the draft contract.) Respondent never agreed to the switch from a February expiration date to a July expiration date. In fact, the Union included the July expiration date 22 Tr 476 (witness Lahner) in the draft contract without bargaining about the sub- ject at all. Duration. The collective-bargaining contract drafted by the Union provides for a 3-year term (1 July 1984 until 1 July 1987) subject to a reopening of the contract once-in 1985-"for the purpose of negotiating all eco- nomic issues." Lahner testified, and Respondent contends, that the parties never even discussed contract duration, much less reached any agreement on the subject. The General Counsel, on the other hand, argues that the parties agreed to a 3-year term subject to two "openers": after the first year, and then again after the second. Because the draft contract provides for only one opener, we are faced once again with a provision in the draft contract that varies from the terms of the agree- ment that the General Counsel claims was reached. But I need not determine whether that variation alone means absence of agreement about duration because - also once again-the testimony of the Union' s witnesses fails to prove that any agreement was reached. Miazga first testified that although Lahner proposed a 1-year contract, "Lahner agreed" when Lukacs subse- quently proposed a "three-year contract with economic openers . . . in the second and third year." 23 But Miazga did not indicate what language Lahner used in expressing what she interpreted to be his agreement And on cross-examination she testified as follows: A. Peggy [Lukacs] stated something to the effect of a three year contract with economic openers on second and third year. . We [the Union] agreed to that. We had no problem with that. Q. What did Mr. Lahner say in response? A. He agrees - Q. What did he say? A. I don't remember him saying anything.24 Lukacs' testimony has a similar flavor. At one point she said that after she proposed a 3-year duration with two openers, Lahner responded by asking Lukacs to "see what you can do" about getting the employees to agree to Lukacs' proposal 25 But on cross-examination Lukacs testified three times that Lahner's only response was: "I don't have a prob- lem with openers."26 "I don't have a problem with openers" (Lukacs' testi- mony) is simply not the equivalent of "I agree to a three- year contract term with two annual economic openers." And Lahner's failure to respond to a statement by a union representative about the Union's willingness to adopt a 3-year contract with two openers (Miazga's test- mony) similarly does not add up to agreement-because the 3-year proposal was the Union's, not Respondent's. In sum, in the face of flat denial by Lahner and a draft contract that differs from anyone's testimony about the nature of the agreement, we have testimony by each of the Union's witnesses that: (1) is internally inconsistent; 23 Tr 94 and 95 24 Tr 202 22 Tr 275 26 Tr 288-289 JOEY'S STABLES (2) is inconsistent with the testimony of the other union witness; and (3) fails to prove any agreement on the issue of contract duration unless one ignores the witness' test- mony on cross-examination. My conclusion is that the record fails to show that the parties reached agreement on the issue of contract dura- tion. 7. Schedule "A" The last two pages of the draft contract are denomi- nated "Schedule A" and cover wage rates for the vari- ous employee classifications, plus such miscellaneous matters as uniform allowances, limitations on split shifts, and vacation pay. Classification of employees. Respondent's proposal 8 reads: "Revise the classifications of work in Schedule 'A' to correspond with the present day operations." Re- spondent admits that on 30 March the parties reviewed the classifications and agreed on their revision. Respond- ent further admits that Schedule A of the draft contract reflects that agreement. Pay rates and other economic issues. At least twice in the parties' contract talks, Lahner advised the Union that Respondent might demand concessions regarding wage rates and employee benefits. And at least twice during those talks Lahner proposed, and the Union agreed, that the parties would handle noneconomic issues before turn- ing to economic matters. Respondent argues that the par- ties never did get beyond noneconomic issues, and that accordingly the parties never reached any agreement about economic matters. The General Counsel contends that Respondent did agree, at least impliedly, to maintain wage rates and group insurance payments at the levels specified in the old contract. My conclusion is that the General Counsel has failed to carry the burden of proof on this issue. At the meeting on 5 January 1984 Lahner proposed that the parties "dispose of our noneconomic items before either party got into the economics." 27 Miazga agreed to proceed that way. On 25 January the Union sent its contract proposals to Respondent. They were economic in nature (higher wages, more holidays, larger insurance payments by Re- spondent). But at the following meeting, on 24 February, Lahner again proposed handling noneconomic issues first. And again Miazga agreed. A few days later, on 1 March, Lahner wrote to the Union listing Respondent's eight proposals (the proposals discussed in the previous pages of this decision) The letter did not state that the proposals were only the non- economic proposals of Respondent. And the opening sentence of the letter suggests that they were Respond- ent's complete set of proposals: "Please find listed below the proposals of Joey's Stables."28 But given the agree- ment between Respondent and the Union entered into a few days earlier to the effect that economic issues would be handled only after consideration of noneconomic items, and given the nature of the proposals, the situation was unambiguous. The eight proposals were Respond- 27 Tr 430,434 28 G C Exh 6 735 ent's noneconomic proposals only, as the Union should have known. The next meeting, on 30 March, dealt only with Re- spondent's 1 March proposals. The meeting after that, on 5 April, also dealt primarily with Respondent's 1 March proposals. But at the 5 April meeting the parties covered some economic matters as well. That occurred when Lukacs demanded that Respondent respond to the Union's proposals of 25 January (for higher wages, larger group insurance payments, and the like). Lahner's response was to reject each of the Union's proposals. That much is clear. What else happened is less so. But, as I piece together the evidence, it appears that Lahner, in the course of rejecting the Union's proposal, said something on the order of "We cannot afford to pay any more than what we're already paying." A remark of that nature does not, of course, amount to an offer. Nonethe- less, Lukacs and Miazga opted to hear it as one - they assumed that Respondent was proposing to maintain the status quo. The union representatives did not tell Lahner that they deemed his statement to be an offer. Instead they said that the employees would be upset with Respondent's re- jection of the Union's proposals, that they would have to advise the employees of Respondent's stance, and they could not say what the employees' reaction was going to be. At that point Lahner said, "See what you can do." (Lahner denies that either he or Nykiels said any such thing. But I credit Lukacs and Miazga in that regard. On the other hand, the record does not support the General Counsel's claim that Lahner made the "see what you can do" remark in response to a union proposal that a con- tract package be submitted to the employees.) Postbargaining Session Events The events associated with the two meetings of Respond- ent's employees. As discussed above, on 5 April Respond- ent rejected the Union's proposals for wage and insur- ance payment increases, and Lukacs and Miazga there- upon concluded, albeit erroneously, that Respondent was thereby offering to maintain the status quo in those re- spects. That led the Union to call a meeting of Respond- ent's employees. The Union did so by posting a notice advising Re- spondent's employees that there was to be a meeting "re- garding your contract" and that "a vote will be taken." At the meeting the employees rejected what Lukacs and Miazga referred to as Respondent's proposed contract. Lahner knew of the meeting, but did not know that the employees were going to be asked to vote on a proposed contract. Nykiels saw the notice and thus knew that the employees were to vote on something related to a con- tract between the Union and Respondent. The parties next met in May. The Union advised Re- spondent that the employees did not believe Respond- ent's claim of economic hardship; a mediator urged Re- spondent to provide financial information to the Union; and Respondent did so. After reviewing the information, the Union called for a second meeting of Respondent's employees. As before, the notice of the meeting pro- 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claimed that "a vote will be taken."29 At that second meeting, held on 21 June, the employees voted to acept Respondent's "offer." Again, Nykiels knew of the meet- ing and saw the notice . Immediately after the meeting, Lukacs and Miazga chanced upon Nykiels at the restau- rant and told him that the employees had voted to accept the "contract" and that the Union would have it typed. Nykiels' response was to nod in a manner that or- dinarily means assent . (The foregoing is based on Lukacs' and Miazga's accounts. Nykiels denies that Lukacs or Miazga said anything about a contract, but I credit Lukacs and Miazga.) If the evidence was close about whether the parties had reached agreement during their negotiating sessions, and if Nykiels had been playing a major role in the nego- tiations, an unambiquous statement of assent by Nykiels could arguably have considerable significance. (If that had been the situation, Nykiels' assent to the union repre- sentatives' statement would suggest that the parties had indeed previously come to a point at which only ratifica- tion by the employees remained for complete agreement to be achieved and that, given the employees' ratifica- tion, execution of the contract was the next-and final- step.) But the evidence is overwhelming that numerous contract issues remained open. And the Union knew that Lahner, not Nykiels, was the person to talk to about Re- spondent's position on contract matters. Nykiels is the owner of the restaurant, of course, and he attended each of the negotiating sessions But Lahner conducted virtu- ally all the bargaining. Moreover, at the start of negotia- tions (in January), Lahner bitterly complained that after the round of bargaining sessions that led to the old con- tract, the Union had behaved improperly by presenting what became the old contract to Nykiels for signature without first clearing the draft with Lahner. (Nykiels signed it without realizing that some of its terms failed to comport with the actual agreement of the parties.) Final- ly, the nature of Nykiels' response-a nod without verbal comment-should have been a clue to Lukacs and Miazga that Nykiels had not focused on their remark. Subsequent communications between the Union and Lahner During the course of a telephone conversation on 27 June, Lukacs told Lahner about the employees' "ratification" vote. Lahner responded, "What contract?" and said that he did not understand how there could have been a vote because Respondent had not made a final offer .30 That same day Lahner wrote to Lukacs. The letter stated that "no offer has been made by my client" and asked Lukacs to specify "on what basis you feel my client made an offer."31 Lukacs' letter in reply 29 Miazga testified that in a telephone conversation with Lahner before the meeting , Lahner asked, "Well, what do you think?" (Tr 99) Lahner denied having any such conversation with Miazga My conclusion is that it is improbable that Lahner made the remark , and that, even if he had made it, it would have no meaning in respect to the issues in this pro- ceeding At the time, after all, Lahner knew that virtually all contract issues remained open and he assumed that the Union also knew that to be the case 311 Tr 300 (witness Lukacs) 31 R Exh 5 stated that during the bargaining sessions Lahner had said that Respondent "could not afford to give any more than what was in the current contract." That, wrote Lukacs, was the "offer" that the employees "ratified."32 Respondent did not reply to Lukacs' letter. On 14 August the Union sent the draft contract to Lahner and asked Respondent to execute it. When Re- spondent did not reply, the Union wrote to Lahner threatening to file an unfair labor practice charge. On 14 September Lahner wrote to Miazga stating that "bur po- sition on the matter is unchanged " and proposing "to continue the negotiating process."33 But at a meeting on 2 October Lukacs reiterated the Union's position that the parties had already reached agreement and that there was nothing more to negotiate. Other Matters Nyktels' failure to testify about certain topics. The testi- mony of the Union's representatives often directly con- tradicted Lahner's concerning what occurred during the bargaining sessions . Nykiels attended all the bargaining sessions. Yet Nykiels failed to testify in support of Lahner's position in respect to many of those conflicts in testimony. As the foregoing pages of this decision re- flect, I nonetheless often found that Lahner's version of the circumstances of the bargaining sessions is the cor- rect one, not Lukacs' and Miazga's. The question is whether I should have presumed that had Nykiels testi- fied about such matters, his testimony would have weak- ened Respondent's case The question is largely an academic one in that even had I, in all instances, credited Lukacs and Miazga over Lahner, I would still have to conclude that Respondent and the Union reached no collective-bargaining agree- ment (as also reflected in the foregoing pages). Apart from that, as discussed earlier, Nykiels was not an active participant in the bargaining session. Perhaps he nonethe- less remained aware of every syllable spoken during each of the bargaining sessions . But I do not think that was the case. Rather, it appears to me that much of the time Nykiels was present pro forma only I accordingly have concluded that Nykiels' failure to testify in support of Lahner's testimony merely represents gaps in Nykiels' awareness of what occurred at the bargaining sessions. Respondent's management-rights proposal. One of Re- spondent's proposals-proposal 6-would have added to the language in article XIII , the management-rights pro- vision of the collective-bargaining contract. As noted earlier, Respondent withdrew the proposal The General Counsel argues that the evidence about the bargaining over this proposal carries broad implications about how to interpret the evidence about the bargaining over Re- spondent's other proposals. Lahner testified this way about the proposals: After she [Miazga] confirmed to me that she rec- ognized what our rights were to run the business 32 R Exh 6 13 R Exh 2 JOEY'S STABLES . . . when she acknowledged what our rights were, I told her that I withdrew it [proposal 6].34 Miazga's testimony about the management-rights pro- posal, on the other hand, was much like her testimony about Respondent's other proposals; she said nothing about Lahner explicitly withdrawing the proposal. Rather, she claimed that she concluded Respondent dropped proposal 6 because of certain failures to respond by Lahner and Nykiels and by their agreement with her arguments on the subject. On brief, the General Counsel invites me to adopt the following logic, based on the foregoing testimony. 1. I should credit only that part of Lahner's testi- mony in which he said that Respondent withdrew proposal 6-not that part of Lahner's testimony in which he testified that "I told her that I withdrew it 11 2. I should credit Miazga's testimony on point. 3 I should then use steps (1) and (2) in analyzing testimony on Respondent's other proposals. As the General Counsel would have it: "By Lahner's ad- mission during his testimony that he in fact with- drew the proposal on management rights, he is con- ceding the validity and reasonableness of Miazga's observation concerning the means by which [Lahner] would indicate agreement on items by a means other than using the words 'I agree. 11135 Of course because Lahner testified that he specifically withdrew proposal 6, he is conceding no such thing. And because I see no reason to discredit that testimony, I conclude that Respondent's withdrawal of its proposal 6, and Miazga 's testimony about that withdrawal, signify nothing about Respondent's actions in respect to its other proposals. H. CONCLUSION-DID RESPONDENT AND THE UNION REACH AGREEMENT Summary The following table summarizes the previous pages of this decision by listing those provisions of the draft con- tract on which Respondent and the Union have not reached agreement. (The summary does not list a number of provisions that the Union changed unilaterally and that have been discussed above . Those excluded are changes that one could perhaps argue would have rela- tively little impact on Respondent--such as the change, in the preamble, in the effective date of the contract, and, in article VI, the change in the day of the month on which Respondent is to submit its payments to the wel- fare fund.) Article and Section Subject of Lack ofAgreement IV, Sec . 2 Overtime (6th and 7th days of work) 34 Tr 444 35GC Br at 15 VI, Sec. I VI, Sec. 2B XV XVIII XVIII Schedule A 737 Insurance payments in respect to part-time employees Dollar amount of insurance payments by Respondent Availability of Respondent's records to auditors from the Union's welfare fund Arbitration of disputes about group insurance matters Respondent's responsibility for providing copies of the collective-bargaining contract to employees Notification period in the event of sale or transfer Month of expiration of the contract Duration of the contract Wage rates and other economic matters There Was No Agreement The summary says all that need be said about whether Respondent had any duty to execute the draft contract. It could be that a lack of agreement about any one of the above subjects would be a complete defense to a claim that Respondent was obligated to execute the draft con- tract. Maintenance Service Corp., 275 NLRB 1422, 1431 (1985). In any case, given the number of outstanding issues, it is apparent that Respondent did not violate the Act by refusing to execute the draft contract. See Inter- print Co., 273 NLRB 1863 (1985). III. HEALTH INSURANCE ISSUES Through June 1984 Respondent sent a monthly check to the Union's welfare fund in payment for insurance coverage for Respondent's employees. (The nature of the coverage: life insurance ; disability insurance; and medical insurance.) As discussed earlier, Respondent and its em- ployees shared the costs of that insurance. (Although Re- spondent's agreement with the Union was that Respond- ent would pay for half the costs of the insurance, Re- spondent paid the full costs of the insurance for several of its employees.) Then, in the period July through Octo- ber 1984, Respondent paid for no insurance coverage for any of its employees. In November 1984 Respondent re- sumed paying for group insurance coverage for some of its employees. But the scope of the insurance was differ- ent from the pre-July coverage, only a few of the 20 bar- gaining unit employees were covered by the new policy, and Respondent did not obtain the insurance through the welfare fund. The Respondent admits that it ended the employees' group insurance coverage at the end of June 1984, admits that in November it reinstituted different group insurance coverage, admits that it did not notify the Union in advance of either action, and admits that its reinstitution of group insurance coverage violated the Act. But Respondent denies that its termination of the 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group insurance coverage in June violated the Act in any respect. My conclusion is that the Act was violated by both changes in the group insurance coverage-by the termi- nation of coverage and by the subsequent reinstitution of limited coverage. Respondent's Termination of the Group Insurance Coverage Under most circumstances, an employer may not change the insurance coverage it provides its unionized employees without giving prior notice to the union and, if requested by the union, bargaining about the proposed change. E.g., Rose Arbor Manor, 242 NLRB 795 (1979). The fact that no collective-bargaining agreement was in effect at the time Respondent made the change did not relieve the Respondent of the duty to notify and bargain with the Union about the change. NLRB v. Williamsburg Steel Products, 369 U.S. 736 (1962); Southwest Security Equipment Corp., 262 NLRB 665 (1982), enfd. 736 F.2d 1332 (9th Cir. 1984). Respondent does not argue to the contrary. Respond- ent instead claims that its termination of the group insur- ance coverage was lawful because Respondent and the Union were at an impasse at the time Respondent acted and because the Union waived its right to bargain. Waiver. Respondent points out that even though the Union knew as early as 1 August that Respondent had ended the group insurance, "no representative of the charging party ever requested Respondent to bargain over the matter, protested, or requested Respondent to "[undo] what it had done." (R. Br. at 26). It is true that a union may waive its right to bargain about a change in terms of employment; and it is also true that in some circumstances a failure by a union to protest may be deemed a waiver. E.g., Merillat Indus- tries, 252 NLRB 784, 785-786 (1980). But when an em- ployer acts without first notifying the union, the union's subsequent silence does not amount to a waiver of its right to bargain . Peat Mfg. Co.., 261 NLRB 240 fn. 2 (1982). Impasse. During the course of the 5 April meeting, Lukacs referred to a forthcoming increase in the cost of insurance coverage and proposed that Respondent pay all the increase. Lahner's response was that Respondent was "looking to get out of the contribution in its entire- ty, much less suffer any increase," and that Respondent could not afford any increase. But neither Lahner nor anyone else said anything else in that vein during the course of the negotiations be- tween Respondent and the Union. As we have seen, Re- spondent did propose, and did bargain about, a number of changes in the parts of the contract relating to the group insurance coverage. But inherent in those propos- als was continuation of the group insurance coverage, not its termination. As we have also seen, on 27 June Miazga spoke to Lahner about the employees' "ratification" of a collec- tive-bargaining contract, and Lahner retorted that there was no contract in existence for the employees to ratify Respondent's termination of the employees' insurance coverage followed a few days later. Those facts simply do not add up to an impasse, no matter how one might define the term. Futility. There is an issue akin to impasse that deserves exploration. In September 1984 Lahner proposed that Respondent and the Union return to the bargaining table. In October the Union rejected that proposal (on the er- roneous ground that there was no further bargaining left to do). That suggests that it might have been futile for Respondent to have notified the Union about the planned termination of the group insurance. Given the Union's behavior in October, it appears that the Union might have declined to bargain about the planned change- again, on the mistaken ground that the parties had al- ready entered into a collective-bargaining agreement that included the group insurance. But for two reasons my conclusion is that that does not excuse Respondent from not having given the Union advance notice of Respondent's plan to terminate the group insurance. First, there is no way of knowing whether the Union would in fact have refused to bargain with Respondent had Respondent advised that it was planning to end the group insurance. Second, for purposes of Section 8(a)(5), the lawfulness of Respondent's behavior must be measured against the manifested position of the Union as of the time Respond- ent ought to have given notice of its forthcoming change in the terms of employment.36 In that regard, as of 1 July 1984 Respondent had no reasonable basis for believ- ing that the Union would refuse to bargain if Respondent advised the Union that it planned to end the group insur- ance. All that had happened prior to 1 July was one tele- phone conversation on 27 June in which a union repre- sentative asserted the existence of a contract . Moreover, an employer owes a union reasonable notice of a pro- posed change in employment terms. Focusing on a change as important as termination of medical, life, and disability insurance protection , a period of reasonable notice ordinarily is more than a few days . Respondent makes no claim that any emergency compelled it to ter- minate the group insurance suddenly. Thus, Respondent should have notified the Union of the planned change well before 27 June . What that adds up to is that at the time Respondent should have given notice to the Union about the planned termination of the group insurance, Respondent had no basis whatever for believing that the Union would refuse to bargain about Respondent's plan to end the employees' group insurance. Respondent's implementation of different group insurance coverage. In November 1984 Respondent reinstituted group insurance coverage. But, as touched on earlier, the new insurance was markedly different from the old. The carrier was different (Blue Cross/Blue Shield instead of through the Union's welfare fund), the benefits were changed (for example, no life insurance was provided); 36 See Taft Broadcasting Co, 163 NLRB 475, 478 (1967) (referring to the "contemporaneous understanding of the parties" in evaluating wheth- er an impasse had occurred), petition for review denied 395 F 2d 622 (D C Cu 1968), Florida Steel Corp, 273 NLRB 889 (1984) (validity of futility claim depends on the facts known at the time of the action at issue), see also Bell Transit Co, 271 NLRB 1272 (1984) JOEY'S STABLES and, most importantly, only a small percentage of the bargaining unit employees were covered. Respondent was obligated to notify the Union prior to implementation of the new insurance, Respondent failed to do so, and Respondent thereby violated Section 8(a)(1) and (5) of the Act. THE REMEDY Respondent's unilateral termination of group insurance payments to the welfare fund and Respondent's subse- quent unilateral institution of different group insurance affected Respondent's employees and the welfare fund. Respondent argues that it would be inappropriate to re- quire Respondent to make remedial payments to the wel- fare fund. But Respondent's arguments are directly con- trary to Board precedent. E.g., Dane County Dairy, 273 NLRB 1711 (1985) Remedial payments to the welfare fund. I leave to the compliance stage the determination of what amounts Re- spondent must pay to the welfare fund to make the fund whole See Dane County Dairy, supra at fn. 2. Remedial payments to those employees who shared in the costs of group insurance As discussed earlier, at the time of Respondent's unilateral action most of the bargaining unit employees shared the costs of the group insurance equally with Respondent. Respondent has an obligation to make remedial payments to each such employee (and/or the employee's beneficiaries), but only if the tests set forth in (1) and (2) below are met for either or both of the following periods: from 1 July 1984 until the date of this Order; and from the date of this Order until Re- spondent reaches agreement with the Union concerning insurance coverage or until impasse is reached- (1) The employee incurred expenses or suffered losses, or the employee's beneficiaries suffered losses because of Respondent's unilateral action, and (2) Such expenses or losses exceed the amount the employees would have paid for the group insurance coverages. Respondent shall pay to employees (or their benefici- aries) meeting both these tests the difference between (i) the expenses incurred and/or losses suffered and (ii) the amounts the employees would have paid for the group insurance coverage . See Florida Steel Corp., supra.37 Such amounts shall include interest as specified in Flori- da Steel Corp., 231 NLRB 651 (1977). Remedial payments to those employees for whom Re- spondent paid the entire costs of group insurance. As also 31 My reasons for dividing the remedial period into two parts-the first ending at the date of this order and the second ending at agreement or impasse-are as follows If there was only one remedial period (lasting until agreement or impasse) (I) Respondent might thereby be encouraged to delay bargaining, and (2) employees (or beneficiaries) who are now en- titled to remedial payments might suffer considerable delay before receiv- ing their remedial payments as Respondent could argue-(i) Respondent should not have to make any payment to any employee/beneficiary until it could be finally determined that the expenses and losses incurred by the employee/ beneficiary were in fact greater than the amounts the em- ployee would have paid for the group insurance, and (u) that final deter- mination could not be made until the end of the remedial period Cf F W Woolworth Co, 90 NLRB 289, 291-292 (1950) 739 discussed earlier, a few of Respondent's employees did not share in the costs of the group insurance. Respondent shall make each of those employees (or the employee's beneficiaries) whole, with interest, for any expenses in- curred or losses suffered by the employee or the employ- ee's beneficiaries as a result of Respondent's unilateral action Respondent shall be liable for such expenses and losses until Respondent reaches agreement with the Union concerning insurance coverage or until impasse is reached. Additionally, Respondent shall be required to cease and desist from unilaterally changing the insurance cov- erage it provides to its employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed38 ORDER The Respondent, Jack Nykiels, a sole proprietorship, d/b/a Joey's Stables, Detroit, Michigan, its officers agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally ending its payments to the Hotel Em- ployees and Restaurant Employees International Union Welfare Fund, or to any other provider of insurance coverage for Respondent's employees, or unilaterally in- stituting employee insurance benefits, without notice to and bargaining with the Hotel, Motel Restaurant Em- ployees, Cooks & Bartenders Union, Local 24, Hotel and Restaurant Employees International Union, AFL-CIO, as the exclusive bargaining representative of Respond- ent's bargaining unit employees. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole Respondent's bargaining unit employ- ees, their beneficiaries, and the welfare fund, for any ex- penses or losses caused such employees, beneficiaries, or fund by Respondent's unilateral cessation of payments to the fund, in the manner set forth in the remedy section of this decision (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Detroit, Michigan, copies of the attached notice marked "Appendix "39 Copies of the 38 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 39 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 " 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 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 or- dered us to post and abide by this notice. The law gives all employees the following rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. To refuse to do any or all of these things WE WILL NOT Stop making payments to the welfare fund of the Hotel and Restaurant Employees Union, Local 24, without first notifying the Union and provid- ing the Union with an opportunity to bargain about such action. WE WILL NOT start insurance coverage for some of you without first notifying the Union and providing the Union with an opportunity to bargain about such action. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make you, your beneficiaries, and your Union's welfare fund whole for any expenses incurred or losses suffered as a result of our unlawful cessation of payments to the welfare fund. JACK NYKIEL, A SOLE PROPRIETORSHIP, D/B/A JOEY'S STABLES