Parkview Furniture Manufacturing Co. And Park-View Occasional Seating

PARKVIEW FURNITURE MFG. CO . 947 Parkview Furniture Manufacturing Co. and Park- view Occasional Seating and Upholsterer's International Union of North America, Local 15 Joint Board, AFL-CIO and UIU Health and Welfare Fund; UIU Pension Trust, Express Trust. Cases 21-CA-22499, 21-CA-22889, 21- CA-23074, and 21-CA-23075 13 July 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 23 April 1986 Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed exceptions and a supporting brief. 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, 1 and conclusions as modifieds and to adopt the recom- mended Orders as modified. The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. We also find no merit to the Respondent's allegations of bias and preju- dice on the part of the judge On our full consideration of the record and this decision, we find no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or findings, including his credibility resolutions. Finally, we note that in par. six in the portion of the judge's decision entitled, "3 The Withdrawal of Recognition," the judge referred to "4 April 1983" as the date of the meeting between the union representatives and the Respondent's cutting and sewing employees. The correct date of this meeting, as stated elsewhere in the judge's decision, is 4 August 1983 2 We find it unnecessary to rely on the judge's drawing an adverse in- ference from the Respondent's failure to call the employee named "Frank" to testify about the alleged August decertification petition, but we do rely on his drawing suCh an inference from the Respondent's fail- ure to call supervisor Mope concerning the petition. We adopt the judge's findings that the Respondent violated Sec 8(a)(1) and (5) by denying the union representatives access to its facilities The record evidence shows that the Union's right of access to the Respond- ent's facility has been contractually prescribed and, further, has been es- tablished by the Respondent'S past practice See Tom's Ford Inc. 253 NLRB 888, 893, (1980); R. C Cobb, Inc., 231 NLRB 99, 104 (1977) 3 The judge ordered that backpay due employees as a result of the Re- spondent's refusal to execute the collective-bargaining contract be deter- mined in accordance with the formula set forth in E W. Woolworth Ca, 90 NLRB 289 (1950) The correct method for computing backpay in this case as that stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) In accordance with our decision in New Horizons for the Retarded, interest will be computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.0 § 6621 284 NLRB No. 105' AMENDED CONCLUSIONS OF LAW4 1. Substitute the following for Conclusion of Law 9, delete Conclusion of Law 10, and renum- ber the remaining paragraphs. "9. By unilaterally and without notice to or bar- gaining with the Union ceasing to make health and welfare and pension contributions as provided in the contract and replacing the contractually pre- scribed insurance plans with its own plan, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 8(d) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Parkview Furniture Manufacturing Co. and Parkview Occasional Seating, Compton, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(g), delete paragraph 1(h), and reletter the remaining paragraphs. "(g) Failing and refusing to make contributions to the Union's fringe benefit funds, as provided for in the collective-bargaining agreement, and replac- ing the contractually prescribed insurance plans with its own plan." 2. Substitute the attached notice for that of the administrative law judge. 4 The Conclusions of Law have been amended to more closely con- form with the complaint allegations and with the express findings set forth in the text of the judge's decision. We shall modify the judge's rec- ommended Order and provide a new notice to reflect these changes. 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. WE WILL NOT refuse to bargain with the Union by refusing to execute a collective-bargaining con- tract negotiated and agreed on with the Union and to give effect to its provisions. WE WILL NOT withdraw recognition of the Union as the exclusive bargaining representative of the unit employees or inform unit employees that they no longer are represented by the Union. 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with the Union concerning rates of pay, wages, hours, and other terms and conditions of employment as the exclusive bargaining representative of our em- ployees in an appropriate unit. WE WILL NOT deduct in a lump-sum manner any assessment contrary to the Union's instructions and make any remarks denigrating the Union in order to encourage employee disassociation with the Union as their exclusive bargaining representative. WE WILL NOT unilaterally implement changes in terms and conditions of employment without notice to the Union or affording the Union the opportuni- ty to bargain thereon. WE WILL NOT fail and refuse to make contribu- tions to the Union's fringe benefits funds as provid- ed for in the collective-bargaining agreement and WE WILL NOT replace the contractually prescribed insurance plans with our own plan. WE WILL NOT fail and refuse to withhold union dues from unit employees and to remit the dues and any union dues already withheld to the Union. WE WILL NOT deny the Union's representatives access to our facility. WE WILL NOT unilaterally and without notice or bargaining with the Union grant and distribute Christmas bonuses to our employees. 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 of the Union, execute and give retroactive effect to the collective-bargaining contract on which agreement was reached on 31 March 1983 or, if the Union does not request such execution, WE WILL bargain collectively in good faith, on request, with the Union, as the exclusive collective-bargaining representative of our employ- ees in the unit found appropriate, with respect to rates, wages, hours, and other terms and conditions of employment, and embody in an agreement any understanding reached. The bargaining unit is: All production employees in the upholstery and allied departments, excluding woodwork- ers, teamsters, full-time inspectors, office em- ployees and foremen not working more than sixty-five percent of their time on production during any given week, guards and supervisors as defined in the Act. WE WILL make whole, with interest, our em- ployees in the bargaining unit described above for any loss of wages and other benefits they may have suffered by reason of our failure to sign, effectuate, and adhere to all terms of the above agreement. WE WILL make whole our employees by trans- mitting our contributions to the union health and welfare and pension insurance funds, as required by the collective-bargaining agreement, and by reim- bursing our employees for any expenses ensuing from our failure to make such contributions. WE WILL make whole the Union for any loss suffered as a result of our failure to withhold union dues from unit employees and remit them to the Union. WE WILL, on request, bargain with the Union re- garding the terms and conditions of Christmas bo- nuses for unit employees. PARK VIEW FURNITURE MANUFAC- TURING CO. AND PARK VIEW OCCA- SIONAL SEATING Ira Sandron, Esq., for the General Counsel. Michael K. Schmier, Esq. (Schmier & Schtnier, Esqs.) of Los Angeles, California, for the Respondent. Jeffrey L. Cutler, Esq. (Davis, Frommer & Jesinger, Esqs.), of Los Angeles, California, for the Charging Party Union. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On the basis of charges and amended charges filed in Cases 21- CA-22499 and 21-CA-22889 from August 1983 through February 1984 by Upholsterer's International Union of North America, Local 14 Joint Board, AFL-CIO (the Union and/or the Charging Party), the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 21, Los Angeles, Califor- nia, issued an order consolidating these cases, a consoli- dated amended complaint, and an amended notice of hearing on 2 March 1984 against Parkview Furniture Manufacturing Co. and Parkview Occasional Seating (the Respondent), alleging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). On 9 March 1984, the Respondent filed an answer to the consolidated amended complaint, denying in substance the material allegations therein. Thereafter, on the basis of charges filed in Cases 21-CA-23074 and 21-CA-23075 on 21 March 1984 by UIU Health and Welfare Fund; UIU Pension Trust (the Trusts), the Gen- eral Counsel of the Board, by the Regional Director for Region 21, issued an amended order consolidating all the above cases, an amended consolidated complaint and amended notice of hearing on 5 April 1984 against the Respondent, alleging that the Respondent had engaged in various unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. The Respondent filed its answer and amended answer on 18 and 23 April 1984, respectively, denying, in substance, the material allega- tions contained in the amended consolidated complaint. In its answers to the amended consolidated complaint, the Respondent raised the following affirmative defenses: PARKVIEW FURNITURE MFG. CO 949 At all relevant times during which no collective bargaining agreement was extant; (1) the Union did not represent a majority of any unit of Respondent's employees; (2) Respondent had a reasonabl[y] grounded good faith doubt that the Union represented a ma- jority of Respondent's employees in any unit based upon objective considerations; (3) the Trusts lack any standing to file charges in this matter and thus this Amended Consolidated Complaint is fatally flawed and on the basis of this improper consolidation, Respondent moves that these charges be severed and that all charges be dis- missed. The Respondent also moved in its answers for a continu- ance of the hearing date on the grounds that the amend- ing of the consolidated complaint regarding charges filled by the Trusts was improper and "involve new parties, and greatly expanded new issues," and therefore the Re- spondent needed additional time to properly prepare its case for trial. By Order dated 20 April 1984, the Acting Regional Director for Region 21 denied the Respondent's motion for a continuance for the following reason: Contrary to Counsel for Respondent's contention that the amendments involved "greatly expanded new issues", no substantive allegations were added to the Consolidated Complaint as a result of the amendments. Rather, the only change was the addi- tion of the Trusts, as Charging Party, to the cap- tion, and the addition of paragraphs 2(e) and 2(f) re- lating to the filing of charges in Cases 21-CA-23074 and 21-CA-23075 and service thereof on Respond- ent. Therefore, I conclude that Counsel for the Re- spondent's "Motion For Continuance of Hearing Date" lacks merit. This Order also denied the Respondent's motion to sever Cases 21-CA-23074 and 21-CA-23075 from Cases 21- CA-22499 and 21-CA-22889 on the following grounds: Section 102.79 of the Board's Rules and Regula- tions, Series 8, as amended, provides, inter alia, that "A charge that any person has engaged in or is en- gaging in any unfair labor practice affecting com- merce may be made by any person." Sec. 2(1) of the Act provides that: The Term "person" includes one or more indi- viduals, labor organizations, partnerships, associa- tions, go 222 corporations, legal representatives, Trustees, trustees in bankruptcy, or receivers [em- phasis supplied]. Therefore, it is clear that the Trusts have requisite standing to file charges against Respondent A hearing was held before me in Los Angeles, Califor- nia, on 24, 25, and 26 April 1984. 1 All parties were af- By Order dated 11 April 1984, the Acting Regional Director for Region 21 referred the Respondent's "petition to revoke subpoena duces forded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. At the opening of the hearing the Respondent moved for a continuance of the hearing and for severance of the cases consolidated herein as set forth above. I denied the motions. The Re- spondent failed to renew these motions at any other stage of the hearing. At the close of the General Coun- sel's case the Respondent moved for dismissal of the amended consolidated complaint on the grounds of fail- ure of proof. I denied this motion. No further dispository motions were made at the hearing. Thereafter, the Gen- eral Counsel, the Respondent, and the Union all filed briefs. The Respondent in its brief did not renew or dis- cuss its motions for a continuance and for severance,3 but it did request dismissal of the amended consolidated complaint in its entirety on the merits of the case. On the entire record and the briefs of the parties, and on my observation of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material herein, has been a California corporation with its principal office and place of business at 17707 South Santa Fe Avenue, Compton, California, engaged in the business of manu- facturing upholstered furniture. 3 In the course and con- duct of its business operations during the preceding 12 months, these operations being representative of its oper- ations at all times material herein, the Respondent pur- chased and received goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. The amended consolidated complaint alleges, the Respondent admitted at the hearing, 4 and, therefore, I find that the Respondent is now, 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. The amended consolidated complaint also alleges, the Respondent admitted at the hearing, and I find that Larry Brooks, the Respondent's president, David Thomas, its vice president, and Larry Domaracki, the Respondent's plant manager, at all times material herein, have been, and are now, supervisors within the meaning of Section 2(11) of the Act and agents of the tecurn . . . to the Administrative Law Judge for ruling." At the hearing the Respondent amended its answers to admit the supervisory status of certain employees, obviating the need for the subpoena duces tecum, which was then withdrawn by the General Counsel, as was the petition to revoke by the Respondent 2 Based on the above, and concurring with the reasoning of the Acting Regional Director for Region 21 in denying the Respondent's motion for severance, I find and conclude that the Trusts are a proper party in this proceeding. See Teamsters Local 449 (Universal Liquor), 265 NLRB 1539 (1982). 3 The Respondent's facility consists of a main large plant budding and a smaller one 4 Although the Respondent amended its answers at the hearing to admit the jurisdictional allegations in the amended consolidated com- plaint as fact, it continued to deny the legal conclusion that the Respond- ent is an employer withm the meaning of Sec. 2(2), (6), and (7) of the Act 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent within the meaning of Section 2(13) of the Act. II. THE LABOR ORGANIZATION INVOLVED The amended consolidated complaint alleges that Up- holsterer's International Union of North America, Local 15 Joint Board, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. The Respondent in its answers denies this allegation on the basis of lack of sufficient information to form a belief thereon. As will be set forth hereinafter in more detail, there exists a prior history of a collective-bargaining relationship between the Respondent and the Union, during which the Re- spondent acknowledged the Union as the exclusive bar- gaining representative of its employees in an appropriate bargaining unit for purposes, in whole or in part, "of dealing with [the Respondent] concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."5 Moreover, the Union has col- lective-bargaining agreements with other employers, has a constitution and bylaws, admits employees to member- ship, holds regular membership meetings, allows mem- bers to elect the Union's officers, represents employees in their grievances against employers, represents employees in collective bargaining with their employers, and is af- filiated with the Upholsterer's International Union of North America. I therefore find and conclude that the Upholsterer's International Union of North America, Local 15 Joint Board, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act.6 III. THE APPROPRIATE BARGAINING UNIT The amended consolidated complaint alleges that the following employees of the Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production employees in the upholstery and allied departments, excluding woodworkers, team- sters, full-time inspectors, office employees and foremen not working more than sixty-five percent of their time on production during any given week, guards and supervisors as defined in the Act. The Respondent denies this allegation. The 1979-1982 collective-bargaining agreement between the Respondent and the Union describes a similar unit as covered therein and the Respondent offered no evidence to refute the ap- propriateness of this unit for purposes of collective bar- gaining. Therefore, I find and conclude that the above-de- scribed unit constitutes a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 5 See Sec 2(5) of the Act 6 Photo Drive Up, 267 NLRB 329 (1983), Michigan Bell Telephone Go, 182 NLRB 632 (1970) Moreover, the Respondent faded to produce any evidence at the heanng contradicting this or supporting its denial of the Union's status as a labor organization within the meaning of the Act IV. THE ALLEGED UNFAIR LABOR PRACTICES The amended consolidated complaint alleges that, since about 15 August 1983, the Respondent has failed and refused, and continues to fail and refuse, to execute a written collective-bargaining agreement embodying all terms and conditions of employment agreed on between the Respondent and the Union about 31 March 1983, al- though requested to do so by the Union; that, about 19 August 1983, the Respondent withdrew its recognition of the Union as the exclusive bargaining representative of its employees in an appropriate unit, and told its employ- ees that it no longer recognized the Union; that the Re- spondent unilaterally made changes in employee health insurance benefits and told its employees that it was making such changes; that the Respondent ceased making health and welfare and pension contributions to the trust funds as required by the collective-bargaining agreement, ceased withholding and remitting to the Union the union dues as required by the employees' dues-checkoff authorizations, and distributed Christmas bonus checks to employees, all without prior notice to the Union and without affording the Union an opportuni- ty to negotiate and bargain as the exclusive representa- tive of the Respondent's employees with respect thereto; that, about 15 and 17 August 1983, the Respondent re- fused to allow union representatives access to its facility; and that the Respondent, about 12 August 1983, deduct- ed the Union's requested strike assessment from its em- ployees' paychecks in a lump-sum manner, contrary to the Union's request and to undermine employee support for the Union, all in violation of Section 8(a)(1) and (5) of the Act. The Respondent denies these allegations. A. Background The record evidence herein shows a prior longstand- ing collective-bargaining relationship between the Re- spondent and the Union whose history thereof dates back to 1966. Beginning in that year and continuing through April 1979, the Respondent was a member of a multiemployer association known as the Upholstered Furniture Manufacturers Association of California, which represented approximately 40-50 furniture manu- facturers in collective-bargaining negotiations with the Union. After negotiating the latest collective-bargaining agreement between its members and the Union, effective from 1 April 1979 through 31 March 1982, the Associa- tion disbanded in April 1979. Thereafter, the Respondent and the Union mutually agreed to extend the 1979-1982 agreement for another year to expire on 31 March 1983. By letter dated 25 January 1983, the Union notified the Respondent that it "proposes to reopen the existing agreement" according to the terms thereof and offered to meet with the Respondent to negotiate a new collective- bargaining agreement. Because there were some 20-25 bargaining agreements with other furniture manufactur- ers in southern California also set to expire in or about March/April 1983, the Union sent similar letters to each of these companies requesting negotiations. The Re- spondent by letter dated 8 February 1983 agreed to meet with the Union to negotiate a bargaining agreement. On 9 February 1983 the Union forwarded its initial contract PARKVIEW FURNITURE MFG. CO 951 proposals to the Respondent and to the other companies it had contacted regarding the negotiation of new agree- ments. Subsequently, after contact between Alfonso Fierro, a business representative for the Union, and Larry Brooks, the Respondent's president, had laid the groundwork for the commencement of negotiations be- tween the Respondent and the Union, a meeting was scheduled at the Respondent's facility in the conference room for 28 February 1983.7 B. The Evidence The record evidence shows that the Respondent and the Union held several negotiation sessions beginning on 28 February 1983 and ending on 31 March 1983 regard- ing a new collective-bargaining agreement. 8 These meet- ings all took place in the conference room of the Re- spondent's plant facility. Present at the meetings on behalf of the Respondent were Lawrence Brooks, David Thomas, and Larry Domaracki, the Respondent's presi- dent, vice president, and plant manager, respectively; while representing the Union therein were Raymond Valdez and Alfonso Fierro, the Union's business manag- er and business representative, respectively, and an em- ployee negotiating committee comprised of four of the Respondent's hourly employees. The members of both negotiating teams were present at all the bargaining ses- sions held, except for Valdez, who missed one or two meetings in early March 1983 while he was away on va- cation. I. The 28 February 1983 meeting The first formal bargaining session between the Re- spondent and the Union occurred on 28 February 1983 and ran from 2 p.m. until 4 p.m. Valdez, Fierro, and Brooks all testified to the friendly nature of the negotia- tions at this first meeting. At this meeting the parties evolved certain procedures and "ground rules" for gov- erning the negotiations. Valdez, testifying as a witness for the General Counsel, stated: [I]t was a late meeting, a preliminary meeting. . . I believe some ground rules we tried to lay out. I'm Fierro and Brooks discussed the membership of their respective ne- gotiating committees, indicating those who would be attending the nego- tiation sessions, and Brooks requested that Raymond Valdez, the Union's business manager, attend the negotiations as a member of the Union's ne- gotiating team. Brooks testified that there were 6 negotiation meetings between the Respondent and the Union, Valdez stated that there were "five to seven" bargaining sessions held, and Fierro related that at least 10 meetings took place at which negotiations occurred between the parties. Moreover, Valdez was unsure as to the chronology of these meetings because they had occurred about a year ago and the Union had been engaged, at the same time, in negotiating collective-bargaining agreements with 20-40 other employers in the furniture manufacturing industry whose contracts were about to expire. Regarding Fierro's recollection of the number of meetings held, he had held preliminary meetings with Brooks to lay the groundwork for the commencement of negotiations between the parties and had also met separately with the members of the employees' negoti- ating committee to plan the Union's bargaining strategy, and he may have confusedly mcluded these meetings in his count thereof, notwith- standing his testimony to the contrary. The above circumstances, consid- ered along with Brooks' seemingly clear recollection as to the actual dates of the negotiation meetings, establishes that there were actually six formal bargaining sessions held between the Repondent and the Union. trying to refresh my memory. It's pretty hard to re- member a year back. Like I said before, it was a very informal negotiation, a lot different than we've ever negotiated before . . . they tried to make it like [homey]/ and everybody was friends, and we wouldn't need to go through all this formal stuff . . . . The employer made a statement that he was more concerned with money and fringe benefits than he was with the language of the contract. That the contract would probably stay as it was and there [were] a few items in there that would have to be negotiated. Valdez testified that he proposed using the "old work- ing contract as a guideline," along with the Union's con- tract proposals sent to the Respondent on 9 February 1983, with the parties reviewing each provision of the contract to "sign off each article that was not in issue." According to Valdez: [Brooks] said that's going to take too long, they didn't have time for that . . . . He said that we can—I don't know the exact words, but the way it was put that this wasn't going to be much of a ne- gotiation for this contract because most of the lan- guage shouldn't be—doesn't need to be changed. There were a few items that—And that he was a man of his honor, and his word, in that his word was his bond, whatever we agreed on would be his bond. These people have known me for years, he said . . . . They've worked with me for years, and they know that Larry Brooks' word is his bond.° Valdez related that Brooks strongly emphasized that most important to the Respondent were the "money issues and the health and welfare issues." 1 ° Moreover, Valdez denied that the parties had reached any proce- dural agreement that day which required that "all pro- posals and counterproposals were to be put into writing and exchanged before they were to take effect . . . that before anything was agreed to at all, or regarded as being agreed, it had to be reduced into typewritten form and signed off by each side." Valdez continued that the parties also discussed pre- liminarily such issues as the term of the new collective- bargaining agreement, with the Union seeking a 2-year contract and the Respondent insisting on 3 years, and the effective date of any wage increase negotiated, with the Union requesting retroactivity of wage increases, while the Respondent sought a 1-year current wage freeze. Valdez recounted that the Union also requested that the Respondent continue to give effect to and abide by the terms and conditions of the old bargaining contract should negotiations extend beyond the expiration date of that agreement, 31 March 1983. 'Valdez added that 9 Brooks admitted having "probably" made the latter statement. 1 ° Valdez testified that Brooks had stated at this meeting that "half of the furniture manufacturers that were negotiating three years ago were no longer m business because of tough economic times" Moreover, Valdez maintained that he had advised the Respondent's negotiators that "everything's important," in the contract, as part of the Union's bargain- ing strategy 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fierro was charged with negotiating the language of the new collective-bargaining agreement for the Union, while Valdez was responsible for handling the wage, health and welfare, and pension insurance provisions to be negotiated therein. Alfonso Fierro 1 1 testified that, at the 28 February 1983 negotiation meeting, the parties initially agreed that "tentative agreement on any subject of the negotiation would be signified after it had been reduced in writing and initialled off on both sides." Fierro related that "sev- eral things were negotiated" at this meeting and David Thomas was delegated to type up the language agreed upon on "strips of paper" and Fierro would "paste" these changes onto his "working copy of the old agree- ment," or the Union's proposals, wherever applicable, which would then be reviewed and initialed by the par- ties. 12 Fierro stated that the Respondent and the Union agreed that, "until . . . the whole package came togeth- er, there would be no contract." Fierro added that al- though it was the "agreement in the beginning" that the parties initial or "sign off" all provisions of the bargain- ing contract which had been agreed upon, this was soon "relaxed" and discontinued by the parties. Lawrence Brooks testified" that at this first meeting the Respondent and the Union agreed to the following "ground rules" applicable to these negotiations: "all items that were agreed upon and language completed we would sign off," there would be "no recriminations" for statements made by any of the negotiators at the bargain- ing sessions, and either negotiating team could caucus with its members in private at any time during the nego- tiations. Brooks related that any issue that was not fully agreed on would be considered "tabled" or "in discus- sion" and marked accordingly until it was subsequently reconsidered, agreed upon, and "signed off." Those items in the agreement that were "dropped" or "deleted" were also to be initialed. 14 Brooks continued that the parties used the provisions of their 1979-1982 collective-bargain- ing agreement as a guide to rewriting the new contract. Items therein which were agreed upon were typed up and placed "right next to the contract [provision]" they " When Fierro testified at the hearing as a witness for the General Counsel, he was no longer employed by the Union as a business repre- sentative, having been "laid off' by the Union in February 1984. 52 Fierro testified that, when Valdez attended the negotiation session, Valdez and Brooks initialed changes made in the bargaining agreement on behalf of the Union and the Respondent, respectively. However, Brooks testified that Valdez had never initialed any changes for the Union and that only Fierro had done so 13 Brooks was the sole witness for the Respondent called in its behalf 14 Although Brooks acknowledged that the negotiations were "less formal" than in the past wherein the Respondent and the Union were represented by attorneys, he denied that there was any relaxation of the procedure the parties had agreed upon at the first negotiation meeting on 28 February 1983 to govern the bargaining sessions However, Brooks did admit that in some instances when agreement between the parties had been reached, and the language of the provision of the contract had been completed and typed, the parties did not initial it as "signed off" In re- viewing Fierro's "working copy of the old agreement," this seems espe- cially true of provisions of the bargaining agreement which remained un- changed and items which were deleted or withdrawn. For example, the parties had agreed to remove the provision covering absenteeism and tar- diness from the agreement and handle it as part of the Respondent's "Shop Rules." This provision, although deleted, was not initialed by the parties replaced, then initialed by the parties and put aside until the completed new bargaining agreement was "proofed." Brooks stated that Valdez had requested "retroactivity and extension of the contract," if the negotiations contin- ued past the 31 March 1983 expiration date of the old collective-bargaining agreement, which request the Re- spondent refused." Brooks continued that the Union also requested a 2-year contract, but the Respondent in- sisted on a 3-year term for the new bargaining agree- ment, this issue being "temporarily tabled" for further consideration. Brooks testified that he told the Union's negotiators that the furniture manufacturing industry was facing some tough times and fierce competition and that the Respondent had to remain competitive price wise or face closing down its business, as had 24 other furniture manufacturing companies who had gone out of business since the last collective-bargaining agreement was negoti- ated with the Union. Valdez requested that the Respond- ent present its list of demands and proposals in writing at the next bargaining session and Brooks agreed to do this. Brooks testified that there was a brief discussion at this meeting about the Union's health and welfare and pen- sion insurance plans and the cost thereof and he realized that this issue would present a "big problem" in the ne- gotiations. 16 Brooks advised Valdez that the Respondent had received numerous complaints from its employees regarding the Union's current health and welfare plans, i.e., if the Respondent was late in forwarding the insur- ance plan contributions to Philadelphia, Pennsylvania, these fringe benefits were cut off, and at times the carri- er's computers were not working properly causing some distress and inconvenience to the employees, etc. Brooks told the Union that the Respondent wanted to investigate an alternative outside health and welfare and pension plans to see if it could secure the same or better fringe benefit coverage for less money. According to Brooks, Valdez was receptive to this idea and said that the Re- spondent should conduct its own research into various fringe benefit plans, and report its findings at a future ne- gotiation meeting, and the Union would bring in its ex- perts in this area to explain the advantages and worth of the Union's fringe benefit plans. The meeting was then concluded. 15 Metro testified that Brooks' response to Valdez' request for an ex- tension of the terms and conditions of the expiring bargaining agreement was that "there was no need of it because we'd get it resolved." Brooks stated that among the reasons he had for refusing the extension request was that he believed an extension would allow the parties to slow down the negotiations; there would be no pressure to complete the negotiations. 16 The evidence shows that when the Respondent and the Union nego- tiated the 1-year extension of the 1979-1982 collective-bargaining agree- ment, although it is unclear as to how this was arranged contractually, the health and welfare and pension insurance costs remained the same as under the old contract, $98.50 or $99 monthly per employee However, the Union, in negotiating 1-year extensions of that agreement with other employers in the industry, bargained for an increase in these premiums to $120 monthly In the current negotiations with these employers, includ- ing the Respondent, the Union was seeking to bring all the new bargain- ing agreements into line, with the fringe benefit insurance costs amount- ing to $144 monthly This would translate into a one-step, substantial nn- mediate increase in premium costs for the Respondent which could present a problem, while the other employers would experience the in- crease m two steps, mitigating its impact on these companies. PARKVIEW FURNITURE MFG. CO 953 2. The 3 March 1983 meeting Brooks testified that the next bargaining session took place on 3 March 1983 starting at 1 p.m. and lasting about 3 hours. Valdez did not attend this meeting and, because the Respondent was aware that Valdez was the Union's main negotiator concerning "wage and insur- ance" issues, the parties agreed to consider provisions of the contract other than "economics, and in health, wel- fare and pension." Using the "old working agreement" and the Union's new contract proposals as guidelines, ac- cording to Brooks' testimony, 17 he and Fierro discussed the following items at this meeting: changes in the method of numbering "Article Headings" in the bargain- ing agreement from "Roman numerals" to "regular num- bers" (agreed to by the parties); seniority and layoffs (tabled for further discussions); subcontracting (language to be revised); report and discharge (the parties agreed to minor language changes); grievance and arbitration (Union wanted to increase time allowed for filing griev- ance and arbitration notices, which the Respondent op- posed, and this issue was tabled for further discussion); noncontract wage practices (language to be rewritten by Fierro to reflect agreement of the parties); holidays (some language changes agreed to and initialed); manage- ment-rights clause (agreed to between the parties and ini- tialed); vacations (changes in Union's proposals with- drawn and deleted and signed off/initialed); and sick leave (not discussed because this issue was considered "economic")." Regarding this second negotiation meeting, Fierro tes- tified that the same procedure used by the parties at the first meeting on 28 February 1983 was continued, namely, that any agreement between the Respondent and the Union as to language changes were typed up by Thomas and Fierro would attach them to the old agree- ment or the Union's proposals, where applicable, and then he and Brooks would initial these changes as "signed off" to show agreement by the parties thereto. Also initialed and "signed off" were some provisions of the agreement and the Union's proposals which needed no language or other change or which were deleted or withdrawn. 3. The 17 March 1983 meeting The third negotiation meeting was held on 17 March 1983. All the members of both negotiating teams were present, including Valdez, and the meeting lasted 6 or 7 hours. The Union also had brought its two fringe benefit 17 Brooks' testimony concerning the bargaining sessions held between the first negotiation meeting on 28 February 1983 and the last meeting on 31 March 1983 is more precise and detailed than that given by Valdez or Fierro as regards dates and the specific subjects discussed at these meet- ings. Both Valdez and Fierro testified m a general and overall way about these meetings albeit tymg this m with their more detailed statements of what happened at the 28 February and 31 March 1983 meetings Not- withstanding this tendency to generalization, I note that their testimony has a certain continuity to it winch presented a cohesive rendition of what occurred at the negotiating sessions as a whole, and I therefore do not discredit their testimony out of band because of its generality. A full and detailed discussion of the credibility of the witnesses in this case be set forth hereinafter because this issue has a bearing on the outcome of the case is See R. Exh. 10 and G.C. Exh 4. insurance plan experts, Harold Franklin and Sanford Goldner (Ph.D) to this meeting. Brooks testified that he told the Union's negotiators that the Respondent was dis- satisfied and unhappy with the cost, benefit coverage, and administration and operation of the Union's current health and welfare insurance plan and felt confident that it could secure a better plan for the same cost on its own. Franklin and Goldner then discussed the merits of the Union's insurance plan and maintained that the Re- spondent would be unable to find as good a plan for the same money anywhere else. Brooks stated that he re- quested that the Union provide the Respondent with the Union's insurance plan cost projections for 1983, 1984, and 1985, which the Union agreed to do when Franklin and Goldner appeared at a subsequent negotiation ses- sion. 19 Brooks added that the Respondent presented its contract counterproposals to the Union at this meeting, which were considered that afternoon because the entire morning session of the negotiations that day was spent on the fringe benefit insurance plan discussion. The testimony of Franklin and Goldner as to what had occurred at this meeting regarding the Union's health and welfare insurance plan was generally similar to what Brooks had testified to. Both related that the Respondent was unhappy, primarily with the cost of the Union's plan, and insisted that it could purchase the same cover- age for less money from another insurance carrier or obtain more and better coverage for the same amount. Franldin and Goldner then reviewed the Union's health and welfare insurance plan for the Respondent's negotia- tors and attempted to convince them that it would be im- possible for the Respondent to match the Union's plan, providing the same benefits and coverage for the same amount of money. Franklin related that, at the end of the discussion regarding the health and welfare insurance plan, the parties remained far apart on this issue. Valdez testified that on his return from vacation Fierro had reported to him that the language portion of the agreement "was all taken care of, and they were ready to get into the health and welfare and economics." Valdez continued that, when he returned to the negotia- tion meeting, at the next bargaining session (17 March 1983): [T]he company made a point of it to ask me that they had negotiated language, and was I going to come in now and reject that language? I said no, as long as the committee and Al Fierro agree to that language, then it was acceptable to me because I left him in full charge, to do whatever he saw fit, with the committee. In fact, that question was asked directly to me by Larry Brooks. 19 Regarding the Respondent's assertion at the negotiations that it could obtain a better health and welfare insurance plan at an equal or lesser cost than the Union's proposed plan, the parties agreed that the Re- spondent would submit the details of different insurance plans it could obtain from other insurance carriers to the Union at a subsequent bar- gaining session to support its contentions The Union was then to have Franklin and Goldner attend this later meeting to compare the various plans offered with the Union's insurance plan and explain the advantages of the Union's plan over the others 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Valdez continued that, perhaps at this meeting or at the first negotiation meeting held on 28 February 1983, he submitted to the Respondent "new language that the health and welfare and pension at the International wanted negotiated in the agreement." Valdez acknowl- edged that the Union was aware from the outset of the formal negotiations that the Respondent felt that it could obtain a better welfare insurance plan at less cost from an outside insurance carrier than the Union's plan, and the Respondent therefore "wanted to look elsewhere for insurance." Valdez added that, although the Union was willing to give the Respondent the opportunity to secure a better insurance plan if it could do so, during the nego- tiations the Respondent "never did deliver" and failed to present at the negotiation table any insurance plan at all to compete with, match, or better the coverage and price of the Union's health and welfare insurance plan. Fierro testified that, beginning with the 17 March 1983 meeting, the formal requirement of having the parties ini- tial (sign off) any further changes in the old bargaining agreement, the Union's contract proposals, and the Re- spondent's counter proposals submitted to the Union at this meeting was "relaxed" and discontinued and the ne- gotiations became less formal. Fierro related that, al- though the parties continued the procedure of having Thomas type up any changes in language and Fierro at- taching the typewritten strip to its appropriate place in the agreement or proposals, it was no longer required that the parties initial the change, as before, to evidence their agreement. However, Brooks disputed this, testify- ing that both he and Fierro continued to initial all lan- guage changes agreed to, and deletions or withdrawals of proposals, etc., at all the negotiating sessions from 28 February through 17 March 1983. 4. The 24 March 1983 meeting The fourth negotiation meeting occurred on 24 March 1983 commencing at 2 p.m. and lasting for 2 hours until 4 p.m. Brooks stated that the parties continued their dis- cussion of the health and welfare insurance issues. Brooks recounted that Valdez reminded him about the "new language that Philadelphia wanted in. . . . Gener- ally, punative language for delinquencies and all of that kind of stuff," including "liquidated damages." Brooks related that the Respondent rejected this language and the matter "was again tabled. We were not getting very close on that issue." Brooks continued that they also dis- cussed the issue of pension and then "continued work toward getting some of the language, in particular, the tougher ones out of the way." In this connection Brooks testified: The company was not about to give on grievance and arbitration. We discussed some of our requests, and these are pretty tough, and each one of them kind of ran into a stone wall. And we discussed them . . . we have a tardiness—an absenteeism problem, and eventually it was decided that that could go into the shop rules rather than into the contract, which we did, and everybody agreed to. We wanted to tighten up productivity clause. We had originally asked for a ten percent reduction in all piece work rates. That of course nobody wanted to touch with a 50 foot pole. And we just generally hassled back and fourth.2° Brooks continued that at this meeting "there were no issues resolved."21 He summarized the procedure used when the parties reached agreement on a particular issue or provision of the collective-bargaining agreement as follows: Using the old bargaining agreement and the Union's contract proposals, and later in the negotiations the Respondent's counterproposals, Brooks and Fierro would initial the item agreed upon: Then what happens is, either Al or myself would take that home, type it out into what we thought the language should be, bring it back, paste it in a single book we had, and then when it was all over, we were supposed to go over that to make sure that that's the language that we agreed to even though we had initialled it. 5. The 30 March 1983 meeting The fifth negotiation meeting took place on 30 March 1983. Brooks stated that this bargaining session possibly occurred in the afternoon of that day. Brooks related that Valdez suggested that "we better start working on the economics" because the expiration of their current collective-bargaining agreement was to occur on 31 March 1983. Brooks testified: I agreed with him and we devoted the next two full days to economics, both the 30th and the 31st meet- ing . . . . [W]e left [sic] everything else go and we started with insurance and wages. Yeah on the 31st—we went through the 30th with not a heck of a lot being done. I think it was a kind of a wasted day in a sense, very frustrating . . . . [A]ll that meeting was on insurance. We were really holding out hard, because it was such an expensive item. And of course, the Union had to resolve that. Valdez also recalled that the meeting held on 30 March 1983 was devoted to economic issues remaining unresolved, with the parties making proposals and coun- terproposals regarding wages, health and welfare, and pension. Valdez testified that Brooks alleged that the Re- 2 Whether it occurred at this negotiation meeting or a subsequent one and with regard to the grievance and arbitration provision of the bargain- ing agreement, Valdez testified that the Umon's contract proposal con- tamed an extension of the time limitation requirement within which grievance and arbitration requests or notices were to be giVen. When Brooks rejected this change on behalf of the Respondent, the Union withdrew its proposal and agreed to accept the grievance and I arbitration provision as it was set forth m the old bargaining agreement and as the Respondent had wanted it to remain. 21 As did Valdez, Brooks admitted to being unable to remember all that happened at the bargaining sessions. Q Mr. Brooks, did anythmg else happen on that March 24 meet- ing, or have you concluded your comments in telling us about— A. I just can't remember. There may have been I don't know. There were six full hard negotiating sessions, and I just can't remem- ber what happened at each one—everything. Also, Brooks mistakenly testified that Franklin and Goldner had attended the 30 March 1983 meeting to present material and to discuss the Union's health and welfare insurance plan and the costs thereof ' PARKVIEW FURNITURE MFG. CO 955 spondent could not afford to give the Union an increase in the health and welfare insurance premiums to be effec- tive 1 June 1983 and a wage increase as well on 1 April 1983; therefore, the Respondent requested a freeze on wages at the current level for 1983. However, according to Valdez' notes taken at this meeting, this was not re- solved on 30 March 1983. Furthermore, either at this meeting or the 31 March 1983 negotiation session, the Respondent presented its second set of proprosals to the Union, 6. The 31 March 1983 meeting The last negotiation meeting between the Respondent and the Union occurred on 31 March 1983 beginning at 8:30 a.m. and lasting until 5 p.m. With the exception of an employee on the Union's employee negotiating com- mittee who was absent, all other members of the respec- tive parties' negotiating teams were present. Valdez testi- fied that the only bargaining contract issues remaining to be resolved by the parties were "[h]ealth and welfare and wages." As related hereinbefore, the Respondent had maintained early in the negotiations that it could obtain equal or better health and welfare insurance cov- erage at lower rates than the Union's insurance plan and would submit details thereof at a subsequent bargaining session as a counteroffer to the Union's proposal. Valdez related that the Union therefore brought Franklin and Goldner to the 31 March 1983 meeting to compare the advantages of the Union's insurance plan with any health and welfare insurance plan proposed by the Respondent and to assist in resolving this issue. Valdez continued that the Respondent failed, however, to present its own health and welfare plan at this meeting, and, after Frank- lin and Goldner explained in detail the scope of the Union's insurance plan, the Respondent agreed to accept it.22 Valdez added that, after this issue was settled, the parties discussed the "economic package" wage rates for various categories of employees, effective dates of such wage increases, fringe benefit plans, etc. Valdez recounted that during the afternoon bargaining session on 31 March 1983, the Respondent made its "last and final offer" on wages, health and welfare, and pen- sion, which the Union accepted." Valdez added that all bargaining contract issues had been resolved by the end of negotiations that day, with the parties shaking hands at its conclusion and with the understanding that the Union would now prepare the final written agreement for signature of the parties and would present the bar- 22 According to the evidence herein, this occurred durmg the morning session held on 31 March 1983 and, after Franklin arid Goldner had made their presentation, they left the meeting. Goldner testified that Brooks had told them at the meeting that the Respondent "had no longer any disagreement and would go along with the UIU plan" Franklin testified similarly. 23 The parties agreed to the following wage increases- Commencing on 1 December 1983 (25 cents hourly), on 1 April 1984 (35 cents hourly), and on 1 April 1985 (45 cents hourly) As to its frmge benefit insurance plan the monthly costs per employee were to be. Commencing on 1 June 1983 ($144), on 1 June 1984 ($169), and the third year was to be left open for negotiation, with the Respondent having the option to obtain its own health and welfare plan if it matched the Union's plan as to employee coverage. gaining agreement to its membership for ratification on 4 April 1983. Fierro's testimony concerning what occurred at the last negotiation meeting on 31 March 1983 was similar in nature to that given by Valdez. In substance, Fierro testi- fied that during the previous negotiation meetings, and after some "hard bargaining" between the parties, the Union agreed to various "language" changes proposed by the Respondent in the collective-bargaining agree- ment. According to Fierro, remaining unresolved for ne- gotiation at this meeting were the "economic issues," wages, health and welfare, pension, and cost-of-living in- creases. Fierro related that, during the morning bargain- ing session, the Union brought back its fringe benefit in- surance experts, Franklin and Goldner, to review and compare any insurance program produced by the Re- spondent at that meeting, and explain to the Respond- ent's negotiators the advantages of the Union's plan. Fierro recounted that the Respondent failed to produce its own health and welfare and pension insurance plans, and after negotiation between the parties the Respondent finally agreed to accept the Union's insurance plan.24 Fierro continued that, by the end of the bargaining ses- sion on 31 March 1983, the parties had come to full agreement on a new bargaining contract. Fierro ex- plained that he had used a copy of the old bargaining agreement as a working guide, and, as David Thomas prepared the changes in contract language agreed upon by the parties as typewritten notations, Fierro would attach these to the old agreement in their respective places where applicable. Moreover, Fierro also used a yellow marker pen to "yellow out" provisions of the old contract agreed upon to be deleted or omitted from the new bargaining contract. Fierro stated that at the conclusion of this last meeting the Respondent offered to prepare and type up the final bargaining agreement, but Valdez said that the Union would do it, using Fierro's copy with the changes there- in as the model. Fierro continued that all that remained to be done regarding the agreement was the ratification vote by the Respondent's employee-members of the Union and the execution of the new collective-bargaining agreement by the parties. Fierro related that he advised the Respondent's negotiators that the Union believed it could "sell" this agreement to the employees. Fierro added that the Respondent agreed to have Thomas help Fierro prepare a letter to the employees explaining the highlights of the new bargaining agreement being sub- mitted for ratification on 4 April 1983, agreed to have management representatives present at the ratification voting, and offered its facility for use by the Union for that purpose. Brooks version of what occurred at the last bargain- ing session on 31 March 1983 between the Respondent and the Union differed substantially from that given by 24 Fierro testified that with regard to health and welfare insurance, the Respondent agreed to accept the Union's insurance plan for the first 2 years of the new bargaining agreement's existence with the option m the third year thereof to obtain its own health and welfare insurance plan, provided the same level of benefits was maintained 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Valdez and Fierro. Brooks testified that at this meeting Valdez told the Respondent's representatives: [The Union] simply had to have something to take out to those people as of 1st of April or he was going to ask for a strike vote, and none of us wanted that to[o] eagerly. . . we're going to have to get something that I can take out there in the way of a wage package and insurance, and the rest of it there'll be no problem with . . give the people something and get that portion of it rati- fied.25 Brooks stated that by 5 p.m. the parties had reached agreement on a wage offer and a health and welfare and pension insurance package: "I understood there was an insurance agreement . . , [and] an agreement on the in- crease of wages." Brooks related that the parties also agreed that Fierro and Thomas would prepare the bargaining agreement in typed final form either the next day, Friday, or the fol- lowing Monday, 4 April 1983. According to Brooks, it was his understanding that the next step in the negotia- tions would require him and Fierro to review the final- ized bargaining agreement, "sign off' (initial) all the pro- visions agreed upon, make any changes required therein, and then have the parties execute the contract. Brooks added that, because he was leaving the next day on a business or vacation trip for 1 week, the final stage of the negotiations would have to await his return. Not- withstanding this, no new negotiation meetings were scheduled thereafter by the parties at the conclusion of this meeting, although that had been the procedure at the end of each prior bargaining session; the Respondent agreed to, assisted in, and supported a contract ratifica- tion vote by its employees on 4 April 1983; and the re- spective parties' negotiators shook each others' hands, a gesture generally made at the end of negotiations to sig- nify agreement between the parties and a successful con- clusion to negotiations for a collective-bargaining con- tract. As a general statement Brooks testified that many of the provisions of the bargaining agreement had not been agreed to by the parties because these items were not ini- tialed or "signed off' on Fierro's working copy of the old collective-bargaining agreement and because he and Fierro had not met to compare and review their respec- tive "working copies" of the old agreement on which had been recorded any changes so as to finalize a new bargaining contract." Specifically, Brooks stated that there remained several items in the proposed new bar- gaining contract which had not been resolved as of the close of the last negotiation meeting on 31 March 1983, such as pension, the effective date of the health and wel- fare insurance plan, grievance and arbitration, noncon- tract wage practices, layoff procedure, cost-of-living in- creases, etc. Although Brooks maintained that all the 25 Valdez denied that he made any such statement at this meeting 26 This appears to be another step in the process of finalizing a new bargaining agreement which, according to Brooks, was required and nec- essary before agreement could be considered to have been reached there- on, although this was disputed by Valdez and Fierro provisions of the "working copy" of the old bargaining contract had to be initialed and "signed off' to show agreement thereon, whether it was changed or modified in any way, was deleted or withdrawn therefrom, was a new addition to be included in the contract, or merely remained the same without any alteration, he admitted that this was not always done "because we didn't get back to it the second time to initial it," although the par- ties understood that the issue had been resolved and "put to rest" without any further steps being required.27 Brooks recounted, for example, that the Respondent and the Union had agreed to delete the tardiness and absen- teeism provisions of the old agreement and to treat this as part of the Respondent's "shop rules" rather than as a provision of the new collective-bargaining contract, and, although agreement thereon had been negotiated at a prior meeting, it had not been initialed by the parties for the reason, according to Brooks, that it was not being in- cluded in the new agreement. 7. The 4 April 1983 ratification vote According to the testimony of Valdez, at the close of negotiations on 31 March 1983, the Union agreed to present the terms of the new collective-bargaining agree- ment to the Respondent's employees in the bargaining unit for ratification on 4 April 1983. A ratification meet- ing was therefore held on that day in the lunch area of the Respondent's main building immediately following the employees' lunch period. Fierro testified that he and the Respondent's vice president, David Thomas, had pre- pared the language for a "flyer," which set forth the wage increases negotiated, and guaranteed employee health and welfare benefits at current levels and cost-of- living adjustments during the term of the new agree- ment." Fierro related that this "flyer" was distributed to the employees prior to their voting, and Fierro explained the "main issues" contained in the new bargaining agree- ment to the employees, both in English and Spanish, after which the employees cast their ballots for or against ratification thereof." Fierro stated that present during most of the ratification meeting were Thomas, plant manager Larry Domaracki, and plant superintend- 27 As part of his cross-examinations, Brooks reviewed Fierro's "work- ing copy" of the old bargaining contract containing "paste-on" new lan- guage presumably prepared and typed by Thomas and "yellowed out" changes in various other provisions therein and, upon his being ques- tioned about these, Brooks either denied that the language change had been agreed upon or finalized (the cost-of-living clause) or he could not tell or recall whether the item had been agreed upon because it had not been initialed (vacation), etc I found Brooks' testimony on cross-exami- nation regardmg this to be unsatisfactory, defensive, and guarded 28 This "flyer" was physically prepared by the Respondent on its own letterhead and was distributed to the employees by Fierro and a few of the employees themselves Valdez testified that he had also observed "su- perintendent" Larry Domaracki distributing these "flyers" to employees. 29 Fierro testified that he began explaining the new language changes in the bargaining agreement, but the employees were more interested in the wage increases and the health and welfare insurance plan. Fierro con- tinued. [T]hat's where I got into some trouble because I took such a long time explaining it in English and in Spanish. . I explained it m detail to the point of ticking everybody off. PARKVIEW FURNITURE MFG. CO 957 ent Sal Mope. 3° Fierro added that a majority of the em- ployees voted for ratification of the new bargaining agreement at this meeting.31 Fernando Loya, an employee" and the Union's shop steward at the Respondent's facility at the time the events set forth herein took place, testified that Fierro had told the employees at this meeting that their negoti- ating committee felt that they had "got a pretty good package," that this package was the Respondent's "last and final offer," and that "all the language was going to be the same, except for a few changes," as was contained in the old bargaining agreement. Loya continued that Fierro had "explained it out more or less" to the em- ployees. He added that some of the employees were upset because they did not want to accept the new bar- gaining agreement as negotiated. Valdez related that, al- though the "economic" provisions of the new bargaining agreement were read and explained to the employees before the ratification vote was taken, not all the "lan- guage" changes in the agreement were discussed with the employees. 8. What occurred in July 1983 Valdez testified that sometime in July 1983 he was in- formed by Fierro that Thomas had been inquiring as to when the Respondent would receive the completed type- written collective-bargaining agreement. Valdez stated that he then telephoned Brooks and told him that the Union was "running late typing the contract up" because Valdez' secretary was on vacation and there was an inex- perienced "new girl in the office." Valdez related that during this conversation Brooks asked him how the Union "was doing with the Landmark [Furniture] strike and . . . Jerry Bertram." According to Valdez, Brooks then said: [H]e had to give Jerry Bertram credit for having balls to take the Union on and checking them out. And that somewhere down the line, that was going to happen between Parkview and the Union, be- cause he would be damned if he was going to be the biggest union shop in town in which he wouldn't be able to compete with the non-union shops, paying the exhorbitant benefits." 3° Brooks was out of town when the ratification vote occurred, but he acknowledged that Thomas had reported the event fully to him on his return. Brooks testified that he considered the ratification vote important and assumed that Thomas had authorized the use of the Respondent's premises for th* purpose. Brooks added that he believed that the ratifica- tion vote would apply only to the economic package agreed to, wages and health and welfare insurance. Fierro testified that he asked Thomas and the other supervisors to leave while the employees questioned him about the bargaining agreement. 31 Brooks tstified that the bargaining umt contained approximately 140 employees Valdez testified that 137 employees voted on 4 April 1983, "70-something" for ratification and "50-something" against. The rest of Valdez' testimony regarding this occurrence was similar to that given by Fien-o and employee Loya. 32 When he testified as a witness for the General Counsel, Loya was no longer employed by the Respondent, having been discharged on 3 March 1984 for fighting. 33 Brooks denied ever making such a statement. In fact, he denied having any conversations with Valdez in July 1983 because he was away from the RespOndent's facility most of that month, either on business or on vacation Valdez added that at no time after 31 March 1983 until the Union's receipt of Schmier's letter on 8 August 1983 had "anyone from the company" contacted him with re- spect to further negotiations between the parties.34 Fierro testified that during his regular business visits to the Respondent's facility in July 1983 he had "two or three" conversations with Thomas wherein Thomas kept asking him when the Union was going to provide the Respondent with a completed copy of the new collec- tive-bargaining agreement. Fierro related that during one of these conversations he reminded Thomas that the Re- spondent was "delinquent on the health and welfare" and Thomas responded by asking Fierro "where the agree- ment was." Fierro recounted that he told Thomas that he "was waiting for our business manager, Ray Valdez, to complete it." 9. The Union's strike assessment At a special membership meeting held on 7 June 1983, a majority of the Union's membership voted to assess all union members $3 a week, to be deducted from their paychecks beginning with the pay week of 13 June 1983, as a strike assessment "for your fellow union members and their families of Landmark Furniture who have been on strike since April 7, 1983." By letter dated 8 June 1983, setting forth the details of the strike assessment and sent to all its shop stewards employed by employers with whom it had existing collective-bargaining agreements or were in the process of negotiating a new agreement, the Union instructed the shop stewards to post these letters on their respective employer's bulletin boards. Addition- ally, the Union informed the payroll departments of all these employers, by letter also dated 8 June 1983, that pursuant to the checkoff provisions of their current col- lective-bargaining agreements the $3 special assessment was to be deducted from employee paychecks "weekly beginning with the pay week of June 13th 1983," and sent to the Union. With specific regard to the Respond- ent, these letters were sent, respectively, to Shop Stew- ard Loya for posting at the Respondent's facility" and to the Respondent's payroll department. Valdez testified that, approximately 6 weeks after this letter had been mailed to the Respondent, he was in- formed by Loya that Brooks had denied ever receiving the letter and, therefore, by letter dated 27 July 1983 Valdez sent Brooks a copy of the Union's special assess- ment letter dated 8 June 1983, stating in the covering letter therewith: Due to the fact you claim you or your Payroll de- partment never received a copy, your employees are now well behind in their contributions to this special assessment. In order not to prove a hardship 34 However, Brooks testified that, after the parties' last bargaining ses- sion on 31 March 1983, he had verbally asked Fierro "on many occa- sions" to arrange additional negotiation meetings and that Fierro had said that the Union was very busy with lots of "other problems" and he was trying to get "what we had done together, and typed up" 33 Loya testified that he received the Umon's 8 June 1983 letter about "two or three" days after it was mailed by the Union and posted it the very next day on the bulletin board in the lunch area of the main building at the Respondent's facility. 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on them, I suggest you deduct ten ($10.00) dollars per week per employee until they are paid up cur- rent. With regard thereto, Brooks related that sometime around the end of July 1983 the Respondent received a letter from the Union notifying it about the special as- sessment deduction to be made from its employees' wages. 36 Brooks stated that he directed the Respondent's comptroller to comply with the Union's suggested de- duction schedule of $13 on 5 August 1983, $14 on 12 August 1983, and $3 on 19 August 1983 and each weekly pay period thereafter.37 Subsequent to the posting of its strike assessment letter on the Respondent's plant bulletin board, the Union re- ceived several phone calls from "upset" employees in the Respondent's "sewing and cutting department," who de- nounced the assessment as too burdensome, especially in view of the Respondent's having reduced their hours of work. Therefore, in late July or early August 1983, Valdez and Fierro met with approximately 20 of these employees at their workplace at the Respondent's facili- ty" to discuss this problem. Valdez testified that the em- ployees voiced their hostility to the assessment, where- upon Valdez explained that the Landmark Furniture em- ployees on strike needed help to survive and that the Re- spondent's employees should realize that they could be placed in a similar position of need some day. Valdez stated that he told these employees that the union mem- bership had duly voted to impose this assessment and there was nothing he could do about it at the time, al- though he would seek another membership vote to re- scind the assessment as soon as possible. Valdez related that the employees remained adamantly opposed to the strike assessment, contending that they could not afford to support the Landmark Furniture employees, but needed the money instead for themselves. Valdez re- counted that the employees were angry and threatened to sign a petition against any deductions being made by the Respondent from their wages for strike assessment purposes and asserted that the Union did not have their best interest at heart. Valdez continued that, when some of the employees became "boisterous" and started to "boo" the union officials, he left the meeting and "went out in the parking lot, and I cooled off and I came back into the plant."" According to Valdez, the employees who had created the disturbances came over and apolo- gized to him and he then left the meeting. 4° Valdez 36 On cross-examination, Brooks also testified that the first time he heard anything about a special assessment deduction was in late July 1983, when the Respondent's comptroller brought this to his attention. Brooks denied ever having seen a copy of the Union's strike assessment letter to the employees posted on the plant bulletin board 37 See R. Exh. 13. Interestingly, on the basis of this exhibit, Brooks denied that the Respondent had deducted the assessment arrears in a lump sum amount of $27 from the employees' 12 August 1983 paychecks 38 The "sewing and cutting department" is housed m the "smaller buildmg" at the Respondent's facility. 32 Fierro testified that he remained behind when Valdez left the meet- ing to try to "calm things down" Fierro's account of what had occurred at this meeting was similar to Valdez', although it did differ in one respect Although Valdez at first denied, and then could not recall, whether he had also asked the employ- added that he immediately went over to the main build- ing where he met with Loya and the employees who worked there and "There I had no problem. They asked me questions. I answered them about the assessment and we had no problem at all." Brooks testified that on 4 August 1983 he was "ap- proached by a couple of my supervisors," William Seavers and Andrew Wallace, who asked Brooks if he had heard that a "strange meeting between the Union and our cutting and sewing employees occurred across the street."' According to Brooks, he was told: [A] meeting had been held of all the cutting and sewing employees with Mr. Fierro and Mr. Valdez, and that it was over the assessment, and that there was an awful lot of voices being raised and arguing back and forth, and Mr. Valdez raised his voice, and everybody was shouting, and finally Mr. Valdez gets up and says, well damn it, do you want a union or don't you? And then everybody in unison hollers out, no. And at that time, Mr. Valdez got mad and stomped out of the meeting. That was reported to me by those two individuals. Fierro testified that about 12 August 1983 he received several telephone calls from employees, advising him that a petition was being circulated among the employees to stop the assessments and that the Union had better take steps to take such action on its own volition." On 16 August 1983 "at a special membership meeting the members of Local 15-A voted to discontinue the three ($3.00) dollars per week assessment effective August 19, 1983." By letter dated 17 August 1983, the Union ad- vised the payroll departments of the employers who had received assessment notices previously, including the Re- spondent, that "[t]he last deduction should be for the payroll week ending August 19, 1983." Valdez related that the Union never received any of the assessment moneys withheld from employees' wages by the Re- spondent. 10. What occurred in August 1983 Fierro testified that, because of Thomas' persistent re- quests for a copy of the new collective-bargainmg agree- ment, he advised Valdez in late July 1983 that, if Valdez did not accompany him on his next visit to the Respond- ent's facility and explain to Thomas the reason for the Union's delay in forwarding the completed agreement to the Respondent, "we're going to have a problem." Therefore, about 4 August 1983, Valdez and Fierro met with Thomas at the Respondent's facility and Thomas again requested a copy of the new bargaining agreement. Fierro stated that Valdez told Thomas that the agree- ment was in the process of being typed, that four or five ees, "Do you want a union or not?" Fierro testified that Valdez had posed this to the employees and that their answer had been, "No." 41 Seavers and Wallace had been working near where this meeting took place and overheard what was said 42 Fierro denied that he had heard rumors being circulated that the employees' petition mvolved employee action to rid themselves of the Union as their collective-bargaining representative rather than to protest against the strike assessment. PARKVIEW FURNITURE MFG. CO 959 bargaining agreements were being worked on at the same time, and that the particular agreement between the Respondent and the Union would be completed and sent to the Respondent in "a week or two." Valdez related that he reminded Thomas at this meeting that the new increase in health and welfare insurance premiums had commenced on 1 June 1983 under the terms of the new bargaining agreement, but that the Respondent had failed to make the required payments to the Trusts, to which Thomas responded, "[T]here would be no problem with that except that he was not going to pay it until he had a signed agreement in his hand." By letter dated 2 August 1983, received by the Union on 8 August 1983, the law firm of Schmier & Schmier, Esqs., notified the Union that it represented the Re- spondent as "labor counsel" and, in view of the expira- tion of the old collective-bargaining agreement, had ad- vised the Respondent to discontinue forwarding moneys deducted from employees paychecks for union dues, etc. to the Union, instead depositing these amounts in a "bank trust until this matter is resolved." The letter also suggested that the Union contact Michael K. Schmier, Esq., to arrange "another collective bargaining meeting in order to conclude the negotiations and execute a col- lective bargaining contract forthwith." Valdez testified that he attempted to contact Schmier after receiving the above letter, but was unable to do so. Valdez continued: [The Respondent] paid the July health and welfare. That would cover the employees through the end of August. On the pension . . . they sent the June pension in and we received it in July. The last time they paid the pension was June. Valdez added that the Respondent discontinued making employee dues remittances to the Union after July 1983. Schmier contacted Valdez, by letter dated 11 August 1983, suggesting various dates between 17 August and 26 August 1983 as possible meeting dates for the resumption of negotiations and execution of a collective-bargaining agreement. Brooks testified that on 12 August 1983 two of the Re- spondent's employees, Sal Mope and Frank "something," a cutter, came to his office around 9-9:30 a.m. and handed him several sheets of yellow lined paper headed by the following statement in both English and Spanish: [W]e the employees of Parkview Furniture Compa- ny wish to dismember ourselves from Local 15 of the International Upholsterer's Union. Brooks stated that he counted 75 employee signatures thereon, and continued: I asked the young man what was going on. He said they were still collecting more names out in the fac- tory, but they were having some problems. I asked him what he was going to do with the petition. I thought, then, he'd give it to me. He said no, he was going to put it in his pocket and take it with him. In which case, I told both of them to go back to work and to stop all the tomfoolery and that's the last I saw—the two of them went out.43 Brooks added that 2 minutes later the plant manager,44 Domaracki, came in and advised him that "it was getting pretty ugly out there, and I better get out there and talk to the people." Brooks related: So I walked out, and I stopped everybody at work, and I had all the supervisors call all the employees from both buildings together in the lunch room of the big building. I got up then, and I talked to them. . . . I said, I understand, I have seen, and I have seen that there is a petition that is being circu- lated in this plant. I want you to know that [neither] myself, the management nor the supervisors can be involved in that sort of thing . . . Cannot be in- volved in this sort of thing. It's creating a work stoppage, you're creating a problem. I want you to stop this nonsense and go back to work.45 Brooks testified that then Fernando Loya and Jerry Pontod, union shop stewards, and a few other employees "jumped up" and were very angry and upset, and Loya shouted at Brooks: [Y]ou're trying to take our union away, but you can't. We've got two and a half years or something on a contract, and you're not going to win, we are, and it started to get a little ugly. Brooks added that because the employees were shout- ing and very boisterous and there was some shoving and pushing between those employees for and those against "the petition" and because this had been scheduled by the Respondent as a "short work day" anyway and the employees had already been given their weekly pay- checks, he told them to go home." Loya's testimony as to what occurred at the 12 August 1983 meeting differs significantly in certain aspects from Brooks' version. Loya testified that the employees were given their paychecks early that morning, at 8:30, which was very unusual. He stated that the employees became aware that the amount of $46 had been deducted from their wages, $19 for union dues and $27 for the special strike assessment arrears, which made the employees very upset and angry indeed. Loya related that later that morning the employees were instructed by their supervi- 43 The employees' "petition" was never produced at the hearing, nor did the Respondent call Sal Mope, its supervisor, and especially employ- ee Frank "something" to testify as to the specifics thereof 44 Brooks at first testified that it was a plant "superintendent" who had reported this to him. 43 Loya denied that Brooks had told the employees that he had seen the employees "petition" and that the "Company and its supervisors" could not get involved in any way with it. 46 Brooks testified that he had informed his supervisors by written memorandum (not produced at the hearing) that Friday, 12 August 1983, would be a "short day," with the employees scheduled to work only from 6 to 10 a m. He stated that it was not unusual for the Respondent to send employees home when they had completed their scheduled work. However, Loya denied that the employees were notified that 12 August 1983 was a "short day." He testified that, in fact, that the employees "had work on the line." 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sors to attend a meeting with management held in the lunch area of the main building at the Respondent's facil- ity. Loya recounted that Brooks addressed the employ- ees and told them that he had heard that they were upset about the $46 deducted from their wages, but that the Union had directed him to do so, and that he could do nothing about this because "his hands were tied until two and a half years when the contract was up." According to Loya, Brooks advised the employees that "if we no longer want the union, then he could do something about the union. We could vote the union out." Loya continued that he accused the Respondent of de- liberately instigating this situation to rid itself of the Union by deducting a substantial lump sum amount from their paychecks that week knowing it would engender a great deal of hostility toward the Union, which would be blamed for this. Loya also accused Brooks of distributing the paychecks for that week unusually early in the day to inflame the employees against the Union and then rec- ommending to the angry and upset employees that they should get rid of the Union. 47 Loya asked Brooks why the Respondent had not deducted the strike assessment previously so that only $3 per week would have been taken out, and Brooks answered that the Respondent had never received the Union's letter to its payroll depart- ment until late in July 1983. Loya added that at this time "people were getting angry" and some of the employees asked Brooks why, in fact, he had not deducted lesser amounts from their salaries that week. Brooks fmally told the employees to "punch out" and to go home and "cool off" and the meeting was concluded. Valdez testified that he and Fierro visited the Re- spondent's facility again on August 1983, bringing with them four copies of the completed collective-bargaining agreement. Valdez related that at the reception area they asked to see Brooks, but instead Domaracki appeared and told them to leave the facility, that they were no longer allowed on the Respondent's premises because they had "caused too much trouble" when they visited there. Domaracki stated that he had been ordered by Brooks to deny them "access to the shop." Valdez gave Domaracki three copies of the bargaining agreement and asked him to deliver these to Brooks, and Domaracki said that he would do so. Fierro testified that Domaracki had refused to allow them to speak to either Brooks or Thomas. According to Fierro, Domaracki told them that the Respondent no longer recognized the Union as the collective-bargaining representative of its employees in the appropriate unit, and if they had any further ques- tions, to contact the Respondent's attorneys. He added that they left copies of the bargaining agreement for the Respondent with Domaracki. Brooks testified that he received a copy of the typed and completed proposed collective-bargaining agreement from the Union sometime in August 1983 when Fierro delivered it to the Respondent's facility, although he did not see or speak to Fierro personally when this occurred. Brooks stated that it was his impression that Fierro had dropped off a copy of the agreement for him "to look at 47 Loya testified that the weekly paychecks were usually distributed to employees Just before they left work on payday to further negotiate." Brooks related that, even though this bargaining agreement "didn't reflect the language" that the parties had agreed upon at the negotiation meet- ing, he did not contact the Union. Brooks gave as the reason for his failure to do so that he had become aware of the employees' petition to get rid of the Union as their bargaining representative prior to his receipt of the agreement and, on contacting the Respondent's attorneys as to how to proceed, he was advised that he should not negotiate with the Union any further. Loya testified that approximately 1 week after it held the first meeting with employees the Respondent's man- agement called a second meeting, which was held in the lunch area of the main building about 9:15 a.m. Present were all the employees and Brooks, Thomas, Domaracki, Brooks' son-in-law, and all the supervisors and foremen at the facility Loya stated that Brooks requested that he be allowed to speak to the employees and finish his re- marks before Loya spoke up, and Loya agreed. Brooks told the employees: [The Respondent] no longer [recognized] the union, that he is bringing in an insurance guy for us, that we're not going to be covered after August, the ending of August, for us to be insured. So he's going to bring in an insurance guy and for us to sign up if we want to be covered. Loya related that he then told the employees, both in English and Spanish, that they were in fact covered by the Union's health and welfare insurance plan, where- upon Brooks requested that he and Loya "stay neutral. Let our attorneys handle it." Loya recounted that then the Respondent's "insurance guy . . . started signing up everybody individually," and the meeting ended. 48 Loya added that he had one of the employees contact Valdez, who came to the Respondent's facility that day at 11 a.m. Valdez testified that he and Fierro appeared at the Re- spondent's facility on 19 August 1983 to talk to the em- ployees. Valdez stated that, while they were outside the plant buildings, Domaracki came over and asked them to leave the grounds and told them that "he didn't want any trouble and if I didn't leave, he was going to call the authorities." He and Fierro then left the premises. Valdez stated that the Respondent had not advised the Union that it intended to secure its own health and wel- fare insurance plan for its employees, as it did on 19 August 1983, except as regards the negotiation meeting on 31 March 1983 as set forth hereinbefore. Nor did the Respondent discuss its actions on 19 August 1983 with the Union prior thereto. Loya testified that on 22 August 1983 Ramiro Flores, his foreman, gave him a copy of a notice to all employ- ees, on the Respondent's letterhead, which stated: 48 In evidence as G.C. Exh. 16 is an insurance form and list of benefits in Spanish, which Loya testified were similar to the forms distributed to and filled out by employees at this meeting regarding health and welfare insurance coverage Interestingly, the "insurance guy's" business card lists "Sam H Brooks" as president of the firm handling this insurance, Amalgamated Insurance Brokers Corp. PARKVIEW FURNITURE MFG. CO 961 Effective August 22, 1983, this Company will put money aside each month for each employee. The amount of money will be based on your earnings and will be distributed to you before Christmas of each year in the form of a bonus. Not one dime of this money will be withheld from your own earn- ings. Based on our calculations you could receive anywhere from $200 to $600 each year depending on how much money you have earned that year. The Company will assist an employee who choses to have this money put in a tax free IRA account." Loya stated that this was the first time the Respondent had granted a Christmas bonus while he was an employ- ee there. Valdez also testified that the Respondent had never given such a bonus to its employees previously. Valdez added that the Respondent had not notified the Union of its intent to issue its employees a Christmas bonus and had never discussed this with the Union. Loya continued that on 29 August 1983 the Respond- ent's supervisors and foremen distributed a notice dated that day, on "Parkview Furniture Mfg. Co." letterhead, which stated: The Petition that was signed by a majority of employees at Parkview asking to remove Local 15 has required this Company, by law, to no longer recognize Local 15 as representing our employees. As a result of that the Company wants you to know that we will maintain the following practices: 1.All pay increases that have been promised will take effect as scheduled. 2.All seniority rights will remain in effect. 3. All piece work and hourly rates will remain the same. 4. All holiday and vacation benefits will remain the same. 5. AU other fringe benefits will remain the same. 6. The Company has given you a fine health and life insurance plan that we will pay for completely. 7. The Company has instituted a very generous bonus plan for each employee. 8. No further union deductions of any kind will be taken out of your earnings. Please believe me when I tell you nothing, as far as you are concerned, will change. Our attitude will always be that we want good harmonious relation- ships between all of us. We need this to survive in this very difficult business. This letter was signed by Brooks, and was also distribut- ed in a Spanish version thereof. This notice, G.C. Exh. 17, is also translated into Spanish therein. Loya testified that when he received it the document was unsigned and undated. However, after employees started "making a joke out it," its being unsigned, subsequently brooks signed and dated a copy of the notice which had been posted on the bulletin board Loya at first related that he had taken the copy of the notice signed by Brooks off the bulletin board and given it to the Union. He then testified that he had received it instead from one of the employees, who had removed it from the bulletin board 11. What ocurred thereafter Loya testified that on 2 September 1983 along with their regular paychecks the employees received an addi- tional check in the amount of $46 which comprised the Union's assessment amount of $27 and the union dues amount of $19 that the Respondent had deducted from their wages on 12 August 1983 and that it was now re- turning to the employees, never having forwarded these moneys to the Union. Loya stated that, when he re- ceived these checks from Flores that payday, the fore- man "just laughed and said, we got a bonus, or some- thing. He was just joking around." Moreover, Loya testi- fied that on 23 December 1983 his foreman, Ramiro Flores, gave him the following notice addressed "To All Parkview Employees": As you were promised by this Company, Parkview has put money aside for you based on your earnings since August 1, 1983. As you were promised by this Company, this money would be given to you before Christmas in the form of a bonus. This bonus would come to you without any of the money coming out of your regular earnings. The time has now arrived for the payment of the promised bonus and Park- view is happy to enclose a check to you in the amount of. . . to cover the period from August 1, 1983 through December 23, 1983.5° 12. The collective-bargaining agreement As set forth hereinbefore, Valdez and Fierro both tes- tified that the Respondent and the Union reached full and final agreement on the terms and conditions of a new collective-bargaining contract by the time the last negotation meeting ended on 31 March 1983. The sub- stance of their extensive testimony, given on direct and cross-examination, was to the effect that the parties had agreed on the "economic issues," negotiated several other provisions of the agreement as to language and content, and agreed to adopt, as is, various other provi- sions of the old collective-bargaining agreement as appli- cable to the new bargaining contract, except for a few other provisions which were deleted or withdrawn. On the other hand, Brooks maintained that mutual agree- ment was never reached between the parties on many es- sential provisions of the new bargaining contract, such as the effective date of the health and welfare insurance plan, the grievance and arbitration procedure, the terms and language of the cost-of-living, 51 noncontract wages, and pension provisions of the bargaining agreement. Brooks' testimony thereon was also quite extensive.52 5° This notice, G.C. Exh 18, is also set forth in Spanish therein A check accompanied the notice Si The Respondent in its brief asserts. "Nor was the Company's re- quest for a wage freeze on the cost of living provision completely re- solved " 52 With regard to the above, reference will be made in the "Analysis and Conclusions" section of this decision to various provisions of the col- lective-bargaining agreement, discussed in the light of the specific testi- mony of the witnesses given thereon, the credibility thereof, and the other evidence in the record, in determining whether the parties herein came to full agreement on the terms and conditions of a new bargaining contract. 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover, Valdez stated that, using Fierro's "working copy" of the old bargaining agreement, with the inserts of new contract language, "yellowed out" deleted provi- sions or changes, etc. therein, he gave written instruc- tions to the Union's secretary-typist regarding the prepa- ration of the new contract. Valdez testified: Well, we had a new typist, a new girl in the office which was a temporary help, and she was very un- familiar with typing contracts. So what I would do is I would prepare a sheet for her to make it easier for her showing her the changes in that agreement which she should look for, and what should be de- leted, and what should not be changed, or call me when she needs special instructions. Valdez added that he also used "a handwritten wage page of classifications that was submitted by Fierro," in preparing the new bargaining agreement. Valdez continued that the copy of the 1983-1986 col- lective-bargaining agreement delivered to the Respond- ent on 15 August 1983 contained errors in the wage, health and welfare, pension, and grievance and arbitra- tion provisions thereof." Valdez related that these errors were occasioned by the inexperience of the Union's new typist, her having to type various bargain- ing agreements with different employers almost at the same time, and his failure to discover these errors when he "proofread" the agreement before delivering it to the Respondent. Valdez stated that he was unaware that the new bargaining agreement contained any errors until after the Union filed its charges at the Board "when I was reviewing it with counsel." He recounted that, at a preheating conference held by the Board at which repre- sentatives of the Respondent and the Union appeared, the Union notified the Respondent of the errors con- tained in the new agreement and proposed to correct them Valdez added that at no time prior thereto "had anyone from the company notified [him] that there was any errors in the collective bargaining agreement," nor had the Respondent ever returned the agreement, signed, to the Union. At the hearing the parties stipulated: [T]he document delivered to the company, G.C.-12, (1983-1986 Collective bargaining agreement), did not accurately reflect the . . . agreement between the parties. . . in all terms and conditions. 53 These included: the agreement failed to "leave open" for renegoti- ation the third year regarding health and welfare insurance, it erroneous- ly included dental insurance in fringe benefit coverage although this was not discussed or agreed to between the parties, it changed time require- ments in the grievance and arbitration clause of the contract although the parties had agreed to leave the item as it was in the old agreement, it included a "liquidated damages" clause when the parties had agreed to omit this from the agreement, and the wage provision language of the agreement was considerably changed and does not reflect what was actu- ally negotiated. C. Analysis and Conclusions 1. Credibility The resolution of some of the issues presented in this case requires a determination of the credibility of the re- spective witnesses herein. Moreover, after carefully con- sidering the record evidence, I have based my findings on my observation of the demeanor of the witnesses, the weight of the respective evidence, established and admit- ted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole. 54 I tend to credit the account of what occurred herein as given by the General Counsel's witnesses, although I did note some minor inconsistencies in the testimony of Valdez and Fierro, and, in some respects, their testimony was less detailed than that of Brooks, the Respondent's sole witness. Their testimony was given in a forthright manner, was generally corroborative and consistent with each other's, and, most importantly, apparently consist- ent with the other evidence in the record and therefore most believable. Although I do not discredit all of the testimony of the Respondent's witness, Brooks, 55 and admit that I was not unimpressed by his demeanor as a witness, I find that his testimony at times was guarded, defensive, and unsatisfactory, especially on cross-exami- nation, and contained inconsistencies with regard to other uncontradicted evidence in the record, as will be more particularly set forth hereinafter. Furthermore, of compelling significance in discrediting Brooks' testimo- ny, when it conflicts with the testimony of the General Counsel's witnesses, was the Respondent's failure to call its vice president, David Thomas, as a witness to rebut any of the testimony given herein or to corroborate Brooks' testimony, although Thomas had been present at most of the relevant events which occurred, was admin- istratively most active in these events, must have had first-hand and perhaps crucial knowledge thereof, and might well have been able to specifically detail and/or clarify what had occurred." 2. The Respondent's refusal to sign an alleged agreed-upon collective-bargaining agreement The General Counsel and the Union allege that, since about 15 August 1983, the Respondent has failed and re- fused to execute a written collective-bargaining contract embodying all the terms and conditions of employment agreed upon between the Respondent and the Union on 54 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976). 55 It is not unusual that, based on the evidence in the record, the testi- mony of a witness may be credited in part, while other segments thereof are discounted or disbelieved. Jefferson National Bank, 240 NLRB 1057 (1979). 56 From the failure of a party to produce material witnesses or rele- vant evidence obviously within its control without satisfactory explana- tion, the trier of the facts may draw an inference that such testimony or evidence would be unfavorable to that party. 7-Eleven Food Store, 257 NLRB 108 (1981), Publishers Printing Co, 233 NLRB 1070 (1977); Martin Luther King, Sr., Nursing Center, 231 NLRB 15 (1977), Broadmoor Lumber Co., 227 NLRB 1123 (1977) For much the same reasoning, I note the failure of the Respondent to call Plant Manager Larry Dornar- acki as a witness to support its allegations herein PARKVIEW FURNITURE MFG. CO 963 31 March 1983, although requested to do so by the Union, thereby violating Section 8(a)(5) and (1) of the Act. The Respondent denies that it violated the Act, contending that the parties never reached full and com- plete agreement on the terms of a bargaining contract. It is well established that an essential prerequisite to the formation of a contract is agreement between the parties regarding the terms of the contract. 57 The evidence herein establishes that the Respondent and the Union did reach full and complete agreement on the terms of a col- lective-bargaining agreement by the end of their last ne- gotiation meeting on 31 March 1983. In support of its contention that the parties never reached mutual agreement on all of the terms of the "al- leged contract which the Union is seeking to enforce," the Respondent asserts: At the first session on February 28, the parties agreed on the ground rules for the negotiations. These rules were the same as those followed in the 1979 negotiations. Once tentative agreement was reached on a certain area of the contract, the lan- guage would then be drafted and typed by one of the parties and inserted into the old (1979-1982) contract at the proper place. The parties would then review this typed draft at a later meeting. No agreement would be achieved until both parties had initialled, or '!signed off' on each negotiated contract term. It was further agreed, and testified to by Union representative Fierro, that until the entire contract had been signed off there would be no final agreement (Tr. 507). While the parties did sign off on a few minor contract terms, agreement was never reached on the majority of the contract nor was this signing off process completed. The ground rules established by the parties clearly manifested their intention that the agreement should be formal- ized and that they would not be bound unless and until a completed formal document was executed (emphasis added). The Respondent continues that because these "ground rules" remained in full force and effect throughout the negotiations between the parties, as testified to by Brooks, the fact that various provisions of the Union's "working copy" of the old collective-bargaining agree- ment were not initialed and "signed off" evidences and supports the Respondent's contentions that no agreement was reached thereon.58 However, the testimony of both Valdez and Fierro is to the contrary and there is other evidence in the record that contradicts the Respondent's above contentions. Valdez testified that, although "some grounds rules" had been promulgated by the parties at the first bargaining 57 H. K Porter Co. v NLRB, 397 U S. 99, 102 (1970) 68 The Union's "working copy" of the 1979-1982 collective-bargaimng agreement was used by the parties during the negotiations as the primary document upon which to record any changes in contract language, any withdrawals or deletions, and any additions to the items set forth therein. This agreement is also referred to herein as the old collective-bargaining agreement or contract The Union's wntten contract proposals to the Re- spondent were also used in this regard, but as an adjunct to the old bar- gaining agreement. session on 28 February 1983, Brooks sought to informa- lize the negotiations, i.e., to make them friendly and "homey." According to Valdez, "[lit was a very infor- mal negotiations, a lot different than we've ever negotiat- ed before." 58 Valdez stated that Brooks had declared as unnecessary and too time consuming the practice of "signing off' (initialing) each item in the bargaining con- tract agreed upon. Valdez related that Brooks made it clear that the Respondent was mostly concerned with the economic issues of the contract, such as wages, health and welfare, and pension insurance cost, rather than the noneconomic ones and the language thereof be- cause the Respondent was satisfied with and could accept as is many of the existing provisions in the old bargaining agreement in their present form. Fierro also testified that the procedure requiring the "signing off' of provisions of the bargaining contract agreed upon by the parties was soon "relaxed" or discontinued after the first or second negotiation meeting. Further, although Brooks protested that the "sign off' system was never relaxed or discontinued, his own testi- mony shows that with respect to the tardiness and absen- teeism provisions of the bargaining agreement, which were also once part of the Respondent's contract coun- terproposals to the Union, there was no required initial- ing or "sign off." Moreover, Brooks' admitted statement to the Union's negotiators that "his word was his bond, whatever we agreed upon would be his bond," made particularly and significantly at the first bargaining ses- sion and in the context of the negotiations procedural considerations, supports the testimony of Valdez and Fierro and indicates that Brooks was mistaken about the "ground rules" being relaxed. Brooks testified as to several bargaining contract items which the Respondent alleges were not resolved or agreed upon. Brooks related that the Respondent refused to accept a "liquidated damages" clause in the pension provision of the new agreement as proposed by the Union and, therefore, the parties failed to agree on pen- site. However, Valdez credibly testified that the Union finally agreed to withdraw its proposed penalty provi- sions on late pension contributions. Brooks asserted that there also was no agreement on grievance and arbitra- tion, layoff, seniority, and noncontract wage provisions of the bargaining agreement. Again Valdez testified that the Union agreed to withdraw its proposed changes on these items and leave the provisions as they were set forth in the prior contract consistent with the Respond- ent's demands." The Respondent contends that the cost- of-living increase issue was not resolved. Yet, as part of the ratification vote informational notice, which the Re- spondent helped prepare and distribute to its employees, the cost-of-living increase is set forth therein as resolved, 59 The Respondent's prior contract negotiations with the Union had been conducted through an employers association, with legal counsel rep- resenting both sides. Brooks admitted that the Respondent's current nego- tiations with the Union individually were less formal than if the parties had been also represented at the bargammg sessions by attorneys. 60 Certainly the Respondent has no grounds to complam about the lack of agreement on any bargaining contract item when the Union ad- mittedly acquieces to the Respondent's position regarding the provision and accedes to its demands thereon. 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD presumably just as Valdez had testified it was agreed upon. 61 Brooks also maintained that there was never full agreement on the health and welfare insurance provision because the effective date of the plan, among other things, was not agreed to by the parties. However, aside from Brooks' own testimony that the Respondent be- lieved the parties had reached agreement on the insur- ance plan, Valdez, Fierro, Franklin, and Goldner all tes- tified that the Respondent had agreed to accept the Umon's insurance plan as part of the agreement on an "economic package" arrived at on 31 March 1983.62 Furthermore, at the conclusion of the last negotiation meeting on 31 March 1983 the parties shook hands and the Union's bargaining representatives remarked that the Union felt that it could "sell" the new bargaining agree- ment to the Respondent's employees." The Respondent requested no date for further negotiations, nor did the Union, presumably as had been done at the end of each of the prior bargaining sessions when agreement on a bargaining contract had not as yet been reached. The parties also agreed to present the new contract for ratifi- cation on 4 April 1983, which Brooks admittedly felt was an important part of the making of a complete agreement. Significantly, Fierro testified uncontradicted- ly that he addressed the employees on 4 April 1983, in the presence of the Respondent's representatives, and ex- plained the contents of the new collective-bargaining agreement almost in its entirety. 64 Moreover, between 4 April 1983 and early August 1983, there was no attempt made by either party to resume negotiations." 61 The Umon agreed to the Respondent's maintaining cost-of-living in- creases at the then current level throughout the term of the new bargain- mg contract. 62 Moreover, although Valdez did testify that he or Fierro might have told the Respondent that they would try to get some delay on the health and welfare insurance plan premiums due to commence on 1 June 1983, the starting date itself had been agreed to by the parties It Is obvious from the evidence herein, despite Brooks denial thereof, that agreement on the date was part Of the give and take bargaining between the patties which resulted in a freeze on wage increases until 1 December 1983, a freeze on cost-of-living increases at current levels during the life of the contract, and acceptance of the Union's health and welfare plan by the Respondent for the first 2 years of the new agreement with an option in the third year to seek its own insurance coverage for employees with an- other carrier so long as the same level of benefit coverage was main- tained. 63 The Respondent in its bnef states Although the parties shook hands at the end of the March 31 meet- ing, this gesture did not signify that a final agreement had been reached, as the Union would postulate. Rather, handshaking was a natural part of most of the meetings. However, there is no evidence in the record which shows that this was done at the conclusion of the prior bargaining sessions as a "natural part" thereof. Moreover, note the similarity between the instant case and that of Shawn's Launch Service, 261 NLRB 836 (1982) The record leaves no doubt that, by April 22, the negotiators had resolved all differences between them. At the meeting on that date . . the matters remaining in issue were disposed of, the parties shook hands, and, in words acceptable to Counselman at the hearing, he "felt [he] had an agreement." Union Representative Avery said that he would prepare the contract and submit it to Counselman 64 Thomas and Domaracki, who were present at the employees' ratifi- cation vote, did not testify herein. See fn 56. 65 Although Brooks testified that he had repeatedly attempted to set up further negotiation meetings with the Union during this penod, this does not ring true. Aside from Valdez' denial thereof, it would seem in- credible that the Union would do nothing when apprised by Brooks that full agreement had not been reached on a bargaining contract, when it beheved that an agreement had been negotiated in full and ratified Also, The Respondent appears to argue that the length of time expended in the 1983 negotiations supports its con- tention that the parties never reached full agreement on the terms of the new collective-bargaining agreement. The Respondent asserts in its brief: During late February and March, 1983, a few rela- tively short negotiation meetings were held between the parties just prior to the expiration of the previ- ous collective bargaining agreement. Both parties had participated in contract negotiations in the past and were well aware of the substantial amount of time and effort required in order to arrive at a mu- tually satisfactory agreement. For example, the par- ties met for at least eight hours a day on thirty-nine different occasions over a three to four month period during the 1979 negotiations (Tr. 183-184). The 1983 negotiations, by contrast, consisted of six meetings most of which lasted only two to four hours. However, the 1979 negotiations involved an employer association unlike the 1983 negotiations involving only the Respondent as employer, and association negotiations are certainly of a different character and nature. More- over, the parameters of the 1983 negotiations, defined by the breadth of proposals, determined the amount of bar- gaining necessarily required. The negotiations out of which the collective-bargaining agreement arose dealt primarily with concession bargaining from the prior col- lective-bargaining agreement, with "economic issues" ad- mittedly of paramount importance in the eyes of the par- ties. Thus the negotiated bargaining agreement consisted of a wage and fringe benefit "package," several enumer- ated provisions with language changes, a few entirely de- leted or withdrawn provisions, plus a substantial number of unchanged provisions from the prior bargaining con- tract. 6 6 The Respondent also argues that its management had a right to read, review, and sign the new bargaining con- tract and that, until this was done, no agreement had been consummated. In NLRB v. Donkin's Inn, 532 F.2d 138, 141 (9th Cir. 1976), the court stated: In the context of labor disputes, and particularly section 8(a)(5) violations, however, the technical question of whether a contract was accepted in the traditional sense is perhaps less vital than it other- wise would be. Rather, a more crucial inquiry is whether the two sides have reached an "agree- ment," even though that "agreement" might fall short of the technical requirements of an accepted contract. 6 7 Fierro testified without contradiction that he visited the Respondent's fa- cility at the least two or three tunes during this period, and that Thomas had only asked him for copies of the new bargaining contract which the Union was preparing and was late in delivering, and had not requested any renewal of bargaining or additional negotiation meetings. 66 See the testimony of Valdez, Fierro, and Brooks Also see "Appen- dix 'A" of the Union's brief 67 Shawn's Launch Service, supra PARKVIEW FURNITURE MFG. CO 965 Moreover, as the Board stated in Penasquitos Gardens, Inc., 236 NLRB 994, 995 (1978), enfd. 603 F.2d 225 (9th Cir. 1979): [Moth the Board and the courts have made clear that the Board is not strictly bound by the technical rules of contract law when it decides whether, in the circumstances, the employer and the union have arrived at an agreement which must be reduced to writing and executed by the parties.68 The Respondent contends in its brief: Moreover, considering the long-standing practice of having collective bargaining agreements signed by the parties, and the parties' own admission that no agreement would be deemed complete until final agreement had been reached on all contract terms, there can be no finding that any contract existed until such time as these conditions were fulfilled. Genesco, Inc. v. Joint Council 13, United Shoe Work- ers of America, 341 F.2d 482 (2nd Cir. 1965). However, as the United States Court of Appeals, Second Circuit stated in Genesco, supra at 486: That the parties plan later to sign an agreement does not preclude prior formation of the contract by signifying assent to an unsigned paper; the issue is one of intention. . . . Considering the importance attached to signed contracts in the field of collec- tive bargaining . . . the longstanding practice here of having contracts signed by the individual em- ployers, the fact that the instant contracts were to be an extension and modification of contracts so signed, and the doubtful enforceability of a two- year oral contract, we think no one really believed that the parties would be bound until the contracts were fully executed and delivered. . . . Once this is decided, it is clear that delivery to Seligman of the forms signed by the Union officers on condition that the contracts 'With Genesco should not be con- summated until resolution of the Act II issue, did not permit formation of a contract unless the condi- tion was met. Thus, the Genesco case is distinguishable. If the formation of a contract was conditioned on anything in the instant case, it was that "no agreement would be deemed com- plete until final agreement had been reached on all con- tract terms." As found herein, agreement was actually reached by the parties on all the contract terms of the new collective-bargaining agreement. The Respondent further alleges in its brief: The fact that the Union did not deliver the alleged agreement until a petition to cease Union represen- tation was circulated, almost five months after the agreement was supposedly reached, and that the parties did not conform their conduct to the terms 68 Ellis 'Mae Co, 229 NLRB 1296 (1977); Summer Home for the Aged, 226 NLRB 976 (1976), NLRB v. Donkin's Inn, supra, Lozano Enterprises v. NLRB, 327 F.2d 814 (9th Cir. 1964). of the alleged agreement is evidence that the parties did not intend to reach a contract on March 31. Ca- porale v. Mar Les, Inc., 656 F.2d 242 (7th Cir. 1981). However, again the facts in the instant case differ sub- stantially from those present in Caporale. In Caporale v. Mar Les, Inc., supra at 244-245, the United States Court of Appeals for the Seventh Circuit stated: The union never demanded that defendant post bonds required under the collective bargaining agreement. . . Mar Les employed casual laborers with no union affiliation and no complaint was ever made by the union. A shop steward was never ap- pointed, nor did any representative of the union even discuss defendant's obligations under the col- lective bargaining agreement. . . . It is long settled law that mutual assent is the first requisite to forma- tion of a contract. . . . The Court listed several fac- tors upon which he relied in reaching his conclu- sion: the plaintiffs inability to establish the date the alleged contract came into being; the failure to de- liver to defendant the documents incorporated by reference in the memoranda; and the failure to con- form their conduct to terms of the collective bar- gaining agreement. . . . In the instant case the terms of the agreement were not spelled out, either verbally or in writing, at the time the agreements were signed. No collective bargaining agreement or trust agreement was ever delivered to the defend- ant. . . . There was never mutual assent to the terms sought by the plaintiffs. Herein, the parties agreed to the terms of the new bar- gaining agreement, the terms thereof were clear, the Union requested that the Respondent commence pay- ment under the health and welfare insurance plan, and the Union explained with some reasonability its delay in forwarding a copy of the bargaining agreement to the Respondent. The Respondent continues in its brief: Nor did the parties ever sign off on most of the contract terms, thus signifying the absence of an agreement. The key union witness admitted that the ground rules established the procedure for signing off, which was required to indicate tentative agree- ment. The policy behind collective bargaining re- quires that the parties to the bargaining process reach an agreement on the terms of the contract. The contract must also be sufficiently explicit so that the obligations of the parties are clearly de- fined. Soar v. NFL Players' Assn., 550 F.2d 1287 (1st Cir. 1977). However, the United States Court of Appeals, First Cir- cuit stated in Soar v. NFL Players' Assn., supra at 1289- 1290: It is fundamental that for a contract to be en- forceable it must be of sufficient explicitness so that a court can perceive what are the respective obliga- tions of the parties. . . . The court listed the follow- 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing as examples of questions left unanswered and unanswerable by the terms of the purported con- tract . . . . The purported oral contract provides no answer to these questions. It is clear that any agreement which leaves unanswered such critical questions cannot by any reasonable stretch of the imagination be said to represent a real meeting of the minds. While an enforceable contract might be found in some circumstances if one or more such questions were left unanswered . . . the accumula- tion in the instant case of so many unanswered questions is convincing evidence that there never was a consensus ad idem between the parties. As previously found herein, the procedure for "signing off" was relaxed by the parties and I therefore disagree with the Respondent's conclusion that the fact that "most of the contract terms" were not "signed off" signi- fies the absence of an agreement. Moreover, the Soar case is distinguishable from the instant case in that the new collective-bargaining agreement negotiated herein is sufficiently specific in all its terms and leaves no "critical questions" unanswered or unanswerable. From all of the above, I fmd and conclude that the Respondent and the Union had resolved all differences between themselves at the last bargaining meeting on 31 March 1983, and had reached full agreement on the terms and conditions of a new collective-bargaining con- tract. 6 9 It is well settled law that, when an employer and a union have reached agreement as to the terms and condi- tions of employment covering the represented employ- ees, either party is required by law, on request of the other party, to sign a written collective-bargaining agree- ment embodying such understanding. 7° At the hearing the parties herein stipulated, "[T]he document delivered to the company, GC-12, did not accurately reflect the agreement . . . that we assert is the agreement between the parties." The General Counsel's brief alleges: Certainly, comparing the written contract to the Union's characterization of what the agreement be- tween the parties was, one can immediately discern the disparities between the two. The contract is filled with typographical errors and inaccuracies. . . . The Union admits that the contract is inaccu- rate and has offered an explanation." However, the Union witnesses testified that all provisions of the contract were resolved by March 31 thus, even though the written embodiment of the agreement itself is not accurate, the fact that an agreement was reached and the parties are bound by it, has not changed . . . The Union in the instant case, had voluntarily offered to correct the errors in the con- 69 Timber Products Co, 277 NLRB 769 (1985), Shawn's. Launch Service, supra; Monument Printing Co., 231 NLRB 1215 (1977). 7° H. J. Heinz Co. V. NLRB, 311 U S. 514 (1941); Worrell Newspapers, 232 NLRB 402 (1977), Monument Printing Co., supra; Adams Potato Chips v. NLRB, 430 F.2d 90 (6th Or. 1970) tract. However, the Respondent has not afforded the Union an opportunity to do so. 10 Valdez explained that he and Fierro gave their temporary secretary a compilation of their notes which were "cut and pasted" to the old contract. He showed the secretary the changes that were to be made and instructed her to call him if she had any problems. During this time, the new secretary was typing several agreements. However, the temporary secretary, inexperienced with typing agreements of this nature, consequently, confused the old and new agreements or several different agreements and typed an maccurate contract. Because Thomas from Parkview had been badgering Valdez to produce a contract, Valdez hastily proofread the document and did not catch the errors 77 The Respondent contends in its brief: "Mlle document which the Union contends Constitutes the alleged agree- ment between the parties does not even conform to the Union's version of what the contract should have con- tained."'" The Respondent continues therein: These discrepancies are so apparent that General Counsel and the Union stipulated at the hearing that the alleged contract does not accurately reflect an agreement between the parties. Thus, it is undis- puted that there is no accurate written reflection of any agreement and that the Company never re- ceived a document which contained any agreement. This was because no agreement either verbal or written, existed between the parties. The Union's at- tempt to hastily slap together a makeshift document purporting to be an agreement in order to thwart the sentiments of the majority of the unit employees as evidenced by the petition must fail. As found by me hereinbefore, the Respondent and the Union reached agreement on the terms and conditions of a collective-bargaining agreement on 31 March 1983. The Respondent was therefore legally obligated to sign a written collective-bargaining contract embodying such understanding or agreement on request by the Union to do so." Although it is clear that the discrepancies con- tained in the bargaining contract prepared and submitted by the Union to the Respondent did not reflect the agreement reached by the parties and that all the errors were not relatively insignificant changes in wording, yet, based on the record evidence herein, there can be no 71 The Union in its brief concurs therewith, stating: Upholsterers' Local 15 does not contend that Parkview Funiture should execute the agreement delivered in error. It is undisputed that the agreement did not reflect the parties agreement. Review of Ray Valdez' typist notes confirms that delivery of wrong agreement was not made in bad faith. Rather it was an unfortunate error occasioned by the rush to deliver and problems with the clerical staff. Rather the obligation is to execute an agreement which consists of the Arti- cles contained in Al Fierro's working copy which accurately reflects the parties' agreement . Once there is a willingness to correct the problem the obligation matures In the present case, the Company failed to disclose the error until the time of the hearmg. Upon learn- ing of the error, Ray Valdez offered to make the corrections without hesitation 72 Valdez testified that the bargammg agreement delivered to the Re- spondent on 15 August 1983 contained errors m the following provisions therein: health and welfare, wage scales, pension, and grievance and arbi- tration The General Counsel's brief adds thereto "cost of living, insur- ance and noncontract wage practices." 72 See cases cited at Si 70. PARKVIEW FURNITURE MFG. CO 967 question that they were merely inadvertent errors in transcription by the Union and in no wise indicated that the minds of the parties had not met in agreement. The record shows, and I fmd, that these discrepancies result- ed from clerical error on the part of the Union's inexpe- rienced secretary who typed the contract and were the result of typographical error or other inadvertence. Al- though it is, of course, true that an employer is not obli- gated to execute a contract which does not reflect the agreement reached, the Board has held that when the parties have reached full agreement on the terms and conditions of a collective-bargaining contract yet the written embodiment of the agreement contains inadvert- ent errors, then the parties are bound by the agreement should the party in error voluntarily offer to correct the mistakes. 74 In the instant case, the Union, on learning of the errors in the agreement delivered to the Respondent, offered to make the corrections without hesitation. How- ever, the Respondent has not afforded the Union an op- portunity to do so.76 Besides the Respondent's contentions herein that no agreement was reached by the parties on all the terms and conditions of a collective-bargaining contract, which I have discussed and discounted hereinbefore, the Re- spondent bases its failure and refusal to afford the Union an opportunity to present a corrected bargaining con- tract which incorporates the terms and conditions of em- ployment agreed upon and to execute the contract there- after, on its "good faith doubt" as to the majority status of the Union. The Respondent argues inferentially that under such circumstances it was relieved of its duty and obligation to execute a collective-bargaining agreement. However, the legal obligation to sign and execute a con- tract arises when the parties have reached full agreement on the terms and conditions of employment to be set forth therein. Actions and conduct on issues raised by an employer regarding its good-faith doubt as to a union's majority status after the parties have reached full agree- ment are irrelevant. The critical inquiry surrounds the Union's support at the time the parties reached agree- ment and not when the parties formalize their under- standing. The Respondent's reliance on events which took place in August 1983 does not negate the obligation to execate a bargaining contract the terms of which were fully agreed upon on 31 March 1983 and ratified by its employees on 4 April 1983.76 From all the above, I find and conclude that the Re- spondent and the Union reached full and complete agree- ment on the terms and conditions of a collective-bargain- ing agreement on 31 March 1983 and that the Respond- ent thereafter, by failing and refusing to afford the Union the opportunity to submit a written bargaining contract which 'encompassed such agreement and by failing and 74 Shawn's Launch Service, supra; Reppel Steel & Supply Co., 239 NLRB 358 (1978). 75 Both the General Counsel and the Union maintain that Fierro's "working copy" of the old collective-bargaining agreement (Union's Exii. "relleMs the parties' agreement m rough form" and forms the basis for a correct contract which would be submitted by the Union to the Re- spondent for execution 76 Utility Tree Service, 215 NLRB 806 (1974), enfd 539 F.2d 718 (9th Cir. 1974 refusing to execute any such agreement, has failed to meet its duty to bargain in good faith and has thereby violated Section 8(a)(5) and (1) of the Act. 3. The withdrawal of recognition The Board has long held that an employer is free to withdraw recognition from an incumbent union if (1) the union has actually lost majority support or (2) the em- ployer has a reasonable doubt, based on objective consid- erations, about the union's continued majority status.77 The Board's principles concerning an employer's burden of rebutting an incumbent union's presumption of majori- ty status are well settled. A certified union, on expiration of the first year following certification, enjoys a rebutta- ble presumption that its majority representative status continues. An employer may rebut the presumption by demonstrating either that the union in fact no longer en- joyed majority status or that its refusal to bargain or to recognize the union as the collective-bargaining repre- sentative of its employees in an appropriate unit is predi- cated on a good-faith, reasonably grounded doubt of the union's majority status. Further, to sustain the second of these defenses, the employer must show that its asserted doubt is based on objective considerations and that it was not advanced for the purpose of gaining time in which to undermine the union." In sum, any doubt as to the continuing majority status must rest on a reasonable basis and may not depend solely on unfounded specula- tion or a subjective state of mind." Moreover, as the Board stated in Cartwright Hardware Co., 229 NLRB 781 (1977), enfd. as modified 600 F.2d 268 (10th Cir. 1979): It is well settled that the existence of a prior con- tract, lawful on its face, raises a dual presumption of majority—a presumption that the union was the ma- jority, representative at the time the contract was executed, and a presumption that its majority con- tinued at least through the life of the contract. 2 Fol- lowing expiration of the contract, as here, the pre- sumption continues and, though rebuttable, it is suf- ficient to establish, prima facie, a continuing obliga- tion on the part of the employer to bargain with the union. 3 Following expiration of a collective-bar- gaining agreement, therefore, an employer violates Section 8(a)(5) and (1) by repudiating its collective- bargaining relationship with the union unless it can show reasonably based doubt as to the continuing majority support for its employees' representative.4 2 Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651, 652 (1974), citing Shamrock Dairy, Inc., et al., 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (C.A.D C 1960), cert. denied 364 U S. 892 (1960) 3 Bartenders Association of Pocatello, supra; Barrington Plaza and Tragniew, Inc., 185 NLRB 962, 963 (1970), enforcement denied on 77 American Mirror Co., 277 NLRB 1626 (1986); Terrell Machine Co., 173 NLRB 1480 (1969), enfd 427 F.2d 1088 (4th Cir. 1970). 78 Ries Vending Services, 272 NLRB 1336 (1984); Bennington Iron Works, 267 NLRB 1285 (1983); Terrell Machine Co., supra. 79 NLRB v Gulfmont Hotel Co., 362 F 2d 588 (5th Cir. 1966). 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other grounds sub nom. N L R.B. v. Tragmew, Inc. and Consolidated Hotels of California, 470 F.2d 669 (C A 9, 1972), Terrell Machine Company, 173 NLRB 1480, 1480-81 (1969), enfd. 427 F 2d 1088, 1090 (C A 4, 1970), cert denied 398 U.S. 929 (1970). United States Gypsum Company, 221 NLRB 530, 537 (1975), Salina Concrete Products; Inc , 218 NLRB 496, 498 (1975), Cantor Bros., Inc., 203 NLRB 774, 778 (1973).85 The Respondent asserts that its refusal to continue to recognize the Union as the bargaining representative of its employees in an appropriate unit was based on its "good faith doubt of the Union's majority status substan- tiated by objective considerations, and therefore not vio- lative of the Act." Both the General Counsel and the Union contend that the Respondent's withdrawal of rec- ognition was unlawful and violated Section 8(a)(5) and (1) of the Act. As the Board stated in Celanese Corp., 95 NLRB 664, 673 (1951): By its very nature, the issue of whether an em- ployer has questioned a union's majority in good faith cannot be resolved by resort[ing] to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a par- ticular case. Thus, even when a particular factor considered alone would not be sufficient to support a good-faith doubt of a union's majority status, the "cumulative force of the combination of factors" may be adequate to support such a doubts' In this regard, a respondent does not bear the burden of proving that an actual numerical majority op- poses the union. 82 However, it must demonstrate that it had objective reasons for doubting the union's majority status, 83 and such doubt must be raised in a context free of unfair labor practices.84 The Respondent bases its "good faith doubt" of the Union's majority status on an alleged "petition" signed by 75 of the Respondent's approximately 146-150 em- ployees containing the legend thereon, "We the employ- ees of Parkview Furniture Company wish to dismember ourselves from Local 15 of the International Upholster- er's Union," viewed by Brooks briefly on 12 August 1983, and the events which preceded the "petition." Sometime in July 1983, Valdez called Brooks to explain why the Union had failed to forward the completed bar- gaining contract to the Respondent for execution, where- upon Brooks remarked that "somewhere down the line" the Respondent would have to "take the Union on" as a competitor furniture company had done in refusing to reach agreement with the Union on a new collective-bar- gaining contract because Brooks "would be damned if he was going to be the biggest union shop in town in which 22 Also see H & H Pretzel Ca, 277 NLRB 1327 (1985), Stratford Visit- ing Nurses Assn, 264 NLRB 1026 (1982). 25 Sofco, Inc. 268 NLRB 159 (1983), Golden State Habilitation Center v. NLRB, 566 F 2d 77 (9th Cir 1977), denying enf 224 NLRB 1618 (1976), National Cash Register Co. v. NLRB, 494 F 2d 189 (8th Cir 1974). 22 Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf. denied on other grounds 359 F 2d 799 (7th Cir. 1966), NLRB v. Randle-Eastern Ambu- lance Service, 584 F.2d 720 (5th Cir. 1978) 25 Sofco, Inc., surpa; Laystrom Mfg. Co., supra 24 Guerdon Industries, 218 NLRB 658 (1975); Nu-Southern Dyeing, 179 NLRB 573 fn 1(1969), enfd in part 444 F.2d 11 (4th Cir. 1971). he wouldn't be able to compete with non-union shops, paying the exhorbitant benefits." 83 Thereafter, by letter dated 2 August 1983, the Respondent's attorney notified the Union that, in view of the expiration of the old bar- gaining agreement, the Respondent would discontinue forwarding moneys deducted for union dues from its em- ployees' paychecks and instead deposit these amounts in a "bank trust until this matter is resolved" and requested a renewal of negotiation meetings for the purpose of continued collective bargaining. After receiving several complaints from employees re- garding their dissatisfaction with the Union's assessment to support striking employees at another furniture com- pany, in early August 1983 Valdez and Fierro met with approximately 20 employees of the Respondent's "sewing and cutting department" located in the smaller building at the Respondent's facility. These employees voiced their anger and resentment at the Union's strike assessment and, when Valdez asserted that there was nothing he could do about it because a majority of the Union's membership had voted for it, they threatened to sign a petition to the Respondent protesting any deduc- tions made from their wages for this purpose. Moreover, when the employees refused to accept the assessment and Valdez asked them, "Do you want a union or not?" the employees responded, "No," and they thereafter "booed" the union representatives, causing Valdez to an- grily leave the meeting to "cool off." When Valdez re- turned to the meeting shortly thereafter, the employees who had created the disturbances came over to him and apologized for their prior behavior. Valdez testified un- contradictedly that disapproval of and demonstrations against the Union's assessment were confined to these employees in the "sewing and cutting department" be- cause, on leaving this meeting, he had gone to the Re- spondent's main building to speak to the employees there and, "There I had no problem." The Union's assessment was subsequently revoked effective "the payroll period ending August 19, 1983." This incident was brought to the Respondent's atten- tion presumably on the same day that it occurred when, on 4 April 1983, two of the Respondent's supervisors re- ported to Brooks what had happened between Valdez, Fierro, and "all the cutting and sewing employees." Ac- cording to Brooks, they told him that "it was over the assessments . . . . There was an awful lot of voices being raised with arguing back and forth . . . . shout- ing," and that Valdez had said, "[W]ell damn it, do you want a union or don't you? And then everybody in unison hollers out, no. And at that time, Mr. Valdez got mad and stomped out of the meeting." Brooks testified that thereafter, on 12 August 1983, two of the Respond- ent's employees, Sal Mope, a supervisor in the "sewing and cutting department," and Frank "something," a cutter in that department, showed him an employee "pe- tition," several sheets of yellow lined paper with the sig- natures of 75 of the Respondent's employees thereon and headed by the aforedescribed legend in English and 25 Although Brooks denied making this statement, for the reasons set forth herembefore I credit Valdez' testimony thereon. PARKVIEW FURNITURE MFG. CO 969 Spanish. After Brooks briefly reviewed the "petition," counted the names thereon, and Frank refused to give it to him, Brooks directed these two employees to return to work.88 Immediately thereafter, the Respondent called a meeting of all its employees wherein Brooks told the em- ployees that he had seen the petition and that the Re- spondent "could not be involved in this sort of thing" and directed the employees to "stop this nonsense and go back to work." However, Fernando Loya, whose testimony I credit,87 testified that Brooks never mentioned anything about a "petition" to the employees at this meeting. According to Loya, who was present as an employee at the meet- ing, the Respondent had distributed employee paychecks unusually early that day, at 8:30 in the morning, and the employees then became aware that the sum of $46 had been deducted from their wages for that week's pay period, $19 for regular union dues, and $27 for the spe- cial strike assessment. 88 The employees became under- standably angry and upset about this and later that morn- ing the Respondent called a meeting of all its employees at the facility. Brooks addressed the meeting and told the employees that he had heard that they were uspet about the amount deducted from their wages. He stated that the Respondent could do nothing about this: "[Brooks] hands were tied until two and a half years when the con- tract was up . . . [but] if we no longer want the union, [we] could do something about the Union. We could vote the union out." Loya related that he then accused the Respondent of instigating this problem by deducting the strike assessment in a lump sum form from employ- ees' paychecks to rid itself of the Union by fomenting employee hostility towards the Union. Loya continued that approximately 1 week later, at an- other meeting called by the Respondent with its employ- ees, Brooks announced that the Respondent no longer recognized the Union as the bargaining representative of its employees and that the Company was bringing in an insurance representative so that the employees could sign up for health and welfare insurance coverage to become effective at the end of August 1983. Loya added that he advised the employees that they were already covered by the Union's health and welfare insurance plan, where- 88 Significantly, the Respondent never produced this "petition" at the hearing nor did it call Mope or Frank as witnesses herein. 87 Loya impressed me as a truthful and forthright witness whose testi- mony was generally consistent with the uncontradicted evidence in the record and with the testimony of the General Counsel's other witnesses. Although I am not unmindful that Loya was the Union's shop steward at the Respondent's facility during the relevant time period and had been discharged by the Respondent subsequent to these events, he candidly ac- knowledged that the discharge was deserved because he had "foolishly" engaged in a fight at the Respondent's premises, activity which is cause for dismissal under the Respondent's rules for employee conduct. More- over, as appears constantly herein, the Respondent failed to call material witnesses and/or produce relevant documenting evidence which would either corroborate Brooks' testimony or contradict that given by the General Counsel's witnesses It should be noted that Thomas and Domar- acki were present along with Brooks at this meeting. See fn. 56 herein. 8.0 This was contrary to written instructions sent by the Union to the Respondent's payroll department regarding the payment of assessment ar- rears. Although Brooks denied that the Respondent had deducted the ar- rears in a lump sum form, the Respondent never produced any payroll records, obviously within its possession, to substantiate Brooks' denial thereof or to contradict Loya's testimony. See fn. 56 herein upon Brooks requested that he and Loya maintain a "neutral" stance and allow the attorneys for the Re- spondent and the Union to resolve their differences. Based on the evidence in this case as a whole, I find and conclude that the Respondent has failed to rebut the presumption of the Union's majority status. Nor do I find that there is sufficient objective evidence in the record to support the Respondent's assertion of a good-faith, rea- sonably grounded doubt as to the Union's continued ma- jority status. Furthermore, before discussing the reasons for my above findings and conclusions, I note that having found in this case that fmal agreement on the sub- stantive terms of the collective-bargaining contract was reached, regardless of the status of any written agree- ment, the Respondent was not free to refuse to bargain even if it then had lawful grounds for believing that the Union had subsequently lost its majority status.89 The Respondent relies on "the anti-union sentiments of the employees as expressed at the meeting with Union representatives." The Respondent asserts in its brief: In the instant case, the uncontradicted evidence showing the employees' extreme dissatisfaction with the Union and their hostility toward Union repre- sentation, created by the Union's own actions in as- sessing strike deductions, is in itself sufficient objec- tive grounds for the Company's good faith doubt of the Union's majority. Although it is true that the Board has held that expres- sions of antiunion sentiment can constitute sufficient ob- jective evidence to support a good-faith and reasonably grounded doubt of a union's continued majority status,9° the Board has also held that such statements must convey a clear intention by the employees not to be rep- resented by the union.91 In this case, the evidence clearly shows that the Union's strike assessment engendered anger and resent- ment among some of the Respondent's employees. How- ever, the record also shows by the credited testimony herein that this dissatisfaction was neither concurred in nor voiced by a majority of the Respondent's employees in the appropriate unit. According to the uncontroverted testimony of Valdez, only 20 employees were involved in the meeting with the Union's representatives. More- over, even though it may be assumed that all these em- ployees had indicated a "No" response to Valdez' query as to whether they wanted a union, it is not unreasonable to infer from the circumstances surrounding this meeting that their answers were given in the heat of anger and in the midst of vociferous objection to the assessment during their discussion with Valdez. Until this assessment was voted and imposed, there is no evidence in the record that employees were dissatisfied with the Union as their collective-bargaining representative. In fact, the evidence herein is to the contrary. Furthermore, Valdez 89 United States Gypsum Cc, 259 NLRB 1105 (1982); North Bros Ford, 220 NLRB 1021 (1975); Utility Tree Service, 215 NLRB 806 (1974), affd. 218 NLRB 784 (1975). 98 Sofco, Inc., supra. 91 Gregory's Inc., 242 NLRB 644 (1979) 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told the employees that he would seek rescission of the strike assessment as soon as possible because of their ve- hement dissatisfaction with it, and, after tempers had cooled between the employees and Valdez, those em- ployees who had created a disturbance at the meeting apologized to Valdez for their actions. 92 Additionally, until the Respondent withheld the Union's strike assess- ment from its employees' paychecks on 12 August 1983, there was no evidence in the record that the employees sought to rid themselves of the Union or had made any additional antiunion statements to that effect after the meeting on the assessment with the Union's representa- tives. It may well be argued that, under the circum- stances in this case, such antiunion sentiments as ex- pressed herein constituted employee complaints and unrest and did not constitute "objective considerations" on which the Respondent can rely." Moreover, the Respondent places particular reliance on an alleged employee "petition" as evidence of a loss of employee support for the Union. However, the Re- spondent failed to produce the petition at the hearing," and it never called as a witness Frank, the employee who had the "petition" in his possession, or Sal Mope, the supervisor who had accompanied the employee to Brooks' office when Brooks was allegedly shown the document, nor were these omissions adequately ex- plained." Therefore, as concerns the employees' "peti- tion," the only evidence thereof in the record is Brooks' own testimony." This is insufficient evidence for a rea- sonably based good-faith doubt that the Union retained majority status." However, even assuming the existence of the "petition" without its production at the hearing, there is insufficient evidence in the record to show un- equivocally that a majority of the unit employees signed 92 The Respondent failed to call as witnesses William Seavers or Andrew Wallace, the two supervisors who reported what had happened at this meeting to Brooks, regarding the angry exchange of words and actions between the employees and the Union's representatives. Unlike the Sofco case, cited by the Respondent, wherein a plant manager testi- fied as to many antiunion sentiments expressed by employees directly to him, Brooks' testimony consisted of what he was told by two supervisors who had overheard employees make such statements at that one meeting and obviously not the full account of what had occurred. See In 56 herein. 93 Hermitage, Inc., 239 NLRB 216 (1978). 94 Consumat Systems, 273 NLRB 410 (1984) 95 Under the circumstances, I draw the inference that the testimony of these employees would have been unfavorable to the Respondent and would not have supported Brooks' testimony regarding the petition. Tasman Sea, Inc., 247 NLRB 18 (1980), and cases cited therein. 96 Although Valdez testified that at the meeting with employees on 4 August 1983 the "sewing and cutting department" employees had threat- ened to petition the Respondent not to deduct the strike assessment from their weekly pay, and Fierro testified that he had heard a rumor, that a petition was circulating to stop the assessment, they never saw an actual employee petition, and this lends insufficient support to Brooks' testimo- ny thereon 97 The Board has held that a petition signed by a majority of employ- ees in an appropriate unit wherein they express their desire no longer to be represented by a union may, in the absence of unfair labor practices on the part of the employer, support a good-faith withdrawal of the em- ployer's recognition of the union as the bargaining representative of its employees. Pipe Line Development Co., 272 NLRB 48 (1984); Hemet Cast- ing Co., 260 NLRB 437 (1982); Carolina American Textiles, 219 NLRB 457 (1975). Here, there was insufficient evidence to support the existence of such an employee "petition" it and the signatures were valid, 98 that the "petition" was originated by the employees themselves without the assistance of management or suprvisors,9 9 and that it un- equivocally expressed the employees' desire and intent not to be represented by the Union rather than employee opposition to the Union's strike assessment.'°° Additionally, as the United States Court of Appeals for the Ninth Circuit, stated in Clear Pine Mouldings v. NLRB, 632 F.2d 721, 730 (9th Cir. 1980): Reasonable doubt as to the majority status must only be asserted in good faith and may not be raised in the context of an employer's activities aimed at causing disaffection from the union.'" In applying the above to the instant case, consider that in a telephone conversation between Brooks and Valdez in July 1983 Brooks told Valdez that "somewhere down the line" the Respondent would have to "take the Union on" because it could not afford to be a union shop paying "exhorbitant benefits" and compete against non- union shops. This occurred some 3 or 4 months after the Respondent and the Union had reached full agreement on the terms and conditions of a collective-bargaining contract on 31 March 1983, and the Union had failed as yet to deliver the completed typewritten agreement to the Respondent although requested frequently to do so. Moreover, Brooks had made clear to the Union during the negotiations that many companies had gone out of business in the fiercely competitive furniture manufactur- ing industry and, therefore, the money issues were of paramount importance to the Respondent for it to sur- vive. In this somewhat charged atmosphere, the stage was set for what occurred thereafter in the context of the Respondent's surreptitious desire to rid itself of the Union. On 2 August 1983 the Respondent notified the Union that it was requesting resumption of negotiations, in effect thereby denying that full agreement had been reached between the parties on the terms and conditions of the new bargaining contract. On 4 August 1983, Valdez and Fierro met with some of the Respondent's "sewing and cutting department" employees in an angry and stormy meeting in which the employees' dissatisfac- tion with the Union's strike assessment, and unhappiness with the Union because of it, was made demonstrably clear. Brooks became aware of this that same morning when what occurred at the meeting was brought to his attention by two of the Respondent's supervisory em- 98 Brooks testified that he only saw the "petition" briefly and, al- though he counted 75 signatures he admitted that he could not recognize all the names as being those of the Respondent's employees. Again, the failure of the Respondent to call Frank or Sal Mope as a witness serious- ly weakens its contentions in this case. See fn. 95. 99 Mope, a supervisor, accompanied the employee with the petition, Frank, when it was shown to Brooks Although Brooks testified that Mope had nothing to do with the preparation and circulation of the peti- tion, the Respondent's failure to call Mope or Frank as a witness, creates some suspicion or uncertainty as to this. See fn 95. Also see Rogers of Santa Clara, 261 NLRB 409 (1982). 1°° Sahara-Tahoe Hotel, 241 NLRB 106 (1979), enfd. 648 F 2d 553 (9th Cir 1980) 101 NLRB v. Mar-Len Cabinets, 659 F 2d 995,(1981). PARKVIEW FURNITURE MFG. CO 971 ployees. 1° 2 Brooks met with the employees later that morning and advised the employees that the Respondent could not get involved in this matter. Thereafter, on 12 August 1983, the Respondent de- ducted a lump sum amount from the employees' wages for the Union's strike assessment arrears. This amount plus the union dues deduction normally withheld added up to a substantial diminution of the employees' take- home pay for that pay period and foreseeably caused substantial anger, dissatisfaction, and consternation among the workers, potentially dangerous and explosive. Significantly, the lump sum strike assessment was made contrary to written instructions from the Union to the Respondent's payroll department, in which the Union had sought lesser deductions from employees' wages over more than one pay period to lessen the assessment arrears impact and the burden and hardship thereof on the employees. Also significantly, the paychecks reflect- ing the substantial decrease in pay due to the amount withheld were issued to the employees much earlier than usual that day, even if Brooks is believed in his assertion that he had scheduled 12 August 1983 as a half workday. Later that morning, being apprised of the employees' anger and dissatisfaction, the Respondent called a meet- ing of all its employees. At this meeting Brooks told the employees that the Respondent could do nothing about the deductions and that this was the Union's responsibil- ity. He told them that, if they no longer wanted the Union, "[they] could vote the Union out." Moreover, Brooks testified that he had seen an em- ployees' "petition" shortly before the meeting, in which a majority of the Respondent's unit employees had ex- pressed their desire to "dismember" themselves from the Union. Assuming the existence of the "petition," it is not unreasonable to assume that the Respondent's lump sum deduction from employee paychecks that morning could have been the catalyst which brought the "petition" into existence and had precipitated employee action in this re- spect.'" This payroll week was the first in which the Respondent had actually made any deduction for the strike assessment, no employee had complained about the normal dues deduction withheld from their paychecks previously, nor had the "petition" surfaced until the Re- spondent withheld the large lump sum strike assessment arrears from the employees' wages, contrary to the Union's instructions thereon. From all the above, a strong inference arises that the Respondent seized upon circumstances made possible by 1 °2 It is not unlikely that the Respondent knew about the Union's strike assessment even before that date because the Union's notice thereof to the employees was posted on the Respondent's facility bulletin board in June 1983. Although it might also not be unreasonable to assume from the evidence that the Respondent was also aware of some employee dis- satisfaction with the strike assessment and therefore the Union itself before 4 August 1983, on the theory that the Respondent's operations constituted a "small plant," this might be considered as too conjectural. Additionally, if Brooks was told all that transpired at the 4 August 1983 meeting between the employees and Valdez and Therm, he would have become also aware that these employees had threatened the union repre- sentatives with a petition to the Respondent not to withhold any strike assessment amounts from their wages 1°3 The Respondent failed to call as a witness Frank, the employee who would have had knowledge as to this, or even Mope, who might have been able to explain what had occurred See fn 56 herein the Union's delay in completing and delivering to the Respondent the new collective-bargaining contract and the Union's imposition of a strike assessment on its mem- bership, including the Respondent's employees, and made disparaging statements against the Union and created ani- mosity through its lump sum deduction of the Union's strike assessment arrears to orchestrate and create height- ened animosity, dissatisfaction, and hostility towards the Union and discourage support for, and cause disaffection from, the Union.104 From all the foregoing and the record as a whole, I find and conclude that the Respondent has failed ade- quately to demonstrate a reasonably based good-faith doubt of the Union's majority status. Accordingly, as the Respondent was not privileged to refuse to bargain with or to withdraw recognition from the Union, its actions in so doing constituted violations of Section 8(a)(5) and (1) of the Act. 1° 5 4. Unilateral changes in terms and conditions of employment The amended consolidated complaint alleges that the Respondent unilaterally made changes in employee health insurance benefits and told its employees that it was making such changes and that the Respondent ceased making health and welfare and pension contribu- tions to the trust funds as required by the collective-bar- gaining agreement, all in violation of Section 8(aX1) and (5) of the Act. The Respondent denies these allegations. As stated by the Board in SAC Construction Co., 235 NLRB 1211, 1218 (1978):1" The law is well established that unilateral changes of "wages, hours and terms and conditions of employment" by an employer obligated to bar- gain with the representative of its employees in an appropriate unit violates Section 8(a)(5) of the Act. Master Slack and/or Master Trousers Corp. et al., 230 NLRB 1054 (1974). Benefits, such as payments into health, welfare, and pension funds on behalf of em- ployees, constitute an aspect of their wages and a term and condition of employment which, along with wage rates, survive the expiration of a collec- tive-bargaining agreement and cannot be altered without bargaining. Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (C.A. 8, 1970). Furthermore, it is well settled that on the expiration of a collective-bargaining agreement the law imposes a con- tinuing duty on both parties to attempt in good faith to 104 The Respondent's undaterial action regarding the assessment and its subsequent remarks against union representation serve no purpose but to denigrate the union in the eyes of its employees and are violative of Sec. 8(a)(1) of the Act. Lehigh Lumber Co., 230 NLRB 1122 (1977); Daisy's Originals, Inc. 187 NLRB 251 (1970) 105 Moreover, when the Respondent notified its employees that it no longer recognized the Union as the collective-bargaining representative of its employees in an appropriate umt, it violated Sec 8(a)(1) and (5) of the Act. S/S Research Corp., 272 NLRB No 151 (Nov 2, 1984) (not re- ported in Board volumes) 506 Enf. denied 603 F.2d 1155 (5th Cir. 1979) (on the issue of the union's majority status) 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reach a new agreement and therefore an employer may not unilaterally alter the terms and conditions of employ- ment set forth therein, as relates to mandatory subjects of bargaining, in the absence of an impasse in negotia- tions,'" the Union's loss of majority status,'" or a waiver." 9 As previously found herein, the Respondent and the Union reached full agreement on the terms and condi- tions of a new collective-bargaining contract on 31 March 1983 and the contract was ratified by its employ- ees on 4 April 1983. The Respondent was thereafter obli- gated to execute and abide by that agreement. However, the typewritten fmal contract delivered to the Respond- ent contained numerous errors and mistakes so that the Respondent did not have a written contract to execute embodying the terms and conditions of employment agreed upon. Nonetheless, in violation of Section 8(a)(5) and (1) of the Act, the Respondent failed and refused to bargain with the Union in good faith by executing a cor- rected copy of the bargaining contract embodying the terms and conditions of employment agreed upon, and unlawfully withdrew its recognition of the Union as the collective-bargaining representative of its employees in an appropriate bargaining unit. Moreover, none of the parties herein asserts that they bargained to impasse or that the Union waived its right to bargain as the Re- spondent's employees' representative. I also found herein that the Respondent did not have a good-faith doubt, based on objective considerations, of the Union's con- tinuing majority status. Therefore, even assuming that the parties had not reached full agreement on a new bar- gaining contract, the Respondent still had a statutory duty to recognize and bargain with the Union. The record evidence shows that the Respondent in- formed its employees about 19 August 1983 that they were no longer covered by the Union's health and wel- fare and pension insurance plans and provided the em- ployees with its own separate insurance coverage for these fringe benefits. The Respondent also discontinued making health and welfare and pension insurance premi- um payments to the Union's trust fund. The Respondent engaged in such conduct without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain as the exclusive bargaining rep- resentative of the Respondent's employees with respect to such acts and conduct and the effects thereof. 107 Taurus Waste Disposal, 263 NLRB 309 (1982); S. Freedman Electric, 256 NLRB 432 (1981). 1" SAC Construction Co., supra; South Texas Chapter, AGC, 190 NLRB 383 fn. 5 (1971). 102 American Distributing Co v. NLRB, 715 F 2d 446 (9th Or 1983). As stated by the Board in Cauthorne Trucking, 256 NLRB 721 (1981) [T]he Board has held that health and welfare and pension fund plans winch are part of an expired contract constitute an aspect of employ- ee wages and a. term and condition of employment which survives the expiration of the cOntract . Thus, an employer may not uni- laterally alter payments into such plans unless (I) the changes are made subsequent to the parties' reaching a bargaining impasse and the union has rejected the changes prior to the impasse, (2) the em- ployer demonstrates that, at the time the changes were made, the union did not represent a majority of the unit employees or that the employer had a good-faith doubt, based on objective considerations, of the union's continuing majority status, or (3) the union has waived its right to bargain regarding the changes. Accordingly, and from all the above, I find and con- clude that the Respondent has violated Section 8(a)(1) and (5) of the Act by unilaterally making changes in em- ployee health and welfare and pension insurance benefits and by ceasing to make health and welfare and pension contributions to the union's trust funds as required by the collective-bargaining agreement. 10 Moreover, the Gen- eral Counsel asserts in the brief that by its above conduct the Respondent also violated Section 8(d) of the Act. I agree."' It is well settled that an employer acts in dero- gation of its bargaining obligation under Section 8(d) if it unilaterally changes or otherwise repudiates terms or conditions of employment contained in a collective-bar- gaining agreement during the life of that agreement.'12 Therefore, by failing to make health and welfare and pension contributions and by subsequently replacing the contractually prescribed insurance plans with one of its own choice, the Respondent also has violated Section 8(d) of the Act. 5. The withholding and remittance of union dues The amended consolidated complaint alleges that the Respondent violated Section 8(a)(1) and (5) of the Act by ceasing to withhold and remit to the Union union dues, as required by the employees' dues-checkoff au- thorizations, without prior notice to the Union and with- out affording the Union an opportunity to negotiate and bargain as the exclusive representative of the Respond- ent's employees with respect thereto. The Respondent denies this allegation. As the evidence herein shows, by letter dated 2 August 1983, the Respondent's attorney notified the Union that the Respondent would no longer forward the union dues withheld from its employees to the Union, because the old collective-bargaining agree- ment had expired on 1 April 1983. However, the Re- spondent did remit the union dues deducted from its em- ployees' wages until August 1983. Having found that the Respondent and the Union had reached full agreement on the terms and conditions of a new bargaining con- tract, the Respondent was obligated to continue to remit to the Union the union dues withheld from its employ- ees' salaries during August 1983. It would appear that, after the Respondent withdrew its recognition of the Union on or about 19 August 1983, it ceased deducting such union dues amounts from its employees' paychecks. It is well established Board law that an employer's re- fusal to properly tender dues withheld from an employ- ee's paycheck under a valid dues-checkoff authorization 110 S/S Research Corp., supra, Buck Brown Contracting Ca, 272 NLRB 951 (1984). 111 Although violation of Sec. 8(d) of the Act was not alleged in the amended consolidated complaint, all issues pertaining to the Sec. 8(d) violation were fully litigated herein. Moreover, the addition of the 8(d) allegation does not add any new substantive or remedial issues to the case "The Board has repeatedly held that it is not precluded from find- ing a violation of the Act based upon a failure to allege the conduct as violative of the Act either in the complaint or at the hearing, as long as the allegation was fully litigated at the hearing." Mertyweather Optical Co., 240 NLRB 1213, 1215 (1979), and cases cited therein Also see Atlan- ta Newspapers, 264 NLRB 878, 879 (1982), and cases cited therein. 112 S/S Research Corp., supra, Buck Brown Contracting Co., supra; Valley Mfg, 264 NLRB No 171 (Sept. 30, 1982) (not reported in Board volumes). PARKVIEW FURNITURE MFG. CO 973 constitutes a unilateral change in the terms and condi- tions of employment in violation of Section 8(a)(5) and (1) of the Act.'" Additionally, by failing to withhold union dues from the unit employees and to remit the dues to the Union, the Respondent also violated Section 8(a)(1) and (5) and Section 8(d) of the Act."4 6. Denial of union representatives' access to the Respondent's facility The amended consolidated complaint alleges that the Respondent, about 15 and 17 August 1983, refused to allow union representatives access to its facility, which allegation the Respondent denies. According to the un- contradicted testimony of Valdez and Fierro, while visit- ing the Respondent's facility on 15 August 1983 to deliv- er copies of the new collective-bargaining agreement to the Respondent, they were told by the Respondent's plant manager, Larry Domaracki, that they were not al- lowed in the plant on Brooks' orders because they "caused too much trouble" when there. Valdez then gave copies_ of the contract to Domaracki and he and Fierro left the premises. Valdez and Fierro again visited the Respondent's facility on 19 August 1983 to speak to the Respondent's employees. While they were outside the plant buildings, Domaracki came over and directed them to leave or he would "call the authorities."5 Fierro testified that he had also been turned away an- other time by Domaracki when he visited the Respond- ent's premises alone and that he was told by Domaracki that Respondent felt that the Union no longer represent- ed its employees. It is well settled that a union which represents employees has a right of access to the facility in which those employees work so that it may perform its duties properly as bargaining agent." 6 Accordingly, I find and conclude that, when the Respondent denied access to its facility by union representatives without valid reason therefor, it violated Section 8(a)(1) and (5) of the Act. 7. The Christmas bonus The amended consolidated complaint alleges that the Respondent unilaterally and without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain as the representative of the Re- spondent's employees, established and distributed to its employees a Christmas bonus in violation of Section 8(a)(1) and (5) of the Act. The Respondent denies that its action was violative of the Act. The evidence herein shows that the Respondent, by written notice distributed to its employees in August 1983, advised the employees that effective 22 August 1983 it was "put[ting]\ money aside each month for each employee. . . based on your earnings and will be distributed to you before Christmas of each year in the form of a bonus." The Christmas bo- , "8 Merryweather Optical Co., supra; Supreme Equipment Corp., 235 NLRB 244 (1978); Western Block Co., 229 NLRB 482 (1977); Pacific Grinding Wheel Co., 220 NLRB 1389 (1975). /14 S/S Research Corp., supra. i1 noted above, Larry Domaracki was not called as a witness to testify herein. 118 Western Marine Electronics, 257 NLRB 361 (1981). Also see NLRB v. Mar-Len Cabinets, 659 F 2d 995 (9th Cu- 1981). nuses were given to employees on 23 December 1983. No notification of the establishment or distribution of this Christmas bonus was given to the Union, nor was the Union given any opportunity to bargain regarding this benefit. Moreover, Loya testified uncontradictedly that this was the first time that the Respondent had granted Christmas bonuses during his employment with the Respondent and the first time ever as far as he knew. Moreover, from the timing of the announcement of the establishment of the Christmas bonus fund, it is obvious that the Respondent's intention in so doing was to vitiate the Union's support among it employees. From all the above, I find and conclude that the Re- spondent violated Section 8(a)(5) and (1) of the Act when it unilaterally established and subsequently distrib- uted Christmas bonuses to its employees without notify- ing or bargaining with the Union thereon.1'7 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent on 2 August 1983" 8 repudiated and, since about that time, has re- fused to execute a collective-bargaining contract which was agreed on by the Respondent and the Union on 31 March 1983, I shall recommend that the Respondent be required to execute a bargaining contract embodying the terms and conditions of employment of the oral contract agreed upon, and that, on request, it sign and execute the collective-bargaining agreement forthwith and give effect to all terms and provisions of that agreement retroactive- ly to 1 April 1983." 9 Moreover, because the agreed-to 1" Sevakis Industries, 244 NLRB 1122 (1979). With regard to the uni- lateral discontinuance by an employer of a longstanding practice of granting unit employees a Christmas bonus m violation of Sec 8(a)(5) and (1) of the Act, see Radio Electric Service Co. 278 NLRB 531 (1986) Also, contrast Harvstone Mfg., Corp, 272 NLRB 939 (1984). 118 The Respondent, by its attorney's letter to the Union dated 2 August 1983 and received by the Union on 8 August 1983, advised the Union that it was seeking "another collective bargaining meeting in order to conclude the negotiations and execute a collective bargaining contract forthwith," thus, in effect, denying and repudiating the full agreement reached by the parties on 31 March 1983 in seeking further negotiations, Because the bargaining contract submitted by the Union to the Re- spondent on August 1983 contained substantial, though inadvertent, typo- graphical errors and mistakes and the Union has expressed its willingness to prepare and deliver to the Respondent a corrected copy of the bar- gammg contract based on the evidence of the parties' agreement reflected in the Union's working copy of the 1979-1982 bargaining contract (Union's Exh 2) and the "economic package" reached on 31 March 1983, this would constitute the collective-bargainmg agreement to be signed 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement would have expired on 31 March 1986, if the Union does not request such exe- cution of the agreed-upon contract, the Respondent should be required to bargain collectively in good faith, on request, with the Union, as the exclusive representa- tive of its employees in the appropriate unit, and if an understanding is reached, embody such understanding in a signed contract. 12° Any loss of earnings and benefits under the order recommended herein shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977). 12 ' Because the Re- spondent unlawfully withdrew its recognition of the Union, it is recommended that the Respondent be re- quired to recognize and bargain, on request, with the Union as the exclusive bargaining representative of its employees in the unit found appropriate above. Furthermore, having found that the Respondent has made unilateral changes in certain terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act, I recommend that the Respondent be ordered to make whole its employees 122 by paying all fringe benefit contributions, as provided in the collective-bargaining agreement, which have not been paid and which would have been paid absent the Respondent's unlawful discon- tinuance of or refusal to make such contributions,'" and by reimbursing unit employees for any expenses ensuing from the the Respondent's failure to make such contribu- tions.'" In addition, I recommend that the Respondent be ordered to make whole the Union for any loss of dues suffered as a result of its failure to comply with the dues provisions of the collective-bargaining agreement 125 plus interest as prescribed in Florida Steel Corp., supra."26 Because of the nature of the unfair labor practices herein found, and to make effective the interdependent guarantees of Section 7 of the Act, I recommend that the Respondent be ordered to refrain from in any like or re- 125 Round Hill Foods, 276 NLRB 1087 (1985); Worrell Newspapers, 232 NLRB 402 (1977). 121 See generally Isis Plumbing Go, 138 NLRB 716 (1962). 122 It is well established that a make-whole order restonng the status quo ante is the normal remedy when an employer has made unlawful uni- lateral changes in its employees' terms and conditions of employment. Southwest Forest Industries, 278 NLRB 228 (1986), and cases cited therein. 122 Buck Brown Contracting Co., 272 NLRB 951 (1984). 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 fund payments. We must leave to the compli- ance stage the question of whether the Respondents must pay any additional amounts mto the fringe benefit funds in order to satisfy our "make-whole" remedy. These additional amounts may be deter- mined, depending on the circumstances of each case, by reference to the provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss di- rectly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds with- held, additional administrative costs, etc., but not collateral losses." S/S Research Corp. 272 NLRB No 151 (Nov 2, 1984) See Merryweather Optical Go, 240 NLRB 1213 (1979). Also see Taurus Waste Disposal, 263 NLRB 309 (1982) 124 Reimbursement to be made as set forth in Kraft Plumbing & Heat- ing, 252 NLRB 891 fn.2 (1980), enfd 661 F.2d 940 (9th Cit. 1981). 125 See S/S Research Corp, supra; J F. Swick Insulation Co., 247 NLRB 626 (1980), Ogle Protection Service, 183 NLRB 682 (1970). 156 See Ogle Protection Service, supra See generally Isis Plumbing Co., 138 NLRB 716 (1962) lated manner abridging any of the rights guaranteed em- ployees by Section 7 of the Act.'" The Respondent should also be required to post the customary notice. CONCLUSIONS OF LAW 1. The Respondent, Parkview Furniture Manufactur- ing Co. and Parkview Occasional Seating, is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Upholsterer's International Union of North America, Local Joint Board, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production employees in the upholstery and allied departments, excluding woodworkers, team- sters, full-time inspectors, office employees and foremen not working more than sixty-five percent of their time on production during any given week, guards and supervisors as defined in the Act. 4. At all times material herein, the Union has been and is the exclusive bargaining repesentative of all the em- ployees within the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to execute a written collec- tive-bargaining agreement embodying the terms and con- ditions reached with the Union on 31 March 1983 and ratified by its employees on 4 April 1983, and to give effect thereto, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By informing the unit employees that they were no longer represented by the Union, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. By withdrawing recognition from , the Union, 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. 8. By deducting in a lump-sum manner strike assess- ment arrears contrary to the Union's instructions and through remarks made to encourage employee disasso- ciation with the Union as their representative, the Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. 1 By failing and refusing to make payments to the Union's health and welfare and pension insurance trust funds, 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. 10. By unilaterally, and without notice or bargaining with the Union, changing working conditions by inform- ing its employees that they were no longer covered by 127 Utility Tree Service, 215 NLRB 806 (1974), enfd 539 F.2d 718 (9th Qr. 1976). PARKVIEW FURNITURE 'MFG. CO 975 the Union's health and welfare and pension insurance plans and bypassing the Union and bargaining directly with the unit employees in providing them with its own separate insurance coverage for these fringe benefits, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 8(d) of the Act. 11. By failing and refusing to properly tender dues withheld from employees' wages and by failing and re- fusing to withhold union dues from unit employees' sala- ries and to remit the dues to the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 8(d) of the Act. 12. By denying the Union's representatives access to its facility, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 13. By unilaterally, and without notice or bargaining with the Union, granting and then distributing a Christ- mas bonus to its employees, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 14.The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' 2 8 ORDER The Respondent, Parkview Furniture Manufacturing Co. and Parkview Occasional Seating, Compton, Califor- nia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain by refusing to execute a collec- tive-bargaining contract negotiated and agreed upon with the Union on 31 March 1983 and to give effect thereto. (b) Withdrawing recognition of the Union as the ex- clusive bargaining representative of all its employees in the appropriate unit. (c) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with the Union as the exclusive bargaining rep- resentative of all its employees in an appropriate unit. (d) Informing its employees that they are no longer represented by the Union as their exclusive bargaining representative. (e) Deducting in a lump-sum manner any assessment or arrears therefor, contrary to the Union's instructions, and making any remarks denigrating the Union in order to encourage employee disassociation with the Union as their exclusive bargaining representative. (f) Unilaterally implementing changes in terms and conditions of employment without notice to the Union or affording it the opportunity to bargain thereon. 125 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 (g) Bargaining directly with its employees and bypass- ing the Union by informing its employees that they were no longer covered by the Union's health and welfare and pension insurance plans and implementing the Respond- ent's own insurance plan coverage instead. (h) Failing and refusing to make contributions to the Union's fringe benefit funds as provided for in the collec- tive-bargaining agreement. (i) Failing and refusing to withhold union dues from unit employees and to remit the dues and any union dues already withheld to the Union. (j) Denying the Union's representatives access to its fa- cility. (k) Unilaterally, and without notice to or bargaining with the Union, granting and distributing Christmas bo- nuses to its employees. (1) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of all employees in the aforesaid appropri- ate unit by executing forthwith the agreed-upon contract and by honoring and complying with the provisions thereof, or, if the Union does not request such execution, bargain collectively in good faith, on request, with the Union, as the exclusive representative of its employees in the unit found appropriate above, and, if an understand- ing is reached, embody such understanding in a signed contract. (b) On execution of the agreement, give retroactive effect to the provisions thereof, and, in the manner set forth in the remedy section of this decision, make whole the employees, with interest, for any loss they have suf- fered by reason of the Respondent's failure to sign and effectuate all terms of the agreement. (c) Make whole the Union for any loss suffered as a result of the Respondent's failure to withhold union dues from unit employees and remit them to the Union, in the manner set forth in the remedy section of this decision. (d) On request, rescind any and all unilateral changes the Respondent has made in the terms and conditions of employment under the collective-bargaining agreement. (e) On request, bargain with the Union in regard to Christmas bonuses and their formula, payment, eligibility therefor, and the like for the employees in the bargaining unit described above. (f) 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. (g) Post at its Compton, California place of business copies of the attached notice marked "Appendix."129 129 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." 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Re- spondent'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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.