Benjamin F. Wininger & Son, Inc.

BENJAMIN F. WININGER & SON 1177 Benjamin F. Wininger & Son, Inc. and Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO. Cases 21-CA- 24662, 21-CA-24989, and 21-CA-25146 27 November 1987 Paul H Fisch, Esq., for the General Counsel. Kenneth P. Young, Esq. (Wohiner, Kaplon, Phillips, Vogel Shelley & Young), of Los Angeles, California, for the Charging Party. Mike K. Sullivan (Mike Sullivan & Associates, Inc.), of Covina, California, for the Respondent. DECISION AND ORDER BY CHAIRMAN DOTsoN AND MEMBERS JOHANSEN AND BABSON On 2 September 1987 Administrative Law Judge Gordon J. Myatt issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions,2 to modify his remedy,3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Benjamin F. Wininger & Son, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 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. 2 The Respondent contends that the mariner in which the judge con- ducted the hearing showed bias against the Respondent On careful exam- mation of the judge's decision and the entire record, we are satisfied that the contentions of the Respondent in this regard are without merit a In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-tern Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 US; C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 4 For the reasons set forth in his dissent in Rapid Fur Dressing, 278 NLRB 905 ( 1986), Chairman Dotson dissents from the majority's fording that the Respondent violated Sec. 8(aX5) and (1) of the Act by hiring employee Jose Luis Valle on 25 March 1985 as a general helper at less than the hourly rate required by the then-existing collective-bargaining agreement and by failing to notify and bargain with the Union concern- mg this contract modification. Although this conduct, which occurred during the term of the bargaining agreement , may constitute a breach of the parties' contract, it does not reflect a repudiation of the collective- bargaining agreement in any way tantamount to a violation of the Act 286 NLRB No. 115 DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On charges filed by Sheet Metal Workers' International As- sociation, Local Union No. 170, AFL-CIO (the Union) against Benjamin F. Wininger & Son, Inc. (the Respond- ent), the Acting Regional Director for Region 21 issued an amended consolidated complaint and notice of hear- ing on 18 December 1986. The consolidated complaint alleges, among other things, that the Union has been the exclusive collective-bargaining representative of an ap- propriate unit of Respondent's employees since May 1980, and that the Union and Respondent have been par- ties to a collective-bargaining agreement that by its terms and extensions was effective for the period 1 May 1980 to 30 April 1985. Further, that since March 1985,1 the Union has requested that Respondent bargain collective- ly for a successor agreement and Respondent has failed and refused to bargain in good faith by engaging in eva- sive and dilatory conduct. Finally, that Respondent failed to meet its statutory bargaining obligation to the Union by engaging in the following conduct: (1) unlaw- fully withdrawing recognition of the Union as exclusive collective-bargaining representative of the unit employ- ees; (2) unilaterally discontinuing its contribution to the unit employees' pension fund; (3) unilaterally discontinu- ing its contribution to the unit employees' health, dental, and vision plans; (4) unilaterally discontinuing its partici- pation in the California State Workshare Program; and (5) unilaterally eliminating Veterans' Day as a paid holi- day for unit employees. The consolidated complaint al- leged that by this conduct Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Respondent filed an answer in which it denied the commission of any unfair labor practices. Respondent's answer, among other things, sought to raise an 8(f) issue concerning the contract and its bargaining relationship with the Union.2 The undisputed evidence here estab- lishes that Respondent is not an employer in the building and construction industry . Rather, Respondent is a man- ufacturer and fabricator of grocery store metal shelving. Therefore, Section 8(f) has no application to the factual situation involved in these cases . Furthermore, during the hearing Respondent failed to present any evidence whatsoever to attempt to establish that Section 8(f) con- trolled its relationship with the Union. Accordingly, Sec- tion 8(f) is not an issue in this proceeding. See M. W. i Unless otherwise indicated, all dates herein refer to the year 1985 2 Sec. 8(f) of the Act is a provision relating to prehire agreements unique to the building and construction industry 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kellogg Constructors v. NLRB, 806 F.2d 1435, 1441 (9th Cir. 1986). A hearing was held in this matter on 27 January and 11 February 1987 in Los Angeles, California. All parties were represented by counsel or representatives and af- forded full opportunity to examine and cross -examine witnesses and to present material and relevant evidence on the issues. Briefs were submitted by the parties and have been duly considered.3 On the entire record in this matter, including my ob- servation of the witnesses and their demeanor while testi- fying, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Benjamin F. Wininger & Son, Inc., is a California corporation engaged in the manufacture of grocery store shelving. Respondent maintains its princi- pal place of business in Los Angeles, California. It was admitted at the hearing that in the normal course of its business operations, Respondent annually sells goods and products valued in excess of $50,000 to customers locat- ed within the State of California, who in turn annually purchase or receive goods and materials directly from suppliers located outside the State of California. It was further admitted at the hearing that Respondent derives gross revenues from the sale of its products in excess of $500,000 annually. Based on the foregoing, I find Re- spondent is, and has been at all times material, an em- ployer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings admit and I find that Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Conditions Under the Expired Agreement The undisputed testimony establishes that the Union and Respondent had a 17-year collective-bargaining his- tory prior to the hearing in this matter . The latest collec- tive-bargaining agreement between the parties was effec- tive from 1 May 1980 to 30 April 1983 and was extended by mutual consent for 1-year periods through 30 April 1985.4 The agreement contained a union-security provi- sion that required Respondent to inform the Union on a monthly basis of all new hires and terminations . In addi- tion, the union-security provision contained a dues- checkoff clause. However, sometime during the term of the 1980-1983 agreement, Respondent, with the Union's consent, ceased deducting union dues from the employ- ees' wages and the employees paid their dues directly to the Union. At some unspecified time, apparently 3 years prior to these proceedings, Respondent was confronted with the prospects of reducing the number of days worked by its employees due to a drop in business. It applied for relief through the California State Workshare Program.5 Through the workshare program, the employees worked a 4-day (32-hour) week and received payments from the State Unemployment Compensation program equivalent to what they would have received for a fifth workday. In addition, sometime during one of the extension peri- ods of the 1980-1983 agreement, the employees, through the Union, agreed to contribute 25 cents an hour from their wages toward Respondent's obligation for pay- ments on their behalf to the health and welfare plan of the Union. This contribution by the employees was to assist Respondent in meeting its increased costs to the health and welfare program in order to maintain the cur- rent level of benefits. B. Negotiations for a New Agreement On 1 March the Union gave Respondent written notice that it desired to terminate the extended collec- tive-bargaining agreement on its expiration date and re- quested negotiations for a successor agreement. In addi- tion, the Union requested an updated list from the Re- spondent regarding the unit seniority list with dates of hire, job classifications, rates of pay, and addresses of each unit employee. (See G.C. Exhs. 5(a) and (b)).6 The undisputed testimony discloses that Respondent did not respond to the Union's request for information concerning the unit employees or its notice of termina- tion of the existing agreement. On 1 May, Fernandez sent Respondent a written copy of the Union's proposed contract modifications and requested that the parties confer to establish a time and place for the commence- ment of negotiations. (See G.C. Exh. 6.) Respondent failed to respond to the Union's letter and Fernandez went to the plant to speak with Respondent's president, Frank Wininger. Fernandez was told by the secretary and bookkeeper, Jeanine Sheffield, that Wininger was on vacation and would not return until 17 June. Fernandez returned on that date and spoke directly with Wininger. 9 Briefs were due on 6 April 1987. Counsel for the General Counsel, joined by counsel for the Charging Party, filed a motion to strike Re- spondent's brief. The motion was grounded on the fact that copies were not mailed to counsel until 7 April 1987 and they did not contain an affi- davit of service. Respondent's consultant hand-delivered a copy of Re- spondent's brief to the Division of Judges on 6 April 1987, but apparently did not mail copies to counsel until the following day. Although Re- spondent did not strictly follow the requirements of Rule 102 .42 of the Board's Rules and Regulations, and this is not to be condoned , I find Re- spondent has substantially complied with the requirements of the rule Accordingly, the motion to strike is denied * See G C. Exh. 4. According to the unrefuted testimony of the union business representative , Robert Fernandez, the extensions were not re- duced to executed documents The Union merely requested a 1-year ex- tension of the existing agreement in writing and Respondent complied by abiding by the terms of the written agreement. Under the conditions of the workshare program , where the employ- ees were represented by a union, the union was required to sign the em- ployer's application form; thereby indicating its consent for the unit em- ployees to participate in the program. 6 Fernandez testified it was standard procedure for the Union to re- quest information concerning unit employees when an existing contract was being terminated for purposes of renegotiation He stated that in many instances employers failed to notify the Union of new hires or changes within the bargaining units. BENJAMIN F. WININGER & SON 1179 The union representative testified that Wininger stated Respondent had no intention of negotiating or signing a new collective-bargaining agreement with the Union. Fernandez then informed Wininger that he would do whatever he had to do concerning Respondent's position on the Union's request for negotiations.' The Union filed unfair labor practice charges against Respondent with the Board's Regional Office following Fernandez' conversation with Wininger on 17 June. Sometime in early July, Fernandez was advised by the Board agent investigating the charges that Respondent was represented by Richard Reincke, a labor consultant employed by the consulting firm of Mike Sullivan & As- sociates. A copy of a letter from Reincke, addressed to the Union but sent to the Board's Regional Office, was given to Fernandez by the Board agent. In the letter, Reincke offered, on behalf of Respondent, to meet and negotiate with the union representative . (See G.C. Exh. 7.) Based on Reincke's representation that Respondent was willing to negotiate with the Union, Fernandez withdrew the unfair labor practice charges. Fernandez contacted Reincke and a meeting was scheduled for 14 August at the Union's trust fund office. When Fernandez and Reincke met, Fernandez gave Reincke a copy of the Union's proposals and explained the Union's position on each of them. According to Fer- nandez, Reincke stated Respondent was not in a good fi- nancial position. The union representative testified he in- formed Reincke the Union's proposals were "not etched in stone" and that the Union was "flexible" concerning its demands. Fernandez stated he further proposed a two-tier wage system whereby new hires would receive a lower wage rate and the current employees would maintain their present rates with an increase in benefits. According to Fernandez, Reincke agreed to check with Respondent and then contact the union representative. The meeting between Fernandez and Reincke lasted ap- proximately one-half hour and no date was set at that time for a subsequent meeting. Reincke, on the other hand, testified that prior to meeting with Fernandez, he advised Wininger that the Union would offer Respondent a "standard industry agreement" and Wininger indicated this would not be ac- ceptable. According to Reincke, when he met with Fer- nandez on 14 August, he informed the union representa- tive that Respondent wanted a "independent contract." He stated the expired agreement between the parties was a standard industry contract with a "most favorite na- tions" provision. 8 Reincke stated he insisted Respondent wanted a wage freeze or rollback and the deletion of some of the existing holidays. Reiiicke also rejected the Union's request that Martin Luther King's birthday be added as an additional holiday. Reincke denied that Fernandez stated the Union was flexible concerning its contract proposals, although he 9 The above is based on the unrefuted testimony of Fernandez. Win- inger was not called as a witness, in these proceedings. s The clause referred to by Remcke was ail. XXI of the expired agree- ment, which provided: The Union agrees that there shall not be a more favorable contract offered to any competitor of the Employer or to any organization engaging [sic] the same classifications of work. admitted the union representative suggested a possible two-tier wage plan provided the current employees re- ceived a wage increase. Reincke further testified it was his understanding that Fernandez had no authority to ne- gotiate anything other than a standard industry agree- ment because of the most favorite nations clause in the expired agreement. Reincke acknowledged, however, that he was not aware of any employer association or any competitor of Respondent that was signatory to a similar collective-bargaining agreement with the Union. Reincke testified that his agreement to check with Re- spondent and then send the Union Respondent's counter- proposals was merely "a matter of courtesy." He stated he considered the parties to be at an impasse at the end of their half-hour meeting because he understood Fer- nandez was precluded, by the most favorite nations clause, from negotiating anything other than a standard industry agreement. Contrary to Reincke, Fernandez testified he had full authority to negotiate terms for a new collective-bargain- ing agreement with the Respondent. Fernandez also stated the Union did not have a standard industry agree- ment that employers were asked to sign. According to Fernandez, the only limitation on his authority to negoti- ate was that the trust and pension fund provisions had to conform with the terms of the Union's trust and pension fund agreements. The unrefuted testimony discloses that Reincke did not make any effort to contact Fernandez after their meeting on 14 August. Fernandez testified' he telephoned Reincke's office on a number of occasions thereafter. He stated that many times there was no answer to his calls or when there was an answer, Reincke was not available. In the latter instances he left messages but Reincke failed to respond. On 6 November Fernandez sent a letter (G.C. Exh. 8) to Reincke requesting that negotiations resume and that Respondent respond to the proposals submitted to Reincke on 14 August. Reincke then submitted written counterproposals to Fernandez on 15 November. In its counteroffer, Respondent rejected the Union's two-tier proposal and demanded an across-the-board wage reduc- tion. Respondent also rejected the Union's proposal for an additional holiday for Martin Luther King's birthday and sought to limit its contribution to the Union's nation- al pension plan to 40 cents an hour for each employee. In addition, Respondent refused to negotiate a dues- checkoff provision (asserting it was a nonmandatory sub- ject of bargaining) and sought to limit the contract term to 1 year. Reinke also noted a new address and tele- phone number for Sullivan (G.C. Exh. 9). Reincke acknowledged that he had not diligently sup- plied the Union with Respondent's counterproposal be- cause he considered this action to be a mere formality. From his testimony, it is apparent that Reinke felt the submission of the proposals was a meaningless gesture because he was of the view the Union could only agree to a standard industry contract. Reincke further ac- knowledged that while he considered Respondent's counterproposal to be its best and final offer, he did not state this in his letter to the Union. 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fernandez testified that on receiving Respondent's counteroffer, he attempted on numerous occasions to contact Reincke by telephone. He stated he either re- ceived no response to his phone calls or the lines were busy when he called.9 On 4 April 1986 Fernandez sent a letter (G.C. Exh. 10) to Reincke requesting that they meet during the week of 14 April to resume negotiations. When no response to this letter was received, the Union filed unfair labor practice charges against the Respond- ent with the Board. On 23 August 1986 Sullivan, rather than Reincke, sent a letter to the Union repudiating Respondent's obligation under the expired agreement. In the letter Sullivan as- serted the Union had "abandoned the negotiations" and created an impasse by failing to respond to Respondent's last offer. Sullivan also asserted that Respondent was willing to have a Board-conducted election upon the Union establishing a 30-percent showing of interest among the unit employees. (See G.C. Exh. 11.) C. Changes in the Employment Terms Instituted by Respondent The parties stipulated at the hearing that on 27 March 1985 Jose Luis Valle was employed as a general helper in Respondent's plant. Valle was hired at an hourly rate of $5 an hour, which was less than the contract rate for his job classification. Fernandez testified that the Union was never informed by Respondent that Valle was hired as a unit employee. Nor was the Union made aware of his- wage rate. Employee Willie Walker had worked for the Respond- ent for 12 years as a spot welder. Walker had been a member of the Union for over 19 years and was the shop steward at the plant. Walker testified that sometime in November 1985 he went into the office to get coffee and overheard a conversation between Wininger and the office secretary, Sheffield. Walker stated Wininger was complaining to Sheffield about the cost of the benefits Respondent was incurring under the collective-bargain- ing agreement. According to Walker, Wininger stated Respondent was going to discontinue its contributions for the contract benefits.' ° Sometime in December, Walker informed Fernandez of Wininger's statements and was told Respondent could not stop its contributions because of its obligation under the collective-bargaining agreement. Sheffield testified that in mid-January 1986 she called Reincke because Respondent was required to remit its contributions to the health and welfare and pension funds for the unit employees for the month of December. Shef- field questioned whether Respondent still had an obliga- tion to do so in the absence of a new contract. Reincke 9 At the hearing, Remcke testified he terminated his relationship with Sullivan & Associates sometime in February or March 1986 Remcke tes- tified that he remained at the address indicated on the letterhead on which he sent the Respondent's counteroffer and Sullivan moved to a new address. According to Remcke, he continued to have his phone mes- sages taken when he was not in his office and he only received one mes- sage from Fernandez sometime in April. 10 Sheffield was called as a witness and while she could not recall a specific statement by Walker concerning stopping the contributions under the contract, she admitted Respondent was short of funds and consvantly seeking ways to reduce costs informed Sheffield that he had not received a response from the Union in 30 days and "it" (the bargaining rela- tionship) was over. Reincke instructed Sheffield not to remit the contributions for the contractual benefits for the month of December. Based on Reincke's advice, Re- spondent included a notice to the employees with their paychecks on 27 January advising them that the contract had expired and no new agreement had been negotiated. The notice (G.C. Exh. 3) informed the employees that Respondent was "no longer signatory to a collective bar- gaining agreement with [the Union]." Sheffield testified she sought to quickly get an insur- ance plan for the unit employees so there would not be a long lapse in their coverage . Walker testified he was called into the office, as shop steward, and told by Win- inger that Respondent was going to change the insurance coverage of the employees and the number of paid holi- days. On 29 January 1986, Respondent gave the unit em- ployees a memorandum stating the changes it intended to make in their insurance coverage and the costs that would be deducted from their pay if they wished cover- age for their dependents. Respondent also listed the number of paid holidays it intended to grant the employ- ees, and the Veteran's Day holiday was eliminated from this list (G.C. Exh. 2). The unit employees met with Wininger in the plant and complained about the changes in their benefits. 1I Wininger replied that if the employees were unhappy with the changes they should find jobs elsewhere. It is undisputed that Respondent did not notify the Union of the changes it was making in the terms and conditions of the unit employees. The Union was informed, however, of these changes by Walker in his capacity as shop steward. The parties stipulated that Respondent ceased making contributions on behalf of the unit employees to the Union's National Pension Plan B in December 1985 and contributions to the health, dental, and visual care plan on 29 January 1986. Respondent also discontinued its participation in the state workshare program and the em- ployees were only paid for the 32 hours they worked each week. Finally, on Veteran's Day, 11 November 1986, the unit employees were required to work a regu- lar shift at their regular hourly wage rate. At no time prior to any of these changes did Respondent notify or negotiate with the Union. IV. CONCLUDING FINDINGS A. Failure to Pay Valle the Contract Wage Rates Based on the stipulation of the parties, it is undisputed that Valle was hired by Respondent as a general helper on 25 March 1985, at a time when the extant agreement had not expired. Further, his hourly rate of pay was less than the rate required by the collective-bargaining agree- ment. The evidence also establishes Respondent never notified the Union that Valle was hired as a unit employ- ee, nor did it inform the Union that Valle was being paid 11 Sheffield acknowledged that the insurance coverage offered the em- ployees was not as comprehensive as the benefits under the expired agreement In addition, it did not provide for dental or visual coverage, as did the expired agreement BENJAMIN F. WININGER & SON less than the contract wage rate. It is axiomatic that Re- spondent's conduct in this regard was in derogation of its bargaining obligation under the Act. By paying Valle less than the contract wage rates for his position as gen- eral helper, Respondent unilaterally modified a term and condition of employment, during the life of the existing agreement, without notifying and bargaining with the Union about the modification. Accordingly, I find that by this conduct Respondent violated Section 8(a)(5) and (1) of the Act. Southwest Securiiq Equipment Corp., 262 NLRB 665 (1982), enfd. 736 F.2d 1332 (9th Cir. 1984).12 B. Negotiations for a New Collective-Bargaining Agreement Viewing Respondent's brief in the most charitable light, it appears that Respondent, on the one hand, is contending it bargained to impasse with the Union and then implemented the changes in the terms and condi- tions of employment of the unit employees, and on the other, that the Union abandoned its representation of the unit employees. The overwhelming evidence in the record, however, belies these contentions by Respondent and fully establishes Respondent violated Section 8(a)(5) and (1) of the Act. It is settled law that on the expiration of a collective- bargaining agreement , an employer may riot make unilat- eral changes of the terms and conditions of employment of unit employees without first bargaining, in good faith, to impasse with the collective-bargaining representative. Excelsior Pet Products, 276 NLRB 759 (1985); The Sacra- mento Union, 258 NLRB 1074 (1981); Markle Mfg. Co., 239 NLRB 1353 (1979). It is equally settled that when a genuine impasse has been reached in negotiations, an em- ployer's freedom to implement changes in employment terms and conditions is limited to those changes that are reasonably consistent with the terms last offered to the union during negotiations . NLRB v. Katz, 369 U.S. 736, 743 (1962); Western Publishing Co., 269 NLRB 355 (1984); Taft Broadcasting Co., 163 NLRB 475 (1967), enfd. sub nom. AFTRA, Kansas City Local v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). I find that the record in the instant case does not demonstrate Respondent has met any of the conditions that would have permitted it to lawfully change the terms and conditions of employment established by the expired agreement. First, it is evident that from the time of the Union's initial request for negotiations, Respondent had no inten- tion of attempting to reach an agreement for a successor contract. Respondent never responded to the Union's termination letter of 1 March nor to the Union's propos- als submitted on 1 May. The position taken by Wininger on 17 June, when Fernandez came to the plant to set a time for negotiations, graphically illustrates Respondent's rejection of its collective-bargaining obligation. Fernan- dez' testimony is unrefuted that Wininger said he did not have any intentions of negotiating or signing a contract with the Union. Indeed, it was only after the Union filed 12 Respondent's suggestion in its brief that this is a matter for arbitra- tion is rejected Having repudiated the collective-bargaining agreement and the entire bargaining process, Respondent cannot now assert that the matter of Valle's wages is a subject for deferral to arbitration. 1181 an unfair labor practice charge against Respondent that Respondent then offered, through its labor consultant, to negotiate with the Union. Next, Reincke's conduct, both during and after the single one-half hour bargaining session on 14 August, demonstrates that he had no intention of engaging in meaningful negotiations with the Union for a new agree- ment. By his own admission, Reincke concluded the ex- pired agreement was a "standard industry contract." Re- spondent produced no evidence, however, to establish that this was in fact the case.19 The characterization of the contract between the Union and Respondent as a standard industry agreement was merely an assumption, erroneous or not, that Reincke was prepared to make and which determined his bargaining posture. In addition, I fully credit the testimony of Fernandez that the Union had no such standard agreement that it was seeking to impose on Respondent. Indeed, the unre- futed testimony is that during the brief bargaining session on 14 August, Fernandez offered to negotiate a two-tier wage system with Respondent in order to induce Re- spondent to come to an agreement. Thus, I find the evi- dence establishes that Fernandez had full authority and was willing to negotiate an agreement with Respondent. I also find that the facts demonstrate Reincke had no in- tention to negotiate or even to submit a counteroffer to the Union, since he deemed this to be an exercise in futil- ity based on his erroneous assumption regarding Fernan- dez' bargaining authority. The record establishes that Reincke failed to respond to the telephone messages left by Fernandez requesting that Respondent submit a counteroffer, and only submit- ted such proposals on 15 November after receiving a written request from the Union on 1 November. More- over, each time Fernandez attempted to contact Reinke after the latter had submitted Respondent's counteroffer, he was unable to do so nor were his messages returned by Reincke. Finally, when Reincke severed his relationship with Sullivan & Associates in February or March 1986, nei- ther he nor Sullivan advised the Union that Sullivan now represented Respondent. Nor did Respondent or any of its representatives make any effort to respond to the Union's written request on 4 April 1986 for further nego- tiations. 14 13 Respondent's belated attempt at the resumption of the hearing in this matter to subpoena collective -bargaining agreements the Union had with other employers was not permitted The hearing was continued solely for Respondent's convenience to permit it to present testimony from two witnesses who Respondent claimed it could not subpoena at the time of the original hearing date There is no claun whatsoever that Re- spondent could not have subpoenaed the desired documents from the Union in time for the initial hearing date, and Respondent's effort to do so at the resumption clearly breached the terms for which the resumption was granted 14 Whether Remcke was deliberately avoiding Fernandez or whether he was having problems receiving his telephone messages need not be de- termined here It is evident from Reincke's own testimony that he was "dilatory" in submitting a counteroffer to the Union and this was based on his preconceived notion that the Union could only negotiate a stand- ard industry agreement 1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In light of the above circumstances , I find that the Re- spondent was engaging in dilatory tactics and refusing to negotiate in good faith with the Union for a successor collective-bargaining agreement . It is evident, therefore, that the parties could not have reached an impasse in ne- gotiations because Respondent 's conduct was in com- plete derogation of the bargaining obligation required by the statute. Nor can it be said that the Union abandoned its representation of the unit employees in this case. To the contrary, the record demonstrates the union repre- sentative attempted time and again to contact Respond- ent's representative in order to proceed with negotiations for a new agreement. Except for the one instance on 15 November, Respondent failed to respond in any fashion, and after that date Respondent refused to respond to any of the Union's requests for further negotiations. Based on the above, I fmd the record overwhelmingly establishes Respondent did not negotiate in good faith with the Union to the point of impasse when it unilaterally changed the terms and conditions of employment of the unit employees. I further fmd Respondent's conduct here was the very antithesis of the bargaining process and that it violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent, Benjamin F. Wininger & Son, Inc., is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent; excluding all other employees, guards, and supervisors as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since 1 May 1980 the Union has been and is now the exclusive representative of all employees in the above bargaining unit for purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By hiring employee Jose Luis Valle on 25 March 1985 as a general helper at less than the hourly rate re- quired by the then-existing collective-bargaining agree- ment, and by failing to notify and bargain with the Union concerning this contract modification, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By unilaterally discontinuing its contributions on behalf of the unit employees to the Union's National Pension Plan B in December 1985, without notifying and bargaining to impasse with the Union, Respondent has unlawfully modified the existing terms and conditions of employment of its employees in violation of Section 8(a)(5) and (1) of the Act. 7. By unilaterally discontinuing its contributions to the Union's health, visual, and dental plans for the unit em- ployees without notifying and bargaining to impasse with the Union, Respondent has unlawfully modified existing terms and conditions of employment of its employees in violation of Section 8(a)(5) and (1) of the Act. 8. By discontinuing its participation in the California State Workshare Program on 26 August 1986 without notifying and bargaining to impasse with the Union, Re- spondent has unlawfully modified existing terms and con- ditions of employment of its employees in violation of Section 8(a)(5) and (1) of the Act. 9. By eliminating Veteran's Day as a paid holiday and by requiring employees to work on that day at the regu- lar hourly wage rates, without first notifying and bar- gaining to impasse with the Union, Respondent has un- lawfully modified existing terms and conditions of em- ployment of its employees in violation of Section 8(a)(5) and (1) of the Act. 10. By refusing to negotiate in good faith with the Union, on request, for the terms of a successor collec- tive-bargaining agreement , Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices, it shall be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.1 s Respondent shall be ordered to make whole employee Jose Luis Valle by paying him the difference between the wage rate he received and the wage rate contained in the expired collective-bargaining agreement for his job position. Respondent shall also be required to make whole the unit employees by paying them the difference between the wage rates set forth in the expired agree- ment for working a paid holiday on 11 November 1986 and the wage rates they received for working on that day. Ogle Protection Service, 183 NLRB 682 (1970). Inter- est shall be calculated and paid on the amounts of back- pay due the employees in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). 16 In addition, Respondent shall be required, on request by the Union, to rescind its current insurance program and holiday policy and give immediate effect to the health and benefit provisions and holiday provisions con- tained in the expired agreement . Further, Respondent shall be required to make contributions for the unit em- ployees retroactive to the dates Respondent unlawfully discontinued such contributions to the Union's National Pension Plan B and the health, visual , and dental plans. 17 Respondent shall also be required to reimburse any unit employee, with interest, for any monetary losses sustained by reason of Respondent 's unlawful discontinu- ance of its contributions to these various funds and plans. Finally, Respondent shall be ordered to give effect to all of the existing terms and conditions of employment of the expired collective-bargaining agreement until, on re- quest by the Union, it bargains in good faith and a new agreement or a valid impasse is reached. 15 Counsel for the General Counsel has requested that a visitatorial provision be incorporated in the remedy in this matter Since the Board has not established definitive guidelines for the inclusion of this type of provision in its Orders, I am of the view that the request must be denied. ie See generally Isis Plumbing Co, 138 NLRB 716 (1962). is Respondent's contributions to the various benefit funds shall be de- termined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216, fn. 7 (1979). BENJAMIN F. WININGER & SON On the foregoing findings of fact, conclusions of law, and the entire record in this case , and pursuant to Sec- tion 10(c) of the Act, I issue the following recommend- edts ORDER. Respondent, Benjamin F. Wininger & Son, Inc., Los Angeles, California its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Sheet Metal Workers International Association, Local Union No. 170, AFL-CIO as the exclusive collective-bargaining repre- sentative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent; excluding all other employ- ees, guards and supervisors as defined in the Act. (b) Unilaterally modifying the existing terms and con- ditions of its collective-bargaining agreement covering the unit employees by hiring and paying employees wage rates less than the wage rates contained in the expired collective-bargaining agreement without first notifying and bargaining in good faith to an agreement or a valid impasse with the Union. (c) Unilaterally discontinuing contributions on behalf of the unit employees to the Union's National Pension Plan B without first bargaining, in good faith, with the Union until an agreement or a valid impasse is reached. (d) Unilaterally discontinuing payments to the Union's health, dental, and vision plans for the unit employees without first bargaining, in good faith, with the Union until an agreement or a valid impasse is reached. (e) Unilaterally discontinuing its participation in the California State Workshare Program for the unit employ- ees without first bargaining, in good faith, with the Union until an agreement or a valid impasse is reached. (f) Unilaterally eliminating Veteran 's Day as a paid holiday and requiring employees to work that day for regular wages without first bargaining, in good faith, with the Union until an agreement or a valid impasse is reached. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of 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 collectively in good faith with the Union, as exclusive representative of the employees in the above-described unit, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. (b) On request by the Union, rescind all unilateral changes made in the terms and conditions of employment of the unit employees and honor the terms of the latest re 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 1183 expired agreement until a valid bargaining impasse or a new agreement is reached with the Union. (c) Pay to Jose Luis Valle, with interest, the difference between the hourly wage rate he received and the hourly wage rates prescribed for his job position in the latest expired collective-bargaining agreement. (d) Pay to the unit employees, with interest, the differ- ence between the wages they received and the wages prescribed in the latest expired collective -bargaining agreement for working on Veteran's Day, 11 November 1986. (e) Reapply for participation in the California State Workshare Program and make the unit employees whole, with interest, for any monetary loss they suffered by the unlawful discontinuance of participation in that program. (f) On request by the Union, make all contributions for the unit employees, retroactive to the date of discontinu- ance, to the Union's National Pension Plan B and the Union's health, dental, and visual care plans. In addition, reimburse unit employees, with interest, for any losses they may have suffered by reason of the unlawful dis- continuance of the contributions to these benefit funds. (g) 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 and benefit con- tributions due under the terms of this Order. (h) Post at its Los Angeles, California, facility copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days of the date of this Order what steps Respondent has taken to comply. 19 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." 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. 1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively in good faith with Sheet Metal Workers' International Associa- tion, Local Union No. 170, AFL-CIO as the exclusive bargaining representative of our employees in the follow- ing appropriate bargaining unit: All production and maintenance employees em- ployed by us; excluding all other employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally modify the terms and con- ditions of our collective-bargaining agreement with the Union by hiring and paying unit employees wage rates less than the wage rates contained in the collective-bar- gaining agreement. WE WILL NOT unilaterally discontinue making contri- butions on behalf of our employees to the Union's Na- tional Pension Plan B or to the Union's health, dental, and vision plans without first bargaining with the Union in good faith until an agreement or an impasse is reached. WE WILL NOT unilaterally discontinue our participa- tion in the California State Workshare Program without first bargaining in good faith with the Union until an im- passe or an agreement is reached. WE WILL NOT unilaterally eliminate Veteran's Day as a paid holiday for our unit employees, and WE WILL NOT require them to work on that day at regular wages with- out first bargaining in good faith with the Union until an agreement or an impasse is reached. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request by the Union, bargain collective- ly in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL, on request by the Union, rescind all unilat- eral changes made in the terms and conditions of em- ployment of our unit employees, and WE WILL honor the terms of the latest expired collective- bargaining agree- ment until a bargaining impasse or a new agreement is reached with the Union. WE WILL pay Jose Luis Valle, with interest, the differ- ence between the hourly wage rates he received and the hourly wage rates required for his job position in the latest expired collective-bargaining agreement. WE WILL pay our unit employees, with interest, the difference between the wages they receive and the wages required by the expired collective-bargaining agreement for working on Veteran's Day, 11 November 1986. WE WILL reapply for participation in the California State Workshare Program and WE WILL make our em- ployees whole, with interest, for any losses they have sustained by our unlawful discontinuance of participation in that program. WE WILL, on request by the Union, make all contribu- tions for our unit employees, retroactive to the date of our discontinuance, to the Union's National Pension Plan B and the Union's health, dental, and vision care plans. WE WILL also reimburse our employees, with interest, for any losses they may have sustained by reason of our unlawful discontinuance of our contributions to the Union's benefit funds. BENJAMIN F. WININGER & SON, INC.